IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


1^  m    1 2.5 

ll^  IS 

^   lis    110 


nm 


1-25      1.4      1.6 

TT=TT=               = 

•• 6"     

► 

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<^ 


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c* 


VI 


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# 


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Photographic 

Sciences 

Corooration 


33  WfST  MAIN  STREET 

WEBSTER,  N.Y.  M5»0 

(716)  873-4S03 


C/j 


■ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Histvorical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 

■ginal  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


L'Institut  a  microfilm*  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  d6tails 
de  cet  exemplaire  qui  sont  peut-6tre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  m6thode  normale  de  filmage 
sont  indiqu6s  ci-dessous. 


□ 


Coloured  covers/ 
Couverture  de  couleur 


□    Covers  damaged/ 
Couverture  endon 


mmag^e 


□    Covers  restored  and/or  laminated/ 
Couverture  restaur6e  et/ou  pellicul^e 

PsTI    Cover  title  missing/ 

/\i    Le  titre  de  couverture  manque 

I      I    Coloured  maps/ 

□    Coloured  ink  (i.e.  other  than  blue  or  black)/ 
En 


Cartes  g6ographiques  en  couleur 

tloured  ink  (i.e.  other  than  blue 

icre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


D 
D 

12 


D 


Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Reli*  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
alono  interior  margin/ 

La  reliure  serr6e  peut  causer  de  I'ombre  ou  de  la 
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Blank  leaves  added  during  restoration  may 
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have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajoutdes 
lors  dune  restauration  apparaissent  dans  le  texte. 
mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  6x6  film^es. 


D 

n 
□ 


n 

D 
D 
D 


Coloured  pages/ 
Pages  de  couleur 

Pages  damaged/ 
Pages  endommag^es 

Pages  restored  and/or  laminated/ 
Pages  rostaurdes  et/ou  pelliculdes 

Pages  discoloured,  stained  or  foxed/ 
Pages  ddcolordes,  tachet6es  ou  piqudes 

Pages  detached/ 
Pages  d6tach6es 

^;iowthrough/ 
'i  rnr.sparence 

duality  of  print  varies/ 
Qijalit*  in^gale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  supplementaire 

Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
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ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  6t6  film6es  ^  nouveau  de  fapon  d 
obtenir  la  meilleure  image  possible. 


D 


Additional  comments:/ 
Commentaires  suppl6mentairos: 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film6  au  taux  de  r6duction  indiqu*  ci  dessous. 


10X 

14X 

18X 

22X 

26X 

30X 

^^^^ 

Z 

^•JV 

L»iJ 

i»«J 

ifty 

MM^^M 

70X 

iSr 

28X 

32X 

riM 


ails 

du 

>difier 

une 

nage 


\ 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

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Photoduplication  Service 

The  images  appearing  here  are  the  best  quality 
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filming  contract  specifications. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  caver  and  ending  on 
the  last  pnge  with  a  printed  or  illustrated  Impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  -^  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


L'exemplaire  film6  fut  reproduit  grdce  d  la 
gAnArosit*  de: 

Library  of  Congress 
Photoduplication  Service 

Les  images  suivantes  ont  «t6  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  at 
de  la  netteti  de  ■'exemplaire  fllm6,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 

Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimAe  sont  film^s  en  commenpant 
par  le  premier  plat  et  en  terminnnt  soit  par  la 
darniire  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration.  soit  par  le  second 
plat,  selon  ie  cas.  Tous  les  autres  exemplaires 
originaux  sont  film^s  en  commenpant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  derniAre  page  qui  comporte  une  teile 
empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
derniAre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbole  — ^  signifie  "A  SUIVRE ',  le 
symbole  V  signifie  "FIN". 

Las  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
filmte  i  des  taux  de  rMuction  diff6rents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  cliche,  il  est  filmd  A  partir 
do  Tangle  supAriaur  gauche,  de  gauche  it  droite. 
at  de  haut  en  bas.  en  prenant  le  nombre 
d'images  nAcassaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


srrata 
to 


pelure. 
)n  d 


D 

32X 


1 

2 

3 

1 

2 

3 

4 

5 

6 

Amei 


D 


D E F E N  C E S  TO  C R I  ME. 


THE  ADJUDGED   CASES 


American  and  English  Reports 


WHEIIEIN  THE   UIFFEUENT 


DEFENCES  TO  CRIME  ARE  CONTAINED. 


WITH  NOTES. 


IN  FIVE  VOLUMES. 

Vol..       I.  —  Sei.k-Defentk. 
h  III..     II.  —  Ins.vxity  and  Diu'Nkkxxes.s. 
jVoi..  HI.  — DisAiui.iTiEs  (IF  rviniK.'^,  Aokxcy;    DrRK.^is;    Accident,  I(i.nor- 

AX(  E  .VNl)  Ml.STAKE;     Co.NSENT;     O.MISSItlX.S  AND  ATTKMPT:*. 

jVoi..  IV.  —  Special  Deiexce.s  to  Ckime.s  Aoaixst  the  Plhlic. 

jVoL.    v.— Special  Defexxes  to  Cri.me.s  Aoaixst  Persons  and  Property. 


SAN   PRANCISCO: 

SUMNER  WHITNEY  &  CO., 

Law  Plblisher8  and  Law  Booksellkkb. 

1886. 


J 


] 


Copyright, 

IS*"., 
11 Y   JOH.V  l>.  LAWSilV. 


THE  ADJUDGED  CASES 


ON 


DEFENCES  TO  CRIME. 


VOL.  V. 


INCLCmSO 


SPECIAL  DEFENCES 

TO  CHIMES   AliAIVST  TUB   I'UOPEUTr  AND    I'liHSONS   OF    INOIVlDl'Al.g,  VI7. ; 

I  ORG  Km- :  riJAUn  AND  FALSE  PRETENSES;  LARCENY;  RECEIV- 
ING STOLEN  I'ROI'ERTV;  ROIJBERY;  AKDUCTION  ;  SEDUC- 
TION; ASSAULT; ASSAULT  AND  BATTERY;  ASSAULT 
WITH  INTENT;  FALSE  IMPRISONMENT;  RAPE 
AND  HOMICIDE. 


WITH  NOTES. 


*»llk' 


BY 


JOHN  D.    LAWSON. 


»t 


SAN  FRANCISCO: 
SUMNER  WHITNEY  &  CO., 
La.w  Publishers  and  Law  Brx>KSKLLEB8. 

1886. 


O 


r\ 


"U 


1  o^^ 


Enteral  aocortling  to  Act  of  Congress  in  the  year  lS8fl,  liy 

JOHN  I).  LAWSON, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


% 


PRPJFACE. 


This  vohniio  completing  tho  rciniiiiiiiiLr  Offenses  against  the 
Property  of  Individuals,  embraces  the  crimes  of  Forgery,  Fraud, 
False  Pretenses,  Larceny,  Receiving  Stolen  Goods  and  Kob- 
lurv.  It  also  includes  all  Ollenses  Against  the  Persons  of  Indi- 
viduals, not  emi)raced  within  the  volume  treating  of  Offenses 
;i;:ainst  the  Public  alone.  (Vol.  IV. )  The  topics  in  this  volume 
are  Abduction,  Seduction,  Assault,  Assault  and  Battery,  Assault 
with  Intent,  False  Imprisonment  and  Ivai)e,  and  also  Homicide. 
L'lider  the  latter  head  will  be  found  all  the  adjudged  defences  to 
a  clKU'ge  of  murder  or  manslaughter,  not  already  (Mubraced 
in  Vols.  I.  and  II.,  where  the  Defences  of  Self-Defenee,  Insanity 

and  Diunkcnness  are  particularly  treated. 

J.  D.  L. 

Aruii.,  188<1. 


This  —  the  preface  to  the  last  volume  of  the  series  —  is  a 
proper  place  to  review  the  object,  arrangement,  and  contents  of 
this  undertaking. 

oaJKCT. 

The  object  which  has  l)eeii  in  the  mind  of  both  compiler  and 
publisher  is  to  bring  together  in  as  few  volumes  as  possible  all 
t:)e  reported  cases  in  which  a  particular  defence  has  been  set  up 
0:1  a  trial  or  in  an  appellate  court.  In  England  the  reports  of 
Criminal  Cases  are  for  tlie  most  part  contained  in  some  thirty-fivo 
volumes  devoted  to  Criminal  Cases  alone,  the  remainder  being 
scattered  here  and  there  throughout  the  several  hundred  volumes 

(V) 


VI 


I-UKrACK. 


of  tlu'  decisions  of  the  Courts. .f  ('..minon  L:iw.      A  .•ompicto  sot 
of  tlu-s..  spocial  volumes  is,  l.o\v.>v."r,  not  e:isy  to  ol.tain  :  somo  ..f 
tlu,  vohuurs  aivvvi-y  .'..stly,  im.l  U'^^■  inm'titioners  iu  tin-  Uuitnl 
States  l,;.v,.  iioiu-  to  the  .■xpcusr  of  colhvtin;,'  them.      Th.'U  as  to 
tlu-  Ciiiuiual  Cases   n..t  iuelude.l  in  theui,  only  on<'  who  was  al.lf 
to  rousult  wheuever  he  n.i-ht  .lesiro  it,  all  the  Ku-lisli  Comuioa 
Law  U.^portsfroui  Kspinasse  to  the  last  volume  of  the  KuglishLaw 
Kepoi-ts,  coul.l  l.riug  them  witiiiu  his  roaeh.     Tlie  Amenean  case. 
on    criminal  law  are  -  unlike  the  Vjy^\\.h  ca^es  _  nearly  all  con- 
tainc.l   in    the   -eneral   reports.     We    have   (.'W    speeial  eriminal 
reports.     Auylhin.ir  like  a  eomplete  collection  of  Anu-rican  crimi- 
nal case  law  was  therefore  out  of  the  .luestiou,  except  to  .uie  wh.) 
was  f(U-tunate  euoujzh  to  to  ho  iil)lo  to  consult  a  cu,>,ph'te  collec- 
tion of    the  American   Keports,  State  ami  Federal,     To  brinj;, 
therefore,  all  the  criminal   cases  relevant  to  the  piose.aition  or 
defence  of  a  criminal  accusation  into  a  few  volumes   within  the 
means  of   any  practitioner,  has   been  the  ohject    of  this  publi- 
cation. 

AURA.NGKMEXT. 

In  the  arranixemeut  of  the  reported  eases  on  Defences  to  Crime 
those  Defences  which  were  ol  a  gi-ueral  nature  tirst  claimed  atten- 
tion. 

One  of  the  most  important  of  these  was  that  of  Self-Defcnce  - 
the  riirht  to  defend  one's  person  or  property,  or  the  person  or 
property  of  another  by  force  an.l  to  take  and  destroy  life  er 
property  in  so  doing.  Through  a  business  arrangement  with  tho 
oriirinal'  pul)lisher,  the  publishers  of  this  series  were  enabled  tn 
obt'iun  the  admirable  collectinn  of  these  cases  already  made  by 
Messrs.  Horrigan  and  Thompson  and  this  volume  became  there- 
fore Vol.  I.  of  the  series 

In  a  similar  manner  Mr.  Lawson's  collection  of  cases  on 
Insanity  and  Drunkenness  became  Vol.  II.  —  i>i^nuity  an.l  drunk- 
enness being  also  general  defences  under  certain  circumstances  to 
nil  manner  of  crimes. 


mm 


I'HKFXCK. 


Vli 


A  comitlfto  s(>t 
I  ohtaiu  :  <nnu'  <»t' 
crs  in  till-  Unitcil 
iciii.      'I'lifii  as  1(1 
uiu'  who  was  alilt' 
Kii<j:li.sliC()niiii<ni 
if  the  English  Law 
ht'  American  ciisc-; 
—  nearly  all  con- 
V    s[)i'i-ial  criminiil 
)t'  Anu'rican  crinii- 
('.\cf|it  to  one  wliii 
;  a  rnniplele  cfillor- 
(loral,     To  brin^', 
tiio  prosoi'utiou  or 
•ohiini's  within  tho 
cct    of  ihirf  publi- 


lu  Vol.  II.  the  rt'iniiining  ircncral  dfrcnccs  to  all  crimes  an- 
taken  up,  vi/.  :  1.  TlKit  the  .lefemlaiit  is  under  -n;nc  disability 
pivvcntin!:  iiini  from  \w\\\\l  eonvieted  an.l  puiii-he(l,  r  y.,  that  ho 
wa-  at  tlu^  time  a  corDoration  (U-  an  infant  or  a  married  woman 
,„  the  principal  of  a  iruilty  a-ent  (U-  only  the  a-ent  of  a  guilty 
principal.  '1.  That  the  act  was  committed  wilii  th.-  ("onsent  of 
Ihr  perM)n  injured,  that  it  wa^  an  Accident,  or  was  done  through 
l.Mi. ranee  or  Mistake  of  tin-  Law  or  of  tin-  Fact-,  thai  it  wa.s 
committed   umler    Duress;  that    i«    was    merely   an     unex.'cuted 

Ancmi>t  ;   that  it  was  an  act  of  Omission  and  not  of  Commission. 
All  the  general  dcfL-ncos  to  crime  having  been  thus  shown,  in 
i  the  lirst  three  volumes,  tiie  remainingtwo  contain  special  delences 

to  particular  crimes,  arrange<l  according  to  the  nature    of  the 
iniine.     In  volume  IV.  the  following  crimes  (and  such  defences 

a-  may  be  raiseil  to  them,  and  which  are  not  in  tlu^  nature  (d"  de- 

llnrcs  to  crime  in  general  discusse.l  in  Vo's.  I.,  II.  and  III.)  are 
I  trcate  1  til"  viz:  — 


I  Defences  to  Crime 
I  tirst  claimed  atten- 

Lof  8elf-Defence — 
y,  or  tho  person  ov 
and  destroy  life  or 
•rannfcment  with  the 
ries  were  enabled  tn 
ses  already  made  by 
olu me  became  there- 

ection  of  cases  on 
-insanity  and  drunk- 
tuiu  circuuistanee-j  to 


A'>iirtion, 
I  Ailultery> 

Affray, 
i  IVuratrv, 
1  bawdy  Iloueas, 

r)i:.'amy, 
iBla-plieniy, 

[Breaking  Jail, 

liiilu'rv, 


Drunkenness, 

Election  Ollenses, 

Escape, 

Extortion, 

Forcil)lc  Entry, 

Fornieation, 

Gaming, 

Incest, 

Indecent  Exposure, 


Curving  Concealed  Weapons.      Lewdness, 


k'oinpounding  Felony, 
ICoiuealing  Birth, 
IC'dii'^piracy, 
[Counterfeiting, 
ICnu'lty  to  Animals, 
D.MTtion, 
Ili-orderly  Houses, 
l>i-turbing  Worship, 
Disturbing  the  Peace, 


Liquor  Selling, 
Malicious  Mischief, 
Miscegeuiition, 
Misfeasance  in  Otlice, 
Neglect  of  Children, 
Nuisance, 

Obscene  Language, 
Obscene  Literature, 
01)structinir  Officers, 


vili 

OI)^tni('liii«;  Trains, 

()l>-<triK'tiiiLr  Strcots, 

Olistnicliii;;  (lu"  Mail, 

Ollicial  Mi.-icoiuliit't, 

I'cii.sion  Fraiuls, 

I'cijui-y, 

Piracy, 

I'l-olanify, 

Post-Onici'  Ki-aiuls, 

Pi'Dstitiition, 

Uc>is|iii<f  Oliicors, 


rUKFACK. 


H«'Voinio  Frauds, 

Kiol, 

Saltl)atii  Hrcaivinir, 

Slainlcr  and  Lil»el, 

Snin^jrlini.', 

Sodomy, 

Siihornatioii, 

'I'rcason, 

Tn-spass, 

Vaurrancy, 


All  tlicx'  frinit'<  fall  nndcr  tin'  drtinition  of  ollenso-t  ai^.iinst 
the  IVihlic  alone.  In  addition  to  tlic^c  this  volnnu^  contains 
till'  follo'vinir  fitlensc-*  aixain>t  the  I'l-oiH-rty  of  Individuals, 
viz.:  Aison,  lilackniailinir.  IJurirlaiy,  iMiihozzIi'iuciit,  ThroalcMi- 
ing. 

In  volunu!  V.  arc  ti'catcd  lir-it,  the  riMnainin<r  oH'oiise-;  airain^i 
the  I'i'oporty  of  Individual-,  vi/.  :  ForircMT,  Ffand,  False  Pre- 
tenses, Larceny.  Recoivinir  Stolen  Propcn-ty,  K()l)l)orv: 

And  all  the  offenses  against  the  Persons  of  Individuals,  viz.  : 
Ahiiuctioii.  Assault,  Assault  and  Battery,  Assault  with  Intent, 
Kape,  Sedu''lion.  Homicide. 

fONTf.NTS. 

The  extent  of  the  ground  coscre  1  in  the  series,  and  the  enor- 
mous amount  of  matter  contained  in  these  Hve  volumes  will  ho 
readily  seen,  and  it  is  hoped  will  he  appreciated  l>y  the  profes- 
sion. It  may  safely  he  said  that  these  live  volumes  contain  .as 
much  matter  as  twelve  vnluiaes  of  the  ordinary  law  reports.  The 
page  is  larger  than  usual,  the  type  small  and  compact,  yet  clear  ; 
and  in  numher  of  pages  each  volume  is  double  Xlw  size  of  (he 
usual  law  hook.  In  this  way  only  have  the  compiler  and  ptd)- 
Ii>her  hcen  ahl(>  to  pilace  this  eiiorniius  amount  ol"  case  law 
within   the  limits  of  live  liooks.     The  huge  amount  of  matter 


AM 


y 


IX 


aids, 

akinir, 
Lil.el, 


1)1"  (illi'iiso-f  iii^.iinst 
i  voliiiiH^  coiitiviiis 
:\"  of  Individuals, 
'.U'luciit,  'riii'calon- 

iiLT  on't'iisos  uiTiiinsl 
Fraud,  False  Prc- 
iohlxM'v : 

f  Individuals,  viz.  : 
isault   with   Intent, 


I'les,  and  the  cnor- 
ve  volumes  will  l)e 
ted  l»y  the  profef- 
volunios  contain  as 
■  law  reports.  The 
'oinpact,  yet  clear  ; 
bio  the  size  of  the 
compiler  and  pid)- 
iiount  of  case  law 
amount  of  matter 


111  these  volumes  tnny 
tiiMf :  — 


ritKFACK. 

,'   1)0   seen   hv   a  <:lanc."   at   the    Hul.-joined 


lolM    IN    IIVV,  VUI.IMP.S. 


101  Hi 

inoL' 

1070 

laiii 
r«:'.;'.4 


\'o.of  yo.o/        I   irhnltXo.of 

:      and  Cite'l. 


17:i 
4'.h; 

r.i;:. 


•js;j 

10'.'4 

ii;:.H 


1,1(1 

fi'.'O 
1  COtl 


.t  u .  •  • » 


.'■.s;i8 


In  iH.  other  l.nuieh  of  the  law  has  s..  compU-le  a  colloetioii  .f 
,ases  h.'.Mi  made,  in  so  convenient  and  so  inexpensive  a  form, 
A<  already  said  in  another  place,  this  series  is  not  intended  to 
take  the  place  of  the  treatises;  it  rather  supplements  them,  by 
presenting  the  authorities  which  are  cited  in  the  treatises,  as  they 
arc  ici)orted  in  the  original  sources. 

The  series  will  be  of  peculiar  value  not  alone  to  the  defence 
lawyer,  bi"  to  the  iMiosncrriNMi  attouney  as  well,  in  enabling  him 
to  anticipa  )  all  adju.licated  defences  on  the  part  of  his  oppon.mt. 
And  Volumes  I.  and  II.  contain  not  only  all  tin-  cases  of  sue 
ccssful  defences  but,  also,  all  the  cases  in  which  a  defence  of  the 
kind  has  been  either  sustained  or  overruled. 


mm 


y" 


CONTENTS. 


l'A<JE. 


CIIAPTF.K  VII, 

ll;lMK-i    AC.VIVST    TUP.    I'KOrKUTV    OF    INPtVIlHALS   (COXTINrEK) . 

'MIT       I.   Fi>i;(;f.i;y  ....•••• 

'AIM'     II.   FiiAiD  ANi>  Falsi.  ^ul.■rI•■.^^.^•.s       .         .          >         ■  inO-:;:)i' 

'AIM'  111.    Laiukny .■)',i.!-('..".H 

■AIM"    IV.    Hkckivini;  .Stoi.kn  Fuoi-kuty       ....  ('i;l!t-(J8;! 

'AIM'      \.   RoBDKitv ("mS-I-T^l* 


CIIAPTKR  VIII. 

tUIMKS    AGAINST    TlIK    I'KHSONS    OI'    INDlVinl'AL.S. 

I'.'iKT  I.  Ardiction  —  .Skijiction 

I'AIM'  II.    AsSAlI-T  A.s-D  Hattkuy          .... 

I'ARr  HI.  Ka:!-. 

i'.Vlir    JV.  Homicide 


7l>;;-782 
78;!-H71» 

8S((-'.ll(> 


(xl) 


I  [Th' 


Abri 

Alir 

Abr 

MU 

Ada 

Adii 

AiUi 

A  ill 

Ah 

All 

Air 

Aid 


All 
All 


Ml 
An 
An 
An 
An 
An 
All 
All 
At 
Ar 
At 
Ai 
Al 
Ai 


TABLE  OF   CASES. 


rtcvl  in  full  is  in.Iicate.l  by  black  fljrnres. 


.The  pa.c-  ou  which  the  case  is  r.portc.l  m  fuli  is  In.Uca  e.i  oy  -..m; 
'        Thus:  R.  i>.  .Ulams,  I  R.  ."^  R.  ->24,  is  reported  iu  full  o.i  pa-e,  o 


47.] 


I «    II   ■'  C    &  P.  450.     p.  582. 

Abbott,'  R.  ;.  I  l).'n.  2T;i.     pp.  135,  1^,0,  W.^,  141,  148,  •JSU,  2-..0,  ;180. 
.\bruluiin.  State  «.  10  Ala.  928.     p.  836. 
I  Abrani,  Stale  v.  10  Ala.  ',129.     p.  871, 
;  Abrams  v.  People,  t!  llun,  41)1.     P]).  450,  557. 
Adams,  R.  u.  1  R.  &  R-  -'-'*•     P-  «*'• 
Adams,  R.  tJ.  3  C.  &  P.  <!00.     pp.  527,  582. 

.Vlaras,  R.  ».  1  Pen.  38.    p.  547.  ..„an«>s-i 

Adams,  Commonwealth  v.  114  Mass.  323 ;  19  Am.  Dec.     pp,  808,  ».  1  • 
Addis,  R.v.  1  Cox,  78.    p.  5L 
\h  Ki,  People  v.  20  Cal.  178.     p.  529. 
All  Kun«,  State  y.  17  Nev.3(!l.     p. 873. 
Aircv,  K.  V.  2  East,  30.    p.  2(;2. 
Aldrich  V.  People,  101  111.  If..     P-  ««J5. 
Alger,  People  i'.  1  Park.  1333.     p.  777. 
AU.n  r.  State,  15  Tex.  (App.)  150.     p.  285. 
Alkn  V.  State,  12  Tex.  (App.)  190.     pp.  534,  539,  583. 
Alien  I'.  State,  10  Tox.  (App.)  150.     pp.  :i75,  3.t.. 
Al.xan.ler,  State  v.  M  Mo.  148.    pp.  1027,  1070. 

Mlre.l,  Stale  v.  84  N.  C.  749.     p_.  380. 

\nies'  Case,  2Cireeul.  305.     p.  73. 

Miihcrst  V.  Skinner.  12  East,  270.    p.  178. 

ViKible's  Case,  24  Gratt.  503.     pp.  2.52,  541. 

Vnderson's  Case,  1  City  II.  R»'C,  103.     p.  710. 

Anderson,  R.  -'.  2  East's  P.  C.  772.     pp.  504,  510. 

Anderson  v.  State,  0  Hast.  008.     p,  871. 

Anderson,  State  v.  47  Iowa.  142.    p.  254. 

Anderson,  People'.i'.  14  Johns.  294;  7  Am.  Dec.  402. 

Andre  v.  State,  5  Iowa,  389.     pp.  729,  743,  7<5. 

Andrews,  Commonwealth  v.  2  Mass.  14.    pp.  505,  509,  olO. 

Ann  V.  State,  11  Humph.  159.     p.  068. 

Anonvmous  Case,  3  Cox,  137.    p.  87». 

An-her,  R.  v.  Dears,  C.  C.  449.     pp.  281,  346. 

Archer,  R.  u.  0  Cox,  618.    p.  342. 


pp.  445,  450,  539,  501,  503. 


XIV 


TAIU.K    or   CASES. 


AniiL'a,  r.'ople  r.  iA  c'al.  371.     \>.  SW). 

An •>  r.  Dcliiiucri.',  I  Str.  ."lOl;  1  Siiilth'.H  Lil.  Cas.  L'jt'.  (lib  vi\.).     pp.  402,  41 

.Vnii.-itroiiLi  ('.  I't'oplc,  70  N.  Y.  44.     pp.  755,  75ii. 
Aniolil,  State  ?•.  55  Mo.  HO.    p.  IHO, 
Arnohl  r.  Steeves,  10  Won. I.  51 ! .     p.  Ml 
Am,  P.'ople  r.  »;  Cal.  '.'Os.     pp.  <»I7,  1 1;!'.". 
Aniiulcrs  Ca.sc,  1   Low.  115.     pp.  i;G3,  (IG4. 
Ar-coit,  K,  r.  (',  C.  &.  V.  411.^.     pp.  54,  S3. 
A-kiii'-,  riiiU'il  Stati'.sr.  4  Crancli,  1»8.     p.  871. 
Asliit,  K.  !'.•-' hi':uii, ',154.     p.  401'. 
A-tl.'V,  H.  r.  -2  Husl's  P.  O.  3-.".>.     p.  705. 
Atkinson's  (Ja.Sf,  •.'  I{ii-s.  117.     ]).  54s. 
AiisUii,  lY'ople  r.  1  I'ark.  C.  C.  154.     n.  11J)2. 


Bahcock,  IVopK'  '•.  7  .Johns.  UOl  ;  5  Am.  Doc.  25*! 

Bailiy  r.  Stale,  5s  Ala.  415.     p.  557. 

Bailey  r.  State,  5J  hid.  4';.'.     p.  55'.i. 

naiiihani.  U.  r.  1  Salk.  ;'.7',».     p.  !{.j!>. 

Baker,  People  f.  8  Pliila.  (U:!.     p.  ;15S. 

Bak.T,  n.r.  1  Moody,  I'lll.     p.  '.'7. 

Baker,  People  c.'.m;  N.  V.  :'.I0.     p.  ;57l. 

Baker  (■.  State,  14  Tex.  i^Api'.)  •'■■V-i-     V   389. 

Baker  c.  State,  ;!4  (tliio  St.  . '.10.     p.  3SS. 

P.aker  r.  Stale,  11  Tcv.   (App.)  -.'(l'.'.     p.  583. 

Baldwin,  Coninionwcaltli  v.  U  liray,  I'."7.     pp.  40,  5t,  81 

Ball,  B.  V.  Car.  v^  M.  L'4!».     pp.  1311,  141. 

Hallard,  Tnited  States  v.  \:'.  Int.  K.  U.  11)5.     pp.  IlM,  Il'S. 

Baniis,  ("'oiiunonwealili  v.  ;>  .Mass.  ;!{i7.     p.  i)83. 

Bank,  H.  r.  K.  .<:  H.  4l'1.     p.  5.j7. 

Barcus  r.  State,  4!)  Miss.  17.     p.  S76. 

Barl'.eld  r.  Slate,  2'.t  (ia.  lL'7.     p.  51. 

Barker  r.  State,  48  Ind.  li;;!.     p.  S19. 

llarnard,  U.  v.  7  C.  v*i  P.  7.-<4.     p.  381. 

Barnes,  H.  r.  10  Cox,  l'55.     pp.  4»1,  578. 

Barnes,  It.  c.  'J  Den.  5!i;  JO  L.  .1.  M.  C.!U.     p.  l'J7. 

Barnes,  U.  >\  5  Cux,  11:'..     p.  545. 

Barne.-,  R.  r.  1  Den.  Ji  P.  (15.     p.  545. 

Barnes  r.  State,  itTex.  (App.)  li'S.     p.  71.'L'. 

Barnes  r.  State,  4'.t  Miss.  17.     p.  835. 

Barn.-tt.  U.  r.  2  Uuss.  Cr.  (7tli  An),  ed.)  117.     p.  502. 

Baninm  c.  State,  15  Ohio,  717.     pp.  4'.t,  75. 

Bartlett,  State  v.  11  Vt.  0,50.     iip.  500,512,  515. 

Birton,  11.  V.  1  Mooily,  141.     p.  'JS. 

Bates,  H.  r.  3  Cox,  201.     p.  34i:. 

IJattini;,  People  v.  4',"  IIow.  Pr.  392.     p.  IloO. 

Bav.aril  r.  Maleoni,  2  Kast,  33.     p.  178. 

He.dl  r.  State,  15  Ind.  378.     p.  515. 

Bealoha,  People  f.  17  Cal.  395.     !>.  1047. 

Beanian,  U.  r.  U.  &  -M.  4:!3.    p.  417. 

Beasley  v.  State,  18  A'a.  5;'.4.     pp.  834,  835. 

Deatly  v.  Slate,  CI  Miss.  18.    p.  557. 


p.  804,307,  35;,  385. 


T.vm.K    <IK    CA^K^. 


XV 


pp.  402,  41 


3,j;,  anj. 


iB-lir.  suite.  :  T.'X.  ^V|>p.)  ■-'■''■     Pi«- -tMK  ■•-rt. 

ail.li  r.  Stiltf,  -'.">  Tf\.  ."Tl.      p.  ■|"''^. 
aj;.  1!  ,-.  St;it.>,  (  l!:ixl.  -l-"-'-     I'-  •'»<<>• 
■l];iiil)n.l::.',  U.  '•  '•  Ivi^'-  l^"'-    P-  '""• 
|];.  novi.li's  c.  St:itf,  li  T.'X.  (App.)  :;:•<.     p.  IKW. 

lUiR'tl,  Stall'  r.  ;'.  Bivv.  ol  1.     p.  .M'T. 
]{.  nni'tt,  State  i-.  U  Iowa,  4711.     1>.  ">1-'- 
H  iivm,  r.'oplo  r.  t!  Cal.  :.'J.5.     pp.  J^'i',  ''01,  IM)-.'. 
Ki.MKr.  suite,  L'  T.'X.  (.Vpp.)  148.     p.  .Vil. 
llkTtU's,  U.  r.  \:\  V.  C.  ('.  1'.  "iOT.     p.  :{:.-.. 
jllittililU',  rnitt'd  Stat.'s  >-.  1  Woods,  iir.l.     pp.  l-'^!,  1"J4. 
|]i,tt>,  H.  r.  I5'll,  '-'0.     I'..'>7S. 
llU'ville  V.  Stat.',  It!  Tex.  (App.)  :0.     pp.  HUS,  ■*:•'. 
Ilii.  r.'i',  State  r.  27  Conn.  Si'O.     i).  TilT. 
|l5i!;'.:si-.  People,  8  Barb.  547.     p.  li'i». 
|l?i-'-'S  r.  Slate,  :.'li  (;a.  7'.';5.     p.  litDH. 
luillanl  V.  State,  :;i)  Tex.  :tt;9.     p.  .'>,5!>. 
hiinu'ley,  IJ.  '••  ^  C'.  .<:  1'.  'id:.'.    i>.  MS. 
|l5inl,  H.  r.  IL'  Cox,  1.'57.     p.  543. 
jUir.l  r.  State,  IC  Tex.  CA')p.)  J-''^.     PP.  530,  •J'i:'- 
|]$inl-.'y.',  H-  '•■  -tl  C.  &  1'.  :;88.    p.  548. 

Hirk.t,  H.  r.  4  C.  i  1'.     21.;.     p.  572. 
I  ITsliop  r.  Small,  f.:?  Me.  12.     p.  117. 

r,  tli.k  r.  State,  40  Tex.  117.     p.  1185. 

lihiek  '•  State,  8  Tex.  (App.)  321).     p.  871!. 
,™  lil.ieklMirn  c.  State,  44  Tex.  475.     p.  i'.42. 
I     li.aekwell,  State  v.  1"  Ala.  7i>.     p.  Silj. 

lUa.lesr.  IUi;i;s,  7  L.  T.  (s.  .s.)  7;>.b:  U  II.   L.  Oa.s.  .;21.     pp.   I.V.>,  4.;.),  4.;i,  4r,5. 

I!:ak.'  r.  Allen,  Mo.ir.',  f.lO.     p.  5. 

r.;;ui.h;inl  V.  Fisk,  2  N.  II.  lll'H.     p.  571. 
3     lilaueluir.l,  People  f.  HO  N.  Y.  314.     pp.  2-<(;,  889,  :!77. 


lUaii.Uord  r.  State,  10  Tes.  (App.)  ':27,     p.  i;72. 
H  o.hIow,  Stat.'  r.  45  WU.  279.     p.  .S2«. 


2i;  Am.  Dee.  341, 


..  548. 


lU.inl  i-.  Conimonw.'altli,  4  Leigh,  i'. 

15  lak  V.  State,  32  Iowa,  430.     p.  721>. 

Boaz  r.  Tate,  43  Ind.  (50.    p.  821 . 

Ho-hllink  r.  Inglis,  3  Kast,  3;i"!.     p.  2fi«. 

I'.on.l  .-.  I'a.lelfor.i,  13  Ma.ss.  304.     i).  4ltt 

lionsall  f.  State,  35  In.t.  4(!0.     p.  710. 

Boutien,  R.  !-.  K.  &  R.  25'J.    pp.  85,  81). 

Boston  &  Lowell  R.  Co.,  Coraraonwealth  v.  12C  Mass.  fil.    p.  1130. 

liost.m  vt  .Maine  R.  Co.,  Commonwealth  r.  133  Ma.ss.  383.     p.  1 'i'2». 

Boston  (t  Maine  R.  Co.  Commonwealth  v.  121)  Mans.  50o.     |).  WW. 

Bost.m  &  Worcester  R.  Co.,  Commonwealtli  v.  11  Cush.  512.     p.  ll:'.0. 

Bostwick  r.  State,  11  Tex.  (App.)  120.     1185. 

Boutt,  R.  r.  2  C.  &  R.  t!o4.     p.  15. 

B  .niton,  R.  r.  1  Den.  508.     p.  337. 

Bow.lenr.  State,  2  Tex.  (App.)  50.     p.  850 

Bowiler  I'.  State,  41  MUs.  570.     p.  874. 

B  )weu,  Uuited  States  c.  2  Cranch,  14;;.    p.  505. 


XVI 


TAIll.i;    OF    CASK.S. 


UowiT,  H.  '••  1  Cowp,  i'.lM.    p.  :$.'»<>. 

Hoxk-y  ('.  ('.uninoiiwialtli.  L't  (iratt.  t;55.     p.  902. 

Biiycc  I'.  I'fiipli',  :>o  S.  V.  liU.     p.  Toi'i. 

IJoytl,  State  r.  ;l  City  II.  !!<■(■.  .".7.     pp.  >ni'',  >uS. 

Hrvd,  K.  >\  :,  Cox,  .'.o-j.     p.  U'.t. 

Hoyiitoii,  CoiiKiioiiwialth  r.  -'  Ma.ss.  78.     p.  i!8. 

Bracket'     i.  c  I  Co.\,  l'71.     i>.  .M."., 

Hrackett,  |{.  r.  1  M.  v<i  It.  :M.     i..  i;'.i7. 

HiMilfoi-i',  H.  '■•  L'  L.  H.iym.  liDC.    p.  :!."<'.». 

Hraillrv  r.  Hank-,  Velv.  i.'it5.i.     p.  1072, 

Bradley  '•.  Siati',  :'.l  Iiid.  l;"!.'.     p.  7:<>^. 

Bi-iuly,  n.  r.  L'l;  r,  c.  t^.  15.  i:;.    p.  ;!n8. 

Brady,  State  r.  L'7  la.  ! •.'!:.     p.  5J7. 

Brainley,  U.  i'.  1  1{.  vt  K.  47S.     p.  iSL>. 

Bniiiiley,  K.  '•.  s  Cox,  »i;"<.     p.  "i44. 

Bnittoii  '•.  Slate,  10  Iliitnph.  10:!.     pp.  M-',  1012. 

Bruiiiion  i-.  Slate,  •-':»  Iiid.  403.     pi>.  'I'-'h  '"'■ 

Brings,  State  1',  :!1  Vl.  :.01.     p.  75. 

Briley,  Slate  r.  h  l',,rt.  47:!.     p.  871. 

Brill  r.  State,  1  T.  x.  (.Vpp.)  ">7l'.     p.  :>■':'. 

Brisiow  ('.  Wri;:lit,  2  Doiiu'.  ('>!'•'<■     PP-  -"D,  11:''7. 

Brill  ('.  State,  7  Uiimph.  4.'>.     p.  712. 

Broekiiian,  State  r.  Hi   Mo.  5i:i;.     p. '.•.■)4. 

Bromage  r.  l*ro»-i.r,  4  B.  &  C.  ■.*5o.     p.  W\. 

Brook.-i,  K.  r.  8  C.  &  P.  -'iij.     |ip.  I.JL',  540. 

Brook.s,  U.  I'.  1  F.  .<:  F.  50j.     p.  874. 

Brooks  V.  State,  ;!5  Ohio  St.  4ti.     p.55'.». 

Brown,  Stale  r.  12  .Miiiu.  5;i8.     p.  lljii. 

Brown,  Stale  y.  1  Ilayw.  lOO.     pp.501,  515. 

Brown  r.  State,  ;W  Tex.  482.     pp.  <Jli7,  108i>. 

Brown  r.   I'eople,  1(1  IIilu,  535.     p.  i!71. 

Brown  r.  I'eople.  80  111.  2;l'J.     pp.  81,  '<S. 

Brown,  H.  v.  ;J  Salk.  ls;i.     p.  ;<5'.t. 

Brown,  Ooininonwealtli  v.  10  I'hila.  184.     p.  '.i5. 

Brown's  Case,  ;i  Chitty,  701.     p.  177. 

Brown's  Case.     p.  1 1 10. 

Browueli  V.  .Manchester,  1  I'ick.  2:H2.     p.  418. 

Brownlow,  R.  w.  14  Cox,  21i;.     p.  5(i8. 

Bryan,  U.  r.  7  Cox,  ;112.     pp.  ;((;o,  3i;i,  3i;2. 

Bryan,  U.  v.  Dears.  &  B.  2(15.     pp.  134,  359. 

Jlryan,  R.  v.  2  F.  &  F.  5(17.     p.  378. 

Bryan,  R.  v.  2  Sir.  f^M.     p.  355. 

Bryson,  Stale  v.  82  N.  C.  57i'..     i-.  8'.m;. 

Bull,  U.  V.  2  Ir.  L.  T.  Rep.  18.     p.  1141. 

Bnlnier,  R.  v.  L.  ^'t  C.  477.     p.  374. 

Buntain  v.  State,  15  Tex.  (.Vpp.)  4'.tO.     p.  5S3. 

Burdelt,  Case  of  4  Barn.  v<i  .Vld.  lOi.     pp.!i4«,  1141. 

Burdick,  Coninionwealth  r.  2  Barr,  103.     p.  284. 

Bnriress,  R.  v.     p.  ;i80. 

Burijon,  R.  v.  Dears,  .'v  B.  11.     pp.  28;(,  290, 

Burke,  R.  i;.  R.  &  R.  4'J5.    p.  'J8. 


•|-\iM.i:  or  CASES. 


XVll 


il!ii|-kr,  K.  r.  1  |{  .V  i;.  !■"..     p.  ::''. 

Hmki'  -•.  IVoplc,  11  N.  V.  I»l.     1..  >:i. 

liurri. !:,'.■'.<  <M-"-  :'■  !'•  Wms.  1>1.     I'-  -'"• 
[iMn'.'W  r.  State,  IJ  Afk.  <;^.     l>p.  1"'N  -■'•■•  -;"•  -"■  •'''^• 

(iirtnw.s  n.  V.  llCoN,  -'•"'^.     !'!>•  -4'».  •'•'■'•• 
ir.urnnvs,  Staic  r.  11  Irod.  477.     !>.:',>•<. 
Ii;!iit,  Stat.!  V.  as.  C.  (UK.     p.  •".<;<.). 

liii-li,  IVoiile  r.  :;  Park.  .-..->-'.     pl'.  -"■"'.  "''•'''• 

HuiaT,  St:ito  r.  i;.-,  N.  C.  :10'.>.     |..y.l.:. 

Hiiilrr.  U.  '•.  -'  C.  ><:  K.  :Mii.     P-  '><*^. 

p.iitliT,  r.ople  !•.  .■!  IMrk.  Cr.  K.  :'.77.     p.  n>:'.;5. 

Sutler's  I'a.-e.     p.  1 1'L 


(CalibaKc  K.  ' 
loaily,  IVople 


pp.  4711, 


.'1. 


.;  Hill,  4110.    iip.  4t;, 


'.!.>. 


pp.  074,  'nS. 


p.  lilj. 


p.  70. 


CalvMi,  State  r.  L'li  N..r.  (L.)  L'd 

Caiiipbi-1!,  U.   '•.  M(....  17'.t.     p.  .">48. 

fami)l)rll,  II.  r.  -'  Leai'li,  «142.     p.  .".SO. 

Caaipiiii  '•.  Stat.',  1  T.-x.  (.Vpp.)  li»^. 

Caiitir  V.  State,  "  Lea,  ;5.")0.     p.  ;>7.".. 

Cai;\v.)o.l,  Statu  ».  12  Stow.  :'.iiO.     p.  .'^:'.o. 

Caii.un-y  estate,  11  Ohl.)  St.  lio.    <Ki. 

CiiiiiU  c.  Slate,  8  Tex.  (App.)  liU.     p.  ' 

Ciii'>s  r.  Faiieourt,  5  T.  K.  4>J.     p.  71. 

raiii.-y  f.  Ilopple's  Il.irs,  17  Olil.i,  ;10. 

c.ifii.y'H  Ca-io,  MiK).  ;''7>1.     p.  '.'7. 

Cainot,  I'liiU'il  Stales  r.  L'  ("rancli,  4';'.>.     p. 

Ciipeiiter  !•.  rcDpU'.H  Barb.  (iOH.     l>p.  71.' J, 

Carpenter,  U.  r.  11  Cox.  C'lO.     p.  ;!7s. 

C.iipeiit.r,  State  v.  7t  N.  V.-[V2.     p.  041. 

Carr.>ll  r.  S'aie,  1':!  Ala.i's.     p.  «:i'.i. 

Carter,  Stale  y.  72  N.  t".  444.     i).  5^-'. 

Cariwri-ht,  R.  v.  R.  >fc  R-  107.     p.  588. 

Carnvrij^lit  v.  Green,  «  Ves.  405.     p.  o<!2. 

Carver  r.  Jaeksoii,  4  Pet.  80.     p.  U'V.i. 

Carey,  Coiiunoiiwealtli  e.  V2  Cil.sli.  I'lC.     p. 

Cary  •(•.  Hutailiiii.',  1  Hill,  :U1.     p.  41:5. 

Caryl,  People  v.  ■!  Park.  C.  C.  ;i'-'<i.     pp.  i'l:^,  (Sil'J. 

Ca.>as  I'.  Stat.',  12  Tex.  (Aiip.)  59.     p.  o8.'{. 

Caswell  r.  State,  Yerg.  14'.i.     p.  ii"2. 

Casieilow  V.  State,  15  Tex.  (App.)  5.-j1.     p.  583. 
,^^cai.)  V.  State, 'J  Fla.  1<'.3.     P-  8!"1'. 
^'Javanai;h,  People  v.  (12  How.  Pr.  I'^T.     p.  878. 

ICayle's  Ca.se,  8  Co.  ;',:l;   Yelv.  M.     p.  ii75. 
Cha.lwick,  R.  r.  2  .Mood.  &  R.  545.     p.  1»2. 
Cliamberlaln  t'.  State,  8  Wriixht,  4:51.     p.  490. 
Chambers,  People  v.  IS  Cal.  382.     p.  529. 
Chai'iMef,  Cominoiivveallh  t'.  Thatch.  187. 
—  Channel,  R.  v.  2  Sir.  7'.»3.     p.  867. 
ChapiiiaiJ,  Q.  v.     ii.  4'.o;. 
Chapmau  ti.  State,  2  Head,  50.     p.  358. 

h 


;',  7ll.-).71.;. 


ll'.»7 


p.  78. 


.will 


rAULK   OK    CASKS. 


Clmpiiiun  r.  Liitlirop,  flf'ow.  111.     mi.  I'CH,  20'J, 
I'liarli's  r.  Stale,  i\  Kni,'.  (Ark.)  :1M'.I.     pi).  .S"<1,  »s:.'. 
CImrlfH  r.  State,  11  Ark.  ;'.'."0.     p.  '.idl. 
Chase,  ('(imiin)iiweallli  v.  !•  Tick.  !.">.     p.  57!. 
('li.iIliains.CDiiiuKiinvcaltli  r.  It  Wrlijlit,  ISl.     p.  I'.tQ. 
riifik  r.  State,  I!.".  I  ml.  IT:.',     p.  lins. 

Cheek   t'.  State,   1   CoMw.  1  7J.      p.  I'.Ml. 

Cheeseinaii,  H.  r.  ;!('ii>l].  I'- 1,     p.  1111. 
Ch.Try's  Cii.'<e,  i'  Kami's  P.  C.  .V)i;.     p.  :.lL'. 
Cliililers  ?■.  State,  H'.  Tex.  (.\p|>.)  ^L.'.").     p.  I!-*'.!. 
Cliovin,  Stale  c.  7  Iowa,  :.'04.     p.  HC'.i. 
Christi.ati  I-.  Cuiiiiiioiiwealtli,  L':'.  (iratt.  '.K>\.     p.  ',100. 
Chri.xtupher,  U.  r.  Bell,  •_>;.     pp.  .i:]2,  :>.".'.!. 
Chuiiii,  Slate  r.  i;i  Mo.  L';!.;.    p.  ;;(;i. 

Chiirehill  r.  Wilkiiis,  1  T.  It.  117.     p.  11;17. 

Cliilte  )•.  Suite,  l'.>  Minn.  L'71.     p.  ;>J'.i. 

Clark,  U.  v.  H.  .■;  U.  isi.    p.  ;;.!s. 

Clark,  I'e.iple  v.  7  N.  Y.  lis.".,     p.  iD'ii'. 

Clark  V.  I'.'cplf,  1  I'ark.  C.  C.  .'..-.i;.     p.  ll,ji;. 

Clark,  I'eoplu  1'.  ;".;i  .Mich.  Ill',     p.  "TO 

Clark  V.  State,  7  Tex.  :.7.     p.  I'.-'l. 

Clark,  State  r.  IL'  .Mo.  (App.)  5'.>:!.     p.  717, 

Clarke  V.  State,  8  Ohio  St.  C.'U).     p.  T.'j. 

Clayton  r.  State,  1,5  Tex.  (.Vpp.)  2-'I.     p.  oS). 

Clifforii,  Commonwealth  r.  S  Cu.«i!i.  215.     jip.  (»5»S,  718. 

Cliffonl,  St.ite  r.  It  Nev.  71'.     p.  ■>.')11. 

Clinch,  K.  )'.  -2  Leaeh,  i;it.     p.  IHl. 

Cline  r.  Stilt.',  l:;  Tex.  49-1.     p.  liSO. 

Clinton.  K.  ,-.  Ir.  Kep.  4  C.  L.  ''..     p.  ."0. 

Closs,  K.  r.   I).  ><:  H.  4i;0.     pp.  12,  I'.i,  -JO,  117. 

Clonuli,  People-  r.  17  Wend.  ;!51 ;  ;U  Am.  Dec.  .■>0;'..     |)p.  2"«,  u74. 

Cocheeo  r.  Strafford,  .'.I  N.  11.  481.     p.  ".71. 

Codrinjjton,  U.  r.  I  C.  vt  P.  "iCI.    pp.  L'.xn,  364,  '">'<■<. 

Coffmaii  V.  Cominouweullh,  10  Hu.sli,  41)5.     p.  1140. 

Co(j;an,  U.  r.  'J  Leach,  ,^<«.     [).  3L'4. 

Coplell,  People  r.  1  Hill,  'M.     pp.  441),  560. 

Coggins,  1!.  ?•.  IL' Cox,  :)17.     p.  CJ.s. 

Cole  ('.  Goodwin,  I'J  Wend.  i;54,     p.  815. 

Cole  1'.  State,  40  Tex.  147.     p.  77(1. 

Coh-,  R.  r.  -J  Cox,  ;!4I.     p.  SiiT 

Col  .nan.  State  v.  (1  Rich.  185      pp.  987,  115,). 

CoUlcott,  R.  V.  R.  &.  R.212;  4  Taunt.  :100.     p.  l'I. 

Coliiu.s,  Commonwealth  w.  1  Mass.  IIH.     pj).  5U5,  512. 

Collins,  R.  V.  2  -M.  &  K.  4iil.     p.  '■•2. 

Colby  V.  State,  55  -Via.  84.     p.  375. 

Col'iuilt  V.  State,  31  Tex.  650.     p.  877, 

Colvin  V.  State,  11  Ired.  3(11.    p.  75. 

Combnin,  R.  v.     pp.  101,  104. 

Cornbruiie,  R.  v.  1  Wils.  301.    p.  356. 

Conant,  United  Stales  v.     p.  129. 

Conger,  People  v.  1  Wheeler,  448.    p.  307. 


TAIU.R   OF   CASKS. 

roiikonrl-rht  r.  Pfn|)lf,  ;!o  lll.-jiU.     p.  j;;;;. 

(■(miior's  Cum-,     |i.  '.<•<. 

Connor,  R.  v.  •_'  (W  K.  518.    p.  si;;). 

C'liroy,  I'.'uple  r.-JS.  V.  Crini.  Ilcp.  l'47.     pp.  lO.'j'i,  ll.VI. 

I  "iifoy,  Stiito  r.  is  Mo.  jJi'l.     p.  :.5'J. 

f 'iistantiii,  The  C  Kf)!),  Atl.  321.     p.  anc. 

roiiwuy,  Stale  v.  is  Mo.  ;ii>l.    pp.  .150,  71!). 

C.iok  t'.  State,  14  Tox.  (App.)  !•(;.     pp.  4iv,i,  M:\,  5H«. 

I  .">k  r.  Stat.',  11  Tex.  (App.)  l',>.     p.  1185. 

I'.'ok,  Coininoiiwciiltli  v.  V2  Mote.  'M.     pp.  7-'5,  7-'7,  775,  7»2. 

Cooley,  Commonwealth  v.  0  Gray,  350.    pp.  313,  811. 

CoopiT,  V.  R.  -J  C.  .<.  K.  581!.     p.  {>,S. 

loopor's,  Marjrarft  ('a.»o,  li  Str.  Il'K;.     p.  :.>oi. 

(■'i|i'laii(l,  Slate  v.  .mi  X.  C.  601.     |).  575. 

("pclnnU,  R.  ;■•.  5  -'ox,  'JiMt.     p.  -(45. 

Cornetti'.s  Ca.se,  '.'.'  .\.  Y.  85.     p.  1055. 

('(inilsli,  R.  V.  DtMri,  .(i>5.     p.  57s. 

Cotton  r.  State,  11  Tex.  L'liO.     p.  5.!8. 

t  otton  !'.  State,  31  Mis.s,  ,505.     p.  1 1  II , 

'   'Wley  r.  People,  83  N.  Y.  iiA.     p.  11'  .. 

Co\  V.  Troy,  5  H.  &  A.  474.     p.  334. 

I  niwford,  state  r.  34  Iowa,  40.     p.  77i;. 

Civws  V.  State,  3  Cold.  350.     p.  717. 

Crisp,  Q.  V.  U  Mod.  175.     p.  305. 

Crockett  V.  State,  14  Tex.  (A|ii).)  2J(i.     \>   589. 

Cro-han  v.  State,  i.>l'  \\'is.  444.     i)p.  7G7,  780. 

Crone,  K.  v.     p.  07i;. 

Crosby,  R.  v.  1  Cox,  10.     p.  373. 

Cro.ssley,  R.  r.  2  Moo.  i  R.  17.     p.  L'80. 

Crow,  State  v.  I  Ired.  375.     p.  8(57. 

I'rouey,  Peoples.  5ii  Cal.  3(;.     p.  1110. 

Cro/iur  V.  People,  1  Park.  453.     p.  775. 

Cro/.ier  V.  People,  i  Park.  Cr.  457.     pp.  74ii,  747,  750. 

Crump,  R.  v.  1  C.  &  P.  ()58.     pp.  553,  720. 

fniitemlcn,  R.  v.  «  Jur.  2(!7.     p.  5:i7. 

Ciilcii,  R.  r.  5C.  &  P.  110.     p.  'J7. 

dillins.  Commonwealth  v.  1  Mass.  118.     |)p.  uO'.i,  511. 

Clip  r.  State,  1  Port.  33;  20  Am.  Dec.  357.     pp.  5(i5,  508. 

I'uuimings  r.  Mehols,  13N.  II.  420.     p.  574. 

Cuimnings  r.  State,  1  Harr.  &  J.  340.     p.  504. 

Ciimiingham  v.  People,  4  Hun,  455.    pp.  38,  3:t,  i\A. 

Ciirtis,  State   v.  70  Mo.  5i)4.     pp.  1070,  1071,  1072,  1081,  UoU. 

Curtis  r.  State,  0  Col.     pp.  533. 

Curry  v.  State.  4  Tex.  (.Ipp.)  574.     pp.  8'J3,  894,  S'J'.t,  008. 

Curry  v.  R.,  2  Moody  281.    p.  97. 

Dalton,  People  r.  2  Wheeler,  101.    p   307 
I);ily  V.  People,  32  Hun,  182.     p.  1083. 
Hanger,  R.  v.  Dears.  &  B.  307.    p.  328,  388. 
Darry  v.  People,  10  N.  Y.  120.     pp.  OGl,  990,  1135. 
David,  R.  V.  0  C,  &  P.  178.     p.  C47. 


XIX 


XX 


TV  mm;  or  CA^KS. 


niividson,  Commoiuvciilili  r.  i  cnsli.  ;';'..     |i,  .;7l. 

Davis'  Case,  i;  I',:isl's  1'.  ( ',  7ii(',.     p.  CM'.i. 

Davis  r,  Spfiiccr,  l'I  N.  \.  ,'.;iO.     p.  lu'.it. 

Davis  r.  Siatf,  II'  Tex.  L'Jtl.     p.  s\)i . 

Davis  r.  Slate,  .H  Tox.  (App.)  .".li).     p.  1 INM. 

Davis  \.  I'unliic  r,  Slutc,  1  IIIU,  !li;.     |ip.  7'.i,",,  7;ii;,  t<(\S. 

Dav's,  Stale  r.  ,".;i  Iowa,  LT)!'.     p.  '.i;i. 

Davis,  Statu  v.  I  Iri'(l.  1  ■.',".,     pp.  si;!,  ans. 

Davis,  U.  t'.  i;  C.  .<:  I'.  17S.     p.d.V). 

Davis,  U.  I,'.  7  C.  &  1*.  7S:).     p.sll. 

Davis,  United  States  d.  5  Mass.  ;j:.i;.     ji.  r>i'M. 

Davies,  H,  v.  Dears.  (WO.     p.  .■)")',(. 

Dawe.s  r.  IVcli,  8  T.  ]{.  ;!;ii;.     p.  L'lir,, 

Dawiviiis  V.  State,  58  .Via   ;i7il;  :.':•  .Viii.  !{■  p.  7.M.     pp.  SS.'»,  ■ji'\, 

Dawson,  U.  v.  1  Straii;;e.    p.  l;i',i. 

Deal,  Stale  v.  til  N.  C.  L'70.     p.  .-,s:i. 

Dean,  Stale  v.  II  Iowa,  7:1.     p.  m\>. 

Dean,  State  i'.  4;i  Iowa,  7.'.;  .■'.I  .Un.  Ke|i.  14::.     ji.  44S. 

Deaiie  v.  Clayton,  7  Taunt,  .jlf<.     p.  8;W. 

Deaves,  R.  »i.  II  Cox,  ;'.l'".    p.  ,■>.»!►. 

De  IJare,  I'niied  States  v.Ci  Hiss.  :;:.S.     p.  (;((-,». 

Deeriii},'  c.  State,  It  Tex.  (Ap|).)  .V.f.i.     pp.  ,-.s:),  ,-,!(0. 

Deerinfi,  K.     .  1 1  Cox,  l".iS.     pp.  413,  T.-ls. 

De  Ilart,  State  v.  tl  J5axt.  22:.'.     p.  ;185. 

Delyon,  Stale  v.  1  Day,  :'•.>'..     pp.  :'>i'A. 

Dempsey  v.  State,  :'.  Tex.  (.Vpp.)  ■42',t.     p.  11(^1,). 

Denny,  U.v.  1  Cox,  17S.    p.  :t7. 

Devino  V.  Pco|)le,  2i)  Hun,  1)8.     p.  5"):!. 

Diclilnsun,  U.  v.  It.  v't  ]{.  4 11).     p.  ,>,j4, 

Diy;nowilty  v.  State,  17  Tex.  .'551.     p.  r.t2. 

Dillinglmin  v.  Stale,  ■".  Ohio  St.  2(10.     jip.  l.")S,  ;;75. 

Dinsniore,  State  v.  12  .VUen,  235.     p.  Iii71. 

Dixon  v.  Baldwin,  5  Kast,  175.     ]),  2(18. 

Dixon  r.  State,  13  T(!X.  (.Vpp.)  4S0.     p.  oS3. 

Dixon,  ]{.  c.  Dears,  580.     pp.4;U,  55!). 

Dixon's  Case,  o  M.  &  S.  11.     j).  17<1. 

Doepl<e,  State  v.  (i8  Mo.  208.     i>.  474. 

Doeriniiw.  State,  41)  Ind.  CO.     pii.  fSlS,  870,  877. 

Dolan,  U.  v.  t!  Cox,  440;  1  Dears.  4:li!.     pp.  (155,  (!5G,  G51),  (1('>5,  (177,  658. 

Donahoo  v.  State,  12  Tex.  (App.)  2117.     [).  1185. 

Donally'.s  Case.    p.  705. 

Dord  V.  People,  (i  Barb.  (171.     p.   ;?7;5. 

Douirherty,  Conimonweaitli  v.  107  Mass.  245.     i)p.  870,  lOKl. 

Dovalina  «.  State,  14  Tex.  (.Vpp.;   311.     p.  9{». 

Dowku  V.  State,  U  Tex.  (App.)  (U.    822,  870. 

Downo  V.  Richard.son,  5  B.  &  A.  C74.    p.  335. 

Dol)son,  State,  v.  3  Ilarr.  573.     p.  572. 

Doe,  State  79  Ind.  <) ;  41  Am.  Rep.  51)9.     p.  51)2. 

Donnaily's  Case,  1  Leach,  229.     pp.  (1114,  (191),  718. 

Dow,  State  v.  12  Tex.  (App.)  344.     p.  558. 

Drake  v.  State,  lOOliio  St.  211.    p.  OS. 


TAiti  r,  OK  f.\si:s. 


xxi 


058. 


iivw,  CoinrnoiiwiiUh  r.  l:i  Tick.  ir;t.     pp-  1."'*.  -'■>l.  -"•'■*.  ;'■-''•.  '•''-'<  !l«"« 

)icw,  Ci'iuMiiiiiwiMltli  c.  t  Mass.  ;i'.U.    i>.  «;!'.». 

)rimtkl,  H.  r.     \>.  im. 

)ii(ll.y's  ("iisi',  L'  Sill.  '.il.    !>.  :■-'. 

)iilT,  U.  r.  L'  Lt;icli,  '.'1."..  p.  •"••<1. 

)iiiilci(l,  U.  r.  s:iy,  11^.  \>.  :;:>>■.. 

)niui:is,  11.  r.  i;  Uox,  r.M).     j))!.  l:.!'.,    Ml. 
)iuili:im  y.  State,  ;iT.\.  {.\\>\k)  |i;."..     p.  lU.".. 
)mni:i'_'c,  H.  c.  2  Hurr.   ll:'.0.     p.  :\M. 
)iirkir,  \-|iileil  Stales  r.  I    McAU.  ITi;.     p.  711>. 
)uitoii  r.  Solomoiisoii,  :;  H.  >v  1'.  ."•*1.    p.  -';■*■ 


;;iL'U't(Mi,  K.  i'.  Dears.  ,".7:.,     p.  :.'S'.t. 

■.arle,  (■uimiionwealth  r.  1  Wliail.  .'i--'.').     p.  IOL'3. 

'.a-t  Hosioii  l''erry  Co.,  ('oiiiiii<iM\v<alth  v.  i:i  Allen,  58'.t.     p. 

U-kert,  People  y.  U  N.  Y.  Cr.  U-p.  470.     pp.  74S,  7S1. 

vl;;c,  State  v.  1  Slrohii  HI.     p.  8«H. 

;  liiioiuls  V.  State,  70  Ala.  s.     pp.  SV.).S,  51  l'. 


ll:;i. 


PI).  1(i7l',  107. 
p.  71.'). 

pp.  ;;m,  717, 7 


107) 


Mwanls,  Stale  r.  7i>  M)  l>^(). 
Mwanls,  ]{.»).  5  ('.  .<;  1'.  .M>. 
.ihvanis,  U.u.  CC.  v^l  1'.  .-..M. 
'-ail,  H.  r.  I  ('i)X,  l.'l>.     p.  '.h;. 
;u'i;iiiloii,  1{.  v.  'i  Ho*,  vv  r.  -Vi.-S.     p.  "'.ilO. 
ifliar,  ("oiuiuuinvealtli  r.  4  ('lark,  ;!l.'ii.     p.  780. 
'.li/.abetli  I'.  State,  1.'7  Tex.  ;ll".>.     |>p.  U.'SJ,  llSi;. 
;!liiis,  1!.  c.  U.  .*i,  11.  lys.     p.  L'l'.l. 
".lliott,  1{.  r.  1  Leaeli,  17ri.     |>.  L'l. 
.Ills,  II.  r.  -l  Cox,  25S.     p.  ii7. 
;ilis.  State  r.  a  Coim.  isj,     p]).  ,-,04,  :,vi. 
;nor,  U.  ;;.  1  Leach,  an;',     j).  '.'7. 
jiiiiiencli,  State  v.  1  West.  Hep.  7ilO.     p.  111:5. 
Jiiiiii'i'ieli,  State  c.  l:i  Mo.  App.  \'yi.     p.  1  1  1  1. 
:'.ii;^laii(l,  State  c.  S  .loiies  (L.),  a:';),     p.  j7.-). 
I",ii;j:leiiiuii  H.  State  2  Iml.  HI.     p.  027. 
ijuiis  c.  State,  a  (i.  Greene,  07.     pp.  41;!,  ."it."). 
Kiiueli,  J'eople  f.  i:'.  Weiid.  Ij'.).     pp.  U'.i;!,  10U8. 
Kiioeli,  H.  r.  5  C.  ^"i  P.  5a',l.     pp.  014,  1  !:'.!•. 
I'.nckson,  State  v.  4:>  Wi.s.  8U.     p.  1042. 
i:rriii<;v.  State,  4  Tex.  (.Vpp.)  417.    p.  87:!. 
KrsUiiie  r.  State,  1  Tex.  (Api).)  405.     pp.  1)40,  042. 
Krwiii  r.  State,  2'.t  Ohio  St.  180.     p.    111. 
C.'^sex,  I{.  r.  7  Ccx,  as4.    p.  545. 
■".vans  V.  Kymer,  1  B.  &  Ail.  528.     pp.  ;!;52,  ;!;!7. 
Cvuiis  V.  Stevens,  4  T.  K.  225.     pp.  !H)0. 
■'.vans  V.  People,  4:1  X.  Y.  .sO.     p.  1 1 14. 
■:vaiis  II.  V.  \\  Cox,  2:!:!.    pp.  314,  a87. 
'.vans,  K.  r.  L.  &  C.  250.     p.  3S". 
".vans,  K.  r.  C.  i'l  M.  i;i2.     p.  557. 
iCvaus,  State  r.  5  C.  i  P.  555.     p.  3S7. 


XXII 


TAIll,!'.    ol'    (  A."«l>. 


Kvniw  r,  Si;itc,  1    Minnpli.  :'.!•(.     p.  k(,',. 

Kvaim  I'.  Siiiii',  I.".  Tfx.  (App.)  111.    p.  >:'.. 

Kv.TM,  Stat.'  r.  Ill  Mo.  r,V2.     pp.  !.'>«,  ;ir.-.. 

Kwlnu'tKii.  I!,  ('.•11  Kn^'.  ('.  L.  ITH.     p.  I  1''. 

Kyn  ,  (•(iiiiinniiwi'iillli  i'.  I  S.  &  U,  :'.»7.     I'p.  HIM),  mu. 

Fiiilntr  -•.  IVnulc,  J  N.  V.Criiii.  Ui'p.  .'>.•■;'..    pp.  ilt,  '''H. 

Fuhii!<t<)i'k  '•.  St.it<',  u'ii  IikI.  lmi.    j).  II.m:. 

Fnlrcliil.l,  I'.'opl.'  r.  (H  Midi.  111.     p.  HHi;. 

FallnwH,  |{.  I-.  ,-,(•.  >'^  I'.  .^(lS.     p.  717. 

Faiin,  Stall! »'.  i'>.'>  N.  ('.  :'.i:.    p.  :<7'>. 

raniilii«  r.  Stall',  M  <!a.  \'<:.     70S. 

Fiirhia  >■.  Il.mii',  It!  M.  .<••  W.  ll.i.     p.  i'.ir,. 

Fayi'.  (•ciiiiniuiiwi'altli,  :'x  tirati.  '.UJ.    pp.  'JIS,  :w.i\,  ;',7I,  .",'il. 

Fi'arnly,  K.  .'.  I  T.  U.  :'.-'i>      p.  L"jr. 

Fcastor,  Stall'  r.  '.'."i  M<>.  il'.'l.     p.  1 1  b;. 

Frltoii  r.  Sl:iti',  !>  Vi'fir.  ;i'.'7.     i>p.  .M."i,  6-17. 

FtrnU  r.  ("oiiinionwi'altli,  1  Diiv.  l.'ll.     p.  ,"il-.'. 

Fli'lds,  foiniiKiinvcaltli  v.  \  Lciyli.  •■\x.     v]<.  '^"'l.  1>04. 

Fli'lih  r.  Stalf,  5l'  Ala.  HI"!,     p.  II.'.:., 

Filklns  r.  I'l-nplf,  i;'.i  .N.  Y.  KM.     ii.  >^7-'. 

I'iiiillay  r.  U.an,  s  s.  v<  K..''.71.     p.  -I.".-. 

Mini  r.  CoiiimciiiwiMllli,  i;  I'.i.  St.  4i'.n.     p.  n71. 

j-isii.T,  U.  .-.  s  C.  .«;.  P.  is:;,    pp.  •.';;:,  |l!il. 

Kilrli,  I'l'oplc  r.  I  Wcn.l.  Ili-i;    !'.»  .Vin.  1).t.  .|77.     pp.  29,;'.-,  4.;,  17,  ■•• 

Fitfhhiir'^  |{.  ('i>.,  (^iiiiinoiiwi'alth  r.  10  AlItMi,  \^'.i.     p.  ll:'.<i. 

Fitilibiii;:  Iv.  C'.>.,  c'oniMioiiuc.'ilih  c.  IL'O  Ma-s.  ;;7:'..     pp.  1117,  1  \M'. 

Fiti'li'iiiri:  K.  C't.,  Coiuinniuvealih  i'.  iL'i'.  .Mas.«.  47'.'.     1)]).  ITiU,  li;'.l. 

Flanafxaii,  K.  r.  1!.  .-i   U.  Ix;.     p.  :<^*K 

Flaii.l.TN  Slati'  r.  :(t  .\.  II.  .".IM.     p.  «1. 

Fli'tcli.r,  Stat.'  r.  1  Ciisli.  1.'7.     p.  y7t<. 

FU'tchcr,  U.  c.  4  (^  <i.  P.  54."..     p.  ,';7«. 

Floti'liiT  c.  Slate,  1<;  'IVx.  (App.)  C:'..'..     p.  .•..'<:l. 

Fondri'ii  v.  Stato,  n;  Tix.  (App.)  4S.     pp.  H.V2,  >77. 

Forili'  r.  SkiiiTUT,  4  C.  v'c  1".  4'.U.     p.  M7. 

Koi-cii,  I'l'opli'  «'.  L'."  t'al.  :!i:i.     pp.  l'>4(;,  KU7,  I'Us,  II.-..;, 

FoslT,  ronimoiiwraltli  r.  Ill  Ma>'<.;511.     ]!.:<:■. 

FostiT,  State  V.  (il  M.i.  ,'.l'.t.     p.  ll.'.il. 

Fii.<tiT  ('.  People,  ,M1  N.  Y.  .V.is.     p.  I1141I. 

Fo-ter  V.  State,  4  Tex.  (Api>.)  'J4('..     p.  i;42. 

F.>-t.Tr.  Stat.',  11  Tex.  (Ai-p  )  lO,'"..     )..  'X\^. 

FoiilUes  r.  roiinnonwealtli,  ■-' Kol..  (Va.)  s;',.;.    p.  (;7. 

Fi.y,  State  r.  8'.'  \.  C.  (■.7:t.     p.  rMK 

Fowley,  State  r.  1  ><  Mo.  44.'.     p.  4t'.. 

Fox,  Coiniiionwealih  r.  7  Cray,  585.     pp.  !i,".:'.,  '.n;!. 

Framptoii,  R.  r.  2  C.  &  K.  4.'<.     p.  543. 

Fraiit/.,  CoinmoinveaUh  r.  8  Phila.  CIJ.     p.  ,■.7,'.. 

Fivel,  IVojiIe  r.  4'<  Cal.  4:!c..     pj..  I0S2,  1  1  I-',  1  MO 

Freels,  State  r.  I!  Hillill>!i.  L"-'"*.      pp.  .'<l:'.,  ■'^•'S 

Freeth,  K.  r.  K.  .'i  K.  r-'7.     p.  :'.i;«. 


■lAiii.i;  <>i'  (■.\>i:.H. 


XXIII 


rrriM'li,  11.  >'.  II  ro\,  i:-.'.     pp.  vr,  •"<. 
I  rill  lil<r,  Stiilo  r.  .'.I  Mu.  l.'i.     |i.  .'».'i4. 
KryHoii  I'.  ('lmiul)t'rH,  ;•  M.  \  \V.  ir.r.    p.  titi; 


(t,  ll.'ll. 


|)p.  !>.Vt,  1 1 II.  II  l.'i. 


(lillilick  '•.  I'.nplr,   lo  Micli.  J'.'-.',      pp.  .Vll,  fi.^l.'. 
I  (ialliinlii'r,  l'oiniii>iii\Ni:illli  r.  il  .Mrtc  ,  ,'iii.'..     p.  (ll»'». 
;  CiillMway,  I'copl.'  r.  17  W.'ii.l.  ">«().     pp.  71,  !l'i2,  ■;-«. 

(iali.iway  v.  Stiito,  41  Trx,  L'»'.".     pp.  I'lOO,  ."•<■.'. 

t;iiiiiiii<iii,  H.  1'.  .'•  r.  ."i  r.  ;ii.'i.    (».  s;i7. 
I  (i.iiviii  r.  stnti", ;.'('.  T.'X.  'JO'.t.    pp.  i;oM,  (iij. 

(ianliiir.  K.  v.  Dnir-    .*i  11.  (O.     pp.  •.'S7,  M-*,  :!7'.t,  ;W0. 

(ianliicr,  H.  r.  I,.  X-  C.  •Jl:'..     |ip.  -101,  .MI. 

(iiinliii  r,  K.  r.  M  V.ua.  I.,  .-i  lOj.  I{.    p.  L.".n;. 
:  (ianlii'i',  rroplc,  r.  •_'  .luliii-..  177.     pp.  504,  .M.-i. 

(larrcil,  K.  '•.  Di'ars.  i.':::'.     p.  ;M7. 
j  (iaii-itl,  K.  r.  8  CiV,  ;ls(;.     p,  :,\:,. 
I  C.a^ciiitJMr'-*  ('ii?ii',  Li-acli,  ;'.l:'..     pp.  Cm'.,  70il. 

dali-,  |'rc.p!c  f.  i;i  Wfiul.  oil.     pp.  l';7,  ;'.'<7. 
,  (ialc.*.  State  r.  •.'7  Minis.  .1:'.     p.  77i;. 
I  (iaviii,  ('iMiiiiioinvcallii  r.  li.'l  M.i^s.  ,").")      p.  ll:'.7. 

(iiivloi-,  IJ.  r.  7  Pox,  L'.'ii.     p.  1 1 1:!. 

(ia/.(,  IJ.  r.  \{.  &  U.  :i>'h,     p.  i;7,".. 

I  (i.iiimc'ii,  i;.  r.  •:>;  v.  v.  q.  n.  :\V2.    i>.  ;!7.v 

(iiiitiiii:,  IV'oiik'  r.  1 1  Wcud.  l«.    p.  ;(:•:(. 

ilciifui'  c.  State,  11  TfX.  (.\|>p.)  '.''•'>.     PI'.  "^77,  11  ■<."). 
j  (icriiiaii,  State  r.  :,{  Mo.  .-.i;!;;   U  .\iii.  Utp.  mi 

(Icrri'cli,  U.  1'. -' M.  ."i  U.  2l'.>.     p   f.i-. 

Ci'ichcll,  IViiple  r.  C.  Mii:li.  ■\:'i'>.    )ip.  -'.''.',  371. 

liluTkiii,  Slate  r.  7  Ired.  20(i.     p.  7.5. 
jiaiilis,  li.  r.  Dears.  U.'^.     p.  578. 

Gllisiiii,  K.  r.     p.  L'pi. 
I  riillurl,  K.  r.  MiMi.  l."),V     p,  .'>4'^. 
I  tlill)ert,  I'liiteil  Stiili's  7'.  :.' Suiiiii.  U'7.     p. '.U'.i. 

(iill,  I'.ople  V.  (J  Ciil.  <;;f7.     i)p.  »20,  1  lli'.i. 

(iiviiis,  Slate  1'.  5  .Ma.  717.     p.  7.". 
j  iilass,  It.  r.  1  Dcii.  L'li;;  :.'  ('.  x  K.  ::::,.    ]<.  .'i78. 

(Ilvile,  1!.  V.  11  Cox,  KK).     i)p.  .ll;i,  411. 

(iiiii-il's  fa.se,  1  (.'.  .<:  1".  ;'.04.     pp.  H'.h),  710.    . 
I  (lixlfrey  r.  Tcople,  i;;!  N.  Y.  207.     j'p.  S5(J,  H71. 
I  (ioilfrey,  U.  v.  ><  C.  k>i,  1'.  ,")(;;!.     pp.  ,>7*2,  T-'n. 

(ioumii,  rulled  States  r.  ii  His.s.  7(;;i.     p.  120. 
I  (ioius  r.  State,  41  Tex.  334.     p.  1185. 

(ioo.l,  R.  r.  C.  &  M.  582.     p.  417. 

(iooilc,  l{.  r.  ('.  ><.  M,  :,--2.     |i.  4'.i;'.. 

(ioiMl.n,  K.  ?'.  U  Cox.  Cm:;,     pji.  !IC,  98. 
I  (ioodcMoiiiiii,  U.  t).  <;  Cox,  20!>.     p.  545. 

(ioodricli.  State  v.  iC  N.  I[.  IHi!.     p.  574. 

(ioodwinVs  Case,  C  City  II.  Hec.  !>.     p.  sr.C. 

(ioodhall,  U.  r.  R.  &  R.  4i:i.     i.p.  l-'O,  2S|,  .'Ui'.,  .'ISC,  ;!i:S,  376,  :^85. 

(iodld,  State  V.  '>:',  Mc  27'.i.     p.  si'.'.». 

(iordon's  Ca.se,  Dears.  S.m;.     jjp.  112,  114. 


XXIV 


TAHLK   OK    CAiSKS. 


Ooss,  R.  '•.  s  Cox,  •:!'.■>.     p.  ML 

(iniily,  Coiiinioiiwualih  v.  i;i  Hush,  '.'s:..     pp.  300,  3S5. 

(iniliiiii  f.  Oanimaiin,  2  Cal.  I(i8.     p.  L',5'.». 

CraliMiii,  I'loplf  V.  (1  Park.  Cr.  V^r>.     p.  '<] . 

Craliani,  State  )•.  71  N.  C.  Cli!.     p.  UsH. 

r.rant  r.  St.itc,  l'  'Pcx.  (App.)  H.:!.     p.  5;'i'.i. 

(iravcs.  State  v.  72  N.  C.  48-.'.     pp.  o'23,  '>"<-'. 

(iravc!-,  IVoplc  r.  5  I'ark.  \:)i.     pp.  xo,"),  ,sOi;. 

Gi-ay,  K.  )•.  Doar^.  >.«t  B.  ;'>0;!.     p.  H.'iS,  877. 

(iray,  Si.-ttc  r.  S  .Jones,  170.     ]>.  SUS. 

Green,  ("oiumoiiwealtli  v.  1  Aslini.  L'S',).     pp.  '.•;'.;',,  1047, 

(.reel),  Q.  r.  .Jelili'sCr.  C'a>.  2-<l.     p.  o. 

(ireen,  U.  r.  Dears.  :!-.>3.     pp.  4'.>4,  ^"8. 

Green,  U.  r.  :!  F.  vt  !•'.  274.     p.  770. 

Green,  State  v.  (li!  Mu.  (m1.     pp.  10-".i.  W':;. 

Green  r.  State,  12  Tex.  (App.)  51.     pp.  .'^'■'•.  ."''7. 

(irceii.  Stale  v.  7  Wis.  G'O.     p.  158. 

(ire.  ne,  Gonnnonwealth  r.  Ill  Mass.  3',c'.     pp.  418,  554. 

Greeiilmlirli,  K.  r.  Dears.  207.    pp.  ;'.;17,  ;'.:!-^. 

Grilllii  r.  State,  -t  Tex.  (App.)  411.     pp.  072,  07:i. 

(JriHiih,  U.  V.  8  C.  &  P.  248.     p.  1075. 

(irosse  V.  State,  11  Tex.  (.Vpp.)  :!ti4.     p.  1185. 

(iiiernsey,  U.  c.  1  F.  i<;  F.  'Mi.     p.  555. 

Giiffee  r.  State,  8  Tex.  (App.)  187.     p.  IIIXJ. 

Guiterinan  et  al.  r.  Liverpool,  etc.,  Stoain-liip  Co.,  H'^  N.  Y.  'KVi.     p.  11.' 

Guv,  U.  i\  1  Leach,  277.     p.  508. 


Ila-k  r.  Lindorman,  M  Pa.  St.  4'.»'J;  3  Am.  Hep.  or;,     j).  4;tO. 

lladley's  Case,  5  City  U.  Kec.  8.     p.  553. 

Haines.  Pe.iple  r.  14  Wend.  54f;.     p.  374. 

Hairston  r.  State,  54  Miss.  OWJ.     pp.  828.,  873. 

Hale,  II.  V.  2  C.  &  K.  327.     p.  877. 

Hale,  State  v.  7  West  Coast  Rep.  141.     p.  532. 

Hale,  lVoi)le  r.  1  X.  V.  Crini.  Hep.  5:!3.     ))i>.  ,S04,  801". 

Hall,  R.  r.  3  C.  it  P.  40;>.     pp.  O'.i'J,  718. 

Hall,  People  !•.  0  Park.  044.     pp.  710,  711. 

Hall,  R.  f.  1  Den.  3sl.     p.  3!)4. 

Hall  c.  State,  li'.Tex.  (Ap)).)  (i.     pp.  846,  877, 

Hall,  Stale  r.  5  llarr.  4'.i2.     p.  809. 

Hall's  Ca.se,  1  Hume  Cr.  L.  173.     p.  2i'.l. 

Halloway,  R.  r.  5C.  &  P.  524.     p.  557 

Halloway'.-- Case.     p.  100;!. 

Ilami.t.ui,  People  v.  40  Cai.  540.     pp.  8!i;\  001. 

HaMiilt"n  r.  Si.ate,  00  Iiid.  \'.K>.     p.  50.>. 

Haniiliou  v.  State,  11  Giiio,  435.     i)p.  504,  "12. 

Hauim.l  r.  State,  14  Tex.  (.Vpp.)  320.     pp.  483,  ({(M),   117'.). 

Haninioud,  State  i'.  35  Wis.  .".15.     pp.  1040,  1041.  Vj42. 

Hauunond  c.  State,  3  Cold.  12',l.     p.  722. 

llancoek,  R.  r.  14  Cox,  11',).     p.  077. 

Hand,  United  States  t'.  2  Wash.  C.  C.  435.     pp.  788,  870. 

Hauuah  r.  state,  1  Tex.   u\pp.)  57s.     p.  o.^S. 


KS. 


iO,  3NJ 


;!,  1047 


418,  5,-4. 


'o.,  S:'.  N.  Y.  KV.l.     p.  ll.M. 


t;r;.    j).  •4;to. 


i>4, 8ij;t. 


1.  )'j11'. 


.  788,  870. 


TAIU.K    OK   CASES. 

„,„son.  StMe.-.2r.^  K.  OllV     I'.  H«!). 

IPiPlv,  Stat.,  r.  Diival.  2:'i:.     p.  oU. 

H,r'i-avc,U.r.  :->(•.. ^1M7S-     P- H'^^- 
H^^vavv's  ('as.-,  5  ('.  i- IMIO.    p.-.h;u 

llirkins  ('uiniiioinvfallli  f.  l-«  >l^'*'*-  '' 
Har.no..,St:.t.  -•.7^N.r.578.     p.n;il 

Harinau,  C."->  -.louwcalUi  r.  4  Ban-,  .'(..•. 


XXV 


p.  1-47. 


hWt.I^'-.  UCox,  574.     pp.23,  '••«• 


p.  774. 


ll'iniii'^toM,  Coinmoii\v..aith  v.  a  l'i<;k.  -'•'-     __ 
llams.U.  r.-C.il>.4  4.;.     pp.  .;%,  HCO,  ^. . . 
„,,nst.  Slate,];;  Tex.  (App.)  MO.     p.  a>.^ 
Uarris  V.Stat.,  15  T.x.(App.)41l.     i;---^;:- 
11  .rrisou.  People  r.  8  Barb.  500.    pp.  -^^'^'^  •'■'•  "  • 
Uarrisou  v.  State,  r,  Tex.  (App.)  42.    p.  .)1  ■ . 
„,rnson  r.  State,  K;  Tex.  (.VPP.):''-"'"-     PP. -«- ""*■ 
Harrison  v.  State,  24  Ala.  21.     p.  S3U. 
Hart  r.  State,  14  Tex.  (App.)  057.     p.  ^^-i- 
Hart  r.  State,  :^8  Tex.  ;iS2.     p.  5:18.      __ 
Hart  V.  State,  57  lucl.  102.     PP.  501,  oo.,  <..U. 
iIart,R.r.OC.&lM'V.      pp.  4(;.h,  5.;(;. 
Hartmau  ^.  Cominouwealth,  5  Barr,  .10.    p.  oou. 

llartshoru,  R.  r.  0  C.x,  »''5-    P- f *'  ..     ,       -,       ;.,,,i.     p,  n:W. 

Hart  well,  Cu,.-..n..nweallh  v.  128  Mass.  41. ;  ....  Am   u.  p. 

Harvey,  R.  v.  2  Leaeh,  521!.     p.  «4«. 

H.rvevs  Case,  2  Ka>t'.,  i-.  C.  85.!.     p.  8  ,. 

llarvev  s  Case,  1  Alison,  304     p.  2(.2. 

Hassail,  R.i'.  L.&C.68.     p.  577. 

llatcUett,  Coininoinvealth  v.  2  Allen,  V^u 

Ilai-'hey,  Commouwealtli  v.  :$  Mete.  22:i. 

Harvey,  R.r.R.^R.  227.     p.  IKS. 

Hawes,  State  r.  4S  Iowa,  181.     P-  781. 

lIaw'K.s,  R.  I'.  2  Mooily,  M.     p.  •.>8. 

Hawkins,  Commonwealth  r.  128  Mass.  7!>. 

11  .wkins,  State  r.  8  Port.  4a ;  :«  Am.  Dec.  ...4. 

li:,vaen,R.t,.7C.&P.445.    p.  57'J. 

ll.vn.'S,  People  r.  1 1  Wend.  557.     pp.  Jol,  -.  ■.  .'H  . 

H.-vnes,  People  r.  28  .Vm.  Dec.  5;10.    ,4  Wend.  ot.. 

llaVnes,  R.  v.  4  M.  &  S.  214.     p.  3.>?. 
HaVsr.  People,  mill,  :^..l.     P- «0.;. 
IMNward,  Common  wealth  v.  10  Mass.  ;U.     p.  .".i. 
llealev'sCase,  4  City  II.  Rec.  !1G.    p.  5.;8. 

Ilear.sey,  Commonwealih  r.  1  xMass.  i:'... 

Heath,  R.  )•.    p.  101. 

Hector,  State  r.  2  Mo.  100.     p.  954. 

Iledlev,  Uiiiied  States  r.     p.  12'.». 

Ileilbonn's  Case,  1  Park.  Cr.  429.     p.  .>4. 

Helm,  State  v.O  Mo.  243.     p.UlO. 

lleucli's  Case,  2  Russ.  120.     p.  548. 

Ileudersou  v.  Slate,  14  Tex.  503.     p.  68. 


p.  '.m. 

pp.  301,  385. 


p.  374. 


pp.  5:1,  720. 


PP 


l.-,7,  258. 


P 


357. 


XXVI 


TABI.K    OF   CASES. 


;i5; 


H41.     p.  5«. 


Ihnnins:.  U.r.lF.  >v  F.  :.0.     I-.  IH. 

UcTmiii:,  rnit,LHl  StuH's  r.  4  Crauch.r.OK.     V-  V29- 

n,.„ry,  CmnionwHlth  v.  L'2  Pa.  St.  253.     i-p.  -"''.'.  :■«+ 

lli'iiry  V.  Stau-,  :V.)  Fla.  f,;;!.     p.  ot<'.t. 

lleiishalK  'J  Lew.  i;'.5.    P-  «*""• 

lKn.-=liaw,  R.  r.  L.  .«i  C.  445.     pp.  27»,  lUl,  ;?7.-.. 

lUrrU;k,  I't^plo  v.  K5  Woiul.  87.     pp.  150,  311. 

llaw.'s,  Coininonwf.ilth  r.  1  Browst.  348.     p.  811. 

Ik-Witt  V.  State,  1.1  T«.    (App.^   501.     p.  U85. 

Hay,  U.  '•.  2  ('.  &.\\.  '.i82.     p.  575. 

Il.ywood,  11.  '•.  2  r.  v<:  K.  3.V.'.     p.  85. 

Ilickcy,  CoinmoiiWi-'Ulili  "•  -  Fars.  317. 

llickL-y,  Pfople  ('.  U  Hiiii.  i'.31 .     p.  .s78. 

Iliu'iloii,  Slate  V.  32  Iowa,  2f,2.     p.  734. 

Hill,  Stale  '•.  1  Ho\ist.  420.     p.  '■'..■'■ 

Hill  r.  Stale,  .")7  Wis.  :17".     p.  4.V). 

Hill  <•.  State,  1  Yer.'.  7C.;  24  Am.  Dei 

Hill,  K.  /•.lDen.453.     pp. ''i:.,  (U'.. 

Hill,  H.  f.  U.  v'i:  R.  I'.'O.     l..:'.ll. 

HiirsCase,R.  &U.31'0.     pp.2.;i,3ll. 

Hiirs  Case,  2  (iratt.  :.'.i5.     PP.  H^''''.  lO*"'^- 

Hilton,  K.  ('.  2  Lew.  214.     p.  1185). 

Hln.liiiarsli'8  Case.     pp.  USO,  051,  '.>53. 

Hin.'.s  r.  State,  !1  Tox.  (App.)  483.     p.  1  lO.V 

Hii>eh  V.  State,  1  Tex.  (App.)  37;'..     p.  :',.;(!. 

Hol.b.s  V.  Ilranseoinli,  ;!  Camp.  420.     p.  820. 

H...l-es,  R.r.  M..'^  M.341.     p.  .180. 

Ho.l-iiis,  R.  ,:  1).  '.^  n.  3.     p.  (i7. 

ll(ulH,M)n  r.  Loy,  7T    R.  445.     p.  208. 

Ho.liison,  R.  r.  Dears.  .<•  B. :'..     pp.  4,  20,  04. 

Holcoinbe  v.  Sta.e,  (W  Ala.  218.     p.  574. 

Holdeii,  K.  r.  2  Taunt.  3:'.3.     p.  4. 

HoKlen,  State  r.  M  N.  C.  527.     p.  572. 

Holder,  Cniiiinunwealtli  r.  '.'  Gray,  7      p.  •"'"' . 

Holland,  R.  .■.2M..>LR.;151.     p. '•«!• 

Hollan.l,R.  r.5T.R.  023.     p.  12-.>. 

Hullin-lierry,  R.  r.  4  Barn.  &  Cress.  32;t.  ^  p.  2M. 

HoUi'-ter  r.  Nowleii,  '.1  Wend.  537.     p.  815. 

Hol!..way,  R.  v.  5  C.  &  V.  524.     p.  l-'O. 

Holluwav,  R.  .•.  1  Den.  370;  2  C.  .^  K.  '.•43.     pp.  3'..3,  3i.4,  39«.  420 

Holly,  State  v.  10  Htimpii.  HI.     !>!>•  '•"''••  11^<*' 

Holmes,  State  r.  .54  Miss.  153.     p.  10'.t8. 

Holmes,  State  f.  82  N.  C.  007.     p.  S«-t. 

Holds,  f^i^'te  c.  8  Mo.  (App.)  2'.t«.     p.  078. 

Hoouhk.Tk,  People  V.  W,  N.  Y.  150;  2  N.  Y.  Crim.  Rep.  204 

Hopkins,  R.  r.  8  (•..><  P.  501.     p.  045. 

Horhaeh  r.  State,  43  Tex.  254.     pp.  1104,  1 105. 

Hore,  R.  '•.;'.  F.  &  F.  315.     p.  550. 

Home,  K.  r.  (\)wp.  0S2.     p.  178. 

Horner  r.  Perkins,  124   Mass,  431.     p.  320. 

Horner's  C"ase,  2  Fast's  P.  C.  703.     p.  GtJO. 


p.  750, 


TAHLK   OF    ( ASES. 


xwii 


i-p.  3;t;},  3;4,  3".».>,  4::o. 

IHO. 

.  Crim.  Ui'l).-'04.     i>.  7J<; 
1105. 


n;'.T. 

ji.  u88. 


TOI>. 


L„,.„,,kr.  State,  10  Tex.   CAP,>.)«H.     p,,.UK 
,,„„,.  State,  515  .Ua.  487.     p. '..•.. 
,„...,..State,9Tex.  (App.)5:5.     P-«0'- 
,,,^,  St:U.r.50N.lI.-10.     p.  :.-• 
.,,„,V.('a>o, -;•  IInn,;-lJ.     p.  1055. 
„, uinUriiUea  States  ..:!Suinn.  I--'.     P- 
;„.,,;,,  C^ommonweallhr.ir,'-- .Mass.  25(,. 

„. v>!ir.  State,  ;i7  Tex.  5:a.     p.  ««• 

„„wcn'sCase,2(;r.ratt.;i95.     p.  1 

„,,vi,.,  U.  «.  U  Cox,  32.     Pl'-'-'';;'«- 
1  1,  „!,.  r..  State,  57  lu.l.  341.    p. '■     ■       __ 
II,„,.M. .'.  State,  10  Tex.  (App.;  21a.     ...... 

.Won  r.  Slate,  0  Tex.  (App.)  S.'.S.     PP.  "OO    ;.  '■. 

m;i,  State  t'.  34  Conn.  i;'.2.     p.  81'.  _ 
„„„„,Urevr.Stale,C.3lml.223.     P-  ^'^O- 
;;;„;,U,-e;s,  State..  10  lUnnph.  412.     p.  ;.8. 
„„„.,Uri...,  Coniu.onwealth  v.  .  Mas.  -U.     1 
,„„„,■.  State,  7  Tex.  (.\pp.)'-il-^-     P-"" 
,l,„„r.  State,  55  .Via.  138.     p.-'-Tl. 
„„„,,  K.  t^  2  Camp.  584.     p.  2.,1.  _ 

,l,„„,..Cou.monweallh,  13r.ratt.',.o..    _p.  .-..'■ 

„,„„,r,..State,13Tex.(App.;H^     P•-^*• 
llarst,Statel..llW.Va.54.     p.  3S3. 
ll„~M.y  .•.  Thornton,  4  Mass.  40a.     p.  -''.'• 
llauhinson,  H.  v-  1  U-win,  1'.'5.     p.  6,V.). 

no,t.-.Wilkes,3B.&A.304.     pp.  83.S,  830. 
I.^^iKUU,  U.r.  Belie.  C.  181.     p.  111.   _    ^ 

Uvlo  r.  State.  1  Tex.  (App.)  i:'."T.     P-  •'-'• 
I„rubitantsK.^'.  -^"H^vk.P.C.     p.  1.8. 
luUaWtnnts,  U.  r.3.Maii.&S.537.     p.  n'_. 
,n.;an>lr.Hi^Sms.Cro.Elu.l25.     p.  4oo^ 

Irvine  «.  State,  13  Tex.  (.Vpp.)  400.     V-^M. 

U-vmu' .-.  State,  0  Tex.  (App.)  00.     P   *.'■  . 

Irviu«...Pe«ple,05N.Y..541,2N.  Y.  Cnni. 

Ives,  Stater.  13  Ired.  338.    p. -HU. 


U. 171.     p. 


Jack.son  V.  Caif  ns,  20  Johns.  301 .     p.  323.^ 

Jackson  «.  Stevens,  U:  Johns.  HO      p.  3— 
.lacUson  ..  State,  7  Tex.  (.Vpp.)  303.     pp.  .  0    ', 

.la.k.on,  Co.nmonwealth  v.  15  Gray,  18< .     p.  H  13. 

.Jackson,  U.  ^•.  3  Camp.  370.     pp   308,38-.. 

.I:ukson,R.  <'.'.>  Cox,  505.     p.  ».>7. 

.lack.son,  U.  1-.  I  M"0.  119.     P- 5^^ 

.la. cbs,  H.  .-.  12  Cos,  151.     P- r.4o 
,,„„„son'sCase,2CltylIallUee.l3K     P    ..   .. 

.I:H-„bs,  People  ..  35  Mich.  30.     ppj  lo,  •!...'. 
Junes,  State.;.  58  N.  11.07.     P- '"'«• 
.1  unison  V.  Slate,  37  Ark.  445.     p.  .J«rf.         ^ 
,,arni;;an  «.  State,  3  Tex.  (App.)  4t;2.     p.  8-.. 


XXV  III 


TAULK    OF   CASES. 


pp.  2'.iS,  IUm, 


p.  •-Til. 
p. 1022. 


.Tarrott,  State  «.  1  Ired.  7^,.    P;'*''!- 
loffiii's  Conimonweiiltli  r.  <  Allen,  o48. 
'.,..ffs(Msc..;',^Miss.:fJl.     p.  830. 
Jriiks  f.  l'..U'iiw".  -'Suiim.  -J'.'.    P-  fl*- 
.T..miison,  U.  r.  1»  Cox,  loS.     p.  "Au. 

J..r...v,  IVoplc  V.  18  Cul.  :'.37.     p.  557. 

-rs;::;:^;i!r7;r.n™.'nr.^^ 

Jo.UunU.lStates..lWashC    C     03.     p.  .4,. 
Johnson  V.  CommouweaUh,  24  (iratt.  5.,o. 
.lol.nsc.n  r.Co.nin..uw.alU.,  ■2\  I'a.  Si.  3S.  • 
Johnson  r.lMtt.'rs..n,M  Conn.  1.    J>.  •^■i-». 

Johnson,  U.  '^  ;»  t^=i'"P>  ='''^-     l"..^'"- 
Johnson,  U.^•.lI'"^^••l•-+•     P- "•»».•, 
johnM.n,  U. '•.--'  Moo<ly,  325.     p.. I... 
Johnson  r.  Stat..,  UT.x.  .15.     pp.  •-'><..  3,5. 

Johnson  iJ.  State,  3«-.  Ark.  '-•V.'.     P-  -"tt. 
j.,hnson..Stat...2Tox.(App.)38,      pfiOO. 
Johnson  r.  State,  1.1  Tox.(App.)-lO_2      p.  ««8. 
Johnson,  State  r.l'hlU.L.l  to.     p..^l.. 
Johnson  ..Stat.,  43  Tex.  57.i.     p.  *M^.. 
Johnson  ..State,  35  AU.  303.     PP- «.^^.^':- 
Johnson  r.  State,  30  Tex.  375.     pp.  «1«, -l• 
John.sonr.State,ll<>hU,St   324      p.o'o. 
Jol.nsot.  ..  State,  12  Tex.  (App.    3oO.       ■  om. 
Johnson  V.  State,  13  Tex.  (App.)  3..».     p.  o8-  . 

....   .      I  T..V     r  \ni)  1  lUl.     pp.  5i)'J,  ''33. 
Johnson  r.  State,  1   lex.  (,App.;  II--     ii 

Joice  V.  state,  53  Ga.  50.     p.  8'.'.1 
Jones  r.lVople.  12  111.251..     p.  527. 
Jones  r.  State.  8  Tex.  (.Vpp.V.-^.     P- ^W. 
Jones  r.  State,  13  Tex.  (App.)  1.     P' ■:^'/';' *• 
Jones  «.  State,  11  S.  .^  M.  31o.    pp-^;;:«*- 

Jones  r.  State,  50  iml.  473.     pp.  L-,  300. 
Jones  r.  State,  5'..  In.l.  220.     p.  oOl 
Joue8,K.«.24KnU.C.L.150.     P.ll!> 
Jones.  K.  r.  1  Leach,  101.     P- 30.>. 
Jones,  U.r.  3  Cox,  441.     p.  *»". 
Jones,  K.  .-.  2  C.  &  1'.  02V>.     p.  OuC. 
Joues,  K.r.  1  l>en.  IH^.     P- 352. 
Jones,K.r.2Kas.'sP.C.883._p.8o. 

':;;:";■■' si:ik.  37.;  0  Mo,,.  105.  pp.io3.35«. 

Jon-s,  Slater.  05  N.C.31'5,     pp.  400,  542. 


•iES. 


2'.iH,  Uc.7. 


I,  io;u,  io:^.J,  lo.'.f, 


p.  074,  115.-.. 

..777.     pp.  GS7,7lO. 
p.  '.U7. 

p.  1022. 


iU8. 


il. 


583. 

583. 

S'VJ,  lis;?. 

)p.   lO'.U, 

1003 

3,  ■-•7;?. 

p.  332. 

8'.)4. 
542. 


TAULF.   or    CASF>. 

LKS,Stau.r.3Dcv.&n.  122.     p.  .V-'7. 
r,  „v>  .V  IMlnuT's  Case,  1  Loach,  lO.",.     p.  .  !• 
l,',„'„.Ma^o,l  Leach,  20S.     p.  177. 
t  „„..' case.  I  Leillh,  :.'.W.     pp.  KUU'.,  in.,N. 
'  ,v,ln.  -'.  Commonwoaltli,  2.".  (iratl. ',.13.     p.  .  1 , . 
iL.nl.n".  Slate.  lOTcx.  47',).     p.  n.V.1. 
|justi..v,  States.  2  Dev.  200.     p.  380. 

Iic^ofor.  People  r.  LS  Cal.  (137.     PP.  S31,  873. 

I"  ,1.1.     11  T'l     St     ').■)        DP.      10,4,   II.'.'. 

iK.rnan  r.  Coimuonweallh,  44  1  a,  M.  .....     1  1 

Ik  .,,„.,■ ,.{  Pris.,n,  Commonwealth  r.  2  Ashm.  22,.     P    1113. 
kian..  People  t..U  Cox,  5.U.     p.  371- 
1-., .„,,,•.  State,  3.S  Tex.  110.     p.  ll.So. 

k!I'.- .-.State;  51  IncL  111.     PP.  1«2,  350,  3..,  3.,,. 
Ik.'Vv,-.  State,  Uln.L  3(1.     p.  •'iOl. 

l,,..-r    State,  20  Ohio  St.  1.'..     p.  411,^1., 
.  „  'lyT  Commomvealth,  1  Grant's  Cases,  4s, . 
K,nvr.  People,  Ollun,  509.     P- .^l- 
K..lly,R.«.Moo.C.C.U3.    p.  001. 
K,.ml:,lU'.State,8Tex.(App.)...^     P- ;  •'  • 
K.uarick,  U.  u.  5  Q.  B.  40.     pp.  Ill,  14., ->.).-.. 
lK.nne0v,ll.i'.2Leach,0l4.     p.o.sl. 
e,uH.,h-r.  State,  34  Ohio  St.  310,     p.  m 

Lnvonr.  People,  20  N.Y.  2.33.    p.  ,20 

iKcnyon,  People  v.  5  Park.  254.    p.  ■ -• 


.\.\i\ 


p.  lo:v.'. 


JK.inyon,  Ex  parte  5  Dill.  38,1. 


1>.  7«-2. 


p.  103,  3.VS. 
42. 


von,  I'-x  pa,ii.v;  "  •' „    ,    .,, 

iK.n.lo;.  State.  12  Tex.  (.VPP._)  420.     p..01,.14. 

Kin.  r.  State,  .54  C.a.  184.     p.  «20. 
Kin.v.  State,  13  Tex.  (.\pp.)-'--     P-  •»"'^- 
l<in'..'s  Case,  2  Va.  Gas.  84.     p.  lOf-O- 
Kiny'sCasc,  1  Hume,  174      p,  2.,2 
Ki,kbam,R.«.8C&P.115.    pp    1003.  1180. 

Kivkscv  I'.  Fike,  29  Ala.  200.     p.  482. 
K;;u:n;..S,a.;.43Ind.l40,13AmK.P;^:»«T. 

Kne.lan<l,R.i'.2Leach,833.    pp.  <0..,  ilS. 
i;m.At,R.i'.Salk.375.     PP-=^0.  l^''"    ^ 
lun.hl,R.T'.  V2  Cox.  102.     PP- ♦"' "1-    ,,,   aio 
K,un.on  ..  State.  14  Tex.  (App.)  -«•     ''"^f  ^f  \-,,  ;,,, 
Kr,UMM>.  Commonwealth,  03  Pa.  St.  418,  3.>  Am.  Ktp. 
|Kri.ler,Statet;.78N.C.481.    p.  i/2. 

I  UcolleUl  t'.  State,  34  .\rk.  275.    p.  872, 

L:.M,  State  V.  32  N.H.  110.    p.  574. 

l,uMh,  States.  05  N.C.  4)9.    p.OG. 
i  i.u..aster,  Con.mouwealth  v.  T.mich.  ^^^O      P.  3-3. 

Lu„lin«.  State.  10  Tex.  (..Vpp.)C3.     pp.5H3.(..l. 

I,„„,o.R.«.33Eng.L.&Kq.G30.     p.ll... 
'lu>,.«.Coramonwealth.59Pa.St.371.    p.  1017 

'  u,,..  V.  People,  10  111.  305.    p.  650. 
L,..,„ley'sCasc,4Cityn.Rec.l50.    p.  Co.,. 

Landing  v.  McKlUup,  3  Calues,  287.     P-  71. 


,488. 


.•.XX 


TAULK   OF   CASES. 


p.  700. 
p.  73. 


p.  57!» 


l.apier's  Case,  2  Kast's  P.  C.  70:V     y.  M'J. 

I,ar:i,  1!.  V.     pp.  ;i05,  ;i07,  oJJ,  ;}.i«. 

Lanitr,  K.  r.  U  Ci.x,  4'JS.     p.  37tt. 

LiUliiii,  I{.  1'.     p.  4.lo. 

L!iruii«lfr'.s  Case,  '2  Ka.st's  1'.  C,  ch.  HI,  .hoc.  15.     |«.  4ii8. 

l,;i\v>(iii  r.  St;itt',  ;10  AUi.  14.     pp.  843,  tKKi. 

KiMch,  r()iiinu)invi.'iilth  r.  1  Miixs.  o'J.     p.  480. 

I,.  :il  r.  Stall',  K'  T.-x.  (.App.)  •_'7y.     pp.  «71,  t;7',t. 

I.fiir's  Casi',  1  HaleuOii.     p.  o'.'J. 

hcltlamli,  Slate  t).  2  Vrooin,  s:.'.     i).  M5. 

l,i;(lclin;.'to!i,  K.  f.  1'  C.  A:  P.  79.     p.  ir.i7. 

L,c  r.  U.-s(lo\v,  7  Taiiiit.  r,)l.     pp.  4511,  400,  4(i2. 

Lcf,  U.  r.  L.  &  C.  30',t.     i)p.  15S,  ;175. 

Lie,  li.  i\  8  Cox,  233.     pp.  3(10,  3ti2. 

Ia;c,  IJ.  /•.  1    lA'iicli,  CI.     p.  S71. 

I..'i<;li,  K.  r.  2  ICa.sl'.s  P.  C.  i;',>4.     p.  431). 

Liiuliton,  Puoplf  V.     pp.  1051,  1055. 

Li'iiuox  &  Pyboss'  Case,  2  Lew.  Cr.  C.  268. 

Leiitoii,  Coiiinioinvt'allli  c.  2  Va.  Cas.  47i;. 

Leolialil  V.  Sl.'iti',  :!3  Ind.  484.     p.  385. 

Li'P|>ar(l,  K.  v.  4  !•'.  >.<:  F.  51.     p.  55b. 

LiKoy  r.  Deakin.s,  I  Sid.  142.     p.  73. 

LfssiT  V.  Pcoplu,  73  N.  Y.  78.     p.  340. 

Lf.-ter,  ('oniiiioiiwealtli  r.  129  Mu.is.  101. 

l.evine,  K.  !'.  10  Cox,  .".74.     p.  3U1. 

Levy,  I{.  V.  4  C.  &  1'    241.     p.  54<;. 

Lower  r.  Coiiiinoiiwoallh,  15  S.  &  R.  'J3. 

Lewi.s'  Ca^o,  Fost.  Cr.  L.  110.     p.  79. 

LonUs  r.  Slate,  30  Ala.  54.     pp.  880,  881. 

Lewis,  State  v.  48  Iowa,  578.     p.  780. 

Lewis,  Ho,  i;  U.  C.  Pr.  Rep.  237.     p.  808. 

LUs  r.  \h-  l)ial)ler,  12  Cal.  3;i0.     p.  70. 

Lijihtii.r  r.  Steiiia^ee,  33  111.  510.     p.  4s7. 

nil  c.  gueeu,  Dears.  132;  1  Kl.  i  Bl.     pi>.  329,  .331. 

Lilley,  People  v.  43  Mich.  621.     pp.  805,  sTi;,  788. 

Littlojohii  r.  State,  59  Miss.  273.     p.  5:'.0. 

Liviii^sioue's  Ca.so,  14  (iratt.  592.     pp.  >,t,!3,  1140. 

Llo.Ml,  n.  V.  7  C.  &  P.  318.     pp.  t<\K),  b99,  910. 

Locke,  State  v.  35  Iiul.  419.     p.  107. 

Loeko  r.  State,  32  N.  H.  100.     p.  574. 

Loomi.s  V.  Eilfiartoii,  19  Woiul.420.     p.  4sO. 

Loomi*,  People  v.  4  Deiiio,  380.     p.  572. 

I.oii^  V.  Worcemaii,  38  Me.  49.     p.  117. 

Loiiu:  V.  State,  12  Ga.  293.     p.  (194. 

Loiii;  V.  State,  27  Ala.  32.     p.  482. 

l.oiia.  People  V.  39  Cal.  094.     p.  104(J. 

Lonsdale  r.  Rigt;,  20  L.  J.  190.     p.  400. 

Loose,  R.  r.  Bell,  259.     p.  577. 

Lovehuly  v.  State,  4  Tex.  (App.)  545.     pp.  1142,  11 80. 

Lowick's  Case,  13  How.  St.  Tr.  277.     p.  201. 

Luusford  r.  State,  I  Tox.  (App.)  449.     p.  572. 


1>.  645. 


TAULK    OK   CASKS. 


XXXl 


Liiiisford,  Stati;  v.  tl  N.  ('.  'y2S.     p.  S«l. 
Liipiu  V.  Marie,  7  Weiul.  77.     I).  -'0'.". 
Lurch,  Stilt.'  r.  ti  Wi'St  C.  K.  HO.     1>.  l.'>». 
Lutt.m  v.  suit.',  U  Tox.  (App.)  518.     p.  :W1>. 
I.yimi.s,  StMle  r.  26  Ohio  St.  400.     pp.  450,  572 
Lynch,  n.r.  5C.it  P.  325.     p.  US'.I. 
Lynch's  C'ii>c.     p.  -'t;:!. 
Lyon  V.  State,  tU  Ala.  •-'24.     p.  557. 

Lvon,  n.  .-.  1  !"■  --"i  I'-  •"'*•     !'•  5*-' 

LJ on,  IL '•.•_' L.'ach,iWl.     p.  '•'•<. 

Lyons  r.  Merrick,  105  Mass.  71.     p.  H;'.:. 

Lyou.s  V.  Slat.',  52  liul.  42(1.     I'P.  7'2»,  775. 

Lyons,  R.  v.  V.  A:  M.  217.     pp.  i;55,  i-o!<,  il5;»,  I'.i'.o. 

Lyons,  <i.  r.    p.  •'■''■5. 

Lytle,  State  c.  i'.4  N.  C.  255.     p.  M- 


li;!«. 


Maccarty,  Q.  r.  f,  Mo.l.  I'.Ol.     pp.  103,  305. 

Macdaniel,  (.'oinmonw.allh  v.  1  Leach,  52.     p. 

Mackinlev,  People,  v.  !>  Cal.  250.     p.  574. 

Maiklox  V.  Stale,  41  Tex.  200.     pp.  553,  561). 

Ma.lKe,  R.  v.  '.)  C.  &  P.  2!».     pp.  504,  513. 

Ma.li.son  I'.  State,  ID  Tex.  (App.)  435.     pp.  5s:;,  «1G. 

Madox,  R.  V.  Russ.  &  Ry.  92.     pp.  57G,  578. 

Maiiee,  State  r.  U  In.l.  154.     pp.  158,  375. 

Ma«o\van,  Commonwealth  v.  1  Melc.  3t;8.     p.  H'm. 

Maher  v.  People,  10  Mich.  220.     p.  7Sl). 

Maher  v.  State,  10  Mich.  212.     p.  ltW8. 

JLihly,  Slate  v.  M  Mo.  315.     p.  10*25. 

Malwney  v.  People,  3  Ilun,  202.     p.  712. 

Majoue's  Case,  !>1  N.  Y.  211.     pp.  1055,  1003. 

Major,  R.  r.  2  Leach,  804.     p.  5ti8. 

Mann,  Peoi.le  v.  75  X.  Y.  484;  31  Am.  Rep.  4SJ.     pp.  .,0, 

Mapes  r.  State,  14  Tex.  (App.)  12-J.     pp.  583,  (;2! . 

Maran.la  v.  State,  44  Tex.  442.    p.  360. 

Marcus,  11.  v.  2  C.  &  K.  356.     p.  75. 

Mareutelle  v.  Oliver,  2  N.  J.  (L.)  37-,>.     p.  7'.>5. 

Marion,  People  y.  29  Mich.  31.     p.  61. 

Marner.  K.  v.  C.  &  M.  628.     p.  U3. 

Marsh,  R.  v.  3  F.  &  F.  523.     p.  53ii. 

Marshall  c.  State,  31  TeX.  471.     p.  553. 

Marsliall  v.  State,  33  Tex.  664.     p.  1 105. 

MarslmU,  People  v.  5'J  Cal.  386.     p.  771. 

Martin,  R.  v.  F.  &  F.  501.     p.  873. 

Martin,  R.  v.  14  Cox,  375.     p.  92. 

Martin,  R.  v.  L.  R.  1  C.  C.  R.  5.;;  10  Cox,  383.     p.  380. 

Martin,  R.f.  8  All.  &E.  481.    p.  331. 

Martin,  Commonwealth  v.  17  Mass.  ;!63.    pp.  •»G,  .  00. 

Martin's  Case,  3  Ciill.  C.  L.  707.     p.  1 77. 

Martin's  Case.    p.  620. 

Martinez  r.  State,  41  Tex.  126.    p.  517,  580. 

Marliiien  v.  Stale,  10  Tex.  (App.)  122.     p.  «21. 


oo,  si. 


X  \  \  1 1 


taum:  ok  casks. 


M:ir\  ill's  (MX',  Sir  Jiiiiii.     ji.  "i7. 

Milton,  K.  i\  I  Leach,  l>7.     !>.  .'Ml. 

Muson's  (':!«■.  :.'  U.  <k  11.  ll'.i.     pp.  C'.io,  i;',ii. 

Mas.si-y,  State  r.  mi  N.  C.  i;,V.";  (1  Am.  Kcp.  178.     p.  S1)5. 

Ma.sMy,  St  ite  c     |).  '.iii'.». 

Ma.sM-yr.  Slate,  lOTix.  (App.l  i:i.'.      p.  IISS. 

Masterson,  K.  r,  •_'  Cox,  luO.     p.  ;iH(». 

-Mattlicson,  15.  v.  T)  V>>\,  -'7(1.     p.  't7't. 

Mnttlu'ws  r.  State,  1(»T.\.  ( Apii.)  :.'7.».     p.  •„'%. 

MMltiievvi  c.  St.itc,  :..")  .Via.  IsT,     p.  \W2. 

Mat!lie\v.>»  r.  Siale,  ;'.:!  Tex.  10^'.     p.  :iS-<, 

Muttheus,  U.  '■.  IJ  (Ox,  4s;).     p.  :,{•,(). 

Mutlhia><  ;■.  .Maitliias,  ;i  Joiie.<<,  I.'IL'.     p.  80il. 

Maxwill,  IViiple  r.  L'4  Cal.  i:..     p   ,>1. 

Mead  r.  Yoiiiii;,  4  T.  I!.  L's.     pp.  ;;•.',  ^.•^. 

MeiulowB,  K.  r.  1  C.  ^v  K.  ;i:iS.     |).  771. 

Mercer,  H.  '■.  ti.Iiir.  L't;!.    p.  '<17. 

Meredith,  K.  i\  L'  Caiiipl).  •'■:'>'.>.     |>.  L'r..^. 

Meredilli  i\  Slate,  in  inaiiiiscripl .     pp.  .'';'.4,  8;!8. 

Merrell,  ConiiiKniwraltli  i\  \i  (iniy,  51.").    p.  '.io4. 

Merriinau  r.  Tlie  lliiiidred  of  Cliiiip^  iiliaiii,  2  K  ist,  V.  C.  700. 

Merrill,  ('oinniunwealth  -■.  1  Kiray,  II,"..     pp.  8S7,  s'.'il. 

Merrittr.  Slate,  •_•  T.  x.  (App.)  177.     p.  5s:!. 

Merry  r.  (ireeii,  7  .M.  ..<:  \V.  t;i'3.     pp.  4oO,  438,  5Co. 

Mi'rshoii  I?.  State,  51  Iiid.  U.    p.  r.i.'. 

Metealfe,  1{.  r.  ]{.  .t  M.4:!;).     p.  41);!. 

Meyerileld'.s  Case,  I'liil.  N.  C.  lOH.     p.  8;!0. 

Mlddieiim  r.  Stat.',  Diidl.  L'75.     p.  :\>*i<. 

Middloton  V.  Stale,  5::  Ga.  21H.     pp.  519,  580. 

Milhiinie,  It.  r.  Lewiii,  l'5I.     p.  55'.i. 

Millard,  ri>iiiiiii>n\ve:ilth  r.  1  Mas.s.  (!.     p.  527. 

Miller  '•,  Haee,  1  I'.iirr.  457.     p.  i'.75. 

Miller  f.  State,  CI  Iiid.  405.     pp.  (W,  '.•'.». 

Miller,  Coinnionweulth  i'.  Lewis  Cr.  L.  li'JS.     p.  1023. 

Miller  V.  Commonwealth,  78  Ky.  15.     p.  545. 

Mill.T,  I'eople  c.  2  I'arli.  Cr.  H.  Ilt7.     pp.  150,  167. 

.Miller,  J'eople  !'.  14  Johns.  371 .     pp.  358,  375. 

Miller,  ]{.  I'.  13  Cox.  179.     p.  7G». 

Mills,  Stater.  17  .Me.  211.     p.  341, 

Mills,  rnited  State.s  r.  7  Pet.  140.     pp.  125,  127. 

Ml!sa;-s,  State  )•.  82  N.  C.  "'.I'.t.     p.  sec. 

Minister  of  St.  Botolph's  Case,  1  W.  Bl.  443.     p.  179. 

Minter  Hart,  11.  t>.  (1  C.  &  1".  lOf!.     pp.  833,  334,  335. 

Mitchell's  Ca.se,  2  Ea-t's  1'.  C.  83',i.     p.  4!t7. 

Mitrhell,  United  States  r.  I  Bald.  .HOC.     p.  C. 

Maekrid;:e,  State  t).  11  Vt.  054.    p.  504. 

MoHatt,  U.  V.  2  Leach,  48(i.     pp.  t>8,  77,  323. 

.Moffa't,  K.  r.  1  Leach, 431.     p.  71. 

Moffatt's  Case,  2  Kast,  954.     p.  73. 

Mole,  U.  V.  1  Car.  &  K.  417.     pp.  433,  559. 

Mouta{;;ue,  State  v.  2  McCord,  287.  p.  185. 


p.  705. 


J 


TAIILK   OK   CASKS. 


xxx.u 


|i.  7115. 


Moiipiiio,  IVople  V.  1  N.  Y.  Crlm.  Rt-p.  411.     pp.  1048,  UOU 

Moiiiuir,  Statu  r.><  Minn.  'JV>.     p.  W. 

Moiil^'omcry  v.  (State,  lii  IVx.  (App.)  3'.'3.     p.  64. 

Montiionu'i-y  r.  St;ito,  1:5  Ti'x.  (App.)  7,').     p.  '.'it. 

Moutt;()incTy,  CoinmonwiiilUi  v.  11  Mete.  5114.     p.  Cf2:. 

M()ntu'(>nicry,  Uniti'il  States  v.  3  Sawy.  ;U4.     p.  078. 

Mo.iney  r.  .Miller,  102  Mas.x.  L'17.     p.  117. 

Mooney,  State  v.  VMM.  4;!4.     p.  H«.». 

MoDre  V.  State,  18  Ala.  633.     p.  >*;'-5. 

Moore  v.  State,  8  Tex.  (Aj.p.)  4!»6.     p.  531i. 

Moore  v.  State,  7  Tex.  (App.)  14.    p.  lisi. 

Moore,  Coniinonwealih  v.  'J',1  Ta.  St.  570.     pp.  283,  IMr,,  375. 

Moore,  U.  v.  8  Cox.  4U'..     p.  443. 

Moore,  State  v.  fiUN.  C.  207.     pp.  1107,  1189. 

M(,(ire,  State  r>.  25  Iowa,  128.     p.  1113. 

.Moore,  Stale  v.  15  Iowa,  413.     p.  388. 

Moore,  State  v.  31  Coiiii.  47'J.     pp.  83'.),  843. 

Moore's  Case,  1  Leach,  335.     p.  M'.h 

Mopsey,  It.  t-.  11  Cox,  143.     p.  'JC. 

Morllt,  R.  V.  1  R.  &  R.  .307.    p.  721. 

Morjian  v.  Statu,  42  Ark.  131 ;  48  Am.  Rep.  .">5.     pi>.  291,  378. 

M.or;:a«  v.  State,  l(i  Tex.  (Apii.)  6'.t3.     pi).  »20,  1 1 1 1. 

Morjjan  v.  Statu,  13  S. &  M.  242.    p.  842. 

Mory;an  v.  State,  33  Ala.  413.     pp.  835,  830,  837,  873 . 

Morgan,  State  v.  3  Ircd.  187.    p.  839. 

Morgan,  United  Status  v.  I  Crancli,  278.     p.  608. 

Morgan's  Case,  3  Ired.  18G.     p.  830. 

Morphy,  State  v.  33  Iowa.  270.    Vp.  933. 

Morris,  R.  v.  2  East,  748.    pp.  675,  07''. 

Morris,  R.  v.  2  Leach,  527.    p.  668. 

Morris,  R.  r.  2  Leach,  915      p.  681. 

MorrU,  State  v.  I  Ilayvv.  429.    p.  1189. 

Morrison  &  Gray  o.  Buclianan,  0  C.   P.  &18.    p.  332. 

Morse  v.  Shaw,  124  Mass.  69.     p.  326. 

Morton,  R.  v.  12  Cox,  456;  L.  R.  1  C.  C.  R.  22.    p.  96. 

Mott,  R.  r.  2C.  &P.  521.    p.  98. 

Moye  V.  State,  9  Tex.  (App.)  88.    p.  358. 

Mucklow,  R.  V.  I  Moo.  160.     pp.  439,  557. 

.MulhoUand,  Commonwealth  v.  5  W.  N.  C.  208.     p.  76. 

Mulllns  V.  State,  37  Tux.  337.     pp.  021,  033. 

Murpliy,  People  v.  47  Cal.  103.    p.  541. 

Murray,  R.  v.  5  C.  &P.  145  note  a.    p.  498. 

Murphy's  Case,  23  Gratt.  j72.     p.  1069. 

Murphy's  Case,  6  C.  &  P.  103.    p.  961. 

Murrow,  R.v.  2  Lew.  136.    p.  877. 

Musgravc,  R.  v.  1  Lewin,  138.    p.  67. 

Mycall,  Commonwealth  v.  2  Mass.  136.    pp.  47,  200. 

Mycock,  R.  o.  12  Cox,  28.    p.  770. 

iMcAfee  v.  State,  14  Tex.  (App.)  668.     p.  408,  546. 

McAllister,  People  v.  49  Mich.  12.    869. 

McAtee,  Commonwealth  v.  8  Dana,  29.    p.  129. 
3  Dk.fkxcks.  c 


XXXIV 


TAISI.K    Ol'    CASKS. 


McCiill  r.  Tiiylor,  nt  L.  J.  C.c:,,  C.  V.    p.  i.'4. 

McCall  V.  StiitL',  (i7  Ala.  L'J7.     pii.  570,  i>H. 

McCann  i-.  Pfopk",  t!  TarU.  (;.".».     pp.  10S»,  1 18'.>. 

MfCarty,  CoiiiiiiDinvonlih  •.  i'  I'a.  L.  Jour.  i;tii.    p.  7:1:!. 

McCloskoy  V.  IV.ipIc,  5  Park.  U'7'.i.    pp.  flS4,  710,  711. 

McCord  r.  People,  4.'.  N.  Y.  470.     p.  3,H'2. 

McCoy  V.  Stutc,  44  Tex.  (IK!,     p.  fioH. 

McDadc  r.  People,  2;»  Mifli.  50.     p.  78H. 

.^icOaniol  w.  Coiniiionweallh,  77  Va.  'JSl.     pp.  10()."i,  1  \'>''>. 

McDaiiiel  V.  State,  8  S.  .<:  M.  401.     p.  S.".',). 

MuDaiiiel  r.  State,  ;'.3  Tex.  4L'0.     p.  5:!0. 

McDoii'.'al,  State  r.  L'OWN.  4:i'J.     i).  557. 

M<l)t;ffy,  CiiiiimoinveaUh  ('.  r.'5  Ml.s.s.  4i;7.     pp. '.'"m  .  '2'M>. 

Mctiiirreii,  People*.  17  Weiul.  4i;0.     p.  5ill. 

McGiiity,  I'eoplc  u.  2t  Ilitii,  1)2.     p.  710. 

MeOref-or  v.  Stale,  4  Tex.  (.\pp.)  5;t'j.     jip.  MU,  -<77. 

McUeiiry  v.  Stale,  10  Tex.  4(;.     p.  521 . 

Mcliilo.sh'.s  Case,  2  Kast,  Oil",     p.  ;t24. 

McKeii/.io  v.  Slate,  C  Kiiii.  5',i4.     pp.  L'l)2,  2',).'^,  ;rr.. 

McLaren,  State  ».  1  Ark.  ;UI .     p.  'X\. 

McLauirliUu,  People  r.  44  Cal.  435.    p.  1071. 

McLoujiUliii,  ]{.  r.  8  ('.  .<:  P.  5:1.-..     pp.  C:)i;,  (11)7,  877. 

McMahon  r.  State,  1  Tex.  (.\pp.)  102.     p.  042. 

MeNal),  Stat.;  r.  20  X.  U.  li;o.     pp.  KGO,  1010. 

McNairr.  State,  14  Tex.  (.\pp.)  18.     pp.  4tt»,  572,  58;'. 

McXair  v.  State,  85  Ala.  4.50.     pp.  880,  8!»7. 

McNeil  V.  Collinsoii,  128  Mass.  Uh.     p.  1 137. 

MrPhallr.  Stale,  10  Tex.  (App.)  128.     p.  5S3. 

McPlke,  Commonwealth  r.  3  Gush.  181.     p.  1141. 


N.  &  C.  R.  Co.  t\  Peacock,  25  Ala.  220.     p.  s;;;). 

Neeley,  State  ('.74  N.  C.  425;   21  Am.  Rep.  4;m;.     pp.  S'JC,  !»0H. 

Neff,  Stale  v.  58  Intl.  510.     pp.  81 «,  870. 

Xeliuti,  R.  V.  1  Salk.  151.     pp.  101,  35;t. 

Xelson  r.  People,  5  Park.  3'.i.     pp.  805,  Sim;. 

Xewmau,  Slate  p.  ;•  Xev.  48.     p.  548. 

Newton,  R.  v.  2  Moody,  SO.    p.  JM». 

Xeylaiid  v.  Stale,  13  Tex.  (App.)  53(1.     ]>.  IKU. 

Xicholls,  U.  r.  2  Cox.  181.     p.'.tlO. 

Xichol,  People  v.  34  Cal.  214.     pp.  1040,  l'"'^. 

Xichol,  R.  r.  Rus.s.  &  R.  130.     p.  880. 

Xiehol.son,  R.  v.  2  Leach,  \'>'JS.     pp.  104,  545,  3o(J. 

Xiven'sCase,  5  City  It.  Rec.  70.     p.  355. 

Noakesf.  People,  25  X.  Y.  3Sn,  384.    p.  51 . 

Noble  V.  State,  22  Ohio  St.  541 .     p.  808. 

Noble,  State  r.  15  Me.  470.     p.  1137. 

Nol.  11  u.  State,  8  Tex.  (App.)  5^5.    p.  1185. 

Nohnr.  St;ite,  14  Tex.  (App.)  474.     pp.  IMO,  HSl. 

Noregia,  Peoiiler.  4S  Ca!.  123.     pp.  52J),  562. 

Norman  v.  State,  24  Mi-s.  54.     p.  842. 

Norris'  Case,  0  City  II.  Hee.  80.     p.  710. 


TAUM:   C)l'    CASKS. 


xxxv 


Nortll,  R.  I'.  t<  Cox.  \M.     p.  54o. 
Norton  D.  Lu.ld,  .-.N.  H. '-'OH.     p.,"!. 
Norton,  State  i.-.  7i'.  Mo.  I.ho.     p.  :'.:i. 
Nufsliln,  Si:it.'  r.  U5  Mo.  111.     PI'   10:i:'.,  lo.'.'l. 
Nnu'ent  v.  Slate,  1»  Alu.  5-'l.    p.  'Hn. 

Nvc «.  I'fopK',  ;i5  MicU.  I'J.    pp.  th;,  ii.-.i;. 


,  rt;l7,  -(71. 

p.  732. 

I.  ><7"<. 
pp. 


■.!.-.,  7;i7 


8',). 


Oatc'.x,  K.  r.  r,  Cox,  510.     p.  :iS7. 

O'Connor  r,  .Stati',  lU)  Alii.  1.     p.  .'171. 

O-lctr.T  1-.  Siiilc,  L'H  Alu.  li'.t;?.     pp.  «:55.  Snu 

()•(;. )nn!lli.  Still.;  r.  08  Mo.  17'.t.     p.  ^''•■ 

Olllli;!-,  It.  r.  10  Cox,  4oJ.     pp.  7tin,  77o. 

Oliver  ».  Conunonwi'iilth,  101  l':i.  Si.'Jl."). 

Oncl.y,  n.  r.  2  L.l.  KMvm.  HSH.     p. '.•',' I). 
Onlwiiy,  t:oninion\vcultl\  r.  1  Cush.  :.'70. 
On-ull,  State  I'.  I  l)ev.  (L.)  1:'.'.'.     p.  H:'''- 
Ortepi,  Unitcl  Slates  r.  I  Wa-iU.  C.  C.  .Vtl 
<).«il)orn  V.  State,  52  Ind.  S-'ii.     pp.  ''2ii<  "" 
Owen  r.  State,  U  Tex.  '.'48.     !>.  •>■•'*■ 
Owen,  U.  I'.  '-'  Leach,  O.")-'.     p.  S'^o. 


Painter,  State  v.  <i7  Mo.  S) .     p.  H71 . 
rainier  v.  I'eop'e,  lo  Wend.  \*<'>.     p.  4is. 
I'aliner,  United  States  v.  I!  Wheat.  lUo.     p.  7r.l. 
I'almore  v.  State,  J'.i  Ark.  'Jt"*.     p.  1 1  ""'■■ 
I'archraau  v.  Slate,  •.'  TiX.  (App.)  'J'-'S.     p.  in'\. 
I'.irfait,  U.  y.  1  Leaeli,  L';'..     p.  "U. 
Parfait,  U.  t'.  1  Kast'.s  P.  C.  41i!.     p.  704. 
Parker  &  Brown's  Case,  2  Kast'.s  P  C.  '."i:!-     p. 
Parker,  U.  c.  2  Cox,  274.     i>p.  "••'!.  ''^^ 
P.irker,  R.  r.  :'.  (4.  15-  Uep.  ;!'.t2.     V-XM. 


Parker,  Commonwealth  »•.  0  Mete.  2i;;!.     pp.  9S2,  '.»«:!,  ;t'i4. 

i'uKer, Commonwealth  r.  2  P.ck..-.4.s.     p.  li:V,>. 

Parkes  &  Brow,  R.  r.  2  Leaeh,  C.  C.  7H.-..     l)p.  -'0,  SO. 

Parkes,  K.  i-.  2  Leach,  7ii;!.     p.  545. 

Parkes,  R.  v.  2  Kast's  P.  C.  >.)•;;!.     p.  51 . 

Parmenter,  Commonwealth  r.  121  Ma>s.  ;'.54.    p.  :l'2i. 

Parr,  Commonwealth  v.  5  W.  &  S.  345.     p.  7(;7. 

Parshall,  People  v.  0  Park.  1:52.    p.  771. 

Parsons  v.  State,  21  Ala.  IIOO.     pp.  »22,  '.'3;i,  1141 . 

P.irtridjre,  R.  r.  0  Cox,  183.     p.  3Ml. 

Partridire,  R.  r.  7  C.  &  P.  551.     p.  527. 

Pasley  V.  Freeman, :!  T.  R.  51.     p.  ;U0. 

Patemau,  R.  v.  K.  &  H.  4.->4.     pp.  ':«,  ;i-'^ 

Panli  V.  Commonwealth,  80  Pa.  St.  4;'>2.     pp.  7i 

Payne  v.  People,*;  Johns.  10.!.     p.  572. 

Peacock,  People  r.  (!  Cow.  72.     p.  51. 

Pear's  Cas..,  Kasi's  P.  C.     pp.  54';,  71'.». 

Pearce  r.  Lea,  1I8  N.  C.  1)0.     p.  52ii. 

Pefferling  v.  State,  40  Tes.  48G.     pp.  8'J3,  '.•04. 


4'.)1. 


XXX  VI 


TABl-i:   OK    (.ASKS. 


ILiH. 


Toiili'V,  Slut.'  I'.  L'7  roiin.  .■)*'7.     p.  Hi'.. 
I'riinMlViiiaii  r.  L,  wis,  Ail.l.  •.•:'.'.     I'.  l'>»'- 
IVr.liie  r.  Aldri.lj:.',  VJ  1ml.  i!'."'.     p.  7<i. 
l'irl(N(';i>»'.     p.  4 •-"-'. 
IVrr.vr.  Slat.',  41  'IVx.  4t<;i.     p. (108. 

Vi-ny,  ("c.iimi.Miw.uiiii  r.  h  piiiiii.  i'm;.    p.  :.::.. 

I'llTV,  li.  '•.  1  I)>ii.  I'-'-     P-.-i'*. 

IVrrolt,  R.  r.  '.'  Mini.  >'v  Sfl.  ilT'.i.     Pl«.  1^1,  -">'■ 

r.lili,  R.  r.  1 1  Cox,  1 1"!.    PP-  4<W,  ."1  • 

IVtrisi.ii  r.SUt.-,  lil  T.x.  (App.)  "■'■>»>•     l'l>-  >*«^  '■':'"• 

IVlcTson  r.  Stilt.',  11 'IVx.  (\pp.)  li'--'.     p.  ■■"'I. 

Petti-rinv  r.  Stat.',  U'  T.'X,  (App.)  l.".':).     pp.  OW,  «'2.'». 

Phi'lp'si  Cusi', '-'  Moo.     p.  NTtl. 

I'hifiT,  stHt.'  r.  cs  N.  C.  ;ii;:>.   p.  a^'.'- 

I'hiUips,  ){.  r.  2  Kii-fs  P.  C;.,  vM.  I'i,  soc.  D'^ 

FhillipM,  R.  r.  at'ump.  74.     !>.  llM. 

riiiiica,s  A.l!llll^<'(':l>l•.     i>.  4:"-'. 

IMiip.ic,  R.  '•■  -  l''':i<'l>.  •''"'■<•     P-  ■*''"• 

I'lilp.K'.'^,  Mr.-*.,  Ca.-f.'.     pp.  ;i:'l.  -l"*- 

IMckflt'M.  Statf,  r.'  Tox.  (AiM')  «''• 

IMerce  t?.  Pfoplf,  81  HI.  '••»*■     P-  S''*** 

Plcrson  !^  Pi'.>i>le,  7'.t  N.  Y.  4:l<;.     p.'.tCu. 

Pi.Tsoii  I'.  P.'opl.',  lf<  Hum, '.'S:!.     p.  007. 

PilUii;:,  R.  V.  I  F.  .t  F  HJ.'..     p.  i>'J. 

Piiikncy,  K.  c    PP-  1'".  •'l'>''»« 

Pitts?).  State,  ."iTcx.  (Ap))  )  ."'41.    p.  888. 

Pluto's  Ca*e,  li  City  H.  Uf.-.  7.     p.  710. 

Pleasant  r.  State,  i:J  ArU.  I'.iIO.     pp.  HH2.  904. 

Pli'Stow,  R.  •'.  1  Camp.  4',i4.     p.  nH7. 

Plioinliii«  I'.  Statf,  4(1  Wis.  o\i>.     pp.  1037,  1156. 

Plmiiiner,  R.  r.  Kel.  117.     p. '."82. 

Plunkel's  Case.     pp.  iWt,  '■■'■' 1. 

Poguc  V.  State,  12  T.'X    (.Ai'P.)  -''^;'-     P-  ^^l- 

Pollliill  r.  Walter,  1  Win.  i  .  .     p.  (*5. 

Pollock  r.  Pollock,  71  N.  Y.  i;i7.     p.  'M'- 

Pool,  People  I'.  27  Cal.  57:!.     p.  Ml- 

Poole,  R.  V.  Ih'urs.A.  ».  !U5.     p.  iJ»8. 

Poole  V.  People,  (?0  N.  Y.  (US.     p.  W'^. 

Pooley,  R.  v-  Russ.  v<:  R.  12.    p.  ;!i«. 

P,.piiiiuis  V.  State,  12  Tex.  (Api.  )  1  !'\     ."■  38ft. 

Porter  r.  State,  1  Mart.  >t  Yerj;.  -'■■i'      i>-  ""'•'• 

oner.  United  State  r.  2  Crane!;,  C  J.  CO.     p.  228 
Porter,  United  States  v.  :(  Day,  2S3.     p.  1137. 
Potter  V.  People,  5  Mich.  7.     p.  78(i. 
Ponlton,  R.  v.  5  C.  .«i  P.  ;V.".).     p.  lUW. 
Powell  c.  State,  13  T.'X.  (App.)  244.     p 
Powell  r.  State,  15  Tex.  (App.)  411.     p 
Powell,  Cominonwealtli  v.  7  Mete.  001. 
Powell,  R.  r.  2  Wni.  Bi.  :s7.     p.  4. 
Powe'l's  Ca^e,  1  Dallas,  47.     p.  17C. 
Pratley,  R.  v.  5  C.  &  P.  633.    p.  '422,  678 


:i".(7,  3118. 


683. 
p.  814. 


T.MU.K    OK    (ASKS. 


XXXV  il 


ll'.U. 


rraior  r.  Hmr,  15  T.'S.  (Wr)  ;>'•■'•    !••  '"'*'• 
I'ralt,  U.  r.  M.>o.  i;50.     p.  t,\f*. 
I'liiii,  U.  1".  H  ('<)x,:i:il.    p.  3«4. 
I'niti,  u.  V.  iK'iirs.  :it;ii.    pp.  4h2,  r.:.'. 

PimU,  stater.  7  Housl.'-'f.i.     p.  1 '>'■'- 
I'nvv,  C.miuonwi-aHh  v.  VA  Tick.  U.V.*.    p.  HIm  . 
I'lVHCOIt,  rnitr.l  States  v.  1!  lUs.s.  :»i;5.     p.  IIH. 
Pn.ton,  K.  r.  1  lKn..il>.a5l.     pp.  43«.  '.S'.". 
Preston,  U.  v.  2  D.-n.  ;t:.;i.    PI'-  -t:!:!.  i;",  i;!5. 
Preston  U.  '•.  l-'l  U.  {■•  Q-  »■  «'!■     !'•  •'■''• 

Pri>ti)ii'.><  f';is''-    !>•  "'''•• 

Prrston  r.  Slatr,  8  T.x.  'App.)  J'O.     p.  UH-V 

Price  r.  SUU;  IS  T.x.  (App.)  ITl;  51  A.n.  ll.>p.  3'.".'.     PP-  10».., 

Price  t'.  State,    p.  '.•-'". 

Priestly,  State  v.  U  Mo.  2t.     p.  904. 

Privetl,  K.  r.  1   Den.  1!«;».     p.  3'.M5. 

Prowes,  11.  .'.  1  Mo...  :;i'.i.    pp.  504,5U. 

Pr.vorNCase,  til  (Iralt.  KHO.     p.  loiiH. 

Pir'lir.  Ui.l)ln.'<on,  1  T.  K.  lie.     p.  ■-'-•<• 

P„r,.an.  '•.  Si.nivan,  4  Mass.  45;  :!  An..  Dec.  aO^,.     p.  90. 

Pywell,  IX.  r.  I  SUirk.  4()J.     pp.  141,  142,  V,M. 

Uafferty  i;.  People,  (;;•  III.  111.     p.  ll'.»:. 

Kauu,  li.r.  8C0.K,  2i;2.     p.  ;U14. 

lUinlx.ltr.  State,  .n  Tex.  287.     p.  S'lf-. 

lUnilall,  Coiiiinoiiwealtli  v.  4  Gray,  30.     p.  113. . 

Itutuiey  V.  People,  22  N.  Y.  414.     pp.  30«,  :14..,  3. ... 

Itmso.u  t'.  State,  22  Conn.  151!.     p.  55'.». 

lUvenscroft,  R.  v.  U.  .>i  U.  I'lO.     p.  97. 

s:^;:7ur:i7:rr^^ri..-;:u.  ...-^. 
r;;;:";;i:"ufw.X5;;r^ 

Ue.lstrake,  State  «.  3'.)  N.  J.  (K.)  :!'■.•.•     PP-  l.,C4. 
Recti  t..  State,  8  Tex.  (App.)  40.     pp.  5.V.I,  (.lo. 
R..e.l,  U.  t'.  7  C.  &  P.  848.     pp.  350,  :150. 
KcUl  li.  V.  I  Dears.  257.    p.  4S5. 
Rui.rs  Case,  lUirn.  1715.     p.  2(;2. 

Reushaw,  11.  r.  2Cox,285.     p.  8.V,l. 

Reopellc,  R.  r.  20  U.  C.  Q.  n.  2.i0.     p.  97 

Respublica  r.  De  Lo.mscha.ups,  1  Dall.  HI.     PP.  '.'o.  '•'-  • 

ReyuoUls  r.  Stat..,  14  Tex.  (App.)  427.     p.  11«1. 

Ri-vuoUls  R.  '•.  '-i  t'"x.  • '  *^-    I'-  •'^^''• 

Rhodes  ..  Commonwealth,  12  Wright,  3'.h..     p.  1020 

Rhodes  ..  State,  U  Tex.  (App.)  5.13.     pp.  UHo,  118i„  118,). 

Rhodes  V.  SUitL,  1  Cold.  351.    p.  904. 

Rice  V.  Comrnonw.,'alth,  100  Pa.  St.  28.     pp.  7««,  .  ■  '- 

Rice  V.  Com.nonwealih,  103  Pa.  St.  408.     p.  ,U,  >  .O. 

Rke,  State  r.MN'.C.Ml.     p.  683. 

Rice,  United  States  v.  1  Hughes,  SCO.     pp.  1189,  1 1.». . 

Richards,  R.  v.  I  Mich   21ii.     p.  377. 


XXXVIII 


TAULK    OF    CASES. 


!i;4. 


niclmnls,  R.  v.  R.  &  R.  102.    pp.  07,  :V.'+. 

Uicliiinlson  i'.  SUite,  34  Tex.  U2.     p.  10:i7. 

RiclKinlsoii,  R.  V.  G  C.  &  1'.  :«C.     pp.  <;t7,  05.). 

RicliimNoii,  R.  v.  1  V.ScV.  488.     p.  3s7. 

IJiiiliels  r.  State,  Siieed,  CO*!,     p.  8(»U. 

Ridille,  United  States  t).  4  Wash.  044.  '  p.  872. 

RilLrewuy,  R.  v.  3  V.  &  F.  858.     p.  302. 

Riehe,  Slate  v.  27  Minn.  315.     pp.  75,  95. 

Hielly,  R.  r.  .Tebb,  51.     p.  '»'.'». 

Riley,  R.  r.  1  Cox,  98.     p.  .'•4«. 

Rltsou,  Queen  v.  L.  R.  1  C.  C.  200.     p.  51. 

Rt.herson,  R.  ".  Bell,  34,     p.  572. 

Ri.hcrts  1'.  State,  2  Head,  501.     p.  3f<C. 

Roberts,  R.  V.  C.  &  M.  C52.     p.  '.i7. 

RolxTtson  r.  State.  10  Tex.  (App.)  042.     p.  870. 

Rol)ertS(.n  y.  State,  3  Tex.  (.Vi)p.  503.     p.  lft{». 

Robertson,  State  r.  :!0  l.a.  Ann.  340.     p.  1101. 

Robertson,  United  States  v.  5  Crandi,  3H.     p.  548. 

Robins,  R.  V.  Dears.  418.     p.  498. 

Roliiiisonr.  Kni^e,  29  Ark.  57.5.     p.  482. 

Robinson  v.  State,  16  Tex.  (App.)  347.     p 

Robinson  v.  State,  11  Tex.  (Aup.)  403.'   p 

Robinson  v.  State,  0  Wis.  585.     p.  90. 

Robinson  r.  State,  12  Mo.  592.     p.  957. 

Robinson,  R.  v.  Bell,  34.    p.  454. 

Robinson,  R.  r.  Cox,  115.     p.  388. 

Robinson,  State  v.  73  .Mo.  300.     pp.  1070,  1150. 

Rol)ln.son,  Statu  v.  12  Mo.  592.     p.  '.'54. 

Robinson's  Case,  3  Cliit.  COO.     p.  177. 

Roderipis,  People  v.  49  Cal.  9.     pp.  "tlO,  775. 

Roel)uek,  R.  v.  Dears.  &  B.  24.     pp.  135,  137,  13S,  139,  141,  142,  14n  2>9,  290. 

Roebuclx,  R.  t'.  7  Cox,  12i;.     p.  300. 

Ro-a.i,  K.  V.  Jebb's  Cr.  Cas.  02.     pp.  099,  718. 

Ro;.'crs  r.  People,  15  How.  Pr.  558.     )..  lO'.tl. 

lio.'.'ersf.  State,  8  Tex.  (App.)  401.     p.  68. 

Ro-er.s,  R.  v.  8  C.  &  P.  029.     p,  43. 

RoiI.Ts,  R.  V.  2  Moo.  C.  C.  85.     p.  C48. 

Uoodle  r.  State,  5  Neb.  475.     p.  0!). 

Roper,  Stat,   v.  2  Dev.  (L.)  47;!;  24  Am.  Dei, 

Ross,  State  -'.  1  Gall.  024.    p.  983. 

Ross,  Stite  V.  25  Mo.  420.     p.  11 10. 

Ross  r.  People,  5  Hill,  2!t4.     pp.  3.H9,  545. 

Rotinals,  Stale  c.  14  La.  Ann.  278.     i).  515 

Rouse,  R.  r.  4  Cox,  7.     p.  97. 

Roy  r.  Ferrers,  1  Sid.  278.     pp.  72,  73. 

Royal,  People  v.  53  Cal.  03.     pi).  SS2,  897. 

RueUer  i .  State,  7  Tex.  (App.;  549      p.  1178. 

Rudi(  k,  R.  V.  8  C.  &  P.  237.    p.  717. 

Rnld,  State  v,  8  Iowa,  447.     pp  728,  772,  775. 

Ruhuke,  State  v.  27  Minn.  310.     p.  358. 

Rulofl  V.  People,  18  N.  Y.  17'.).     pp.  939,  1141. 


208.     |).5(«1. 


TAl'.I.r,    tiK    CASKS. 


XXXIX 


13'J,  141,  Ul.',  UN  !.'> 


I.  L".in. 


nushworth,  R.  i'.  1  Stiuk.  r.!C,     ]>.  }>7. 

Kiissoll,  1{.  '■.  1  l-oavli,  10.     p.  ;'>. 

Kiillurfoni  r.  C.nninoiiwiMltli,  -'  V:i.  Ca-.  1  tl.     p.  (m8. 

RutluTford  ".  State,  K'.Tox.  CM'I'-)  '■'-•     !'■  **''''• 

Ryan  r.  State,  43  0;v.  l'-'?*.     p.  ;''75. 

Rye  V.  State,  8  Tes.  (App.)  U;i).     V 


5:18. 


Sa.ldler  r.  State,  12  Tex.  (App.)  r.i+.    p.  ftOS. 

KaflDid  c.  IVople,  1  I'ark.  Cr.  47+.     pi>.  M''..  7T"> 

Saiiwluu-y,  K.  r.  7T.  R.4r.l.     p.  ^<)1>. 

Saltillo  V.  Slate,  Hi  Te  :.  (App.)  21!".     p.  «'-'.'>. 

Samuel  c.  I'aiiie,  1  Voun.  ;i.VJ.     p.  8l'0. 

Sanchez,  People  ».  24  Cal.  17.     pp.  1042,  lO^.,  1018,  115i; 

Sandv.s,  K.  ''.  1  Cox,  8.    p.  876. 

Sanfurd  v.  Stale,  ll'  Tes.  (App.)  ll'il.     pp.  «'■•'.».  !>0U. 

Sankey,  Commonwealth  r.  'JL'  I'.i.  St.  3'JO.     p.  »0. 

Santello  «.  State,  10  Tes.  (App.)  '-M'.*.     p.  r.8:i. 

Sargent  v.  Courier,  M  111.  l'4j.     p.  4sl'. 

Sartient,  R.  w.  10  Cox,  Cdl.     p.  fl3. 

Satehell  <^.  State,  1  Tex.  (Apr  >  4;18.     pp.  110,  ,558. 

Saunders,  Qsieeii  r.  I'lowd.  *7;i.     p.  10ur<. 

Sauniler.s,  U.  u.  2  Strant;e,  805.     p.  227. 

Saviiije,  U.  V.  5  C.  &.  P.  143.     p.  .>4<i. 

Savage's  Case,  Styles'  Rep.  12.     pp.  72,  7:1. 

Saward,  R.  i'.  5  Cox,  205.    p.  575, 

Scales,  State  v.  •'.  Jones  (N.  C),  420.     p.  1»'24. 

Sehenault  u.  Slate,  10  Tex.  (App.)  410.     pi.    MO,  t,77. 

Schenek,  People  «.  2  Johns.  470.     pp.  504,  515. 

ScliindkT  v.  State,  15  Tex.  (App.)  ISOt.     p.  5>;;. 

Schle.sin^'er  v.  State,  11  Ohio  St.  (KiO.     p.  V.yx. 

Schmidt,  11.  V.  10  Cox,  172.     pp.  «5.1,  ':o4,  077. 

Sehoenwaid,  Slate  r.  31  Mo    152.     p.  IOL'7. 

SchiiUz  V.  Iloagland,  85  N.  Y.  404.     p.  007. 

Scircle  r.  Neeves,  47  Ind.  28!).    p.  664. 

Sciiz  V.  State,  23  Ala.  42.     p.  837. 

Scott  r.  People,  02  Uarl).  03.     pp.  241,  3C5. 

Scott,  People  V.  0  Mich.  200.     p.  780. 

Scott,  State  y.  30  Mo.  42!t.    !>.  054. 

Scott,  State  I'.  34  Mo.  424,     p.  057. 

Scott,  State  r.  12  La.  Ann.  274.     p.  033. 

SCO'"  <  Case,  1  Ali-on  Cr.  h.  305.     p.  2id. 

Scril)ble,  U.  l\  I  Leach,  275.    p.  581. 

Scully,  K.  V.  1  Cox,  18'.t.     p.  550. 

Sea-ler,  State  v.  1  Ricti.  30.    pp.  309,  542. 

Searle,  Coinmouwealih  r.  2  Binn,  332.     p.  0. 

Seariufj,  R.  v.  H.  ci  R.  ^50.     p.  571. 

Self,  State  v.  1  Bay,  242.     p.  550. 

S'dli-',  R.  V.  7  C.  i  P.  850.     p.  lir.O. 

Semple's  C:isc,  2  Ivist's  P.  C.  liOl.     pp.  452,  540. 

Seward.  State  '■.  42  Mo.  2(!0.     p.  1110. 

Seymore  v.  State,  12  Tex      App.)  30l.     pp.  583,  «J.>7. 


xl 


TABLK   or   CASES. 


Shailbolt,  n  V.  5  ('.  ><:  P.  504.     p.  i:ir. 

Shiulli-r.  Stiilc,  ;!4  Ti'X.  572.     p.  ,s77. 

Slj.ilfiT  r.  Slalo,  8-'  Iiiil.  L'l';?.     p.  ;i,s7. 

Slmll,  lV()|ilu  V.  \)  Cow.  778.     pp.  2(),  28,  38,  ;Ut,  'i. 

Sharmaii,  U.  v.  Dciirs.  C.  C.  -'.S5.     pp.  !i,  l.',  L'l . 

Sliurp  r.  Slate,  *;  Tux.  (App.)  (150.     p.  'X^'.t. 

Sliar)),  Sl:ite  r.  71  Mo.  2Ks.     p.  1 15<:. 

Siiarpt',  Uiiilfd  Slates  r.  1  IV-t.  1,!1.     p.  1»5, 

Shaw,  n.r.  1\V.  HI.  7'.iO.     p.  ->i;i. 

Slii-a,  H.  V.  7  Cox,  148.     p.  551t. 

Shuati,  State  r.  ;i2  Iowa,  88.    j).  7-.".). 

Shclloii  V.  Stall',  l-J  Tux.  (App.)  5i;!.     jip.  5S3,  t'.L'l,  «2S. 

Slii'parii.soii,  IVopk-  ?•.  48  Cal.  18'.i.     p.  71S. 

Sheriff,  Comiiioiiwealth  v.  A  Brew.st.  34l'.     \<.  «77. 

Sheriner,  Slate  v.  55  Mo.  CI;5.     p.  557. 

Sherwood,  K.  v.  1  C.  &  K.  55(!.     p.  118!t. 

Sherwood,  U.  V.  7  Cox,  L'70.     p.  340. 

Sherwood,  H.  r.  Dears,  .t  B.  251.     pp.  135,  IM,  Vo7, 14ti. 

Shliiii  r.  State,  r,4  Iiid.  13.     pp.  fl5»2,  710,  717. 

Slioaf,  Slat'  i\  08  N.  (;.  378.     p.  077. 

Shoek,  Slate  v.  C,A  Mo.  5.j5.     pp.  1028,  1155. 

Shovliii  ?).  CoiiHiioinvealth,  lOG  Va.  St.  30'J.     pp.  809,  870. 

Shurtleff,  State  V.  18  Me. 371.     p.m. 

Siiiiinon.s  r.Coiiimonwealth,  5  Hiuu.  (il7.     iip.  504,  515. 

Siiuiiioii.s,  fiiited  State.sr.  1m;  II,  S.  ItCti.     pp.  Il'2,  123. 

SiiiioiuN,  Coimuoiiwealth  v.  2  .Ma.s.s.  103.    p.  185. 

Slmon'.s  Ca.se,  2  Ka.st's  P.  C.  731.     p.  704. 

Simpson  V.  Stale,  5:i  Ala.  1 ;  31  Am.  Rep.  1.    pp.  833,  870 

Simpson  v.  Stale,  4  lliinipli.  45i!.     pp.  504,  515. 

Simp-on,  Slate  v.  3  llawlis.  tL'O.     p.  358. 

Siiidraui'.s  Case,  88  X.  Y.  I'M),    p.  1055. 

Six  Carpenters'  Case,  8  Coke,  2.i0.     p.  422. 

Skeehan,   People  )•.  4'.>  Harl).  217.     p.  1033. 

Skiff  r.  People,  2  P.iik.  Cr.  13;».     p.  250. 

Sloan,  State  v.  4  7  Mo.  ooi.    p.  1033. 

Sloanaker,  Slate  r.  I  Iloiist.  02.     p.  872. 

Siniili  c.  limit,  13  Oiiio,  200.     p.  70. 

Smith  V.  MeClure,  5  East,  475,     p.  332. 

Smith  r.  State,  2  Tex.  (App.)  477.     p.  583. 

Sinilh  r.  State,  35  Tex.  73i5.     p.  55'.». 

Sniitli  r.  Slate,  52  (ia.  88.     p.  873. 

Smith  r.  Slate,  33  .Me.  43;  54  Am.  Dec.     pp.  tt81,  Woo. 

Smith  V.  Slate,  18  Ohio  St.  420.    <.t8. 

Smith  V.  State,  .■'.',)  Miss.  54.     pp.  830,  807. 

Smith,  Commonwealth  r.  1  Brew^t.  347.     ().  358. 

Si.iilli,  People  t'.  5  Cow.  25X.     p.  480. 

Smilli,  P(  ople  V.  10  Cal.  280.     p.  557. 

Smith,  State  r.  3,2  Me.  309.     p.  HOo. 

Smiih,  Slato  r.  43  Me.  30H.     p.  I(i3'.». 

Smith,  St  ito  r.  s  \vr-^.  150.     p.  7<s. 

Smith,  John  1{.  r.  2  Den.  I  V.K     pp.  333,  337. 


TAIU.K    Ol'   CASES. 


Xll 


7:u. 


Sniitli,  K.  '•■  1  C"^<  "'•     ''■  ■''^■ 
^miil.,  U.^-.  1  IHMi..OMt:.     l'.4(J».. 

Smith,  1M-.  I  1>^'"-'-'^  •'•••^-     ''•■"-•    ., 
Smith,K.r.8<'..«ir.  173.     pp.  «;%,  ^"0. 

Sinitli,  R.  r.  1  M<)'>.  4711.     p.  515. 
Siuiih,  K.  r.  1  Lewi",  :''»l-     l'-"''-    ,     „ 
smith,  K.^-.lH'^'rs.&lJ.  5(;c..     pp.  17,  t-T 
Smith,  Unito.l  Statu.s  V.  1  Crunch,  47..,  a...1. 
Smith's  Case,  2  Ka.fs  P.  (".7s;5.     pp..^M..  ,1S 

Smipi-f.  Slate,  :nVx.(A!.p.)i;'^^-     P- •'•*'■ 

Snvaer  v.  Commonwealth,  f<:.  Pa.  St.  61'.>.     I<. 

Snv.ler,  Re  17  Kas.  .^I'J.     pp.  14«,305. 

Speurs  r.  Slate,  L>  Tex.  (App.) -'44.     p.  8(.0. 

Sp..neer,  R.  r. ;;  C.  i  r.  4-.'0.    p.  380.    _ 

Si.ie.rr.  People,  11  Rra.lw.2'.).^.     p.  8/0. 

Spinks  V.  Statu,  8  Tex.  (App.)  l-'5.     p.  53'J. 

Spirey  v.  State,  2G  Ala.  DO.     pp.  482,  ru,U. 

Son.ers  V.  Pumphrey,  24  I.ul   2;U  .     p.  .'.'8. 

Somerville,  Com.nouweallh  r.  1  Va.  Las.  U.i 

Soper,  States'.  Id  Me.  2;i;i.     p.  72(.. 

Sot.th,  Stater.  28  N..T.CL.)  28.     p.  ooO. 

Stantlckl  V.  State,  4:^  Tex.  1C.7.     p.  S'-l-- 

Stanley  r.  Slate,  24  Ohio  St.  m.     P-  «0H. 

Starck  r.  State,  l!3  Iiul.  285.     PP.  501,  6»8. 

Starr,  Slater.  38  Mo.  2.W.     p.  1027. 

SUarus,  People  r.  21  Weucl.  tOO.     pp.  28,  .^,  4.,  .>!. 

St.phrns,  K.  r.  5  East,  257.     p.  !'«• 

surlinu',  K.  r.  1  I.eaeh,  117.    p.  32:1. 

Sletso  .,  People  r.  4  Barb.  151.     PP.  3H.$  3S«. 

Stevensr.State,lTex.  (App.)5'.)l.     p.  H'H. 

Siuvens,  R.r.5Ka'<l,  244.     p.  342. 

Stev.ns.R.  '.MMoo.  40'.».     >-.  »''0.  

Stevenson,  Conimonweallh  v.  127  Mass.  44^..     p.  ...  •  • 

Stewart,  Staler.  2',.  Mo.  41'.».    P- «38. 

StinsouB.  People,  43111.397.     p.  54... 

Stoeker,  K.  v.  5  Mod.  137.     p.  72.  ^   _ 

SU.essigerr.R.Co.,;iKl.iH.5...     Pl>- ^•>.  •■■- 

Stokes,  People  r.  2  N.  Y.  Crim.  Rep.  382.     PP.  ««2,  1 1  ..• 

Stone,  People  r.  It  Weml.  182.     p.  2.0. 

Stone,  People  r.  10  Cal.iW.l.     p.  557. 

Stone.R.r.  1F.&F.311.     p.  ST.i. 

Stone,  R.  r.  1  Leach,  370.     p.  580.       ^ 

Stono,  State  v.  08  Mo.  1"1.    Pi'-  ■'■>^'>.  '>•»'*•  _  ,  ... 

Stov.n,  State  r.  54  Me.  24.     PP.  723,  728,  -.•-,-  -o. 

Storv,  R.  r.  R.  &  R- «!•     PP-  308,381. 

smart  .'.  People,  73  111.  20.     p.  530. 

Stuvvcsant's  Case,  4  City  Hall  Recloi.. 

SmU  r.  State,  50  Ga.  220.     p.  557. 

Sullivan  r.  People,  1  Park.  C.C.  34,.     p.  IKX- 

Sullivan.-.  State,  44  Wi..5!»5.     p.  828. 

SuUivau,  State  r.  85  N.  C.  500.     p.  ,  ».'•). 


5  Am.  I>'<- 571.     p.^71. 


j.p.  3ti8,  :'.7(,  375. 


xlii 


TAHI.i;    <»F    (ASKS. 


Sully,  Pooplo  r.  5  Park.  Cr.  U.  \V>.     p.  K.'!. 

Suniiiur,  U.  '•.  ^  Salk.  I!i4;  i'  K.  1'.  C.  (Hi.S;   15  StT-.  i  U.  •.':•..     p.  41^. 

Smmiiir,  Stale  r.  10  Vt.  5H7  ;  :!,T  Am.  Dec.  L'l'.i.     pp.  .'MM>,  ;'.xh. 

Siijit.  I'liila.  I'rUoii,  C'liiiiiionwi'iiltli  v.  9  I'liila.  551.     p.  577. 

Sutton  V.  Madrc,  il.ToiR's,  a.'O.     p.  »:••;. 

Swain  r.  Clicnfy,  -11  S.  H.  235.     p.  571 

Swans,  Tliii  Ca>i!  ot,  7  Uv\t.  15.     pp.  455,  45i;. 

Swaiinctrv.  Swauncr,  50  Ala.  (!•!.     p.  i^'J. 

Syil.scrff  .-.  Ciiufii,  11  (i.  15.  -JIS.     p.  :!i;-'. 

Tanmr  c.  Coinnmnwcaltli,   14  (^iratt. '''i^').     p.  55'J. 

Taplin'-i  Ca-c,  J  KasiVs  P.  C.  71-'.     p.  7ii4.  » 

Tarpl' y  r.  Pcoplr,  4-'  III.  :U0.     p.  S77. 

Tarranl's  Case,  4  Hiirr.  LMOC      p.  177. 

Tawell's  Case,  Will's  Cr.  Kv.  IM.     p.  '.MD. 

Taylor,  State  c.  25  Iowa,  273.     p.  5l'7. 

Taylor  r.  State,  12  1\\.  (.Vi>i)  )  48',).     pp.  5Ki,  (;21,  filVi. 

Taylor?,".  State,  14  T.x.  (App.)  :'.40.     p.  I17s. 

Taylor  '•.  State,  15  Tex,  (Ap!>.)  :157.     )..  58!!. 

Taylor  '•.  State,  5  Te\.  (App  )  oti'.t.     p.  "U.t. 

Taylor,  People  v.  :'.  Denio,  I'l.     p.  121). 

Taylor's  Case.     p.  lO'.'l. 

Tefft  c.  Winilsor,  17  .Mich.  4si!;  ;>  Cr.  L.  Mag.  8;!8.    p.2St;. 

Terry  v.  Hutchinson,  IS  L.  T.  kep.  (S.  C.)  521.     p.  77(i. 

Thenisson  )'.  I'i'ople,  .S2  N.    Y.  2;i8.     pp.  311,  ;iilti. 

Titus,  ConuuDnwealtli  > .  llii  Mass.  42.     p.  55'J. 

Thomas  -•.  IVople,  I'.l  Wend,  480.     p.  ;»5'.t. 

Tlnnnas  r.  People,  o4  N.  V.;'51.     p.  15<;. 

Thomas  r.  State,  40  Tex.  00.     p.  625. 

Thomas  c.  Slate,  1>'.  Tex.   (App,)  5:!.5.     pp.  S90,  Vi04. 

Thomas,  Peopio  ,-. :)  Hill,  n;:'.    pp.  257,  2;i;i,  a.si,  .'184. 

Thompson  1'.  State,  43  Tex.  200.     pp.  008,  »04,  HOS. 

Thompson,  Commonwealth  I!.  2  Cl.irk,  33.     pi).:!8.'i. 

Thompson,  Comnionweaiili  r.  lOS  Ma-^s.  4(>I.     p.  1114. 

Thompson,  People  r.  2  Johns.  Cas.  ."42.     p.  '.<7 . 

Thoinp.sun,  K.  c.   1  Moody,  7><.     p.  ."iSO. 

Thom|)soi',  H.  r.  L.  .<:  C.  2:1:'..     pp.  41>7,  578. 

Thorn,  People  r.  i)  I..  I{.  54.     p.  !'4'J. 

Thorn,  11.  r.  C.  .'i  M.20i;.     p.  W. 

Thornhni-i:,  State  r.  i\  Ired.  (L.)  07.     p.  SO. 

ThornU)ii,  H.  '•.     p.  650. 

Threslle,   K,  r.  2  C.  a  K.  842.     p.  557. 

Thurliorn,  U,   r.    1    l)enison,  :'.h7;  Temp.  &  M.  07.     pp.  4'24,  433,  434,  4:15,  438, 

440,  4tl,  44:'.,  55:1,  500. 
Thnrtell,  K,  r.    p.  'J48. 

Tol>in,  Commonwealth  r.  2  Rrewst.  570.     \t.  574. 
Tomlinsoii,  I'l'ople  v.  ;'>5Cal,  ,">03.    p.  75, 
Tompkins,  Peoi>le  r.  1  Park.  2:lS.     pp.  :'.I0,300. 
Toohey,  State  v.  MSS.     p.  '.i.hs. 
Topohuiek  r.  State,  40  T.x.  ICO.     p    8!»;i. 
Toshaek.  K.  <•    1  Den.  C.C.  4',»2.     pp.  8,  !",  15,  1'.',  21. 


T 

r 


TAIU.K    Ol"   <A!>  ■>. 


Xllll 


T^wiili'V,  K.  f.  1-'  Cox,  5it.     i<.  4.'iS,  '>'\- 

Towuiev,  R.  V.  L.  R.  1  C.  C.  R.  :ii,-..    pp.  4(U.  i<::<,  AM. 

Townsoiul,  Stiitc  V.  5  liar.  (lX-1  )  187.    p.  f*\\. 

Tnifiou  !'.  State,  5  Tex.  (App.)  4.'<0    p.  (U-'. 

Tiea.hvell  y.  State,  U'.  Tex.  (.\pp.)  SGO.     p.  1 1S'1. 

Tr.xler,  State  r.  2  Car.  L.  Repos.  7  Am.  D.'C.  '.'0.     p.  <::n. 

Triloe,  R.  v.  1  C.  &  M.  G50.     p.  'M\. 

Tucker  r.  Slate,  16  Tex.  (App.)  471.     pp.  5H2,  5H;i. 

Turner  r.  Stale,  !G  Tex.  (App.)  4,;;i.     p.  11^1. 

Turner,  R.  r.  >'  C  -■^.  P-  407.     p.  r.sO. 

Turner,  State  r.  1  Wri-hl,  20.     p.  '.t4',). 

Tunii'r's  Case,  1  Hayin,  144.     p. '.m;i. 

Turpiu,  R.  I'.  2  C.  &  K.  820.     p.  Im. 

Tyler  ('.  People,  Hreese,  '>'X\.    V.  .»«0. 

Tyler  i'.  Slate,  2  Humph.  2',i8.     p.  ;u;5. 

I'mphrey  v.  Stale,  dl?  Iiul.  22;l.    pp.  501,  557. 

Uuderwood,  Stale  v.  4;i  Me.  181.     \>\i.  512,  51i>. 

Underwood  v.  State,  25  Ala.  70.     p.  H7H. 

Upriciiard,  Comraonweallh  v.  .i  (5ray,  4e4.    pi».  601,  500,  511,  51.".. 

Vale's  Case,  2  East  C.  L.  05;i    p.   77. 

Vance,  People  v.  21  Cal.  400.     p.  1074. 

Vanee,  Slate  v.  17  Iowa.     1:58  p.  83!). 

Vaiidiinark,  Slat.;  v.  :'.5  Ark.  3!ir.,    p.  204. 

Vanness  v.  Parckard,  2  Pet.  144.     p.  8:t8. 

Van  Muaeu,  U.  v.  1  R.  &  U.    US-    V-  »»■*'>.  "-'^• 

Van  Vechten,  People  v.  2  N.  V.  Cr.  Rep.  291.     p.  870. 

Varner  v.  S|)encer,  72  N.  C.  381.    p.  4S2. 

Vermont  .<:  Mass.  R.  Co.,  Commonwealth  r.  XOS  Mass.  7,  p.  11:10. 

Vickery,  State  v.  I'J  Tex.  3(12.     p.  375. 

Viddetto,  Case  of,  3  Park.  tW).    p.  y45. 

Villareal  «.  Slate,  2('/rex.  107.    p.  1088. 

Vincent  v.  State,  10  Tex.  (App.)  330.    p.  G73. 

Voiiiht  r.  State,  13  Tex.  (App.)  21.    p.  583. 

Vyse,  R.  v.  1  Moo.  218.     pp.  338,  GZC. 

Wade,  R.  V.  1  C.  .t  K.  030.     p.  (;4i;. 

Wade's  Case,  2  (^ity  H.  Rec.  40.    p.  03. 

Wadsworth,  R.  r.  10  Cox,  557.    p.  543. 

Warmer,  United  States  v.  1  Cranch,  314.     p.  500. 

W.iite  r.  State  13  Tex.  (App.)  170.     p.  1151. 

Waile,  Commonwealth  r.  11  All"n,  204.    p.  809. 

Wakeling,  R.  v.  R.  &  R.  504.     p.  378. 

Wakely  r.  Hart,  C  Binn.  p.  316      821. 

Walford,  R.  v.  K-p.  502.    p.  572. 

Walker  V.  People,  38,Mich.    p.  532. 

Walker  &  Morrod,  R.  i'.  Dears.  280.     pp.  40ft,  541. 

Walker  I'.  State,  13  Tex.  (App.)  609.     p.  1180. 

Walker  r.  State,  23  Ind.  61.    p.  167. 

Walker  v.  State,  7  Tex.  (App.)  245.     p.  1185,  1180. 


xliv 


TAHI.K    or    CASKS. 


Wiilkcr,  Stale  r.  41  Idwii,  L'lr.    \<\>    r»2«,  T)-*-'. 

Wall.u'c  r.  SliiU',  7  'IVx.  (Apii.)  :,:>>.     pji.  '.»U,  U3'J. 

Wallace  c.  State,  U  Lra,  j1:!.     i>.  3.')9. 

Walls,  ]{.  r.  L' C.  .<:  K.  L'U.    ji.  710. 

Wall's  Cn->;  -J  Kast  V.  C.  '.id:'..     pp.  73,  3:.'4. 

Waliio,  ]{.  r.  11  Cox,  (147.     p.  876. 

Wal-h,  1{.  r.  4  Taunt.  *J81.    p.  41':.'. 

Wallers,  U.  r.  L' IJiiriiVs  Just.  180.    p.  5f!2. 

Walton  V.  State,  C  Yerg.  37 7.     p.  'X). 

WallDii,  CoiniiiMuwealth  r.  7  Rrew^t.  48:1.     p.  7iil. 

Walton,  U.  r.  I,.  &  C.  L>89.     i>.  703. 

Wahvortli,  I'eopltM-.  8  Alb.  L.  J.  l'.>.     p.  11.">'1. 

Wanihoiiiili  V.  Shiiuk,  Pen.  -'i".),     p.  707. 

Waininack,  State  r.    i..  108'J, 

Wanl  V.  State,  48  Ala.  lill.    p.  572. 

Ward,  People  r.  U>  Wenii.  2.11.     p.  ;'51. 

Wanl.H.  r.  2  T-d.llaym.  14(!1.     pp.'.',   10,71,72,78. 

Wi.vil.  h  747.    p.  3. 

Wii;.l.  .  ;  '"   xt.  7t!.    p.  7.'>. 

Warner         .  .;  ...■.iwe.ilth,  1  I'a.  St.  ITd;  44  Am.   Dee.  lit.    pp.  ^i;.". 

Warieu  r.  Slate,  1  G.  Greene,  Hm;.     p.  527. 

Warn.',  "o'limonwcallh  i».  6Ma>s.  72.    p.  {{57. 

Waternvm  r.  ;     >nle,    "       '01.    p.  78. 

Walkins  v.  State,  00  X\>-.^.  'V-':).     p.  550. 

Walkins,  Tniteil  S'-.ites  v.  3  Crauch,  441.    pp.  121,  168. 

Waikin's  Ca.se,  2  Moo.    i>.87i:. 

Watson  r.  State,  30  Mis.s.  5'.i3.     p.  512. 

Watson,  R.r.  Dears.  &  W.  :i48.     pp.  302.  387 

Wat.-ioii,  1{.  r.  20L.  .1.  18.     p.  :'.r.3. 

Watts,  U.  r.  It.  .<:  R.  4;;0.     p.  03. 

Watts,  U.  V.  Dears.  ;!-.'7.    p.  5.;5. 

Wavell,  R.  V.  1  Moo.  224.     pp.  ;'.5l,  353,  373. 

Weill)  r.  State,  5  Tex.  (App.)  5'.>0.     p.  025. 

Webb,  R.  V.  Moo.  4.U.     pp.  ;!'.i4,  390,  3;)8,  545. 

Webb,  R.  r.  R.  .<:  R.  405.    pp.  85,  88. 

Webster,  Comiuonwealthw.  5  Cusli.  310;  52  Am.  Dec.  711.     pp.  '.U;t,  '.'01,  1138, 
1189. 

Wiekes,  R.  r.  10  Cox,  225.    p.  541. 

Weirerbackr.  Trone,  2  W.  .<:  S.  408.     p.  358. 

Welch  V.  People,  17  111.  3'.';i.     p.  413. 

Wellar  r.  People,  :'.0  Mieh.  27i;.     pii.  058,  1155. 

WcUinuloii,  Couimonwealth  r.  7  .VMen,  2',t:i.     p.  1137. 

W.'lls  r.  State,  4  Tex.  (App.)  20,     p.  538. 

Wells,  State  r.  48  Iowa,  <;71.     p.  734. 

Welsh  V.  People,  17  111.  l'.-'.'.     p.  545. 

Welsh  r.  Slate,  3  Tex.  (App.)  422.     p.  012. 

Weiitworth  r.  Portsmouth  R.  Co.,  55  N.  11.  '.40.     p.  4-i2. 
West  r.  State,  1  Wis.  20!!.     pp.  733.  734. 
West,  State  V.  O;'  Mo.  401.    p.  1070. 
We>t,  K.  V.  2  C.  &  K.  4'.Mi.     pp.  95,  90,  98. 
West's  C.ise,  1  1).  >.<.  H.  575.     p.  340. 


P 

I 

i 

i 


TAHLK    OK   CASES. 


xlv 


pp.  ou... 


pp.  'H:\  Wl,  1138, 


pp.  iiii'it;,  u."5. 


lOSl. 


.8U. 


p.  it:'.;'.. 
p.  CJa. 
p.  119(5. 

p.  714. 


Wr.^ton  ,•.  United  Status,  .-.  Cranch,  i;'--'.     P- *2l. 

Wlu-iitly,  1{.  '••-'  Burr.  1125;  1  W.  lU-  -'::^-     PI'-  100,  IW.,,  Mh,  ....... .!..7. 

Who  l.r,  1!.  '••  1  Cox,  100.     p.  877. 

WIuH  er,  Stale  v.  Ill  Minn.  H8.     pp.  '25,  CS  !'''• 

Wliitaker  v.  State,  12  Tex.  (App.)  *M.    1>.  1 1 '»7- 

White  V.  Commonwealth,  C>  Binn.  ls;i.     p.  I'M;'. 

White  r.  St.ilc,  llTex.  7ii9.     pp.  375,  38i»,  5.V,.,  r.jo. 

Wliite  r.  State,  20  WU.  2:<t!.     p.  545. 

White,  I'eople   V.  Ji  Wen.l.  5l.'0.     pp.W.),  1007,  1U08. 

White,R.  c.  2C.  &K.404.     pp.  54,  81. 

White,  R.  V.  1  Den. 208.     p.  42. 

Whiti  ford  c  Commonweal! h,  (J  Uaml.  721. 

Wliitney  V.  State,  10  Ind.  404.     p.  Uu. 

Whyte,  R.  v.  5  Cox,  2'.K).     p.  81). 

Wieners,  State  v.  (IC,  Mo.  11.     PI).  1071,  1074,  107 

Wilcox,  R.  V.  R.  &  R.  50.     p.  2C,. 

Wiiders,  R.   ('.     PP-  1'12,  103. 

Wiley,  R.  V.  1  Den.  &  P.  43.     p|).  fi+Jl,  r.77. 

Wllker.son,  R.  r.  1  R.  &  U-  470.     pp.  4.S'.>,  544. 

Willier.son,  State  v.  72  N.  C.  378.     pp.584,  (!20. 

Willets  V.  Buffalo,  etc.,  R.  Co.,  14  Barb.  585.     p. 

Williams  v.  Dawson,    p.  820. 

Williams  v.  State,  2  Tex.  (App.)  171. 

Williams  i'.  State,  7  Tex.  (App.)  H!3. 

Williams  v.  State,  15  Tex.  (App.)  i;22. 

Williams  v.  State,  12  Tex.  (App.)  240. 

Williams  t'.  State,  51  Ga.  535.    p.  08. 

Williams,  Teoplo  v.  4  Hill,  it.    pp.  383,  886. 

Williams,  R.  r.  32  Eng.  C.  L.  R.  524.     p.  881. 

Williiims,  R.  v.  1  Leach,  134.     p.  It7. 

Williams,  R.  v.  7  Cox,  355.     p.  545. 

Williams,  R.  v.  7  C.  &  P.  354.     pp.  257,  2iHS  883. 

Williamson,  R.  v.  11  Cox,  328.     p.  368. 

Willis  !•.  People,  19IIun.  84.     p.  375. 

Willis  V.  People,  1  Scam.  401.     p.  \>U>. 

Willis  r.  State.  15  Tex.  (App.)  118.    p.  583. 

Willson,  State  v.  28  Minn.  52.     pp.  52,  81. 

Wilner,  State  v.  <!<3  Mo.  11.     p.  1031. 

Wils.m  V.  People,  2t  Mich.  410.     p.  780. 

Wilson  V.  People,  1  Cow.  Cr.  Rep.  149.     p.  557. 

Wils(m  V.  People,  39  xN.  Y.  459.     pp.  450,  550. 

Wilson  I'.  Sjjroul,  3  P.  &  W.  49.     p.  731. 

Wilson  t'.  State,  1  Port.  120.     pp.  339,  413,  545. 

Wilson  V.  State,  45  Tex.  70.     p.  042. 

Wilson  t'.  State,  3  Tex.  (App.)  04.     pp.  710,  715. 

Wilson  V.  State,  12  Tex.  (App.)  48.     pp.  5'.'0,  039,  C77. 

Wilson,  Commonwealth  v.  I  Phila.  80.    p.  550. 

Wil.s.m,  R.  tJ.  8C.  &  P.  111.     p.  545. 

Wilson,  State  v.  2  Const.  135.     p.  358. 

Wilson,  Case  of,  3  Park.  207.    p.  945. 

Wingo,  State  v.  89  Ind.  204.    p.  i99. 

Winthrop,  State  ».  43  Iowa,  519.     pp.911,  1139. 


xivi 


TAIitJ-;    Ol'    CASKS. 


■AMmIiiiu's  Case,  s  I'iirt.oiK.     |>.  100. 

WistTiiiaii  /'.  Vaiiili'|)L'rU,  1' Voni.  L'i);t.     j).  2(ls. 

WitcliL'ir.s  Case,  2  K  ist's  V.  C.  «!iO.     p.  L'ii2. 

Wilt  r.  State,  0  Mo.  7(11.     p.  .'il'<. 

WittkoitiU-iV  r.  Watson,  71  N.  C  4.')l.     \t.H'M;. 

Wolf  V.  Siatf,  11)  Oliii)  St.  lM,s.     y.  Ml. 

Wolf  )•.  Stfttu,  41  Ala.  412.     pp.  .'i'.i'.i,  542. 

Wolf  r.  State,  1  I  Tex.  (App.)  210.     pp.  ,-,-*S,  «3<J. 

Wuiiiaik  c.  Slat.,  HI  Tex.  (App.)  171).     p.  UIl.'l. 

W.iiii;  Ah  You,  People   r.  f,  WeM  Coast  Uep.  438.     p.  522. 

Wood  c.  Statu,  48  Ga.  192.     p.  777. 

Woo.l,  I{.  r.  4  C.  &  P.  ;W1.     pp.  i;',h;,  877. 

Wood,  K.   r.  1   Moo.  578.     |).  S77. 

Wood,  H.   r.  .s  C  .X,  4.".;'..     |)i).  421,  44.!. 

Wood,  U.   r.  1  !•■.  &  K.  4!)7.     p.  «77. 

Wood,  State  c,  4(5  Iowa,  lie.     p.  4.")0. 

Woddhiiry  i'.  State,  •!:•  .Via.  jl5.     p.  370. 

Woodfaii,  !{.  )•. :.  Hiirr.  2(;(;i;.    p.  r.io. 

Woodman,  K.  r.  14  Cox,  17'.».     p.  3H0. 

Wo(Hinin,  Co  nnionweiiltli  '•.  4  Clarke,  3(i2.     p.  353. 

Woodward,  l'eoi)l<.'  v.  31   Hun,  57.     pp.  47S,  574. 

Wood  word's  Ca-e,  I,eai;h,  Cr.  L.  7s;!.     p.  57. 

Woolaver,  State  r.  77  Mo.  103.     p.  780. 

Woohotli  r.  Jleadows,  5  Ka-t,  403.     p.  178. 

Worce.'itor,  Cominoiiweallh  v.  3  Pick.  402.     p.  809. 

Worrell's  Case.Trern.  l*.  C.  100.     p.  15, 

Wrifiht  1-.  People,  33  Micli.  301.     p.  788. 

Wri^'lit  r.  LaWe.s,  4  Iv-p.  82.      p.  208. 

Wright  r.  Ka!iisc()t,  1  Win.  Saund.  8.i.     p.  455. 

Wriiiht  '•.  Stale,  4  llunipli.  194.     p.  7''.7. 

Wri-iht  r.  State,  5  Yert;.  154.     pp.  4.50,  (J72. 

Wriirlit,  H.  r.  4  F.  i  F.  907.     p.  720,  899. 

Wrl^lit'sCase,  75  Vii.  914.     p.  lOiW;. 

Wri^'ley,  People   c.  I  Lew.  171.     p.  1140. 

Wyat  r.  Al.ind,  1  Salk.  325.     p.  178. 

Wycherley.  U.  .-.  8  C.  .«l  P.  203.     p.  ilU. 

Wynn's  Case,  I  I,each,  413.     |).  440. 

Yarrlnjjtoii,  H.  v.  1  Salk.  4oo.     p.  72. 

Yates  r.  Stall',  37  Tex.  202.     pp.  527,  582. 

Yates,  H.  c.  1  Moody,  170.     p.  3s8. 

York,  R.  c.  2  C.  i  K.  841 ;   1  Deii.  343.     p.  564.  . 

York,  H.  )•.  1  Den.  335;  3  Cox  Cr.  181.     p.  402. 

York,  State  c.  5  Uarr.  473,  p.  553. 

York'H  Case,  9  .Mi'tc.  93.     pp.  993,  994 . 

Youiltr  V.  K  ,  3  T.  Pv.  100.     pp.  1.58,  185,  194,  271,  273,  308,  307,  308,  422. 

Yoiiiiu,  K.  r.  10  Cox,  371.    I'.  1197. 

Yoimu,   State  ?•.  40  N.  II.  2011.     pp.  48,  54,81. 

Younsj,   State  v.  70  N.  C.  258.     p.  359. 


Zink  r.  People,  77  N.  Y.  114.     p.  548. 
Zschocke  r.  People,  02  111.  127.     pp.  486,  675. 


TABLE   OK   COXTKNTS. 


C'llAPTKli  Vil. 
CiaMK-    MiMN'sr  Tiir.  PiiorKJtrv  uv   IsiuviDr al-i  ((  "MIntki)). 


I'AKT  I. 

FOROKKY. 

r.Miv. 
y,,r,r,.,-v —Intent  lo  Dofnuul  Hs>^tMitial.     Statu  v.  Hcihtrdkc,  ■.'.:<  N.  J.  il.l 

:i.;.-, _•      ' 

l',,r_.i.i\  —  Iiitonl  to  Defraud  soma  (»ii.'  Ksscntial  —  Collfp.'  Diiilomii.     A'. 

V.  Ifwhl.s.u,  1).  &  It.  ;! ' 

Porgcry—  Must  Ik>  of  sonic  Dooiini.nl  orWrilhii:  —  Arii^t'-  Nam.'  on  I'linl- 

inii.     n.  V.  CloKs,  D.  ■!<  II.  Ai,0 '';J 

l.„,;:,i\  —  roinitfrfoitiuf;  I'lintcfl  WrappiTs.     R.  v.  Smitli,  U.  &.  1!.  r.iii)       .     IV 
lui-erv  — lUU  of  Kxchaniro  — Inchoate  Instninunt.     U.  v.  Ilm-pfr,  \\  Cox, 

^    57-1     ...       ■ -■' 

!-oi-Kcn  —  Instrnmont  Must  l)c  Valid  —  What  l.o  an  ".Vecountalilc  It.c.ipt." 

Slate  \.  W'hrrlir,  I'.i  Minn.  !•« -^ 

Kor^erv Paper   whose   Purpose   lia.**   Ixcn  SatiNlifd.     I',i>j,!<'  v.   I'iicli,    1 

Wend.  \'M .     -.» 

l-oruirv  —  Ficiiiious  Decree  of  Court.     lirown  \.  Pcnpli,  M  \U. 'SM     .  .     M 

l.\j,.j,,.,.\  —  Seal  of  Court— Instrument  For;:ed  Mu.'^t  l)e  AppanMitly   Valid. 

Fadnirx.  I'i'nplr,-2  N.\'.Cr.lii:\>.  ooo •'' 

Forgery  — Must  Purport  to  be  Act  of  Another  —  Fictitious  Name.     C'lm- 

moiiwfdlth  y.  Jl<il(hvin,\\  iiray,  V.*7 '"^ 

Forucry  —  Insirunienl  Must  Purport  to  l)e  Act  of  .Vnother.     N'"'-  v.  Yniinij, 

+(;  N.  II.  2(ii!  ■'•' 

[.■,„,rt.ry  — Unaiithori/ed  County  Bonds.  Peopli'  v.  Mniiii,  7:>  N.  V.  )-•+  .  •"'<) 
!..„.M(.ry  — False  A^sviniption  of  Authority.  Si'itfv.  HV/.-i")/,  li-^  Minn.  .11'  .  .'>-' 
I.„,.,r,.iv  —  Induciuii  Person  to  Siirn  Paper  1)V  Fraud.     //((/  v.  .static,  1   Yfrix. 

"  rn     .       .   '    .       .       .  ' -f 

Inrsiery —  Piililic  Writings.  i?0!/''''t>' V.  .S'M<^,  s  Tex.  (A|ip'-l"l  •  ■  ■  ^^ 
Kor^'crv  —  No  Prouuiption  of  Guilt  fri)i\i  L'tterlirj;.     Millrr  v.  Stnlr,  :,\  Ind. 

40,-, •'- 

NOTES. 

Skctiox  40,-,.  F'orKcry— Intent  to  Defraud  Essential    .        ._      .        •        ■  •'■* 

40('..  Must  he  of  some  "  Document" '■" 

407.  iucoiuplete  In,strunient ''7 

(xlvii) 


xiviii 


TAUI,K   OF    CONTKNTS. 


Skctiun  ids. 


(IKI.    _ 


•»  1  0. 
411. 
412. 
41:;. 
41(. 
41j. 

4ii;. 

417. 
4  IS. 

4i;). 

4l'0. 
4l'1. 
4  2  J. 
4i'3. 
424. 
42,-). 
42(;. 
4-'7. 
428. 

42;t. 

4;io. 
4;ii. 
4;)2. 
4;i3. 
4;u. 
4;!.-). 
4;!(;. 

438. 

4;'.;). 

4t0. 


—  Insti'iinicht  Must  In.-  Valid  mi  Us  Fiico 

—  Iii^iiuiiR'iit  Void  onils  l-'uce  —  Dci-dof  Married  W 
wllllciilt  .\(kiu>\vli'(li;iiiellt 

—  IiistriiiiH'iit  Void  on  its  Face  —  rromisi'  to  I'ay  sii 
L:iln)r  ........ 

Sonio  out'  .Must  !)(•  Injured         .... 

l-rt;i'r  of  Introdiii'lioii       ..... 

■  FaiNn  CiTtllloutc  of  Cliiiraelir    .... 

FiNo  "  .Mikinu'"  Nccus-ary     .... 

Instrument  Mnst  Purport  I  >  lie  act  of  Anoilu  ■ 

Fal-c  AMsnnii)tlon  of  Authority 

"  Utterinu" 

Fietiil(iu.s  Nanu' 

Iinlneln^oiie  to  Sia;n  Note  f(>r  Larsjir  Sum 

IndiK'iiis;  one  10  .Assent  to  Alleriition 

Drawiuj^  Cieek  on  Hank  — No  Money  There  . 

■  Passing  Counterfeit  Money       .... 

-  Falsely  attesting  Voting  P.ipers 
("iitting  Pieces  out  of  Haiik-.Nolos     . 

-  —  VVliat  is  not  Forgery — Other  lilusiratioiis 

Partnerslilp 

Injury  Must  not  be  too  Remote 

"Accountable  Keceipt  " 

"Acciuaiiitance  " 

"Bank  Bills" 

-"Bill  of   Exchange" 

"  Deed" 

"  Oriler  for  die  Delivery  of  Goods    . 

"  Order  fortlie  Payment  of  Money  " 

"  Promissory  Note  " 

"  Heceipt  for  Money  "  ~  "  Ueceii)t  " 

"Record" 

"  Shares  " 

"  Undertaking"  — "Warrant  " 

No  Presumption  ot  Guilt  from  Utterinii  .■ 

Evidence  held  InsulUcient        .... 


(18 


71 
75 

78 
78 
HO 
81 

Kl 
Ho 
85 
!•() 

\n 

'.•2 
!t2 
'.'2 
!)3 
93 
03 
03 
05 
Of) 

01  i 

oi; 
on 

97 

08 
08 
08 
08 
00 
00 
00 


PART  II. 

Fu.MI)    AND    FVLSK    PuETENSES. 

Fraud — Private  Injury  —  Injury  to  be  Indictable  at  Common  Law  Must 

be  Public.     li.v.  H7im;/y,  2  Burr.  1125 100 

FraudulL-nt  Disposition  of   Mortgaged  Property.     Hardeman  v.   State,  li) 

Tex.  C-M'p.)  1 104 

Fraudulent  Disposiiiiou  of  Mortgaged  Property.     Robertson  v.  State,  3  Tex. 

(App.)  502 100 


TAULK    or    COXTKNTS. 


xlix 


Miinlc 
to  1 


(1  W 


oiiiaii 


lY  Sll 


Dill. 


ILTl' 


raou  Law  Must 

.  100 

\an  V.   State,  liJ 

.  104 
V.  State,  3  Tix. 

.  109 


IL'4 
lL".t 

lUt 
IJU 

162 


I'AliK 

rniiid  — Biinkrupt  Art  — IiiUMit   to   Dcfnutl  rri-flltors   liy   Miikinu'    KaNc 

Kiitrifs  -Intriitto  DcfiHinl  Ksscutial.  A*,  v.  ImjUam,  Ufll,  ('.('.  1^1.  HI 
raise  I'n-tciist"*  — Matters  of  Oiiiiiioii.  i'cxp/c  v.  ,A'"-"''.s  ;i")  Mich.  ;!•;  .  115 
I'raiul  -  -()l)taliiln!{  tJou.N  with  Iiitfut  to  Uffraiul  —  Uaiikriipt  Act.     riiitid 

statrs  V.  /v.■^.•or^  •_' Bi -•>.;'. -'5 ii>* 

rraii'i     -  Mi'aiis  of  liftccliui,'  Framl  must  he  Shnwii.      CnitM  Statv.^  v    0'>'./ijiii, 

U  Bi.ss.  rc'.i '-'^ 

rniuil  —  ("har.'o  thnl  Act  was  .loni!  "My  l-'raudiiloiit  Mi-ans"  Insulllfli-iit. 
United  Sfatm  v.  llitiliiii,  1  Woods,  M   ..•.■■         ■ 

Falsi;  rivteiisfS  — Attempt  to    Defniuil    I'l*    Indictable.     United    States   v. 

Ilenniui! 

False  I'retcuses    -  Matter  of  Opinion  —  Untrue  rulllniiof  liuality  of  (iood-. 

n.  V.  Iti-'jan,  I>.  Ji  B.  l.'i:."' 

False  I'lvteiises  -  Delu-iive  I'roinlse  —  K  Use  Pfetensu  Turning  out  True  — 

I'l-onllse  as  to  Future  F.v.'Ut.     U,Snijder,\'    Kas.  riH' 
False  Pretenses  -Truth  of  Pretense.     Statew  Lurch,  •!  \V.  (".  Hep^  HO       . 
False  Pri'tenses  —  Keipiisiies  of    Indictment  —  No   Injury   Done  —  Future 

Kvent.     Keller  \.  Statr,o\.  hh\.  W  I 

False  Pretenses  -  Ki'Muisiie-  of  iMdictinent  —  Public  and  Private  Frauds  -- 

Deceits  — Injury  —  Indictment  —  Limitations  —  Demurrer—  Leave 

to  Withdraw.     United  Stat  ■  v.  U'ltk'ns.  ;i  Craiich,  C.  C,  411  .   1C8 

False  Pretenses  — A«ent  and  Principal  Colluding  as  to  Price  o(  Lands  — 

Motive.     iSV.-n  V. /'.r,;)/.',  t;2  Uarl).  ti;5 •  -*1 

False  Pivteu.ses  — Prisoner  must  know  that  Pretense  Is  False,     li.  v.  Bur- 

rovjs,  11  Cox,  258 -^^ 

False  Pretense.s  — Intent  to  Defraud  FN.sential  — Prosecutor  mu.st  Uely  on 

Kepreseutations.     Faij  \.  Commomrealth, '2>i  CmTMI. 'M-J.        .  .248 

False  Pretenaes  — Crime   not  Committed   where   no    Proi)erty   Obtained. 

.Sf(jte  V. /ln*i-.'«.»,  47  Iowa,  142 -54 

Fal.-e  Pretenses  — Money  must  be  Obtained —  Obtaining  Consent  to  Judg- 
ment.    Commimweanh  v.  Ifarkins,  128  Mass.  7'.» 25C 

False  Pretenses  —  F.ilse  R  presentation  Must  be  made  before  Delivery  of 

Goods.     People  v.  Iliijnex,  14  Wend.  54(! 258 

Falsi;  Pretenses  —  Obtaining  Charitable  Donation.      People  \ .  Cloiigh,   17 

Wend.  351 ""'' 

False  Pretenses— Must  be  of  Kslsting  Fact.     R.  v.  Ifemhaio,  L.  &  C.  444.  27'.t 
False  Pretenses  —  Procuring  Note  by  Fraud  —  Future  Fact.     CotnmonioeaUk 

\.  Moore,  W  Vol.  St.  570 -«^ 

Swindling— Representation  Must  not  be  as  to   Future   Events.     Allmv. 

,S7a<e,  UiTex.  (App.)  150 -'85 

False  Pretenses  -  Remoteness  of  Pretense.     B.  v.  Gardner,  D.  &  B.  40.  287 

False  Pretenses  -Property  Must  be  Obtained  — Remote  Cause.     Morgan 

V.  State,  42  Ark.  131 --'» 

False   Pretenses -Obtaining    Money   Rightfully  Due.     Commonwealth   v 

MeDnff'J,  12t>  Mass.  4<i7 

False  Pretenses  — Ordinary  Pretense   Required   of  Prosecutor.     Common 

M«/Z</i  v.  Grad;/,  13  Bush,  255 

False  Pretenses -Money  Must  be  Parted  with -Partnership.    B.v.  Mat 

son,  D.  &  B.  348 • 

Indlct/ible  Frauds  at  Commou  Law.    People  v.  Babcock,  7  JoUns.  201. 
3  Defences.  <^ 


29G 

300 

302 
304 


TAHM:    UK   ( OMKNTS. 


Imllctiihli!  Fi'iiiiiN— Niw  York  Stiituic  —  FiiNi'  I'rtfciisos.      i;.inn<:i  v.  I'm 
pit;  '.'•-'  N.  Y.  HI 

FjiIhl' I'ri'iciiscs  — Not  liidiciablc  IIS   "otlwr  Kiiuiiluleut,S\vlmlllii)i  or  Di' 
Cfllfill  I'nu'llcfs."     Nlntc  \.  Hiimii'i;  \i)  \t.  :is-;. 

KiilHu  I'rrti'ii^i's  —  I'lMscciilor  miisl  he  IiillufiK'i  (|  liy  lii'pn.'scnt.illtnis  —  No 
lafuruncc  of  tins  froiii  otliiT  Facts.       Tlirr'tssnn  v.  I'luj,!!,  hj  N.  Y. 

TM ;in 

False  Pri'tensL's  —  .M.nioy  Olituiiieil  hy  I'lirtiuT  from  Firm.     A',  v.  Ki'iinn,  !• 

(,'i)x,i';iH ;!14 

False  IVi'tiMisi's  —  Obtalniiii;  Money  —  False  or  Buiciis  Cliecks  —  CoiilliU'iici' 

(iillile.     J'inrry.  I'lujil,,  m  in.'.^r^ .".18 

False  l'reteii.>»es  —  Act  Must  Work  I'rt'jmllce  to  Some  One.     I'lUjiUx.  (i'll- 

l(nm>j,\t\W\\i\.:,U) liL'L' 

Kiilse  rnteiises—  Iiullcliinnt —  Kxistlny;  and  Future  Fact.     Commonwealth 

V.  Stiri'iisiiH,   ll.'7    .M;iss.    III;. ,'!lM 

False  Pretenses—  Valuable  Security  —  ProjuTty  in  Cliaiiel.     li.  v.  Dnmjcr, 

I).  &  H.  lift; aas 

False  Pretenses  —  False  Statement  as  to  luteiitlon  —  Fnturi'  Fact.     ]'toi>lf 

\.  l!liinch<tril,'M\  S.  Y.  ^^\^ ;!3H 

Falsfl  Pretenses— Prisoner  niu>t  be  Heueilti-d  l>y.V<'t.     A',  wditrntt.  Dears. 

M-' ' -M- 

■      NOTES. 


Skction  441.  Fraud  to  be  Indictable  at  Common  L.iw  Must  Injure  Public  .  855 

442.  Fraud  —  Selliii«  Mortsjajred  Property 85b 

44H.  Kemoviiin  (Joods  With  Intent  to  I)efro'.:ii  .         .  358 

;U3a.  Fraudulent  Intent      ...  ....  358 

443ft.  Persons  with  l>i'bts  not  due  not  "  Creditors  "        .         .358 

443c.  — —  Removing  Property  with  Intent  to  Prevent  a  Levy  .  358 

444. Ueniovin;?  Nuisance 369 

445.  False  Pretenses  —  Breacli  of  Contract  not  Indictable      .         .  869 

44t!.  —  Pnlllnfi  Goods  — Opinion .359 

447. Value  of  Huslness 3(J3 

448.  Fal.se  Warranty  Not 304 

449. Pretense  Must  be  False 86S 

450.  False  Pretense  turninfj  out  True 866 

451.  Prisoner  Must  Know  Pretense  is  False    .  .  SfUJ 

452.  Representations  Must  l)e  Rclietl  on 3t;(J 

453.  Intent  Mu.st  be  to  Dciirivc  Owner  of  Property        .        .  371 

454. Money  or  Pmp'rty  Must  be  C)btai:ied      ....  873 

455.  Obtainlui;  Satisfaction  of  Deln 373 

45G.  Representations  Made  Siil)se(jiicntly        ....  374 

467.  Obtaining  Charitalile  Donation 374 

458.  Property  Must  be  Obtained  i)y  Means  of  Pretense  .         .  374 

■459.  Pretense    Must  l)e   Made    with   De.»i:;n    of    Obtaining 

I'loperty 374 

4t;o.  Owner  Must  Intend  to  Part  with  Property  .375 

4G1.  Pri-oner  .Must  have  Kceeiveii  Projierty     ....  375 

402.  Object  of  Pretense  .Must  ije  as  Charged  .         .        .        .376 


TAiti.K  or  t  i).\ti;nt«. 


li'inni'j  V.  /'< 
dijilliiiij  or  Di- 
ciit.itltnis  —  No 

'.../-;.,  K.'  N.  V. 

li.  V.  Lfiim,  'J 
■i  —  ('oulliK'lici' 

/'(  iiyl/c  V.    (<ill- 


"\\ 


;!14 


'.18 


Commomni'nllh 


.  ;!LM 


II.  V.  Dninjcr, 
Kmt.     I'lopli' 


3L'8 


.  ;!3H 


it"iritt,  Dears. 


347 


Skction  4i!.i.     —  rr.tonsc  ^^ll^^t  be  o(  ExIstlDK  Fact 

■Ici.      —  A'si  rtloii  t)f  r,xi>tliij{  liiti'iilioii  IimiillU-ii'iif,    . 

4;;5,    Ri'iiiotL'Ht'ss  (i(  rreU'litt) 

4(!0.  Dir.'ct  rnirnlsi!  Miitl  1)0  I'rovi'il        .... 

4(!7.  Infi'rcncij  ol  I'n  truso  from  I'oinlin't 

4i)7„.  protoctlon  Affonlcil  only  to  lIoiu'.Nty 

4,;8. Mi'rely  Obtiiliiliiu  Ono's  Own  Not      .... 

4(ji).  Person  Deceived  Must  have  Us<wl  Ordinary  I'rudence 

470. I'a.s.sln^Counterli'll  Money 

471. l'as>ing  Hunk-Note  (if  Hiinkrupt  Hank 

47'.'.-         What  not  False  I'reten.-ses  — must ri'tlouf* 

473.  I'artucrHliiit  Affairs 

474.  —  "  False  Token  or  Wrlthif^" 

475.  —      "False  Wrlllnu" 

4711.        -  "  Frauduleut,Swlndlln«or  Deceitful  Practices"  . 

477. ••  Money" 

478.  "  .Money,  tJoods  or  Other  Property  " 

471t.  "  Valuable  Securlly  " 

480.    --       "  Written  Instrument  " 

4H1.    SwIndlluR  and  Theft  under  Texas  Code  . 

482. Swindllu^  under  Texas  Code 


rAoe 
.  87S 

,  377 
•  o<  o 
.  880 
.  381 
.  :!82 
.  3s:; 
.  38,-, 

.  3Mi 
.  38(i 
.  380 
.  387 
.  387 
.  387 
.  387 
.  388 
.  388 
.  388 
.  388 
.  388 
.  389 


tors  " 
ut  a  Levy 

lictable 


Injure  Public  .  855 
.  858 

i  .  .358 

.  358 
.  358 
.  358 
.  3o'.l 
.  351) 
.  35'.» 
.  8ti3 
.  3ti4 
.  305 
.  305 
.  300 
.  300 
.  371 
.  373 
.  373 
.  374 
.  374 
.  374 


)perty 


Pretense  . 
of    Obtaining 


tv 


.  374 
.  375 
.  375 
.  375 


r.VHT  III. 
Larck.vy. 

Larceny  — Taking    of    Property    Es.-ienMaI.     R.   v     PooU,   Dears,    .v    H. 

345 :'!>3 

Larceny  — Takln'j  — Deprivation    of    Property  Must  be  Pcruianent,    u«t 

Temporary.     R.  v.  llollowan,  2  C.  &  K.  043 305 

Larceny  — Caption    and    Asportation    Necessary.     Edmonds    v.    Slatc^    70 

Ala.  8 '^''S 

Larceny  — Insutllclent  Taking.  B.  v.  «ardn«r,  L.  &  C.  243  .  .  .  .101 
Larceny  — Taklni,' Essential.  iVc.l/e«  v.  6'«a«<',  14  Tex.  (App.)  CG8  .  .103 
Larceny  — Evidence  of  Taking  Essential.  J?  v.  li'i/^'cc,  Dears.  280  .  .400 
Larceny— Owner  Intending  to  Part,  \vltl>  Property  by  Fraud.     Kdlugg  v. 

State,  2i;0'.do  St.  15 HI 

Lfirceny  — Intent  to  Steal  Must  be  Found  by  Jury.     R.  v.  Deeriwj,  11  Cox, 

289 -11^ 

Larceny- Intent  to  Steal  Esseutial  — Taking  Goods  From  Ofllcer.  CVm- 

monwcrt<</iv.  «reen,  111  Mass.  392 •*'8 

Larceny —  Felonious  Intent  Necessary.    Johnson  v.  St'tte,  30  Tex.  375.         .  419 
Larceny— .4nim«s   Furnndi    Must  be  Proved.     [Veston    v.    United  States 

5  Crunch,  C.  C.  492 ^-' 

Larceny- Finder  of  Goods  on   Highway  —  Lost  Bank-Notu.     Il.v.Thur- 

born,  1  Den.  387 *-* 

Larceny  — Felonious  Intent  at  the  Time  of  Finding.    R.v.  Christopher, 

Bell,  C.  C.  27 ^22 


■■ft 


lii 


TAULE   OF   CO.VTENTS. 


V.  liobiunan, 


Stale,  V.  Doepke,   (i8  Mo. 


4o4 

45ti 
458 
403 

4GG 

4G9 

474 

478 
4M0 
432 


Larceny -FiiHl(-r-I„tont  Formed  Subsequently.     U.  v.  Preston,  I   Den.''^"' 

&■  I'-  •'''•")1 , 

Larceny  --  Lost  B;iuk-Note  -  Finder.     li.  v.  KHiylU,  12  Cos,  ICi'  '.         '         '  u[ 
Larceny- Finder -Sul)se(iuent  Intent.     Proph  v.  An,l<'rs,.n,  14  Jolms   2Mt'  Uo 

I-arceny —Finder.     ,S7a^;  v. /),<?;),  4:i  Iowa,  7') 44^ 

Larceny -S!i!)se(iuent  Conversion  of   Hired   Property.     //,//  v.'  Mai,,  57 

Wis.  ;f77   ...  '         .  - , 

J  ,,  450 

Larceny— Dogs  not  tSul)jeci  of —  Nor  are  They  "  Chattels."  A' 
Bull,  34 

Larceny  —  Do-s  not  Subject  of  Larceny.     State  v.  Lyimis,  20  Ohio  St.  400 

Larceny  — Animals,     li.  v.  roicnlrj/,  V2  Co\,  5:) 

Larceny  —  Wild  Aidinuls  —  Possession.     li.  v.  Petch,  14  Cox,  1 IC  . 
Larceny  — Prosecutor  Must  Have   Pos.ses8ion  of  and   Propertv  in   (ioods 

E.v.  Smith,  I  Den.  &  P.  147 

Larceny  — Prosecutor  Must   Have  Property  in  Goods. 

Te.x.  (Api).)  18         .  .         .     \ 

Larceny  —  Stealing  Collins—  Criterion  of  Value. 

208 

Larceny  —Lucri  Causa  Essential.    People  v.  Wvodtoard,  31  Hun,  57 
Larceny —  Joint  Ownership  of  Property.     Bell  v.  State,  7  Tex.  (App.)  25 
Larceny  —  One  in  Unlawful  Possession  of  Goods.    li.  v.  Pratt,  Dears.  3i!0 
Larceny  -  Con.stabIe  Converting  Proceeds  of  Sale  — Bailee.     Zschockex. 

State,  (;2  HI.  127       .         .         .  .»« 

_  ••■••It,  »86 

Larceny  by  Bailee.    Krause  v.  Commonwealth, 'J'i  Pa.  St.  ils  .        .488 

Larceny  — Master  and  Sen-ant.    li.  v.  Barnes,  10  Cox,  255    .        .        .        '491 
Larceny— Money    Obtained  by    Fraud  — Alterlus;    Books.    li     v     Green 

Dears.  323 ' 

Larceny  — False   Representation    Ijy   Servant   to  Obtain  Property.     li 

ThumpKon,  L.  &  C.  2;;3 '  4,,- 

Larccny  — Farm  Hand— Servant.     State  \.  Wiwjo,  »'i  h\A.20\  .        .  4;i'j 

Larceny —Property  Stolen   in  Foreign  Country  and  Brought  into  State. 

Co-.nmnnwcalth  v.  Uprichard,  3  Gray,  4;i4       ......  501 

Larceny  —  Bringing  into  State  Property  Stolen  in  Foreign  Country.    Stauh'y 

v.  Stale,  24  Oliio  St.  l(i«; 

Larceny  from  House  — Property  Outside   of  Store.     Martinez  v 

Tex.  1-jr, 

Larceny  from  House  —  Property  Outside  of  Warehouse 

53  Ga.  248 

Lnroenyfrom  the  Person  — Simple  I,arceny.     Kinr/  v.  State,  54  Ga.  184 
Grand    Larceny —  Insulliciency  of    Evidence.    People  v.    ]\ong  Alt    You, 

fi  West  Coast  Ilcp.  438 

Larceny  —  Possession  of  Stolen  Property.     State  v.  Graves,  72  N.  C.  182 
Larceny  -  Effect  of  Heeent  Pissosiou.     State  v.  Walker,  41  la.  217 
Larceny  — EBect  of  Recent  P.)s>ession.     I'uii^s  v.  jS'taie,  37  Tex.  202 
Larceny    -  Eflfect  of  Recent  Pos-ession.    People  v.  X,aegea,  48  Cal.  123 
Larceny  —  Pos.session    of    Stolen    Properly.     Galloway    v.  State,   41   Tex" 
289 

Larceny  —  Possessiou    of  Stolen  Property.      Gablick  v.  People,   40   Mich 
2'.I2    .  . 


494 


v. 


Stale,  4L 
Middletonw  State, 


508 

517 

!"5 
620 


523 
42(; 
527 
52'J 

5;'.0 


131 


TAlll.K    OF    CO.NTKNTS. 


liii 


PAOE 

V.  Preston,  1    Don. 

.  4;!i; 

•ox,  ICi'  .         .         .441 

■■iim,  U  Johns.  2'.tt,  44j 

.  44(? 

Ilill  V.    tSditr,   57 

.  450 
I."  li.  V.  liobiusan, 

.  454 

,  2G  Ohio  St.  400    .  456 

.  458 

3ox,  IKi  .         .         .  403 

roperty  in   (ioocN. 

.  4G(i 
l/c-Vaicv.  ,suue,  14 

.  4G9 
i'.  Doepke,    (!S  Mo. 

.  474 
II  Hun,  57  .  .  478 
Tox.  (.\|)p.)  25  .  480 
?raU,  Dears.  liiiO  .  432 
lik'c.     Zschocke  V. 

.  48G 
1»  .         .         .  488 

>    .         .         .         .  41.U 
i.    /i.    V.    Oreen, 

.  41)4 
Propurty.     /^  v. 

.  4;t7 
1. 204  .  .  .  4;i'J 
ju^lit  into  State. 

.  501 
Country.    Sta)iU>j 

.  508 
'tincz  V.  Utale,  4L 

.  .-17 
^liddleton  Y .  State, 

.  !"5 
',  54  (iii.   184         .  520 
Wong  All    You, 

.  522 
I  72N.  C.  182  .  523 
41  la.  217  .  .  42t; 
Tex.  202  .  .  527 
,48  C:ll.  123  .  52'J 
.  tState,   41   Tex. 

.  5;'.0 
'eople,   40   Mich. 

.  531 


I'AQK 


,^,,r,,,„y  _  Presumption  from  PoM.sssiou  of  Recently  Stolen  Property.    State  _^  ^ 

//.((<',  7  West  Const  Kep.  141 '    ' 

Larceny -Voluntary  Return  of  Stolen  Property.    Alhn  v.  Siah.  V.    1.x. 

(.\pp.)  11»0 

Larceny- Vol uuta-y  Reuirn  of   IToperty.     Bh-.l   v.  State,  10  Tex.   (..Vppj   ^^^^ 

528 


.  532 
.  534 
.  53G 


Section  483. 
484. 

485. 
481). 
487. 
488. 
489. 
490. 

491. 

492. 

493. 

494. 

495 

490 

497. 

498. 

499. 

600. 

601. 
602. 
503. 
504. 
505. 
600. 
607. 
608, 

609, 
610 
611 
612 
613 


NOTKS. 

Larceny  -  Talving  Necessary  -  Property  Must  be  Removed    . 

Goods  Must  be  Taken  -  Chaufrlusj;  Piles  oi  Ore  or  Man- 

factiired  Property 

Purchasing  Property  from  Tliief 

Property  Must  be  Converted  by  Prisoner 

Must  l)e  Agaiiwt  Will  of  Owner 

Property  Parted  with  through  Fraud       .... 

Intent  to  Steal  Essential 

Goods  Must  be  Taken  with  Intent  to  Appropriate  Ihem 

to  Prisoner's  Own  Use 

O"        'aliing 

[  Intent,  to  Use  and  Return  Property 

Taking  Horse  with  Intent  to  Return  It     . 

.  Intent  to  Steal  Essential -Other  Motives- Alarm 

Aiding  to  Escape 

Taking  in  a  Joke 

_  To  Induce  Criminal  Connection 

"  Taking  Part  of  Goods  Seized  on  Execution 

'  Servant  Giving  away  Goods  in  Chaiity    . 

; Intent    to  Deprive    Owner  of  Property  Permanently 

Necessary 

Intent  Must  Exist  at  Time  of  Taking       .        .        •        ■ 

■  LostGoods-Fiudernot  Guilty  of  Larceny    . 

Finder  Keeping  Gooils  till  Reward  Offered      . 

What  not  Subjects  of  Larceny  -  Chosts  in  Action 

Bank-Notes 

Riiilroad  Ticket 

Bills  of  Exchange /  ,,    ' 

Bills  of  Exchange -Order  for  Payment  of   Money - 

Property  not  in  Prosecutor 

"  Goods  and  Chattels  " 

«i  Lawful  Money  of  the  United  States  "     .        •        ■ 

"Money" „      ,',       " 

..  Monev,  Goods,  Wares  or  Merchamlise  .        • 

..  Order  for  the  Payment  of  Money  "-"  CertiUcate  fn 

the  Payment  of  Money  "-  "  Public  Security  "      .        . 

514.  "  Personal  Goods  " 

515,  «' Promissory  Notes  " 

51o'.  'I  Direction  In  Writing" 

517" Things  attached  to  or  Savoring  of  Realty 


541 

544 
544 
543 
545 
547 
548 

549 
550 
550 
550 
553 
553 
553 
554 
554 
554 

555 
550 
559 

,  5i'.5 
.  505 
.  5ii5 
.  505 

.  505 

.  506 
.  5(i8 
.  5t;8 
.  508 
.  568 
r 

.  508 
.  508 
.  508 
.  508 
.  660 


liv 


TABI.K    OF    CONTEXTS. 


Section  518. 
5i:t. 

620. 
521. 

522. 
52:5. 
624. 
525. 

620. 
527. 
52S. 
52',». 

5:!0. 

6;!i. 
6;i2. 
53;!. 
5;U. 

535. 

6;?  7. 

638. 
631>. 
640. 
541. 
542. 
543. 
644. 
645. 
54fi. 
547. 
548. 
649. 
550. 
651. 
652. 
553. 

554. 
555. 
65G. 
657.  ■ 
558.  - 
55!i.  - 
600.  - 
5t;i.  - 
6()2.  - 
6<1,^.  - 

5t;4.  - 


■  Nuggets  of  Gohl 

•<  Sea  AVetHl  "     . 

"Personal  Property," 

Thiims  Savorin-jof  Keally  —  Sevoraiicoaml  Asportation 

must  be  Different  Acts 

Animals  not  Subjects  of  Lairenv  —  I\ neis 

"  Cow,  Sheep  or  Other  Animal " 

«« Doves" 

"Dogs  " 

"Personal  (Joods  " 

"  Horse"— "  Filly  "  .... 

•  Oysters 

Other  Fish 

Sheep  

Prosecutor  Must  Have  Property  in  Goods 

Thing  Must  have  some  Value 

Opening  Letter  Adilressod  to  Anotlier 

Writing  Containing  Evidence  of   any  Existing  Debt  — 

Value  of  Newspaper  List  of  SubscrilxTs      . 

Lucri  Causa  Essential 

No  Larceny  of  One's  Own  Property 

Tenant  in  Common  or  Joint  Owner 

Person  Having  Lawful  Possessiou  of  Property 

Bailee 

Bailee  Falling  to  Account 

Meaning  of  Bailment  .... 

Common  Carrier 

Carrier  of  Goods  for  Hire 

Servant       

Stealing  "In  a  Building" 

Stealing  from  "  Dvvelling-House  "  . 

"  In  a  Dwelliug-House  "  ... 

—  "  Dwelllug-IIouse  "  .... 

"  Ground  Adjoining  a  Dwelliug-House  " 

— -  Larceny  from  a  House        .... 

"  Shop" 

"  Warehouse  "  —  "(Jrauary" 

Stealing  from  the  Person  —  Property  Must  be  Copipletely 

Removed         

Stealing  "  Privately  from  the  Persou  " 

-  -  Receiving  Stolen  Goods    . 

Possession  of  lleceutly  Stolen  Pi 

Erroneous  Charge     . 

"  Voluntary  Return  of  Stolen  Pi 

-  Evidence  Helil  lusutllclent 
Casas  r.  State     . 

-  Cook  r.  State      . 
Crockett  v.  State 

-  Deering  V.  State 

-  Dresch  r.  State 


'roperty 
'roperty ' 


TAIU.E   OF   COXTENTS. 


Iv 


d  Asportation 


istiu 


erty 


g  Debt  — 


)e  Cop)  pi 


PAGE 

.  50.9 
.  570 
.570 

570 
571 
571 
571 
672 
572 
572 
572 
572 
572 
572 
572 
572 


ctely 


.  573 
.  574 
.  574 
.  574 

.  575 
,  675 
,  577 
,  577 

578 
,  578 
678 
67!) 
680 
680 
580 
580 
580 
580 
580 

680 
681 
681 
681 
582 
683 
683 
683 
58fi 
689 
5!>0 
694 


l'.\(.K 

505. 

Greon  r.  Slate 

.  5it7 

6t;(i. 

IlaiiinuU  V.  State 

. 

.  tiOO 

5C7. 

—  IIiini:'in:in  v.  State    . 

.  602 

SOS. 

Harri.soii  v.  State 

.  cot 

5»!'.). 

Jolinson  r.  State 

.  COfi 

570. 

Johnson  v.  Slate 

.  COS 

571. 

Knntsou  v.  State 

.  612 

572. 

MailNou  r.  S:ate 

.  ci<; 

673. 

. Martini'/,  r.  state 

.  621 

574. 

Pettiirrew  r.  State 

.  625 

575. 

Saltillo  r.  State 

.  (!25 

67i>. 

Seymore  v.  State 

.  f.27 

677. 

Shelton  v.  State 

.  (;28 

578. 

Taylor  f.  State 

.  (;32 

570. 

Wolf  V.  State. 

.  C33 

530. 

Woraack  v.  Stale 

.  633 

V\K 

r  IV 

Rkceiviko  Stoi-kn   I'hoperty. 

Heceivlng  Stolen  Property  —  Elemeut.s  of  the  Crime.     Wihon  v.  State,  12 

T.  s.  (.Vpp.)  48 

Ket.eiving  Stolen  Prop<'rty  — Prisoner  must  Have  Pos.se8siou  of  the  Prop- 

erry.    R.  v.  117/';/,  1  I).  &  P.  43 

K.celviiig  Stolen  Property —  Stoppage  in  Transitu  from  Thief  to  Owner. 

7?.  V.  Schmidt,  10  Cox,  172 

lUccivins  Stolen  Property —  Restoration  to  Owner  Between  Stealing  and 

Reeeiving.    .R.  v.  Z)'../au,  0  Co.\,  449 

Receiving  Stolen  Property —  Property  Received  must  be   Stolen.     United 

States  V.  Dfliare,  ''.  Hiss.  358 

Uiceiving  Stolen  Goo.l::— Concealment —  Intent  — Proof  Nece.ssary.    Al- 

drich  V.  People,  101  111.  10 

IJicelving  Embezzled  Property.     Leal  v.  State,  12  Tex.  App.  270  . 
Receiving  Stolen  Property  —  Banij-Notes  not  Goods  and  Chattels.     State  v. 

Calvin,  22  N.  J.  (L.)  207 

NOTES. 

Sr.iTiox  581.  Receiving  Stolen  Property— Goods  Must  be  Stolen 

682. Receiving  Embezzled  Property 

583.  Goods  must  be  Actually  In  Prisoner's  Possession 


6,s4. Stoppage  in  Tmnnitii  Before  Ri 

585. ■  Knowledse  Essential 

68(5.  Stealer  not  Receiver  , 

587.  Principal  and  Accessory    . 

688.  "  Goods  "  Banli-Notes 

588(1. Property  Stolen  from  Mails 


■celpt 


(•,39 
(143 
(!53 
(!58 
f.(;2 

or,5 

(■,71 
(174 


.  fi77 

.  (',77 
.  t;77 
.  (177 
.  (,77 
.  (178 
.  078 
.  (;78 
.  678 


hi 


TAULK   OF   CONTENTS. 


PART  V. 

RoltlJKKY. 

I'AGK 

Rol)bcry  —  Force  and  Violence  K.ssuntial.    yicCloskcy  v.  rcuplr,  5  Park.  200    084 

Kobbery  —  U.se  of  Force  Necessary  — Or  Terror.     State  v.  John,  3  Jones 

(r-),l<i3 C87 

Robbery  —  Violence  Essential  —  Snatching  from  Hand —  Subsequent   Vio- 
lence.    Shinn  v.  Stale,  (!l  Iml.  i:! (;<>2 

Robbery  — With  Intent  to  Maim  or  Kill  wltli  Dauirerous  Weapon.     Com- 
monwealth V.  (iallagher,  (>  Me'c.  5(15 005 

Robbery  —  Property  must  l)e  Property  of  Other  than  KodIxt—  Imllctraent. 

Commonxeealth  v.  Clifford,  8  Cnsli.  u'lo (JOS 

Robbery  — Constituents  of,  Under  Texas  Cuile.     Kimbii    v.  Stale,  12  Tex 

(APP.)  420 701 

Rol)bery  —  Demanding  Property  with  Menaces.     Ji.  v.  n'aUon,  L.  &  C.  280.  TO;i 

Robbery  — Larceny  fro.n  tlie  Person.     Fanniny  v .  State,  OH  Gn.  Hi7  .708 

NOTES. 


Skction  .5S0.  Robliery  — Force  Mu.st  be  Used        ... 

iiOO. Or  Putting  in  Fear 

501. Force  Must  be  Used  to  Overcome  Ue^istauce 

502. Fear  Must  l)e  of  Pi'r.sonal  Violence  — Threats 

5o:i.     —  Threats  of  Legal  Imprisomneiit 

504 . Demand  Necessary 

505.  Putting  in  Fear  — Bodily  Injury 

50('i.  Intent  to  Steal  at  Time  Necessary 

507. Subsequent  Use  of  Violence     .... 

508. Taking  Must  be  lu|  Pro.secutor's  Presence 

500. Property  Must  be  in  Possession  of  P.uty  Robbed 

590a. Receiver  Not  Guilty  of   Robbery  .         . 

(iOO. Articles  Taken  Must  l)e  Property  of  Prosecutor 

•iOl. Lticn  Cansd  Essential 

C02. Getting  C)ne's  Own  liy  Violence 

(',03. "  Menaces  '• 

(■,04. "Public  Highway"  .....' 

(105. Time  of  War 


TABLE   or    CONTENTS. 


Ivii 


CHAPTER  VIII. 

Crimes  Against  the  Pkhsoss  ck  Individi-als. 


I'AGK 

,  5P!irk.2!iO    084 
ohn,  5  Joues 

.  C87 
cqufiit   Vio- 

.  C92 
ai>oii .     C'om- 

.  «;>5 
Imllctiiieut. 

.  <;98 
Ude,  12  Tex. 

.  701 
L.  &  C.  28!).  TO:i 
107      .         .  708 


710 
710 
710 
712 
713 
714 
714 
717 
717 
717 

bbed  .  717 
718 
718 
7i;) 
722 
722 
722 
722 


let 
Its 


PAur  I. 

Abduction   and  Seduction. 

AlMluctlon  for  "  Purpose  of  Prostitution."     State  v.  Stoydl,  5+  Mc    24        . 
Abduction  for  Prostltutiot- Illicit  latcrcourse.     Osboni  v.  State,  o.  In.l. 

ALdueUonforlTostitution-Cliaste  Clwra.-fr.     L'jon^  v.    .State,  52  In.l.  . 

\t„liictlon- Proof -Seduction.     People  v.  Rodn-igas,  v;i  Cal.  0        . 
Lluction-GooaReruteof  Female  Must  be  Proved.    Oliver  y.  Common- 

icenlth,   110  Pa.  at.  215 •        •        ;        ; 

AlKluctiou-»Previo„s  Cha,»te  Character "-"  Purpose  of  Prostitution. 

C„rp>.nter  V.  P"oplP.,  S  li:irh.  im     .  •         '         -,        •         \.,. 

So.iuction- Meaning  of  "Previously  Chaste  Character."     Andre  v.    State, 

5  Iowa,  381) «      , 

Seduction -Under  Promise   of    Marria.'e  -  Proof   Necessary.    People   ^. 

Eckcrt,  2  "S.Y.Crim.  Rep.    470    .        .  '         "     „  :     ,  „_  ,' 

Seduction  -  Corroborative  Evidence  of  Woman's  Story  -  Insuincent  Proot . 

like  v.  Commonwealth  lOO  Pa.    St.   28        .        .         '        '      „. 
Seduction -Under    Promise    of    Marriage  -  Insumcient   Proof.     Jtiee  v. 

Com»ioHioea«ft,  102Pa.  St.  408 ;       /         ' 

Seduction -Where  Woman  Does  Not  Consent  not  Seduction.     Croghan  v. 

State,  22  Wis.  444 


NOTES. 

Abduction  not  a  Crime  at  Common  Law  . 

.  Man  not  Bound  to  ItLlurn  Girl 

Girl  Must  be  In  Charge  of  Parents   . 

Takinj?  out  of  Possession  of  Father 

„ Intent  to  Marry         .        ■  •        ■ 

,;iO. "  Taking  or  Causing  to  be  taken  "  —  Fraudulent 

ing  .••••••'■' 

Taking  for  "  Purpose  of  Prostitution  or  C^oncubln 

"  Purpose  of  Prostitution  "      .        .        ■        • 

"  Previous  Chaste  Cliaracter  " 

(iu!  Seduction- "Previous  ClKLSte  Character"      . 

,;i5. "Purpose  of  Prostitution         .         .        .        • 

,11  ti. Woman  Mu.st  be  Cliasle  at  Time 

on'. pi-oniise  of  Marriage  Necessary 

(il8. Married  Man 


TAOE 


;2(; 

7  2!  I 
72'J 

732 

735 

743 

748 

75'.» 

704 

7G7 


Section  <'.Ort 

007 

(;o8 

('.O'J 
(!0'.>rt. 


(!11. 
HV2. 
G13. 


Decoy 


:ige 


7(;9 
7<1!) 
7t;'.> 
770 
771 

771 

771 

772 

775 

775 

,  77"'' 

.   770 

.  771) 

.  777 


Iviii  TAIU.K,    OF   CONTKNTS. 

Section  (ilit. No  SlhIucHoii  when  Force  is  Used    .        .        .        ■ 

,;<o, Marriiisze  of  Parties  ... 

.;l'1.  -     -  Se.luctiou by  Guardian  of  Kcmule  —Who  not  a  "Guar- 
dian " 

(V^->.  Kvidonce  held  In.sufUclent  to  Couvlct 


PAUT  II. 

ASSAri.T  AND  Uatteuy, 


Asaault  — Elements  of  the  Crime.     People  v.  Lilhy,  43  Mich.  521  . 
Assault  -  Klenieuts  of  Crime  -  Shootin«  at  Window  of  Person's  House - 
Law  of  Nations—  House  of  Forelaia  Minister.   United  Stnh!<  v.  H'hkI, 
As.sault  — A.ssaultMust   l)e  on   Person  of  Prosecutor.   Kirland  \ .  State,  Ai 

Ind.  140  

Assault -Action    Explained    by  Words  —  Keslstlng  Trespass.     Commun- 

xncnlthw  E'ire,  1  S.  &  II.  347 

Assault -Taking'  hold   of  Person  Without   Intent    to   Injure.     PeopU  v. 

//((/r,  1  N.  Y.  Cr.  Rep.  533 

Assault  -  Negligent  Driving  in  Violation  of  City   Ordinance.     Commun. 

we<(?«/tv.  .4d«J(is,  114  Mass.  3L'3 

Assault -Arrest  by  OlHeer  Without  Warrant-When  Notice  not  Necessary. 

Shorlin  v.  Commonwealth,  lOfi  Pa.  St.  3(i!)  ...••■ 
As.sault  -Common Carrier—  Ejecting  Passenger.     People  v.  C  -  '  ^  I'ark. 

32ii •         ■ 

Assault  —  Superintendent  of  Poor  House.  State  v.  Neff,  58  mt..  oU.  . 
A.ssauU  —  Dangerous  Weapon  —  Arrest.  Doering  v.  State,  4'.>  Ind.  r,0 
Assault  —  Lawful  Use  of  Violence  —  Schoolmaster.    Dowlen  v.  State,  14 

Tc.K.  (App.)  fil 

Mayhem   -  Intent  Must  be  found  by  Jury.    State  v.  Bloedoic,  45  Wis.  270  . 

Assault  With  Intent  to  Murder.     Hairston  v.  State,  54  Miss.  f.8tt  . 

Assault  Willi  lutcnt  to  Murder  — Intent  Essential.    People  v.  Keefer,  18 

Cal.    037 • 

Assault  witli  Intent  to  Murder— Setting  Spring  Guns.     Simpson  v.  State, 

50  Ala.  1 

Aggravated  Assault  —  Meaning  of    "Child."     McGregor  \.  State,   4  Tex. 

(App.)  500 

Aggravated  Assault -Made   Ijy    Decrepit  Person -Or  in  IMvate  House. 

Hall  V.  State,  l(i  Tex.  (App  )  U       .  

Aggravated  Assault —  Intent  and  Act  Necessary.     Fondren  v.  StaU,  lOTex. 

(App.)  48 /  • 

Mayhem  —  Premeditation  Necessary.     Godfre>i  v.  People,  O'J  N.  Y.  20*  . 
Assault  with  Intent—  Bodily  Injury  Dangerous  to   Life.     ii.  v.  Oran,  D.  & 

B.303         

False  Imprisonment-  Person  Going  Voluntarily  —  Fraud.     State  v.  Lu7is- 

/ord.  81  N.  C.528 

False   Imprisonment- Delay  in    Taking  Bail.     BevUlc\.    State,   16  Tex. 

(App.)  70 


783 
788 
702 
800 
804 
808 
800 


813 
81(1 
818 

822 
82i; 
828 

831 
833 
844 
84  f. 

852 

,  850 

858 
801 
8('>3 


TABLK   OK   CONTENTS. 


lix 


PAOK 

lu)  Hot  a  "  Guar- 


NOTKS. 


;h,  521  .         .         .  783 
[Vrsoii's  House  — 
'd  Stntin  V.  H'ni>l,  :S8 
irland  v.  iStntc,  43 

.  702 
sspass.     Commuii- 

■  800 
[njurc.     People  v. 

.  f'04 
nance.     Commim- 

■  S08 
ice  not  Necessary. 

•  809 
;e  V.  C-—  '  "  I'ark. 

.  813 
58  im'..  oHi  .  .  81fi 
.',  4'.>  Iiul.  fiO  .  818 

inolen  v.  State,  14 

.  822 
ioxo,  45  Wis.  270  .  82(1 
Is.s.  G80  .  .  .828 
'eople  V.  Keefer,  18 

.  831 
Himpaon  v,  6'«ate, 

.  833 
r  V.  .S'(a(c,   4  Tex. 

.  844 
in  Private  House. 

.  84G 
en  V.  State,  lOTcx. 

.  852 
C2  N.  Y.  207  .  .  850 

.    ]t.  V.  Gray,  D.  & 

.  85S 
\A.     State  V.  Lun»- 

■  801 
V.    State,    10   Tex. 

.  803 


O'.'t.  - 
025.  - 
02t'>.  — 

027.  - 

028.  - 

029.  - 

030.  - 

031.  - 

032.  - 
0;'.3.   - 
034.   • 
035. 
030.  ■ 

630(X. 
C30ft. 
637. 
038. 
638a. 
030. 
040. 
041. 
012. 
042(1. 
043. 
044. 
645. 
646. 

647. 
647a. 
648. 
641). 
650. 
651. 
652. 

653. 

654. 

655. 

650. 

657. 

658 

659 


Alii''. 

805 
806 
806 
806 
867 
807 
.  86ft 
.  808 
.    H08 
.  809 
.  809 
.  809 
.  869 
.  870 
.  870 
.  871 
.  871 
.  871 


isaull—  Must  be  I're.xeiil  Intention  to  t^trlke 

-  In-ent  to  Iniure  Essential -Coupleil  w.ili  .V 
_  -nueateninfj  Gesture  not  -  I'oinlins,'  Cane 

-  latent  to  Injure  the  Gist- I'ointlnsjPi.^tol 
Words  not  an  Assault        .        •        ■        • 

—  Not,  When  Words  explain  Act  . 

—  Assault  Must  be  on  I'.rsou 

Opening  Hallway  Switeli  .         .         •        • 

Slopping  C.irriage      .         ■         •         •         • 

Force  Must  be  External  .         •         •         • 

—  And  Must  do  Injury  .         •        •        •        • 

Accident  or  I'lay        .        •        •        • 

Use  of  Lawful  Force         .        •         •        • 

I'reveutiug  IJreaeh  of  Peace      . 

. .  siiooting  at  House  Window 

Negligent  Driving 

Kecaption  ...•••' 

Force  to  Recover  Property 

Mayhem     .••••■ 

Mayhem— Other  Essentials     . 

Maiming  by  Lying  in  Wait 

.  Assault  with  Intent  to  Kill 

Assault  with  Intent  to  Murder. 

.  Assault  with  Intent,  to  Kill  Not 

__-  Must  be    Intent  to  Kill  Party  Assaulted        . 

Spring  Guns       .        •        •  ",,'.„ 

—  Assault  with  latent  to  Conunit  Mans  aughter  ■         ■ 

—  Assault    with    Intent    to    Rob-Subse.,uout    Commoa 

Assault       •        •        ■  ..,.',,Ha"-"l)e(i"ei.it  Person". 
Agt'ravated  Assault —     tuiui 

Intent  and  Act  Essential 

. "  Beating  ".•■••■■ 

' Bodily  Injury  Dangerous  to  Life      .         •         •         •         • 

[ II  Grievous  Bodily  Harm"  .••••' 

"Wounding"  •        ■        •        '^        '        '        '        ' 

-  _  "  Deadly  and  Dangerous  Weapon  .        •        •        • 

« Offensive  Weapon "        .        •         •  '        "        ' 

.(Sharp  Dangerous  Weapon" 

—  Assault  with  Violence  -  Snatching  from  Hand 

Deterring  Person  from  Giving  Evidence 

Bailing  Person  to  Force  Confession         •         •  • 

___  False  imprisonment  -  Restraint  Must  be  Against  N%  ill. 

Delay  In  Taking  Bail 


s71 

KTl 

K71 

87V 

873 

•sTl 

H75 

H70 

»7(i 

870 

877 
,  ^77 
.  878 
.  S77 
.  877 
.  877 
.  s77 
.   87H 
.  578 
.  878 
.  878 
.  S78 
87'.« 
879 


Ix 


TAULK   OK   CONTENTS. 


I'AKT   III. 


Rai-k. 


PAGE 

.  880 

.  883 

885 


Rape  —  Force  iiiul   Violence   Ksseiitial.     McXnir  v.  State,  ii"  Ahx.  A6!i. 
Kaiie  —  Acts  iiiul  Devices  nut  Kii()Ut!h.     People  v,  lioijal,  53  Ciil.  (13. 
Uaiie—Wliut  is  "Abuse"   of  Cliild.     Dmckins  \ .  Slate,  h%  Xhx.  &1G. 
Assault  Willi   Intent — Intent    to  Acconipllsli   Kape  Essential.     Common- 

xcealth  v.  Merrill,  U  Ciray,  415 887 

Assault  not  Intent — Intent  to  Hape  Necessary.     Thomns  v.  State,  10  Tex. 

(.Vpp.)  5;;5 800 

.Vssault  witii  Intent  —  No  Presumption  of  Intent.     Statu  v.  Masses,  8*i  N.  C. 

ilS'.i. 8it5 


NOTKS. 


Skcticin  mo.  Rape  —  Force  and  Violence  Ksseutial 

cdl. Penetration  must  l)e  Proved      .... 

";(!2. Proof  of  Kmissioii 

(!(;3. Not  Rape  if  Woman  Consent    .... 

(iil+. Intent  must  be  to  Effect  Purpose  at  all  Hazards 

Olio. Evidence  Held  Insulllcient        .... 

ili'pi).      — People  p.  Andcga 

(',t;7.    Christian  v.  Commonwealth       .... 

0',S.     —  People  V.  Hamilton 

M'.K       —  Boxloy  r.  Commonwealth  .... 

i:70. "  Abuse  of  Child" 

071.  — —  Assaultwith  Intent  toCommit  Rape  —  1 

Rape  must  be  Proved 
072. Eviilcncu  Held  InsulHcient  —  .Saddler  i'. 

V.  State     .  

073.  House  V.  State  .... 

074. State  v.   Neely 

075.  '  —  Penetration  Proved    .... 
1170.  Intoxication  of  Pri.->oaer    . 


807 
8!)  7 
808 
80'.> 
800 
800 
800 
000 
001 
002 
004 


itent  to 
.State  — 


Commit 
Sauford 


004 

005 
007 
008 
010 
010 


PART  IV. 

IIOMICIDK. 

Homicide  —  New   Born  Infant — Independent  Life.     State  v.  Wintkrop,  AS 

Iowa,    510 Oil 

Murder — Infanticide  —  Ctiild    Must  be    Born — Deliberation.     Wallace  v. 

5ffj<. ,  7  Tex.  (;App.)  ."0 014 

Mnrder  _  De.-ith  Mu-.t  he  Result  of  Act  —  Time.     Proph^  v.  .Iro,  0  C:il.  208.  017 

Munler  — Time  of  Committal— When  Fatal  Blow  Is  Struck  —  People  v.  Gill, 

6  Cal.  0;!7  020 


TAbLli   or   CONTliNTS. 


I'AGK 

1,  45:?.  .  K«0 

(13.  .  .  882 
37(J.  .  885 
,     Commnn- 

.  887 
ite,  IC  Tex. 

.  8'.iO 
et),  80  N.  C. 

.  8it5 


t  ti>  Com  111  it 


.  yo4 


e  —  Sanf  orcl 


Winthrnp,  43 

.  nil 
Wallace  v. 

.  !tl4 

1,  f,  0:11.208.  'J17 

enptp  V.  Gilt, 

.  ',)'J0 


Ixi 


„„„,.„,o-E.e«  ...   r.rr„,».»  T,... t  ,..   VV, C.„s„„    I,o..„    ^^^_^ 

Parsons  v.  StaU;  :.'l  Ala.  :.'iO  .        •        •  _s7,,(.  \ .  .s<-'tr<.s 

Ilomici.le  -  Iud.,H.n.U.ut  Act  of  Thinl  IVrson  Intcn .  mu.„.  ,^.,^ 

ll„u,lci.lo--C'.r,.,..  »H,«   Musi   l»  I"""'  ,53 

,S<oA:<-s,  2  N.  Y.  Ci-.  U.'l>.  .l^-'    ■..•.,,,,.  ^,<.„ti;u.     .I'ln  V.    >'««<■,  H 
lIomicule-roNomu5;-I"ti3UttotakL.  UK   Ls..c.itM  ^^^^ 

Humph.  15i)    •        •  '.       ".  ,„"      A„.  V    .S(,(((,  (i  l'l.i.  "j.'l;  "'^ 

nomlcUle  by  I'oisoniiv^  -  I'ro.f  -  Symptom..    J.-  ^  •  -V  <  ,  ^,^ 

Am.  Bee.  570   .        ■        •        •        •        '  M.,iisi'ui<'htc'r  and  ""t 

Uomicide-Iiuentto  commit  Mlsaome.^K..d> -Ml     u^^  ^.^^ 

MunWr.     ^''f -f^^;^  '^^V.'^,  T  Rich.  (S.  C.  )  185     ..87 
Murder  -  Presumption  of  >l  ilic^  •     '^'"«  j^jj^.  __  wautount-.s. 

Ilomicide- Felonious  Homicide  -No  Intent  to  take  ^  ,^^ 

Z)an-i/ v.renp/e,  10  N.\.l-^0;-^_.i,j^    ,„,,„t   ,„    Kill 
Decrees  of  Murder -Murder   In  lirst   "*>='^^'-         '  ,oi2 

Murder -Manslaughter -Mutual  com  mi  ^j^|,_, 

Murder.    P.o,/«  V.  '^-«  -'  ;*  ^^^  ^'^^J  _  ^^^,^,  ,,  second  Degree. 
Degrees  of  Murder  -  Murder  in  First  ue^rtt  ^^^^^^ 

M.*H,;  fh?F;;"  negr»  -  Burden  o<  Proot     ../cft.,.,W  v.  C»....o.-.«'..^^^^^^ 
Murd  ".?«»' F.-t   D;.8r.c:.-Pr.n..;.t..Uo«-.U.U..or.Ho«.     «•    -.^^^^, 

7?„/i(iiso(i,  73  Mo.  301)        .         •         ",  ,  '  vf«/^v   riirtts.  70  .Mo. 

DegreoofMurder-Murderiu  the  second  Decree,     ,s^.e.^ .  C.<m«,  .  ^^_^^ 

594 


Ixii 


TAIil.K   dl"    CONTKNTS. 


PAflK 

Deart'LW  of  Miirtl-i'  — Di'lib'Tiitlon  — liicorroct  Dcilnitioii  of  Ti'rms.     St,i/< 

V.  Shfii-p,  71  Ml).  •j\H 11''" 

Murilcrauil  .M.iii>liiu>:lit.r  — Inu-iit  to  Kill.  Puplun  v.  Frvel,  4h  Cal.  \M'>  m-*-' 
MunUr  in  Sucoml  Di'jjri'o  —  liiU'Ut  to  Kill  Mu>t  l)c  Sliowu.     Dal;/  v.  P<njil< , 

:i-j  lliiii.  182 "'«•' 

lloiuici'lf  —  Provocation  —  Ailcquiite      Cause  —  Krroiieous      Truatiiunt. 

/,Vmi'-,j  V.  ,S7uf.,  :',><TcN.  4s:,' lui^J 

llomicilf- Killing  afUT  rmvui'alion   In    Ileal  of    I'asslon.     MrCanii  v. 

r,;pli;  0  Park.  (;:.•;» lOSlt 

Iloniiciiji'  —  Provoeatioii  — Husband  ami  Wife  —  .ViliiMery,     Pi-icc  v.  Stall-, 

IS  Tex.   (Ai'|).)  471 lO'Jj 

Munler—  .Manslau^lit-r— Provocation  — AdefiuateCau.si'.     IIiid.son\.  Slate, 

i;Te.\.  (App.)  5i;4 lion 

llonilci.le  — Murder  — Ooollni;  Time.  Slutr.  v.  Moore,  m  S  C.  L'(;7  .  11U7 
.^^an>lall^'!^er  in   First  l).':j;ro.'  —  .ittumpt   to  Commit  Abortion.     Statnv. 

7i„i//i.;vt7i,  1  West  IJrp.  7t:0 1113 

Manslaunhter  — Use  of  Deadly  Weapon.     Peoph'  v.  Cruw>j,  .5t!  Cal  GO  1110 

Mauslaiii^Uter—  Railroad  Company —  .Vegligence.     Cummunwialth  v.  Fitch- 

Inirrj  n.  Co.,  l-M  yiil>is.:iTi 1117 

Manslaughter  —  Railroad   Company  —  Killing    Passenger.     Commonirinlth 

v.  Fitci.hunj  P.  Co.,  \-2<;  ^Ul^s.^:•J ii-'i 

Manslan^liter— Negligenee  of  Servants  of  Railroad —  Negliffcnce  of  Rail- 

road.     Comuwntcealth  v.  Boston  (ind  Maine  /.'.  Co.,  l;!:!  .Ma.ss.  HS;}         112'J 

Manslaughter  — Conductor  of  Railroail  Train.     Commonwealth  v,  Hartwell, 

li!8  Mass.  4I.'< 1133 


NOTES. 


Skction  (;77.  Murder  —  Violence  Essential 

1178. False  Swearing  .        .        .        . 

tJ7'.>. New  Born  Infant  —  Infanticide 

y;sO.  Death  Must  Take  Pl.iee  Within  Year  and  Day 


f.Sl. 


Homicide  —  Death  Must  be  in  Conseiiueiice  of  Prison- 


er's Act 1 

OSl'. Death  Occasioned  Partly  by  Predlspo-sing  Cause    .  1 

(18-j,,. Diath  from  One  of  Two  Uncertain  Causes  1 

(',»•.]. Death  from  Subseqiiint  Medical  Operation     .        .  1 

084. Imi'roper  Medical  Tnatnient  —  Texas  Statute  1 

Og-,. C(n7"(s  Z>e/i''/t  Must  be  I'roved  .         .         .         .  1 

08(1. Corpus  Z>./?c-(i  not  Proved —Nor  that  Death  was  Result 

of  Cri-„ 1 

t)S7.  —  Intent  to  Kill  Essential 1 

688.  — —  Murder  by  Poisoning—  Knowledge  must  be  Proved  1 

(!8!». Symptoms 1 

imo. Intent  to  Commit  Felony  —  Misdemeanor        .  1 

C91. Malice,  wlien  iiot  Pn'siimed 1 

C02. Intent  to  take  Life  — Murder 1 

«03. Degrees  of  Murder 1 

(!;i4.  Intent  Requisite 1 


■rAlll.l'.    ol"    CONTKNTX. 


Ixiii 


PAliK. 


orni-i.     Stiili 

I1177 
8  Ciil.  4:;il  MSI' 
•alij  V.  riiijili , 

1083 
Trc'uiuu  111. 

11185 
McCitnii  V. 

1  OSl) 
'rice  V.  Statf, 

low 

l(i,so»v.  SlaU:, 

lino 

:.  L'ti7       .         1107 
on.     StatP  V. 

.      1113 

1;  Ciii  r.(;        1110 

aUh  V.  /•7<(,7i- 

1117 
ommonwcallh 

[cnce  of  Kail- 
lass.  883         112'J 
I  V.  Hartwell, 

1133 


Si.TKiN  r,;t5.         -  lielllK'niiiDii  ;iuil  I'lviiHHlitiiiUiu  INscntial 

,;,,r,. Killing  not  I'riiaa  Foci,;  Miinl.r  in  Fii>i  l)fj;rcc 

di,;'.  _.  _  Miirilcr  ill  Sccoml  Vv^rc  —  I'rt'inccllliitlou 

^gg] Impll.'tl  Malifo— KiTDiifoiH  liixinic'tiou 

,]y9    Krroneoiis  niur-^(-—Whit;ik.  r  r.  State     . 

710" Iinplic.l  Malice -F.lTulioo.HCl.aru<'-K''.vm>l.l.si-.St;Ur  llOO 

70,'  Kvl.lonco  IiiHUtllcleiit  to   r-nvl.-t   of    M.inlrr  in    Kiisl 


PAdE 

ll.'.r. 
1160 
IISO 
115(i 

1 1  ,-.7 


Decree  —  Cox  w.  State    .  ... 

7(Tj. Ili'iu'vid.'*  V.  Stall' 

71IH Robinson  i'.  State 

704'. Munler  in  Sccon.l  De.T.,.  -  Kvl.lcnce  lii.snitlelent 


705. 

"05rt, 
7011 
707 
708 
70"J 


lliKI 
11  (iO 
1174 
ll'^iO 
1180 
1181 
1180 
1189 
118!) 

ir,)L' 
1 1  ll'j 


Evidence  Insullicient  to  Coiivirt 

_       Noleii  V.  State 

-.  -  li.'.ntto  Kill  K.sscntial  In  Man.slau«lit.'r 

rrovocatloa  Redncen  Ciime  to  Man-launhter 

Provocation— Heat  of  I'assioii 

Husband  and  Wife  ... 

710 Parent  anil  Cliild 

7,1, Killiii!,' Without  Design  to  Kff.-et  Death  -  ITovocation  lllH' 

710 "  Adequate  Canse  " 1^''''' 

-jg" "Ade<inato  Cause  "—Cansos  not  Mentioned  In  Statute  \VM'> 

714. Resisting  Arrest  — Provocation  "■';_ 

715" Inciting  to  Commit  Suicide "'■'' 

71,;] Sparring  Match  — Deatli  Uesulliug  From        .        •  n!"7 

717'. toilroads— Killing  of  Passenger     ....         H'-*'' 


,           , 

1138 

1138 

,                , 

1131) 

Ray 

113!» 

ce  of  Prison- 

113",» 

Cause     . 

1131) 

IHO 

1 

lUO 

ute 

1141 

1141 

th  was  K( 

>ult 

1142 

1155 

e  Proved 

1155 

1155 

1155 

1166 

llSfi 

1166 

1166 

DEFENCES  TO  CRIME. 


ciiA  p  ti:k   VTl. 

CHIMES  AGAINST  Tin:  I'KOl'KKTY   OK    INDIVIDUALS- (CoNTiWKD). 


I'AKT      1. 

KOKdKin'. 


FORGERY  —  INTKNT  TO  DEFRAl'D  ESSENTIAL. 

Statk  V.  Kkdstuake. 

[39  N.  J.  (L.)  !JC5.] 

Jn  the  Supreme  Court  of  New  Jersey,  1877. 

H  Forsed  hlB  Father's  Indoraement  lo  a  proinlKHory  note  and  noRotlated  It  to  R.    Be- 

"  tnre  tho  iiotu  camo  duo  \.\m  (atlur  Icariic.I  of  llu;  forifcry.    U.,  wlicii  tlio  note  came  due, 

kiii.wiiiK  of  till!  forgrry,  an.l  kiiowiuK  Unit  II. Vs  fallier  knew  of  \.\w.  forBcry,  left  the  note 

at  tho  bank  wliero  It  was  payable  with  Inxtrurlions  to  make  demand,  and  |irolof.t  it  if  not 

paid.    //eW,  that  It.  was  not  guilty  of  uttoiiug  forged  jiapur  with  lutcut  to  defraud. 

On  rule  to  show  cause. 

The  defendant  was  indicted  for  for<!;in<?,  and  also  for  uttering  as  true, 
Gve  several  promissory  notes. 

Tiie  first  was  a  note  for  8«0(),  of  the  date  of  October  7,  1874,  drawn 
to  the  order  of  Clement  Hall,  and  sijriud  by  Louis  M.  Hall. 

The  second  was  for  $800,  of  the  dale  of  October  IGth,  1874,  drawn 

in  th<'  same  form. 
The  third  was  for  $1,000,  of  the  ilate  of  October  2'Jth,  1874,  drawn 

in  ihe  same  form. 

riio  fourth,  a  note  of  86,500,  of  the  date  of  November  10th,  1874, 
,ruwn  in  the  same  form. 
The  fifth  was  for  8750,  of  the  date  of  December  7th,  1874,  drawn  in 

the  same  form. 
There  was  a  count  in  the  indictment  for  forging  and  procuring  the 

forging  of  '    '  first  named  note. 

Then  fo.iuwed  a  count  for  uttering    and  causing  the  same  to  be 

3  Defences.  1 


2 


FOUOEKY. 


Uttered  as  true,    with  intent  to  defraiul  the  sai.l   Clement  lldl,  and 
divers  other  persons  unki'.nwn,  etc. 

Then  folloNVid  a  third  cunt  for  forging  the  second  note,  and  a  fourth 
count  for  uttering  the  same,  and  so  there  were  alternate  counts  for  fo,g- 
in-'  and  uttering  the  live  i-.utes,  mailing  in  all,  ten  counts. 

The  evidence  upon  the  trial,  disclosed  the  fact  that  the  name  Louis 
Hall,  the  maker  of  the  several  notes,  was  written  l.y  said  Hall,  and  tlie 
name  Clement  Hall  on  the  hack,  was  also  written  hy  Louis  Hall,  with- 
out the  knowledge  of  said  CleuK'nt  Hall,  who  was  the  father  of  Louis 
Louis,  long  before  maturity,  passed  these  notes  to  the  defendant, 
James  J.  Uedstrake,  with  tiie  forged  indorsement  of  the  name  of  the 
payee  Clement  Hall,  then  upon  tliem. 

To  sustain  the  counts  for  forgeiy,  it  was  insisted  that,  while  the  name 
of  the  payee  was  forged  by  the  hand  of  Louis  Hall,  yet  that  such  act 
was  counseled,  procured,  and  induced  by  sahl  KedstraUe. 

To  show  this,  a  long  course  of  dealing  between  Louis  Hall  and  Red- 
.  -akc  was  proven,  in  the  course  of  which  a  large  number  of  notes,  pur- 
portin.'  to  bo  of  persons  in  the  county,  were  purchased  by  Kedstrake 
of  H-li  ;  which  notes  were,  by  Hall,  sworn  to  have  been  forged  paper. 
The  circumstances  under  which  tliese  and  tlic  notes  in  question  were 
negotiated,  were  relied  upon  to  show  th  -t  he,  liedstrake,  counseled  and 
procured  the  forgery  of  thr  notes  named  in  tiie  indictment. 

To  sustain  tiie  counts  fo-  uiterii.^  ,  the  same  evidence  was  relied  upon 
to  show  that  Redstrake  ha.i  a  knowledge  of  the  forged  character  of  this 
paper  ;  tliut  while  having  such  knowledge  he  did  that  wliich  constitutec 
an  utterin-r  of  the  same.  It  conssts  in  tliis :  The  notes  were  all  drawr 
payable  at^'thc  baiildng-hou-^e  of  ihe  Salem  National  Banking  Company 
All  the  notes  were  by  Redstrake,  left  at  the  said  bank,  I  fore  maturity 
for  collection,  with  direction  to  present  for  payment  and  to  protest 
That  thereafter  demand  was  made,  and  the  said   notes  were  regularb 

protested. 

The  jury  found  tiie  defendant  not  guilty,  upon  the  counts  for  forging 

and  guilty  upon  the  counts  for  uttering. 

Upon  motion  of  the  counsel  for  f  l  •  defendant,  a  rule  to  show  cans 
why  there  should  not  be  a  new  trial  was  entered,  and  the  hearing  upo 
the  rule  was  referred  to  this  court  for  its  advisory  opinion. 

Argued  at  t-'ebruary  term,  1877.  before  Beasley,  Chief  Justice,  an 
Justices  Knai'I'  and  Reed. 

For  the  State,  M.  P.  Ore;/,  and  A.  Browning. 

For  the  defendant,  W.  E.  VotWr  and  -S.  //.  Grey. 

Tiie  opinion  of  the  court  was  delivered  by 

RiEu  J.  The  primary  ipiestion  in  tliis  case  is,  whether,  upon  tl 
facts  pioveu,  this  verdict  sliould  staud  -  whether  the  presentation. 


said   Clt^mcnl  IIiH,  ami 

ecoml  note,  and  a  fuuith 
Iternate  couuts  for  forg- 
cn  counts. 

act  that  the  name  Louis 
;cn  by  said  Hall,  and  tlie 
ien  liy  Louis  Hall,  wilh- 
was  the  fatlier  of  Louis, 
notes  to  the  defendant, 
aent  of  the  name  of  the 

istedthat.  while  the  name 
is  Hall,  yet  that  such  act 

Kedstrake. 

feen  Louis  Hail  and  Red- 
•ge  number  of  notes,  pur- 
;  purchased  by  Kedstrake 
)  have  been  forged  paper, 
he  notes  in  question  were 
Kedstrake,  counseled  and 
le  indietraent. 
!  evidence  was  relied  upon 
le  forged  character  of  this 
did  that  which  constituted 

The  notes  were  all  drawn 
itional  Banking  Company, 
nid  bank,  I  fore  maturity, 

I)ayment  and  to  protest. 

said   notes  were  regularly 

[)on  the  counts  for  forging, 

dant,  a  rule  to  show  cause 
■red,  and  the  hearing  upon 
k'isory  opinion. 
EASLEY,  Chief  Justice,  and 

ling. 
I.  Grey. 

case  is,  whether,  upon  the 
vhether  the  prcstutalion  of 


STATK    V.   KKPSTKAKK. 

tn«  to  the  c-shier  of  the  Salem  National  Banking  Company 
these  notes  to  the  c.  snn..  protest   followed  bv  such 

,,r«o„t,li....  an,l  riotcsl,  pr,..™t  »  *"°J,»  ;;„„,,,,■, Lsi.y,  will 
""Crv"."°H.Tl..S  is  ..  V.--.l>  of  U,c.  ,„„r. co,.„ro.,e.s,vc  cr„n«  ot 
"'r';°:;u..!.Tl"ln.u''.'*l»  wl,oo  »ucoo».„l.-     When  cl.hc,  .,0- 

makmg  or  »ll..ni,s  a  ...alU-i  of  r  ,  o  <1,  or  ,,„t(,„c„t 

''r;''^::,r::s;::i:  ;:i.»  aa::.ror;:;ff,„ontof  .1.  sa,n, 

;     Tt      i    of  a  pr  .r  .lato,  iu  onlor  l„  lU'trau.!  h«  o«»  footfeo  ;  or 
T  ;  ,?;iir' U.      o  >l,a>v  a  will  ami  insert,  kgadc,  .l.onin  of  Ips 

where  one  is  diiectcd  lo  uiaw  ^.ritp,  over  tlie  name  a 

scope  of  the  crime  of  forgery  to  writing  of  an  inferior  degree 

the  certificate  in  question.  Elizabeth  was 

-U.is  decision  evidently  assumea  f  f  ^^^  /  ;\"\;;;,i,  .  ^o  any  new 

orLiior^eii,  „,,, heir  indorsement  and  assignment.     It  makes 

!„  pr'Muissory  notes  and  their  inaorstiucut 


1  lRleh.Cr.L.,8CC.4a;M./..BCC.49S. 
s  1  Hawk.  r.  C-  3;». 


4  2  sir.  747. 
s  rh.  14. 
•  ch.  •». 


4  FOKOKKV. 

llic  ffilsc  iiiakiug  of  siieh.  with  intent  to  defraud  any  person  whatsoever, 
or  the  iittcriiij,'  or  publishing  us  true  any  such  false  paper,  with  intent  to 
defraud,  a  felony. 

liy  the  statute  7  George  II.,'  this  was  extended  so  ^3  to  include  rc- 
oeii)ts,  iicoeptances  and  orders  for  tlie  payuiv.:',  c'  money  or  delivery  of 
goods. 

Tiie  substance  of  these  three  statutes  is  re-cnaetcd  in  this  State,  and 
now  embodied  in  section  17o  of  the  revised  act  for  the  punishment  of 
crimes. 

We  observed  that  forgery  and  uttering  were  each  either  an  accom- 
plished or  an  attempted  cheat.  A  material  element,  essential  to  consti- 
tute either  crime,  is  a  desijju  to  affect  the  riglits  of  another. 

As  it  would  be  essential,  under  an  indictment  for  obtaining  the  prop- 
erty of  another  by  the  use  of  a  false  or  forged  paper  as  true,  to  show 
that  a  fraud  was  actually  accomplished,  so  under  an  indictment  for 
forging  or  uttering,  either  the  same  should  be  shown,  or  else  an  intent 
to  do  the  same.''^ 

Wiiether  the  statute  of  0  Elizabeth, 3  was  or  was  not  intended  to  ex- 
tend tiie  class  of  writings  which  might  be  tiie  subject  of  forgery,  beyond 
the  class  indictable  at  eommon  law,  it  is  clear  that  it  did  not  change,  or 
intend  to  change,  the  character  of  the  elements  essential  to  constitute 
the  common-law  crime  of  forgery  or  uttering. 

Tiie  act  provides  tliat  the  forgery,  as  well  as  the  pronoinicing  or  pub- 
lishing, must  be  done  to  the  intent  tli.at  the  estate  of  a  freeholder, 
etc.,  ♦  •  •  or  the  right,  title  in  the  same  siiall  be  molested  or 
troubled,  etc. 

Says  ICast  :  '  "  The  deceitful  and  fraudulent  intent  appears  to  be  the 
essence  of  this  offense,  and  this  is  indeed  particularly  expressed  in  the 
statute  .^)  Kli/abeth,'^  and  in  most,  if  not  all,  the  other  acts." 

"  'J'he  nature  of  forgery,'  says  Hawkins, '•  "  does  notseeni  so  much  to 
consist  in  the  counterfeiting  a  man's  iiand  and  seal,  which  may  often  be 
done  innocently,  but  in  tlie  endeavoring  to  give  an  appear.ance  of  truth 
to  a  mere  deceit  and  falsity,  and  either  to  impose  that  upon  the  world 
as  tlic  solenm  act  of  another,  which  he  is  in  no  way  privy  to,  or  at  least 
to  make  a  man's  act  appear  to  have  been  done  at  a  time  when  it  was  not 
done,  and  by  force  of  such  falsity  to  give  it  an  operation  which  in  truth 
and  justice  it  ought  not  to  have." 

The  language  of  our  act.  like  the  English  acts,  makes  the  "  intent  to 
prejudice,  injure,  damage  or  defraud  any  person  or  persons,  body  pol- 


1  ch.  22. 

8  Hex  V.  PoweU,  2  Wi».  Ul.  787 
Holdon.'iTaunt.  3:». 
»  Ob.  14. 


Hex  r. 


4  5  P.  C.854, 
!>  ch.  U. 

«  1  r.  f.  :J35. 


fhatsoever, 
,h  intent  to 

include  re- 
delivery of 

State,  and 
lisbmcnt  of 

an  accom- 
i\  to  cousti- 

g  the  prop- 
ue,  to  show 
iotnient  for 
je  an  intent 

idcd  to  ex- 

er3',  beyond 

change,  or 

3  constitute 

■ing  or  pub- 
free  liolder, 
molested  or 

Ts  to  be  the 
^ssed  in  the 

so  much  to 
laj'  often  be 
nee  of  truth 
)n  the  world 
,  or  at  least 
n  it  was  not 
tich  in  truth 

!  "  intent  to 
i,  body  pol- 


STATK   V.  UEDSTllAKK.  '* 

itic  or  corporate."  the  material  element  of  the  crime  of  forgery,  as  well 

•IS  of  uttering  the  false  paper  as  true.'  .   »     ,  ♦„ 

The  vorv  act  of  forgery  its-lf  will  be  sufflcient  to  imply  an  intent  to 

defraud,  Jr,  at  all  events;  it  will  be  sutll-ient  if,  from  the  circumstances 
f  the    ase,  the  jury  cau  fairly  infer  that  it  was  the  inteut.ou  of  t  u, 

,,.rtv  to  utter  the  forged  instru.ueut.     If,  however,  it  appears  th  t     o 
P.u,d  whatever  could  have  been  effo-ted  by  the  forgery,  then  no  f  and 

could  be  intended,  an.l  the  defendant  will  be  entitled  to  an  acquittal.- 

Where  a  man  erased  the  word  '>  Libris,"  and  inserted  the  word 
u  Alareis."  in  a  bond  made  to  himself,  it  was  held  not  forgcn-y,  because 
tu;  erasure  could  not  be  prejudicial  to  any  one  but  himself,  and  there 
was  no  am)earance  of  a  design  to  cheat. •J  .  .  ,   .,      . 

Tested  by  this  rule,  was  there  that  in  this  case  from  which  the  jury 
could  infer  a  design  to  defraud? 

That  the  presentation  of  a  note  at  bank,  with  a  direction  to  present 
for  pavment  and  protest,  followed  by  such  presentatinn  and  protest 
.viu-n  the  partv  causing  the  presentation  has  a  clear  knowledge  nf  the 
falsity  of  the  indorsement,  may  be  an  uttering  within  the  statute,  I  have 

"in  most  instances  it  would  be  so.     If  the  maker  of  the  note  had  no 
knowkHhu.  of  the  falsity  of  the  payee's  signature,  the  presentation  for 
navment^bV  order  of  a  person  whose  only  right  to  payment  was  derived 
rom  the  title  which  such  false  indorsement  was  supposed  to  confer, 
.ould  be  an  uttering  with  intent  to  defrau<l.     Hy  such  presentation  he 
would  knowingly  assert  a  right  to  such  paper,  -ith  a  inaii.fest  design 
,0    induce   the   bank,    by   such  false   in.lorseme.t  on   I'-'f^'^f^^ 
maker,  to  pav  to  an  unentitled  party  the  amount  of  the  no  e,  to  the  cleai 
preiudice  of^  the  bank.     But  in  this  case  the  maker  was  the  forger  lum- 
S      He  had  full  knowledge  of  the  character  of  the  notes,  the  place 
whe're  they  were  payable,  and  the  time  at  which  they  "^'J^-;;  '        « 
U,u.w  they  were  payable  at  bank.     By  a  presentation  there  he  .e  ta  nly 
lid  not  be  deceived  as  to  the  character  of  the  paper.     If  the  notes  had 
,.een  presented  to  him  by  Redstrake  directly,  and  to  save  his  credit 
character,  and  liberty,  he  had  paid  them,  no  one  would  say  that  the  note* 
Jruttered  to  him  as  true,  or  for  the  pur    .se  of  defrauding  lum  by 

"  Thr'J^^'^tation  to  the  bank,  as  bis  agent,  could  not  be  said  to  be 
done  to  <lefraud  him ;  nor  could  it  have  worked  prejudice  t"  tae  ba  k 
except  by  an  almost  impossible  combination  of  circumstances,  ^MucU 
c.u!red'the  co-operation  of  the  ostensible  payee  of  the  notes  a  very 
respectable  man,  and  of  Redstrake  and  Hall,  in  a  conspiracy  to  def.aud 

^^  make  1-.   Allon,  Moore,  CM.    See, also, 
i2Arci;b:Cr.l'l.*rv.-540.  Buc.  Abr..  "  Forgery,"  A. 


<)  i"OK(ii;i:v. 

tite  ItMiik,  hy  inducing  them  to  pay  money  to  the  wrong  party,  and  then, 
liy  llio  maker  afterwards  repudiating  the  paj'ment,  and  the  real  payee 
chiiuiing  the  amoiint  of  tiic  notes,  or  a  right  to  the  pai)er,  and  so  lioltl 
the  Imnii  resp()n.sil)le  for  tlie  erroneous  jjayment. 

'I "his  wuuhJ  involve  an  incjiiiry  into  tlie  manner  in  which  Redstrake  pro- 
riired  the  i)a|)er,  if  not  from  the  ])ayee ;  and  if  from  liie  payee,  how  it 
lia|i|irned  tii.'it  ids  si.rnaturc  was  forged. 

The  seiienjo  is  too  cinmerieal  to  receive  consideration,  and  there  is 
nothing  in  tiie  evidence  to  show  that  by  tiie  presentation  any  one  couUl 
have  liecn  defrauded  by  the  supposition  that  the  indorsements  upon 
the  notes  were  true. 

Tliere  was  also  notice  of  protest  given  to  Clement  Hall,  whose  name 
as  indorser  was  forged.  This  means  tliat  he  was  informed  that  the 
note  had  been  presented  for  payment,  and  dishonored,  and  that  the 
holder  looked  to  Hall  for  i)ayment. 

Whether  this  was  such  an  assertion  or  declaration  that  the  paper  was 
gOdd  MS  would  amount  to  an  uttering  is  i,ot  a  matter  of  express 
nuthority.  The  reasoning  in  tiie  following  casi's  goes  far  toward  sup- 
porting such  a  doctrine:  Conuiioriirrdltk  v.  J^eurh',^  I'uited  States  v. 
MitihrllJ  Qiu'vn  V.  Orcen.'-^  In  the  last  case  the  paper  was  not  exhib- 
ited, but  its  eontents  stated,  and  tlie  judge  held  it  an  uttering.  But 
wiietiier  the  act  of  giving  the  notice  of  protest  was  or  was  not  an 
uttering  is  immaterial,  as  tlie  facts  in  tiie  case  show  no  design  to  cheat 
by  an  assertion  of  the  veracity  ot  the  indorsement. 

Long  before  the  prosecution  ami  notice,  Clement  Mall  knew  of  the 
oxislence  of  the  forged  paper.  He  heard  tiiat  Redstrake  held  forged 
paper  against  him  on  December  r.'th.  Redstrake  knew  that  lie  had 
knowledge  of  their  falsity.  He  wrote  the  letter  to  Hall  on  January  lat. 
After  tliat  date  the  notes  were  presented,  and  notices  of  protest  were 
sent  and  received. 

There  could  not  have  been  in  the  mind  of  Redstrake  any  des'gn  to 
ih'frand  Hall  by  an  assertion  of  their  genuineness.  A  design  to  compel 
him,  Clement  Hall,  to  redeem  paper  whidi  both  lie  and  Redstrake  knew 
to  be  false,  for  the  purpose  of  saving  his  son,  would  not  be  an  uttering 
lis  true. 

1  think  there  were  no  circumstances  in  the  case  upon  which  the  ver- 
<liet  ciiu  stand,  in  respect  to  tliat  element  of  the  crime  —  an  intent  to 
defraud  by  means  of  tlie  uttering  as  tiue. 

Tliere  should  lie  a  new  trial. 


1  -1  liiiin.  :i:ii. 
V  1  llulJ.  3Uii. 


Jebb'i*  (r.  ('»».  '.'si. 


K.   r.  nODOSON. 


y,  and  then, 
!  real  pjiyee 
and  so  hold 

Istrake  pro- 
lyee,  how  it 

ind  there  is 
y  one  could 
inents  upon 

fvhosc  name 
ed  that  the 
ad  that  the 

fc  paper  was 
of  i'\[)reas 
oward  sup- 
'(/  /States  V. 
i  not  cxliib- 
ering.  But 
was  not  an 
ign  to  cheat 

enow  of  the 
held  forged 
that  he  had 
January  lat. 
)rotest  were 

13'  design  to 

n  to  compel 

strakc  knew 

an  uttering 

lich  the  ver- 
m  intent  to 

new  trial. 


FORGERY 


-INTENT  TO  DEFRAri)  SOME  ONE  ESSENTIAL- COLLKGE 
DII'LOMA. 

R,  r.  HoiKisoN. 


[Dears.  &  B.  3.] 
/„  thp  Enr^U^h  Covrt  /or  Croicn  Cases  Resen-ecL  1850. 

■a _„•■  ia  nasmtiiil  to  tlio  cviini'  of  forttcry. 

.•.  A.  ForBed  a  Diploma"!  Ih.  <  ""«■'•,.";„   ',    „„.,  „„  ,„owc.l  It  t,.  m  M.iml,«r  ..( 

field,  timt  A.  wa:*  not  nmUy  of  fortfi'iy. 
:i.  A  Diploma  is  nut  a  public  dorument,  aemble. 

Tho  following,  case  was  reserve.l  and  stated  for  the  consideration  and 
d..,  i>ion  of  the  Court  of  Criminal  Appeal  by  Mr.  Baron  Buamwkl,.,  at 
tt...  v;t'iffiirdshire  Sprinn  Assizes,  1S.)6. 

'  ,0  :r?  ot^  was  Tndicted  at  common  law  for  forging  and  uttering 
a  liiploma  of^he  College  of  Surgeons.     The  indictment  was  in  the 

"'I'he'coZ;  of  Surgeons  has  no  power  of  conferring  any  degree  or 
on  lificauon,  but  before  a.lmitting  persons  t..  its  ntembership  it  exam- 
■  .ras  to  their  surgical   knowledge,  and  if  satisfied  therewith, 

.:,     X.ni   an.l  issues  a  document  called  a  diploma,  winch  states  Uie 
n      bcrship      The  prisoner   had   forged  o..e  of   these  d.olomas.     He 
.,  "ured  c  ne  aclually  issued  by  the  College  of  Surgeons,  erased  the 
,^  the  person  mentioned  in  it,  and  substituted  his  own  ;  changed 
,       PUe   and  made  other  alterations  to  make  it  appear  t.>  be  a  docu- 
„   t;.  d  bv  the  College  to  him.     He  hung  it  up  in  his  sitt.ng  room, 
on  b  in.    sked  by  two  medical  practitioners  whether  he  was  quah- 
1  0    ai.lhe  was,  and  produced  this  document  to  prove  ns  assertion^ 
W,  1  a  candidate  f..r  an  appointment  as  vaccinating  oilcer  he  stated 
he  1.  ul  his  oualification,  and  would  show  it  if  the  person  mniur.ng  (the 
,e  k    .      1      S-raians.  who  were  to  appoint  to  the  office    would  go  to 
;  •/(the  priso^ner-s)  gig.     He  did  not,  however,  then  produce,  or  show 

''"The  prisoner  was  found  guilty  ;  the  facts  to  be  taken  to  be :  that  he 
forJ7t  le  document  in  question  with  the  general  intent  to  1  ml  nee  a 
liref  that  the  doctunent  was  genuine,  and  that  he  was  a  men  be  o  i^e^ 
(.,.,ege  of  surgeons,  and  that  he  showed  it  to  two  P-'";;  ^^^  ^^« 
.nrtir.dar  intent  to  in.luce  sudi  belief  in  those  persons  ;  but  that  he  had 
t  t  in  forcing,  or  in  the  uttering,  and  publishing  (assum.ng  Ihen^ 
:;:  onO  to  co.=.„a  ..v  particular  fraud  or  specific  wrong  to  any  indi- 
viilual. 


8 


FOUGKKV, 


T  reserved,  for  tlie  oi)inion  of  (he  Court  of  Criminal  Appeal,  the  ques- 
tion whellior,  on  these  facts,  he  ought  to  have  been  found  guilty  on  any 
of  the  counts. 

G.   BUAMWELL. 

Ai'un.  •->;»,  isr)r,. 

This  case  was  argued  on  May  3,  18.j(),  before  .Teuvis,  C.  J.,  Wight- 
man,  J.,  CuKsswKi.L,  J.,  EiM.F.,  J.,  and  Hiiamwkm..  B. 

SrntliUHl  {E.  V.  liichanh  with  him),  appeared  for  the  Crown,  and 
Br;/ne,  for  the  prisonci' 

Brjpie,  for  tlic  prisoner.  No  offense  at  common  law  was  committed. 
The  definition  of  forgery  in  2  Hu>sell  on  Crimes  and  Misdemeanors,'  is 
said  to  l)e  "  the  fraudulent  making  or  alteration  of  a  writing  to  the 
prejudice  of  another  man's  rigiit ;  "  and  at  page  ."02  it  is  said  that  the 
"frau<l  and  intention  to  deceive  constitute  the  chief  ingredients  of  this 
offense."  In  order  to  support  the  conviction  it  must  be  shown  (hat  the 
prisoner  had  a  definite  object  in  view  in  the  forgery,  and  intended  to 
commit  a  fraud  upon  some  individual.  This  case  does  not  disclose  any 
distinct  intention  to  defraud  ;  and  the  jury  have  negatived  the  intention 
to  commit  any  particular  fraud,  or  to  deceive  any  individual.  The 
other  side  will  rely  on  Jker/ina  v.  Toifhark:^  There  the  prisoner  forged  a 
certificate  of  the  master  of  a  vessel,  representing  that  the  prisoner  was 
an  able  seaman,  and  had  served  on  board  a  certain  vessel. 

EuLK,  J.  This  seems  very  analogous  to  forging  tlie  certificate  in  that 
case.  The  prisoner  used  the  diploma  in  his  endeavors  to  get  appointed 
to  the  poor-house.  If  an  incompetent  man  were  appointed  to  such  a 
situation,  in  consequence  of  his  appearing  to  have  this  qualification,  a 
large  class  of  persons  might  suffer.  I  do  not  see  any  great  distinction 
between  the  danger  of  loss  of  life  at  sea,  througu  the  employment  of  an 
incompetent  jiilot,  and  the  danger  of  loss  of  life  on  land  through  the 
employment  of  an  incompetent  surgeon. 

Brijue.  Tlio  Trinity  House  certificate  of  fitness  to  act  as  a  pilot, 
which  was  the  thing  forged  in  Toskack's  Case,  confers  a  distinct  privi- 
lege, and  is  essential  to  the  emiiloymcnt,  and  is  that  upon  which  those 
who  employ  the  pilot  rely ;  and  in  that  case  an  intent  to  defraud  par- 
ticular persons  was  alleged  and  proved.  Here  there  is  only  a  general 
intent,  and  the  act  is  not  done  by  the  prisoner  for  the  purpose  of  ob- 
taining any  particular  benefit,  but  merely  to  induce  the  belief  that  he 
was  qualified  to  act  as  a  surgeon.  There  is  an  entire  absence  of  intent 
to  prejudice  another  ]ierson.  Suppose  a  man  was  to  concoct  a  pedigree, 
and  hang  it  up  in  his  room  for  the  purpose  of  raising  his  credit,  that 
would  not  be  a  forgery  at  common  law.     Tlie  diploma  of  the  College  of 


1  p.  318. 


1  Den.  C.  C.  *92. 


ipcal,  the  quoa- 
l  guilty  on  any 

.   BUAMWELL. 

C.  J.,  Wight. 

he  Crown,  and 

was  committed, 
sdcmoanors,'  is 
I  writing  to  the 
is  said  that  tlie 
jiodionts  of  this 
J  shown  (hat  the 
mil  intended  to 
lot  disclose  any 
L'd  the  intention 
idividual.  Tlie 
risoncr  forged  a 
he  prisoner  was 
el. 

ertificate  in  that 
[o  get  appointed 
tinted  to  such  a 
I  qualifieation,  a 
[frcat  distinction 
nploymcnt  of  an 
and  through  the 

)  act  as  a  pilot, 
I  a  distinct  privi- 
pon  which  those 
t  to  defraud  par- 
9  only  a  general 
e  purpose  of  ob- 
lic  belief  that  he 
ibsence  of  intent 
icoct  a  pedigree, 
g  his  credit,  that 
of  the  College  of 


R.   {'.  IIODOSON. 


9 


surgeons  does  not  confer  any  distinct  qualincation  to  praotK.e  as  a  sur- 
geon;  nor  did  the  prisoner  produce  it  for  the  purpose  of  Foc-urmg  he 
:ppointn>ent.  It  was  absolutely  n.^cessary  in  li.jina  v.  roshack,iv.i 
the  pris„.»er  should  produce  the  preliminary  certihcate  m  order  to  effect 

'"  jKut'f  C  J.  One  test  is  this,  and  it  is  in  your  favor.  Suppose  this 
iKul  beeu'an  indictment  before  Lord  Campbell's  act'  had  passe.l  an  .n- 
tent  to  defraud  some  partic.dar  person  nu.st  have  been  ^tat^"^  "^  ;^^ 
could  have  been  named?  My  brother  Wkm.tman  suggests  that  the  m- 
tent  was  to  defraud  the  guardians  of  the  poor ;  but  when  the  document 
was  forged,  it  was  not  forged  with  that  uitent. 

Br,  J  No  one  could  have  been  named  as  the  person  whom  M  was 
intended  to  defraud.  There  was  no  intent,  at  the  time  when  tlie  cert.ti- 
,,tewvs  altered,  to  use  it  for  the  purpose  of  defnuuhng  a..y  person. 
I„  li.jin,t  V.  Shahnnn;^  the  prisoner  uttered  the  i,.strument  wUh  a 
distinci  and  speciac  object  in  view,  namely,  to  obtain  tl.  -;^-e.'^^ 
the  situation  of  a  schoolmaster  f  ^r  wluch  he  had  apphed.  In  th»8  case 
no  uttering  with  an  intent  to  defraud  is  shown. 

Scotlanl  for  the  Crown.     The  certihcate  in  this  case  is  adocuraent  of 
.  it  lie  -  turo,  the  forgery  of  which  is  in  itself  criminal,  whether  any 
third  person  be  injured  by  it  or  not,^>  and,  therefore,  the  conviction  would 
l,e  supported  by  evidence  of  an  intention  to  issue  it  mala  «'"»^«- 
Cu' '  ,.v.i.L,  J.     What  do  you  mean  by  a  document  of  a  public  .  atuie  ? 
Scotland.     A  document  which  affects  all  the  public.     This  diploma  .s 
ssue.l  by  a  chartered  body,  the  College  of  Surgeons,  and  confers  a 
..ualihcation.     The  qualilication  may  not  be  such  as  to  secure  in  all  re- 
spects exclusive  privileges,  but  it  is  an  important  quabhcat.on  recog- 
nized by  law,  an.l  the  diploma  is  the  only  evidence  of  the  <iuahflcation 
Wk-htman,  J.     Suppose  it  had  been  the  certificate  of  some  eminent 

Scotland.  That,  without  an  act  or  charter  attaching  some  value  to 
t,  would  not  be  of  a  public  nature.  A  document  of  a  public^nature  is 
one  which  relates  to  all  the  subjects  of  the  realm. «  A  member  of  the 
College  of  Surgeons  is,  by  statutes  relating  to  vaccination,  gaols,  poor 
law  unions,  lunatic  asylums,  etc.,  entitled  to  various  privileges,  and  he- 
is  also  exempt  from  some  public  obligations,  such  as  serving  on  jur.es. 

BuAMWELL,  B.     But  the  possession  of  the  diploma  can  not  be  said  m 
any  way  to  confer  these  privileges,  which  depend  upon  the  statutory  en- 

Scotland.     Still  they  render  it  a  matter  of  great  public  importance 
that  none  but  duly  qualified  persons  should  be  able  to  represent  them- 


1  14  and  16  Vict.,  ch.  100. 
a  Dears.  C.  C.  "A. 


•   1  Hawk.  r.C,  oh.  41,  SCO.  11. 
«  Rex  v.  WarJ,  2  L,l.  Kaym.  U61. 


10 


FOIUIKKV. 


ec'lvos  as  members  of  the  Collojjjo  of  Surj;eons.  and  tlic  ill  consequences  to 
the  j>iil)lic  ari'  siilliclenl  to  make  this  a  forgery,  if  done  mu/o  animo.  In 
feast's  rieas  of  f  lie  Crown,  forgcrj'  is  detincd  to  be  the  making  or  alter- 
ing of  a  writt'.a  instrument  "  for  the  j)urpo8eof  fraud  or  deceit."  In  2 
Kussell  on  Crimes,'  it  is  said  ;  "  It  is  clearly  agreed  that  at  common  law 
the  counterfeiting  a  matter  of  record  is  forgery  ;  for  since  tiie  law  gives 
the  highest  credit  to  all  records  it  can  not  but  bo  of  the  utmost  ill  con- 
si(|uence  to  the  pultlic  to  have  tlicni  either  forged  or  falsified.  Also  it  is 
agreed  to  be  forgery,  to  counterfeit  any  matter  of  a  public  nature." 

WiGHTMAN,  J.  The  charge  is  that  of  forgery  with  intent  to  deceive. 
The  question  is,  whom  did  ho  intend  to  deceive  when  the  forgery  was 
committed?     It  may  have  l)een  done  years  ago. 

Jkkvis,  C.  J.  IIow  would  you  have  framed  an  indictment  on  these 
facts  before  Lord  Campbell's  act?  , 

Eiii.K,  J.  Would  it  not  have  been  enough  to  allege  an  intent  to  de- 
ceive divers  persons,  to  the  jurors  unknown,  to  wit,  all  the  patients  of 
his  late  partner;  and  would  not  that  have  been  i)roved? 

Scotland.     I  Nulunit  that  it  would. 

Jkuvis,  C.  ,I.  I  should  consider  that  a  dangerous  doctrine.  The 
intent  must  not  be  a  roving  intent,  but  a  specific  intent. 

Scotland.  There  nnist  be  a  specilic  intent  to  defraud,  but  not  to  de- 
fraud any  ]iarticular  individual.  It  would.  I  submit,  have  been  sulli- 
<ient  to  !«liow  by  allegations  tiiat  the  document  was  of  a  jjubiic  nature 
silting  out  tiie  certilieate  itself.  The  general  intention  to  defraud 
appearing  on  the  face  of  the  indictment,  and  proved  by  the  false  mak- 
ing of  the  certilicMte,  would  liavf  been  snilicient.  In  lie.v  v.  Ward.'  it 
appears  to  have  l)een  assumed  that  if  the  fraud  might  injure  any  one 
tlie  offense  would  be  committed. 

•iK.nvis.  C.  ,1.  Il.ardly  so.  The  words  of  the  indictment  in  R>xv. 
Wttrd,  are  ncquiter  machhuinx  et  iittoidcux  profotum  ditcem  de  jmrdicto 
almniiii'  dcciiwre  ft  dffntndare.  The  intent  to  defraud  a  particular  in- 
dividual is  allegeil,  the  mime  having  been  already  mentioned. 

ScotUnid.  In  2  Uussell  on  Crimes.''  a  case  is  cited  from  1  Levinz,'' 
wliere  it  was  held  that  a  eerlitieatc  of  holy  orders  was  of  a  public 
nature. 

jKiivis,  C.  .).  Upon  reference  to  Levinz  it  appears  that  the  case  there 
was  an  application  for  a  iirohibition  to  staj' proceedings  in  the  ecclesi- 
astieal  court,  wilii  a  view  to  deprive  the  offender  of  orders,  which  it  was 
suggested  he  had  obtained  by  forgery ;  and  the  court  refused  the  pro- 
iiihition. 


1  1>.  357. 

» -i  IaI.  Kiiym.  l*''l 


-  ,,.  ,r,:. 
'  p.  i:w. 


K.  r.  iiomssoN. 


11 


tisoquencca  to 
o  animo.  In 
king  or  altcr- 
leceit."  In  2 
t  common  law 
the  law  gives 
tmost  ill  con- 
•(].  Also  it  is 
:  nature." 
nt  to  deceive, 
e  forgery  was 

tnent  on  these 

intent  to  de- 
he  patients  of 


octrine.     The 

)«t  not  to  de- 
ve  been  sulli- 
puhlic  nature 
in  to  defraud 
he  fal.se  niak- 
V  V.  Ward.'  it 
injure  any  one 

ont  in  li'X  v. 
'?H  de  pnrdicto 
particular  in- 
leil. 

)m  1  Levinz,'' 
I   of   a  public 

the  case  there 
in  the  ecclesi- 
i,  which  it  was 
fused  the  pro- 


Scollaud.  '  Section  8  of  1 4  and  1.'.  Victoria,'  unt  only  dini^enses  with 
the  necessity  of  alleging  an  intention  to  defraud  anv  particular  person, 
l,„t  also  with  the  necessity  of  proving  it. 

liKvis   V   J       1-oiinerly  the  indictment  must  cither  have  alleged  an 
i.U.ut  to  defraud  a  person  named  or  as  you  .say.  have  .shown  that  that 
was   unnecessary  <.n  account  of  the    public  nature  of    the  >-«•;•;";;■" 
fnr.a>d.     Now,  the  particular  person  need  n..t  be  nauied,  but  w.th  tha 
..^;cption  the  law  is    not   altcrcl.     Before  the  new  law  whom  nhouUl 
vou  have  stated  in  the  indictnu-nt  the  prisoner  intcnde.   to  dc  rami . 
*    i^cothwd.     Anv  one  of  the  persons  who  n.ight  be  .Icfraudcd  by  the 
use  of  the  pretended  qua'ifkation  at  the  time  ..f  the  forgery  ;  one  of  the 
...operly  qualitid  practitioners  in  the  imn.cdiate  neighborhood   or  one 
of  the  persons  on  whom  the  defendant  attcnde.l  professionally.     If  nec- 
,ssarvto  allege  and  ,.rove  a  particular  intent  to  defraud,  it^v-i.ubll.e 
enouoh  to  allege  any  one  who  might  be  defrauded.     The   aw  n.fers  that 
H   man  intends  the  ordinary  conse.p.ences  of  his  act.     A  man  may  be 
guilty  of  forging  a  bill  of  exchange,  though   not  actually  put  in  cir- 

dilation. 

Jinitie  was  not  called  ui)on  to  reply. 

Iiuvis    C   J       I  inn  of  opinion  that  this  conviction  h  wrong.      1  he 
recent  statute   for   furtlu-r  improving  the    administration   of  criminal 
•mstice^  alters  and  affec-ts  the  forms  of  pleading  only,  and  does  not  alter  ■ 
U,e  character  of  the  offense  charged.     The  law  as  to  that  is  the  same  as 
if  the  statute  had  not  been  passed.     This  is  an  in.lictu.cnt  for  forgery 
at  common  law.     I  will  not  stop  to  consi.ler  whether  this  is  a  d.>cument 
of  a  public  nature  or  not,  though  I  an,  disposed  to  think  that  it  is  not  a 
public  document;  but  whether  it  is  or  not,  in  order  to  make  out  the 
Lffense,  there  must  have  been,  at  the  time   of    the  instruuu.nt  bemg 
forged,  an  intention  to  defraud  some  person.     Here,  there  was  no  such 
intent  at  that  time,  and  there  was  no  uttering  at  the  time  when  it  ,s  saui 
there  was  an  intention  to  defraud.  .,     ,  , 

WioHTMXN,  J.     1  am  entirely  of  the  same  opinion.     Before  the  late 
statute  it  was  necessary  to  allege  an  intent  to  defraud  so.ne  one,  anc 
there  must  be  an   intention  to  do  so  now.     In  tins  case  .t  does  not 
appear  that  at  the  time  when  the  forgery  was  committed  there  was  an 
intention  to  defraud  any  one. 

CuKsswKi.L,  .1.,  an.l  Kki.k,  J.,  concurred. 

Bu  VMWK.  L,  B.  I  thought  that  it  was  of  considerable  importance  that 
tbis  point  should  be  determined,  and  I  therefore  reserved  it,  but  1 
<iuite  concur  in  the  judgment  which  has  been  g.viM,. 


1  ch.  100. 


•1  11  ami  l.i  Vicl.,  ill.  IW. 


12 


l-OKOKKV 


FOKCIEin'-MUST  UE  OF  SOMK    DoCUMKNT   OR   WltlTLNG —  ARTIST'S 

NAMK  ON  I'AINTINO. 

li.  ''.  Cl.OSS. 

f  Dears.  \  H.  4i',n.] 

Jn  till'  EiKjllsli  I'onrt  for  Crnim  CaHt's  lieseri'cd^  IS.jS. 

I.  A  Forirery  Must  be  of  Some  ilii'Mimonl  tir  writing. 

'-'.  Picture-  Fraudulent  Use  of  Artisfa  Name. -Tlic  ))ulntliigan  nrtiat's  iiaim-  in  the 

corner  ofaiiioturc  in  i.nler  to  pass  it  off  as  nn  oriKinul  picture  by  tliat  arli^l  is  not  a 

(orKury. 

The  following  case  wtis  resorvod  uiul  stated  at  the  Central  Criralnul 
Court. 

The  prisoner  was  tried  at  the  Oetober  Sessions  of  (he  Central  Crim- 
inal Court  on  an  indietnient,  tlie  lirst  count  of  wiiieli  ciiar-red  liini  witii 
obtaining  money  iiy  false  pretenses,  and  upon  tliis  he  was  acipiitted. 
lie  was  however  found  guilty  upon  the  remaining  eounts  of  the  indict- 
ment, whieh  were  as  follows:  — 

2cl.  Count.  And  tiie  jurors  aforesaid,  ui)on  their  oath  aforesaid,  do 
further  present  that  before  the  time  of  the  eoramission  of  the  offense 
in  this  count  hereinafter  .stated  and  charged  one  JohnLinnell,  of  Red- 
hill,  in  the  County  of  Surrey,  an  artist  in  painting  of  great  celebrity  and 
well  known  as  such  to  the  liege  subjects  of  our  lady  the  Queen,  had 
painted  a  certain  large  and  valuaiile  picture  whereon  ho  had  painted 
his  name  to  denote  that  fht?  said  pictiire  had  been  painted  by  him  the 
said  John  Linnell.  And  the  jurors  aforesaid  npon  their  oath  do  fur- 
ther present  that  the  said  Thomas  Closs.  being  a  dealer  in  pictures,  well 
knowing  the  premises  aforesaid  and  being  a  i)eraon  of  fraudulent  miml 
and  disposition  and  devising  and  contriving  and  intending  to  cheat  ami 
defraud,  on  the  2  1th  day  of  July,  in  the  year  of  our  Lord  lH.-,7,  and  on 
divers  other  days  between  that  day  and  the  time  of  taking  this  imjui- 
sition,  knowingly,  willfully,  falsely,  fraudulently  and  deceitfully  and 
within  the  jurisdiction  aforesaid,  did  keej)  in  a  certain  shop  wherein  he 
the  said  Thomas  Closs  did  carry  on  his  said  trade  of  a  dealer  in  pict- 
ures, u  certain  painted  copy  of  the  said  picture,  on,  which  said  painted 
copy  Wius  then  and  there  unlawfully  painted  and  forged  the  name  of  the 
said  John  Linnell,  with  intent  thereby  and  by  means  thereby  to  denote 
that  the  said  cojiy  of  the  picture  was  an  original  picture  painted  by  the 
said  John  Linnell.  And  the  jurors  aforesaid  upou  their  oath  aforesaid 
do  fiu-ther  present  that  the  said  Thomas  Closs,  well  knowing  the  said 
pictiu-e  so  in  his  jiossession  to  be  such  copy  of  the  said  picture  so 
painted  by  the  saiil  John  Linnell  as  aforesaid  and  well  knowing  the 


U.    !•.   (LOSS. 


13 


•  AirnsT's 


SJS. 


hI'r  naiiic  in  Iht.' 
It  arll^t  18  not  a 


rnl  Criminal 

cntral  Crim- 
rod  liim  wit  It 
13  aciiuiUt'il. 
f  the  indict- 

iforcsaitl,  do 
f  the  offense 
lell,  of  Ked- 
't'lc'hrity  and 
Queen,  had 
had  painted 
1  l)v  iiim  tlie 
oatii  do  fur- 
ictures,  well 
dident  mind 
to  cheat  and 
[«.")7,  and  on 
;j  this  inqui- 
:-eitfnlly  and 
|)  wherein  he 
aler  in  piet- 
said  painted 
name  of  the 
l)V  to  denote 
inted  by  the 
ith  aforesaid 
ing  the  said 
d  picture  so 
:nowinu;  the 


„,„„,    of  the  said  .lohn   Linn.ll   so  painted   upon  tin- saul  eopy  to  he 

;:  ,1  di.l  willfully,  falsely,  fraudulently   and  deeeitfu  y  an.l  wtdnn 

:i„nsdie,ion    aforesaid    offer  an,l    expose  for    sale  the  sa.d    eopy 

„;  said  f.:-.ed  natne  so  upon  it,  an.',  di.l  offer,  utter,  d.spose  of,      11 

pa  off  u   Ilenrv  Fi./.p.trieU,  the  sai.l  painted  copy  as  and  lor  the 

pi,,ure  ..f  ih..  said  ..ohn  Linnell,  wtth  intent  to  ehea.  and  d.-- 

f,-  ud  thi  said  Henry    Fit/patrieU  of  his  mot.eys  and  valuaMe  s.e  u  - 

,nd  th.t  the   Slid  ThMuas   Ch.ss  did  so  fraudulently  cheat  and 

:;;:;;\;m  • ;  nenry  ..t^patneu  of,  and  did  so  ^^^^-^y^^ 

f,,.u  the  said  Henry  Fit.patriek  valuable  seeur.t.es  (to  «.t),  a  cheque 
Hud  three  bills  of  exehan-e  with  intent  to  defraud. 
'";!,,.  Count.      An.l  the  jurors  af.-resaid  up.n  ^^^^ .<^^'^ ;^;^^^^ 
further  present  that  before  the  time  of  the  eonn.uss.on  of     'Y*'  '  , 
in  this  count  hereinafter  stated  and  charged  '--^''''" '';;;;:^  ';  ;  .,    ^^ 
,,il,    ia  the  County  of    Surrey,  an  artist  in  pan.tmg  of  g.  .at  u  U  br  tj , 
!     ;       n  u,.„.vn  a.  such  to  the  li«..>  .ubjeets  of  our  lady  thegueen,  had 
Ued  a  certain  lar.e  and  valuable  picture  whercn  he  had  pa.nted 
r  ame  to  denote  that  the  said  picture  had  been  paused  by  the  sa  d 
0,  Linnell.     And  the  jurors  aforesaid  upon  tluw  oath  aforesa.d  do 
thc^  present  that  the  sahl  Tho.nas  Closs  L.in,  a  .lealer  >n  ptctures  and 
„.  a  persoti  of  fraudulent  mind  an.l  disposition,  an,l  dev.s.n.s  cm- 
i    ;;;.u.d  intending  to  cheat  at.d  defraud  on  the  2  1th  day  of  M.  >n 
„H.  year  of  our  Lord  IH.m,  and  within  the  jurisd.ct.on  aforesa.d  nnla«- 
fulh    willfully  and  wickedly  did  procure  and  have  in  Ins  possession,  fo 
0   p  vposes   of    sale  a  certain  painted  copy  of   the  sntd  picture  on 
ic       lid  painted  copy  of  the  said  picture  was  then  and  — -e  nn  a.- 
y   .11  ted,  and  forged  the  name  of  the  said  John  Linnell.     And   he 
t  "  oics^id  npo,r  their  oath  aforesaid,  .lo  further  present  that  U. 
d  Thomas  Closs,  well  knowing  the  name  of  the  sa.d  .ohn  L.nne  ^ 
0  painted  upon  the  sahl  copy  to  be  forged,  did  tin.!  and  there  w.tlun 
e':  S  c     n  .foresaid,  unlawfully.  dceitfuUy,  wickedly  and  fraudu- 
nt  V  offer   sell,  dispose  of  utter  and  put  off  to  the  sa.d  Henry  t.tz- 
^^'l'    he  si  d  pai'.ted  copy  of  the  said  origi.ial  painted  pic-ture  with 
r^^  i^^ne  of  the  said  John  Li.mell  so  painted  a.ui  forged  tereon  as 
,re    id,  and  the  said  forged  name  of  the  said  John  L.n.iell  for  a  cer- 
inla  ge  sum  of  money,  to  wit,  the  s.im  of  £i:^0   to  the  g-t  d-nag 
ad  deception  of  the  said  Hen.y  Fit.patriek,  to  the  evil  e.a.nplo  of  aU 
otLs  in  the  like  case  offending  and  against  the  peace  of  o.ir  lady,  the 

"^r:^".:^!';;'  tiriS^oner-s  counsel,  in  arrest  of  judgment, 
Uil  Z:^  disL.ed  lio  indictal^e  offense,  ^f^^^^^^^ 
respited  until  the  next  session,  that  the  opinion  of  tins  court  might 


u 


KOIMJKUY. 


taken  wlu'tlitT  or  iiol  tin-  sccoikI  aini  lliinl  founts,  or  eitlicr  of  tliom, 
sullliitiiily  sliowfd  nil  olforisi;  iiidiclul)li'  at  common  law.  'i'lu'  prisoner 
remains  in  ciistoily. 

This  I  ise  was  iiij;iu'il,  on  tiie'21st  Noverabor,  lHj7,  hefon*  CorKBUUN, 
C.  .1.,  Kiti.i:..!.,  Wii.i  1  VMS,  J..  CuoMi'ToN,  J.,  and  Cii  wnki.i  ,  H. 

Mctfitll'c  appeared  for  tiu' Crown,  and  M<li>t'iri',  for  tiie  |»risoiier. 

Miliili/rc,  for  tile  prisoner.  Tlie  second  and  tliird  counts  arc  bad  in 
arrest  of  judjiiiunt.  'Ilie  second  count  eliar<;es  in  siiiistance  ti  ciieat  at 
coninion  law,  and  that  cheat  is  not  properly  laid.  Aw  indictment  for  a 
cheat  ut  common  law  should  so  set  out  the  facts  as  to  make  it  appear 
on  the  record  tliat  the  ciieat  ch.'irged  would  nlTect ,  not  a  i»iivale  indi- 
vidual, but  the  public  generally.'  'riie  olitaining  money  liy  means  of  a 
mere  assertion,  or  by  the  use  of  a  false,  private  token,  is  not  an  indict- 
able offense  at  eomniou  law.-'  In  this  eouut  the  allegation  is,  that  a 
false  token  of  a  private  character  was  used. 

The  third  count  is  for  forgery  of  the  name  of  .John  IJnnell  on  a 
picture.  Forgery  is  dclined  to  be  the  frainlulent  making  or  alteration 
of  a  writing,  to  tlie  prejuUiee  of  anotiier's  right.-'  In  the  case  of  a 
writti'ii  iii-trumciit,  the  forgery  of  the  signature  is  really  the  forgery  of 
the  whole  indict nn-nt,  and  is  always  laid  in  the  indictment.  Unless,  tiiere- 
fore,  an  iiidiitmeut  would  lie  for  the  forgery  of  a  picture,  this  count 
can  not  be  supported.  The  averments  in  this  einint  amount  to  no 
more  than  tiiis,  in  substance,  -that  tiie  i)risoiu'r  falsely  pretended  that 
the  picture  was  l.iiincll's.  To  falsely  pretend  that  a  gun  was  made  by 
Manton  would  be  no  offense  at  common  law  ;  and  no  case  has  gone  the 
length  of  holding  that  to  stamp  the  name  of  Manton  on  a  gun  would 
be  forgery.         — 

Ckomi'ton,  .1.  That  would  lie  forgery  of  a  trade-mark,  and  not  of  a 
name. 

C'ocKni'iiN,  ('.  J.  Stamping  a  name  on  a  gun  would  not  bo  a  «^riting; 
it  would  lie  the  imilatiou  of  a  mark,  not  of  a  signature. 

Mrlnt'jrr.  The  name  jiut  ly  a  painter  in  the  corner  of  a  picture  is 
not  a  signature.  It  is  only  a  mark  to  show  that  tlic  picture  was  painted 
by  him.  Any  arbitrary  sign  or  figure  miglit  be  used  for  the  same  pnr- 
jiose  insteiul  of  the  name  ;  it  is  a  part  of  the  painting,  and  every  faithful 
copy  would  contain  it.  The  averments  mean  that  the  whole  picture 
was  made  to  represent  the  whole  of  the  original ;  and  the  averment  of 
the  imitation  of  the  signature  is  no  more  than  an  averment  of  the  imita- 
tion of  a  tree  or  a  house  in  the  firiginal.  There  is  no  allegation  that 
the  pi<iure  was  passcil  off  as  the  original,  or  the  signature  as  the  gcnu- 


1  i  Ituss.  on  ("r.  X). 
•-'  2  East  I'.  C.  K20. 


!  Russ*.  on  Cr.  318. 


R.   ?'.   <U)H8. 


1ft 


icr  of  tlipm, 
rill'  prisoner 

bCockbukn, 
,11. 

|)risoiicr. 
Ih  arc  bud  in 
ft)  IX  c'lu'iit  at 
cttntiit  for  a 
ki'  it  appfar 
piivat«!  iiidi- 
V  miaiis  of  a 
(it  an  indict- 
ion  is,  that  a 

Linncll  on  a 
or  alteration 
lio  ease  of  a 
e  forjifory  of 
nli'ss,  tlicrc- 
(',  this  count 

lOUIlt     to     DO 

I'ti-nded  tii:it 
va8  made  by 
has  gone  llio 
a,  gun  would 

nd    not  of  a 

>e  a  »^riting ; 

a  picture  is 
was  painted 
10  same  pur- 
lery  faithful 
hole  picture 
averment  of 
of  the  imita- 
egation  that 
tts  the  genu- 


ine sipnatiire,  neither  is  there  any  averment  that  the  name  was  painted 
for   tlu)    purpose    of    inducing    tlie    belief    that   llie    picture    was    the 

uriiriiial.  ,        i       i      * 

Metr,tlfe,  for  the  Crown.     It  ia  not  necessary  to  show  that  the  cheat 
alleu-ed  in  a  count  f.-r  cheating  at  common  law  is  one  which  affects  tlie 
pubUc  generally.     If  to  a  bare  lie  you  add  a  false  t«)ken  it  is  indictable, 
;uid  it  is  a  mistake  to  suppose  that  tlie  public  must  be  aff.'ctcd. 
Kiu.K,  J.     The  prisoner  did  not  get  tiie  money  for  the  name  but  for 

the  picture.  _ 

Metcalfe.  He  obtained  it  by  the  whole  transaction.  In  ^on^pil  a 
C'((.ve'  deceitfullv  c(.iiuterfcitiiig  a  general  seal  or  mark  of  the  traile.  on 
iloth  of  a  certain  description  and  quality,  was  held  to  be  an  iiulictablo 
cheat.  This  case  and  Funncr'a  Case'  show  tiiat  the  fraud  need  not  be 
of  a  strictly  pubiio  nature,  and  that  any  device  calculated  to  defraud  an 
ordinarily  cautious  person  is  imlictable.  In  this  case  the  picture  was  in 
fact  a  device  calculated  to  deceive  the  public. 

The  third  count  for  forgery  is  good.  In  Regina  v.  Slntrmm,,^  it  was 
decided  that  it  is  an  offense  at  common  law  to  utter  a  forge<l  instrument, 
tl.o  forgery  of  which  is  an  offense  at  common  law,  and  that  the  effecting 
the  fraud  "is  immaterial.     This  decision  overruled  the  decision  in  Regina 

V.  llonlt.* 

A  false  certillcato  in  writing  is  the  subject  of  an  in.lictment  at  com- 
mon law.^ 

I  therefore  contend  that  where,  as  here,  the  name  of  the  artist  is 
painted  on  the  picture  it  is  in  the  nature  of  a  certificate,  aud  the  fact 
that  the  signature  is  on  canvas,  instead  of  being  on  a  separate  piece  of 
paper,  does  not  render  the  offense  less  indictable. 

Williams,  J.  But  it  is  consistent  with  all  the  allegations  that  the 
prisoner  may  have  sold  the  picture  withcmt  calliug  attention  to  the  sig- 
nature. 

Metcalfe.     The  forging  the  name  on  a  picture  is  in  fact  the  forgery 

of  the  picture. 
CocKBL'itv,  C.  J.     If  you  go  beyond  writing  where  are  you  to  stop  ( 

Can  sculpture  be  the  subject  of   forgery? 

Mclntyre,  replied. 

Cur.  ado.  vnlt. 

The  judgment  of  the  court  was  delivered  on  30th  November,  1857  by 
CooKBL-UNrC.  J.  The  defendant  was  indicted  on  a  charge,  set  out  in 
three  counts  of  the  indictment,  that  he  had  sold  to  one  Fitzi.atrick  a 


1  Trem.  P.  0.  106. 
i:  Trum.  P.  C.  100. 
5  Dears.  C.  C.  2«5. 


*  2  C.  4  K.  604. 

»  Reg.  V.  Toshack,  1  Den.  C.  C.  *M. 


16 


FORGE  UY. 


picture  as  aud  for  an  original  picture  painted  by  Air.  Linnoll,  when  in 
point  of  I'act  it  was  only  a  copy  of  a  picture,  which  Mr.  Linnell  had 
painted  ;  and  that  he  passed  it  off  by  means  of  having  the  name  of  "J. 
Linnell  "  painted  in  the  corner  of  the  picture,  '"n  imitation  of  the  original 
one,  on  which  that  name  was  painted  l\y  the  painter.  Upon  the  first 
count,  for  obtaining  money  by  false  pretenses,  the  defenlant  was  ac- 
quitted ;  the  second  was  for  a  cheat  at  common  law  ;  and  the  third  was 
for  a  cheat  at  common  law  by  means  of  a  forgery.  As  to  the  third 
count  we  are  all  of  opinion  that  there  was  no  forgery.  A  forgeiy  must 
be  of  some  document  or  writing,  and  this  was  merelj'  in  the  nature  of  a 
mark  put  upon  the  painting  with  a  view  of  identifying  it,  and  was  no 
moro  than  if  the  painter  put  any  other  arbitrary  mark  as  a  recognition 
of  th  3  picture  being  his.  As  to  the  second  count,  we  have  carefully 
examined  the  authorities,  and  the  result  is  that  we  think  if  a  person,  in 
tiie  course  of  his  trade  openly  and  publicly  carried  on,  were  to  put  a 
false  mark  or  token  upon  an  article,  so  as  to  pass  it  >ff  as  a  genuine  one 
when  in  fact  it  was  only  a  spurious  one,  and  the  article  was  sold  and 
money  obtained  by  means  of  that  faLe  mark  or  token,  that  would  be  a 
cheat  at  common  law.  As,  for  instance,  in  the  case  put  by  way  of  ex- 
ample during  the  argument,  if  a  man  sold  a  gan  with  the  mark  of  a 
particular  manufacturer  upon  it,  so  as  to  make  it  appear  like  the  gen- 
uine production  of  the  manufacturer,  that  would  be  a  false  mark  or 
token,  and  the  party  would  be  guilty  of  a  cheat,  and  therefore  liable  to 
punishment  if  the  indictment  were  fairly  framed  so  as  to  meet  the  case ; 
and  therefore  upon  the  second  count  of  this  indictment,  the  prisoner 
would  have  been  liable  to  have  been  convicted  if  that  count  had  been 
properly  fr.uned  ;  but  we  think,  that  count  is  faulty  in  tiiis  rospect,  that 
although  it  sets  out  the  false  token,  it  does  not  sufliciently  show  that  it 
was  by  means  of  such  false  token  the  defendant  was  enabled  to  pass  off 
the  picture  and  obtain  the  money.  The  conviction,  therefore,  cannot 
be  sustained. 

Crompton,  J.  The  modern  authorities  have  somewhat  qualified  the 
older  ones,  but  I  cio  not  wish  to  pledge  myself  to  the  view  taken  as  to 
the  nature  of  the  false  token,  which  would  amount  to  si  cheat  at  com- 
mon law.  I  would  be  inclined  to  adopt  ihe  view  taken  by  the  rest  of 
the  court,  but  do  not  pledge  myself  to  it.  I  concur  in  the  judgment 
that  this  conviction  can  not  be  be  sustained,  upon  the  grounds  stated  by 

the  cuifif  justice. 

Conviction  quashed. 


i 


-VV 


U.  V.  SMITH. 


17 


■  Mr.  Linnoll,  when  in 
which  Mr.  Linnell  had 
iving  the  name  of  "J. 
litation  of  the  original 
linter.  Upon  the  first 
the  defenlant  wag  ac- 
iw  ;  and  the  third  was 
gery.  As  to  the  third 
}ry.  A  forgery  must 
relj'  in  the  nature  of  a 
itifying  it,  and  was  no 
mark  as  a  recognition 
unt,  we  have  carefully 
e  think  if  a  person,  in 
rricd  on,  were  to  put  a 
it  >ff  as  a  genuine  one 
le  article  was  sold  and 
ioken,  that  would  be  a 
sase  put  by  way  of  ex- 
an  with  the  mark  of  a 
it  appear  like  the  gen- 
Id  be  a  false  mark  or 
and  therefore  liable  to 
lo  as  to  meet  the  case  ; 
idictnicnt,  the  prisoner 
if  that  count  had  been 
ty  in  tiiis  rospect,  that 
ufliciently  show  that  it 
\a.s  enabled  to  pass  off 
jion,  therefore,  cannot 

somewhat  qualified  the 
to  the  view  taken  as  to 
•unt  to  si  cheat  at  com- 
iw  taken  by  the  rest  of 
joncur  in  the  judgment 
I  the  grounds  stated  by 

Conviction  quashed. 


FORGERY -MUST  BE  OF  SOME  DOCrMENT- COUNTERFEITING 
PRINTED  WIUWERS. 

R.  V.  Smith. 

[Dears,  &  B.  5GC.] 
In  the  English  Court  for  Crown  Cases  Reserved,  1S5S. 

1  Forgery  is  the  Making  of  a  False  Document  to  resemble  a  genuine  one. 
"■   _  Wrappers  of  Baking  Powders  not  Documents.-  Therefore  lu  l.nitato  tl.e  wrap- 
■•  l^r    ofTE rpo>^aer  of  celebruy  for  the  purpose  of  palmiug  o«  a  spurious  article  .s 
not  forgery. 

The  following  case  was  reserved  and  stated  by  :he  Recorder  of  Lon- 
don :  —  ,  /.,       i 

John  Smith  was  tried  before  me,  at  the  Central  Criminal  Court,  upon 
an  indictment  charging  him  with  forging  certain  documents,  and  with 
uttering  them,  knowing  tlicm  to  be  forged. 

It  appeared  that  tl.e  prosecutor  George  Borwick,  was  in  the  habit  of 
soiling  certain  powders.  no  called  Borwick' s  Baking  Powders,  and 
others,  Berwick's  P:,2g  Powders. 

These  powders  were  invariably  sold  in  packets,  and  were  wrapped 

up  in  printed  papers.  _ 

The  baking  powders  were  wrapped  in  papers  which  contained  the 
name  of  George  Borwick;  but  thoy  were  so  wrapped,  that  the  name 
was  not  visible  till  the  jjackets  were  opened. 

It  was  proved  that  tiie  prisoner  had  endeavored  to  sell  baking  pow- 
ders, but  had  them  returned  to  him,  because  they  were  not  Borwick' 8 

powders. 

Subsequently,  he  went  to  a  printer,  and  representing  his  name  to  be 
Borwick,  desired  him  to  print  1(),<M)0  labels  as  nearly  as  possible,  like 
Miose  used  by  Borwick,  except,  that  the  name  of  Borwick  was  to  be 
omitted  in  the  baking  powders.' 

The  labels  were  printed  according  to  his  order,  and  a  considerabl  • 
quantity  of  the  prisoner's  powders  were  subsequently  sold  by  I'.Ji  as 
BorwiiCk's  powders  wrapped  in  those  labels. 

On  the  pa.t  of  the  prisoner,  it  was  objected  that  the  making  or 
uttering  such  documents,  did  not  constitute  the  offense  charged  in  the 

indictment. 

This  point  I  determined  to  reserve  for  the  consideration  of  ti.e  f  ourt 
of  Criminal  Appeal;  and  I  left  it  to  the  jury  to  find  wb^-ther  the  labels 


I  This  seeing  to  be  an  error.  Tho  name 
of  Borwick  was  on  the  label,  but  the  sifna- 
lure  of  Borwick,  and  the  notlfleation  that 

3  DkI'KXCKs.  2 


witluiut  such  .signatur^i  no  powder  wa«  KM»' 
uiue  wore  omitle<L 


18 


FOUGKItV. 


SO  far  resembled  tliosc  used  by  Borwifk,  as  to  deceive  persons  of  ordi- 
nary observation,  and  to  nial<e  tlioni  believe  tliera  to  be  Borwicli's 
labels,  and  whether  they  were  made  and  uttered  by  him  with  intent  to 
defraud  tlio  different  parties  l)y  so  deceiving  them,  directing  them  in 
that  case  to  lind  tiie  prisoner  guilty. 

The  jury  found  him  gullly. 

The  labels  marked  "  geiniine  "  sent  herewith,  were  those  used  by  the 
prosecutor;  those  marked  "imitation"  were  the  labels  the  subject  of 
this  prohccution,  and  reference  can  be  made  to  them  if  necessarj'. 

The  prisoner  has  been  admitted  to  l)ail  to  await  the  decision  of  the 
Court  for  the  Consideration  of  Crown  Cases,  upon  the  foregoing  facts. 

RUSSKLL  GuKNEr. 

The  following  is  a  copy  of  the  genuine  bpking  powder  label :  — 

Patronized  by  the  Array  and  Navy: — liorwick's  Original  German 
Baking  Powder,  for  making  bread  without  jeast,  and  puddings  without 
eggs.     (Directions  improved  b_y  the  Queen's  private  baker.) 

By  the  use  of  tliis  preparati*  n  as  the  saccharine  properties  of  the 
flour,  which  are  destroyed  by  fermentation  with  yeast,  are  preserved, 
the  bread  is  not  only  more  nutritive,  but  a  larger  quantity  is  obtained 
from  the  same  weight  of  flour. 

Bread  made  with  yeast,  if  eaten  before  it  becomes  stale,  ferments 
again  in  the  stomach,  producing  indigestion  ard  numerous  other 
complaints ;  when  made  with  this  powder  it  is  free  from  all  such  injuri- 
ous effects. 

The  powder  is  equally  valuable  in  making  puddings  and  pastry, 
which  it  deprives  of  all  their  indigestible  properties;  and  if  dripping 
or  lard  be  used  instead  of  butter,  it  removes  all  unpleasant  taste. 

It  will  keep  any  length  of  time  and  in  any  climate.  In  the  sick 
hospitals  of  the  Crimea  it  was  found  invaluable. 

The  public  are  requested  to  see  that  each  wrapper  is  signed 

Gfouc.k  Bouwick. 
Without  which  none  is  genuine. 

Sold  retail  by  most  chemists  in  Id,  2d,  4d  and  6d  packets,  and  in 
Is,  2s  ()d  .'ind  .')S  tins. 

Wholesale  by  George  Borwick.  2i  lud  2.'j  London  Wall,  London. 

The  imitation  label  which  the  prisoner  used  was  as  follows:  — 
Patronized  by  the  Army  and   Navy. — Borwick's  Original  German 

baking  powder  for  making  bread  without  yeast,  and  puddings  without 

eggs.      (Directions  imi. roved  liy  the  Queen's  private  baker.) 

By  the  use  of  ;iiis  preparation,  as  the  saccharine  properties  of  the 

flour,  which  are  destroyed  by  fermentation  with  yeast,  are  preserved; 

the  bread  is  not  onl\'  more  nutritive,  but  a  larger  quantity  is  obtained 

from  the  same  weigrhi  of  flimr. 


II.   V.   S^IITII. 


1!» 


•sons  of  ordi- 
be  Berwick's 
witli  iiiteiit  to 
[jtinsc  them  in 


e  used  by  the 

lie  subject  of 
3cssarj'. 
jcision  of  the 
■egoing  fuels. 
LL  GuKNEr. 

,bel :  — 

;inal   German 

(lings  witiiout 

•) 

)erties  of  the 
re  preserved, 
ty  is  obtained 

ale,  ferments 
nerous  other 
II  such  injuri- 

and  pastry, 
d  if  dripping 
t  taste. 

la  the  sick 

ned 

BOKWICK. 

le  is  genuine, 
ckets,  and  in 

London. 

ws:  — 

rinal  German 

ilings  without 

■) 

jerties  of  the 
re  preserved  ; 
jy  IS  obtained 


Broud  made  witli  yeast,  if  c:\ten  before  it  hooomes  stale,  ferment* 
auain  in  the  stomacli,  i)rodacing  indigestion  and  numerous  other  com- 
plaints;  when  m'\de  with  this  powder,  it  is  free  from  all  such  injurious 
e;fi'ots. 

The  powder  is  equally  valuable  in  making  puddings  and  pastry, 
which  it  deprives  of  all  their  indigestible  properties;  and  if  drippiug 
or  lard  bo  used  instead  of  butter,  it  removes  all  unpleasant  taste. 

It  will  keep  any  lcn!;i.h  of  time  or  in  any  climate.  In  the  sick  hos- 
pital of  the  Crimea  it  was  found  invaluable. 

Sold  retail  by  most  chemists  in  Id,  2tl,  4d  and  6d  packets,  and  in 
Is,  2  s,  fid  and  5s  tins. 

The  ''ollovving  is  a  copy  of  the  genuine  egg  powder  label:  — 
BOR WICK'S   METROPOLITAN   EGG   POWDER. 

A  vegetable  compound,  being  a  valuable  substitute  for  EGGS.  One 
packet  is  suirunenl  for  two  pounds  of  tlour,  anil  equal  to  four  egg=. 

Directioi,  'Ux  with  the  flour,  then  add  water  or  milk  for  plum, 

batter  and  other  puddings,  cakes,  pancakes,  etc. 

PRICE,  ONK    TENNT. 

To  be  had  of  all  grocers,  oilmen  and  jorn-chaudlers. 

Thii.  1  ;  I  was  imitated  by  the  prisoner  exactly,  without  any  altera- 
tion whatever. 

This  case  was  argued  on  the  24th  of  April,  1885,  before  Pollock, 
C.  B.,  Wu.i.ES,  J.,  BuAMWELL,  B. ,  CiiANNELL,  B. ,  and  Byles,  J. 

Huddleston,  Q.  C.  {Poland  with  him),  appeared  for  the  Crown,  and 
Mclntyre  for  the  prisoner. 

Mclntyre,  for  the  prisoner.  The  real  offense  committed  by  the  pris- 
oner was  that  he  put  off  his  own  baking  powder  and  egg  powder  as 
Borwick's  Bak'ng  Powder  and  ICgg  Powder,  passing  off  the  spurious 
powder  as  genuine  by  means  of  the  printed  wrapper.  A  printed  wrap- 
per like  this  is  not  a  document,  and  is  not  the  subject  of  forgery  at 
common  law.  In  licgina  v.  Class, ^  it  was  held  that  forgery  must  be  of 
some  document  or  writing,  and  therefore  that  the  painting  an  artist's 
name  in  the  corner  of  a  picture,  in  order  to  pass  it  off  m  an  original 
picture  by  that  artist,  was  not  a  forgery. 

Pollock,  C.  B.  Suppose  a  ra-n  opened  a  shop  and  painted  it  so  as 
exactly  to  resemble  his  neighbo' '  •*,  would  that  be  forgery? 

Mclntyre.  No.  The  case  tf  Re/jina  v.  Toshnck;'^  wWl  perhaps  bo 
relied  on  bv  the  other  side.     It  was  there  held  that  a  false  certificate  iu 


1  Dears.  *-R.  C.  C.  460. 


S  1  Den,  C.  C.  492. 


20 


FOKOEUY. 


writing  of  the  goud  conduct  of  a  seaman  was  the  subject  of  an  indict- 
ment at  common  law  ;  but  here  tiiere  was  no  false  certificate,  and  plac- 
ing the  powder  within  these  wrappers  was  no  more  than  asserting  that 
the  powder  was  manufactured  by  Borwick. 
The  court  here  called  upon 

Huddlestcu,  Q.  C,  for  the  prosecution.     The  jury  have  found  that 
the  labels  were  made  and  uttered  by  the  prisoner  with  intent  to  defraud. 
They  are  therefore  false  documents,  made  u.  d  uttered  by  the  prisoner 
with  intent  to  defraud,  and  the  prisoner  is  i)roperly  com  icted  of  for- 
gery.    In  4  lilackstoae's  Commentaries.'  cited  in  2  KusscU  on  Crimes,' 
forgery  is  defined   to   be  "the   fraudulent   making  or  alteration  of  a 
writing  to  the  prejudice  of  another  man's  right."     In  2  East's  Pleas  of 
the   Crown.:'  .,1^0   there   cited,  the   definition   is  "  a  false   making,  or 
making  vialo  animo  of  any  written  instrument  for  the  purpose  of  fraud 
and   deceit."     The   dclinition  of    Grose,    J.,    in   Hex  v.    ParJces  and 
BroK-ii,'*  is:   "  The  false  making  a  note  or  otiier  instrument  with  intent 
to   defraud."     The   definition   in   4   Comyns'    Digest:  •'  "Forgery   is 
where  a  man  fraudulently  w:  ites  or  publishes  a  false  deed  or  writing  to 
the  prejudice  of  the  right  of  another;"  and  again  in  the  same  page: '' 
"And  finally,  it  is  now  settled  that  the  counterfeiting  of   any  writing 
with  a  fraudulent  intent,  whereby  another  maybe  prejudiced,  is  forgery 
at  common  law."     /   printed  document  may  be  the  subject  of  forgery 
as  well  as  a  written  one.     In  Tonilin's  Law  Dictionary  forgery  is  defined 
as  "  the  fraudulent  making  or  alteration  of  ;.ny  record,  deed,  writing, 
instrument,   register,  sstamp,  etc.,  to  the  prejudice  of  another  man's 
right."     Forgery  may  therefore  be  proi)erly  defined  as  the  alteration  or 
making  a  false  document  with  intent  to  defraud;  and  looking  at  the 
findin"-  of  the  jury  the  instrument  comes  within  that  definition. 

PolIock,  C.  B.  It  is  elevating  a  wrapper  of  this  kind  very  much  to 
call  it  a  document  or  instrument. 

IIuddleKton,  il  C.  Tiiis  is  a  printed  forgery.  In  Begina  v.  Hodg- 
son,'' the  document  alleged  to  have  been  forged  was  a  diploma  of  the 
College  of  Surgeons;  and  the  ground  on  which  the  conviction  was 
quasired  was,  not  that  such  a  document  was  not  the  subject  of  forgery, 
but  because  there  was  no  evidence  of  an  intention  to  defraud  any  par- 
ticul.ir  person.  All  that  was  decided  in  Heglna  v.  Cloxs,^  was  that  an 
artist's  name  painted  upon  a  picture  was  an  arbitrary  mark,  by  which 
the  artist  was  enabled  to  identify  his  own  work,  and  was  not  such  a 
writing  as  could  be  the  subject  of  forgery. 


p.  247 
p.  318. 
3  ch.  19,  sec.  1,  p.  852. 
«  2  Leach,  C.  0.  (4th  ed.)  785;  Stark  Cr. 
PI.  m  ed.)  503. 


!■  p.  406,  tit.  Forgery  (A  1.) 
6  note  Cd)  7. 
'  Dears.  *  B.  C.  C.  3. 
8  Dears.  &  B.  C.  C.  460. 


K.  V.  SMITH. 


21 


jcct  of  an  indict- 
tificato,  ami  plac 
lan  asserting  thai 


have  found  that 
ntent  to  defraud. 
I  by  the  prisoner 
L'OU'  ictcd  of  for- 
isscU  on  Crimes,' 
ir  alteration  of  .1 
2  East's  Pleas  of 
false  making,  or 
purpose  of  fraud 
,B  V.  ParJces  and 
unient  with  intent 
t:  ''  "  Forgery  is 
leed  or  writing  to 

tlie  same  page : '' 
ig  of  any  writing 
udieed,  is  forgery 
uiV)jcct  of  forgery 

forgery  is  defined 
»rd,  deed,  writing, 
of  another  man's 
is  the  alteration  or 
nd  looking  at  the 
definition, 
kind  very  much  to 

1  Regina  v.  Tlodg- 
s  a  diploma  of  the 
he  conviction  was 
lubiect  of  forgery, 
)  defraud  any  par- 
Cloxs,^  was  that  an 
iry  mark,  by  wliich 
d   was  not  such  a 


ry  (A  1.) 

;.  3. 

!.  460. 


Bramwei-l,  B.     Suppose  the  prisoner  had  written  a  letter  purporting 
to  eoni.)  from  Berwick,  stating  tliat  ilie  powder  was  genuine? 

Jlada'eston  Q.  C.  I  submit  it  makes  no  difference  whether  the 
representation  is  written  or  printed.  These  labels  are  made  to  resemble 
Uorwick's  label,  and  are  in  the  nature  of  certificates  that  the  powder  is 
.renuine  In  Recjina  v.  Toshack,'  a  certificate  by  the  master  of  a  vessel 
of  the  service  and  good  conduct  of  a  seaman  was  held  to  be  the  subject 
of  for-ery  at  common  law.  That  tiie  document  there  was  as  to  the 
druac'ter  of  an  individual  is  an  immaterial  ingredient  in  the  case  ;  and 
it  would  have  been  equally  the  s-.-.bject  of  forgery  if  it  had  been  as  to 
any  other  matter,  the  intent  being  to  defraud. 

in  Regina  v.  Sharman;'  the  certificate  of  a  clergyman  that  the  pris- 
oner had  had  the  charge  of  a  school,  was  in  like  manner  held  to  be  the 
subject  of  a  forgery.  The  wrapper  in  this  case  identifies  the  powder  as 
luiving  been  manufactured  by  Borwick,  and  is  as  it  were  a  certificate  of 
the  char.acter  of  tlie  article  inclosed.  The  certificates  in  the  cases  of 
Toshack  and  Sharman  certified  that  a  man  had  done  certain  tlungs. 
Here  the  wrapper  is  in  effect  a  certificate  that  Borwick  ha.l  put  his 
powder  in  the  packet.  In  those  cases  it  would  have  made  no  difference 
if  the  entire  documents  had  been  printed.     Bank  of  England  notes  are 

now  entirely  printed. 

Wn.LE3,  J.     The  forgery  of  bank-notes  is  provided  for  by  statute. 

Huddleaton,  Q.  C.     Here  the  entire  document  is  not  imitated,  but 
that  will  not  affect  the  question.     Where  the  offense  consists  in  the 
false  making  of  an  instrument  in  resemblance  to  another  genuine  instru- 
ment it  is  not  essential  thatthe  resemblance  should  be  complete  in  every 
respect.     It  is  sunicicut  if  it  be  strong  enough  to  effect  the  particular 
fraud,  and  to  prevail  over  that  degree  of  caution,  prudence,  and  discre- 
tion which  ouglit  to  be  used  in  the  usual  course  of  affairs  ;  and  here  the 
jury  have  found  tha;  the  labels  so  far  resembled  those  used  by  Borwick 
as  to  deceive  persons  of  ordinary  observation  and  to  make  them  to 
believe  them  to  be  Porwick's  labels.     On  this  point  (which  was  not 
dealt  with  iu  the  judgment)  the  learned  counsel  cited  Rex.  v.  EUwtt, 
Rex  V.  Collicott,^  and  Starkie  on  Criminal  Pleading.^ 
Mclntyre,  in  reply,  was  stopped  by  the  court. 

Pollock  C  B.  We  are  all  of  opinion  that  this  conviction  is  bad. 
The  defendant  may  have  been  gu.lty  of  obtaining  money  by  false  pre- 
tences ;  of  that  tliere  can  be  no  doubt ;  but  the  real  offense  here  was  t^ie 
inclosing  the  false  powder  in  the  false  wrapper.  The  issuing  of  this 
wrapper  without  the  suiff  within  it  would  be  no  offense.     In  the  print- 


1  1  Den.  C.  C.  4i)2. 

2  Dears.  C.  C.  285. 

3  1  Leach,  C.  C.  (4tb  ed.)  175. 


<  UusB.  &  Ry.  C.  C.  ",Vi  ;  s.  <■■  4  Taunt.  300; 
2  Le.ich,  0.  C.  (4th  ed  )  1048. 
■■•  '.id  eil.  sers.  TM,  504. 


22 


FOKdIOKY. 


ing  of  these  wrappers  there  is  no  forgeiy,  nor  could  the  man  who  printed 
thcin  be  itulicted.  The  real  offense  is  the  issuing  tlicm  with  tlie  fraud- 
ulent mutter  in  tiiem.  I  waited  in  vain  to  hear  ^f)■.  Huddleaton  show 
that  these  wrappers  came  within  tlie  i)rinciple  of  documents  which  .night 
be  the  subject  of  forgery  at  common  law.  Si)eaking  for  myself,  1 
doubt  very  rancli  whether  these  papers  are  within  tliat  principle.  They 
are  merely  wrappers,  and  in  their  present  shape  I  doubt  whether  they 
are  anything  liice  a  document  or  instrument  which  is  the  subject  of  for- 
gery at  common  law.  To  say  that  they  belong  to  that  class  of  instru- 
ments seems  to  me  to  be  confounding  things  together  as  alike  which  are 
essentially  different.  It  might  as  well  be  said,  that  if  one  tradesman 
used  brown  paper  for  his  wrappers,  and  another  tradesman  had  his 
blown  paper  wrappers  made  in  the  same  way,  he  could  be  accused  of 
forging  tlie  brown  paper. 

WiLLEs,  J.  I  am  entirely  of  the  same  opinion.  I  agree  in  the  defi- 
nition of  forgery  at  common  law,  that  it  is  the  forging  of  a  false  docu- 
ment to  represent  a  genuine  document.  That  does  not  apply  here,  and 
it  is  quite  absurd  to  suppose  that  the  prisoner  was  guilty  of  ten  thousand 
forgeries  as  soon  as  he  got  these  wrapi)ers  from  the  printer  ;  and  if  he 
had  distributed  tiiem  over  tiie  whole  earth  and  done  no  more  he  would 
have  committed  no  offense.  The  fraud  consists  in  putting  inside  the 
wrappers  powder  which  is  not  genuine  and  selling  that.  If  the  prisoner 
had  had  one  hundred  genuine  wrappers  and  one  hundred  not  genuine, 
and  had  put  genuine  powder  into  the  spurious  wrappers  and  spurious 
powder  into  the  genuine  wrappers  he  would  not  have  been  guilty  of  for- 
gery. This  is  not  one  of  the  different  kinds  of  instruments  which  may 
be  made  tlie  subject  of  forgery.  It  is  not  made  the  subject  of  forgery 
simply  by  reason  of  the  assertion  of  that  which  is  false.  In  cases  like 
the  present  the  remedy  is  well  known  ;  the  prosecutor  may,  if  he  pleases, 
file  a  bill  in  equity  to  restrain  the  defendat:^  from  using  the  wrapper,  or 
he  may  bring  an  action  at  law  for  damages,  or  he  may  indict  him  for 
obtaining  money  under  false  pretenties ;  but  it  would  be  straining  the 
law  to  hold  that  this  was  a  forgery. 

Buamwkl:  ,  B.  I  think  that  this  was  not  a  forgery.  Foriiery  su,;- 
poscs  the  possibility  of  a  genuine  document,  and  that  the  fasse  docu. 
inent  is  not  so  <iood  as  the  genuine  document,  and  that  the  one  is  not 
so  ellicacious  for  all  purposes  as  the  other.  In  the  present  c-ase  one  of 
tlicse  documents  is  as  good  as  tbo  other  — the  cne  asserts  what  the 
other  does  — the  one  is  as  true  as  the  other,  but  one  gets  improperly 
used.  But  the  question  is  .vhellier  the  document  itself  is  a  false  docu- 
ment. It  is  said  that  the  wrapper  is  so  like  one  used  t>y  somebody  else 
that  it  may  mislead  ;  but  that  is  not  material  to  the  question  we  have  to 
decide.     The  i»risone.  may  have  committed  a  gross  fraud  in  using  the 


'    I 


K.  V.  HAin'KH. 


23 


1  who  printed 
Lh  the  fraud- 
Idleaton  show 
i  which  .night 
or  myself,  1 
ciple.  They 
whether  they 
ibject  of  for- 
193  of  instru- 
ike  which  are 
le  tradesman 
man  had  his 
e  accused  of 

le  in  the  defi- 
a  false  docu- 
ply  here,  and 
ten  thousand 
?r  ;  and  if  he 
lore  he  would 
iig  inside  the 
f  the  prisoner 
not  genuine, 
md  spurious 
guilty  of  for- 
ts which  may 
!Ct  of  forgery 
In  cases  like 
if  he  pleases, 
le  wrapper,  or 
odict  him  for 
straining  the 

Foriiery  su,;- 
e  faiido  docu. 
he  one  is  not 
at  C'ase  one  of 
erts  what  the 
ts  improperly 
a  false  docu- 
omebody  elso 
on  we  have  to 
I  in  using  the 


tove  ro„.lcre.l  Immc  t  l.al.l.  to  an  w  ^^ 

,"r'T,.e  o,a.„so  lie,  i..  tbo  use  0.  the  «»m'- ^„,,.,„  ,„„„.,,. 


.„BGP.nV_B.U.  ,«■  K.C,U.OK_.NC,.o.rK  ..»™t-M.«. 

li.  V.  Uaupek. 

[14  Cox,  57-1  •] 

In  the  English  Iliyh  Court.  Cro'cn  Cases  Reserved. 

4.  *«,-Pnr<rlnff  mid  utterinR  nn  indorse- 

The  Prisoner  was  indicted  i- 1^«  ^1-*,°^"  o'?^.^^^^^^^^^^  '"  ^'-  '"■-"  "'r" 

n"  t  on  a  bill  of  exchange,  in  the  «e^'""».^7"'  °"  ^j'  J,„„i  on  a  certain  paper  wr.ung. 
Z  oHing  to  be  a  biU  of  excl.anKf,  and  '"  I;';"  f J„^^  "^"  "^e  biU  of  exchange,  but  w.U.^ 

,„:„„  „.,,er  w.,  ccovictea  of  forgery  ._^.o.e  me  at  t„o  Durha.  A. 
si,  »,  under  the  following  «"""'"*™'»;  ^^,.      „pp,M  Harper  with 

»'«--;^-''^°^ ,::n^  ,,p  „«:  t  «.e  prioelLl  forwarded  it 
sonio  raachuiery ,  di  ew  a  bi  i  upo  ,        ,^.g      jt  had  been  arranged 

to  him  for  acceptance,  unsigned  by  ^'^^l^^^  a  solvent  perso.i,  and 
U.t  Harper  should  proc|tre  e  ^^^^^,  ,,  ^,,,J^a  by  him- 
should  himself  accept  the  bi.l.     Haq  ,^^^^^  ^j^^^ 

self,  and  pi.rporting  to  be  uulorsed  bj  one  m^^^^^^  J.       ^^^^  ^.^^ 

Hunt's  indorsemetit  had  ^^^  f^^  ^^f^'Cto  the  bank  for  coUec- 

Lving  is  a  copy  of  the  bill  of  exchange:^- 

i'-)9    lOs   4d  — Kilmarnock,  ^ov.  -J,   i?»o".  ^^  x.99    lOs   4d, 

ote'ronft  after  date  pay  to  .ue  or  order  the  sum  of  £22,  10., 

that  '.eiuS '»'«'"«'«?"!;' I'^rrbuilde';.  Kutland  Street,  l>alliou, 
sI;;.rland'T;:.r:rrr;  frL;-,o„„  Wat,o„  .  so.  ^eeepted 
p:;i;e"f  the  union  Bank  of  London.  John  Harper. 


24 


FOIHJKRY. 


The  indictment  contained  six  counts,  which  charged  Harper:  1. 
With  feloniously  forging  a  certain  inilorsomont  to  and  on  a  bill  of  ex- 
change. 2.  With  feloniously  forging  an  indorsement  to  and  on  a  cer- 
tain paper  writing,  which  said  paper  writing  is  in  tlie  form  of  and 
purports  to  be  a  bill  of  exchange  unsigned  by  any  drawer  thereof.  3. 
Feloniously  forging  a  certain  indorsement  to  and  on  a  certain  paper 
writing.  In  the  fourth,  llfth  and  sixth  counts,  he  was  charged  with 
feloniously  uttering  the  documents  described  in  the  first,  second  and 
third  counts.  I  was  of  opinion  that  all  the  counts  were  bad  except  the 
first  and  fourth;  but  I  left  the  whole  matter  to  the  jury.  The  jury 
returned  a  general  verdict  of  guilty,  and  I  sentenced  Harper  to  be  im- 
prisoned with  hard  labor  for  nine  months,  but  suspended  the  execution 
of  the  sentence  till  the  decision  of  this  case  by  the  Court  for  Crown 
Cases  Reserved.  The  question  for  the  court  is  whether,  under  the  cir- 
cumstances stated.  Harper  was  properly  convicted  of  either  of  the 
offenses  charged  in  the  first  or  fourth  counts  of  the  indictment,  and 
whether  any  of  the  other  counts  charge  a  felony. 

J.  F.  Stephen. 

No  counsel  appeared  to  argue  on  either  side. 

Lord  CoLEiuDCE,  C.  J.  The  court  is  of  opinion  that  the  conviction 
on  this  indictment  can  not  be  supported.  The  prisoner  was  convicted 
generally  of  forging  an  indorsement  on  a  bill  of  exchange.  All  the  counts 
of  the  indictment  were  for  forging  an  indorsement  on  a  bill  of  exchange, 
or  on  a  paper  writing  in  the  form  of  and  purporting  to  be  a  bill  of  ex- 
change, or  on  a  certain  paper  writing.  The  document,  however,  was  but 
an  inchoate  bill  of  exchange.  A  bill  of  exchange  was  formally  drawn 
up  and  sent  to  the  prisoner  for  his  acceptance,  and  he  was  to  accc[)t  it 
and  to  procure  the  indorsement  of  a  solvent  person  to  it,  but  there  was  no 
drawer's  name  attached  to  the  bill.  The  prisoner  returned  the  bill  ac- 
cepted by  himself,  and  with  the  nam^  of  Hunt  as  the  indorsee  upon  it, 
but  he  had  forged  Hunt's  indorsomcnt.  Under  these  circumstances 
the  prisoner  can  not  be  convicted  upon  this  indictment,  for  this  docu- 
ment was  clearly  not  a  bill  of  exchange.  In  McCall  v.  Taylor,^  it 
was  held  that  an  instrument  in  the  form  of  a  bill  of  exchange,  ad- 
dressed to  and  accepted  by  the  defendant,  but  without  the  names  of 
either  a  payee,  or  drawer,  is  neither  a  bill  of  exchange  nor  a  promissory 
note,  but  only  an  inchoate  instrument.  In  that  case  Erie,  C,  J.,  said : 
"The  instrument  has  no  date  and  no  drawer's  name,  but  the  defendant 
wrote  his  acceptance  across  it,  and  the  question  is,  has  the  holder  of 
such  an  instrument  a  right  to  declare  on  it,  either  as  a  bill  of  exchange 
or  promissoiy  note?    It  certainly  is  not  a  bill  of  exchange,  nor  is  it  a 


1  34L.  J.3(i5,  C.P. 


ctl  Harper:  1. 
m  a  bill  of  ex- 
3  and  on  a  cei- 
B  form  of  and 
er  tboreof.  3. 
1  certain  paper 
9  charged  with 
st,  second  and 
bad  except  the 
iry.  The  jury 
taper  to  be  im- 
i  the  execution 
onrt  for  Crown 
,  under  the  cir- 
eitlier  of  the 
ndictment,  and 

F.  Stephen. 


STATK    V.  WUKKLEU.  "-^ 

promissory  note.  It  is  in  fact  only  an  inciioato  instrument,  th()U|4h 
ciipable  of  boins  completi-d."  Erie,  C.  .).,  further  cited  the  case  of 
Stoessiger  v.  Southeastern  Railway  Conijxnvj,^  as  in  i)oint.  In  that  case 
tlie  question  arose  whether  a  document  in  the  form  of  a  bill  of  exchange 
for  £11,  109,  but  which  had  no  drawer's  name  upon  it,  was  a  bill,  note 
or  security  for  the  payment  of  money  exceeding  £10,  within  the  Car- 
riers' Aet",2  and  it  was  held  that  it  was  not.  In  this  case  we  arc  clearly 
of  opinion  that  this  was  a  mere  inchoate  instrument,  of  no  value  in  the 
shape  in  which  it  was  when  the  prisoner  wrote  the  indorsement  upon  it. 
Tiiis  is  quite  clear,  as  well  upon  principle  as  tipon  the  authorities. 

GitovK,  Hawkins  and  Lopks,  JJ.,  concurred. 

Stki'iien,  J.  Although  I  agree  with  the  rest  of  the  court  that  this 
conviction  should  be  quashed,  yet  it  seems  to  me  that  this  case  has  all 
the  effects  of  forgery,  and  I  think  that  the  prisoner  would  not  have 
been  relieved  from  them,  if  he  had  been  indicted  for  forgery  at  com- 
mon law.  ^       .  _  ,    , 

Conviction  quashed. 


the  conviction 
[•  was  convicted 

All  the  counts 
ill  of  exchange, 
be  a  bill  of  ex- 
jwever,  was  but 
formally  drawn 
vas  to  accc[)t  it 
)ut  there  was  no 
ned  the  bill  ac- 
idorsee  upon  it, 

circumstances 
,  for  this  docu- 
!  V.  Taylor,^  it 
'  exchange,  ad- 
b  the  names  of 
or  a  promissory 
■le,  C,  J.,  said: 
t  the  defendant 
is  the  holder  of 
ill  of  exchange 
Qge,  nor  is  it  a 


FORGERY  — INSTRUMENT  MUST  BE  VALID-  WHAT  IS  AN  ACCOUNTA- 
ble receipt. 

State  v.  Wiieelek. 

[19  Minn.  98.] 
In  the  Supreme  Court  of  Minnesota,  1S72. 

1.  Forgery-  Instrument  Must  be  Valid.  -  An  instrument  to  be  the  subject  of  forgery, 
muet  be  a  Talirt  instrument  on  its  face  or  bo  proved  so. 

a. "Accountable  Beceipt "  -  Case  in  Judgrment. -An  indictment  for  the  forgery 

of  an  "accountable  receipt  for  personal  properly,"  viz;  an  elevator  ticket  for  wheat, 
alleged  that  the  defendant  "did  falsely  make,  forge,  alter,  and  counterfeit  a  certain 
false  forged,  altered,  and  counterfeited  accountable  receipt  for  personal  property,  viz. : 
an  elevator  ticket  for  wheat,  which  false,  forged,  altered,  and  counterfeited  accountable 
receipt  for  personal  property,  viz. :  an  elevator  ticket  for  wheat,  is  of  the  tenor  follow- 
ing, that  is  to  say:  •  St.  Paul  and  Sioux  City  Elevator  Co.,  St.  Peter,  *  •  •  ^'""'Tl 
of  J  S  ,  load  No.  20,  ticket  No.  2402,  account  of  W.  B.  N.  or  bearer,  No.  1  Wheat,  84  5-60 
bushels.  M.  Good,  Inspector,'  with  intent  thereby  then  and  there  to  injure  and  defraud 
contrary  to  the  form  of  the  statute,"  etc.,  etc.  ITeld.  tliat  inasmuch  as  no  connection 
between  the  subscriber  of  the  instrument  and  said  elevator  company  appeared  on  the 
face  thereof;  as  it  caT  not  be  intended  in  support  of  the  indictment,  that  "  M.  Good, 
Inspector,"  was  an  agent  of  the  company,  the  indictment  presents  the  case  of  an 
accountable  receipt,  not  purporting  to  be  signed  by  any  authorized  agent  of  the  com- 
pany and  not  on  its  face  of  any  apparent  legal  elfect;  and  there  being  .:o  averment  in 
the  indictment  of  any  connection  between  said  subscriber  and  said  compiny,  which 
would  give  it  such  effect,  the  indictment  was  insufficient. 


1  3  El.  &  B.  54     a  U  J.  549,  Q.  H. 


•i  11  Geo.  IV.  &  1  Wm.  IV.  ch.  r,8,  sec  1. 


26 


KOKdKUY. 


The  (Icfonduut  wns  nrraigned  in  tlu-  District  Court  for  Nicollet  County 
upon  an  iiuliclincnt  clmrging  that,  at  a  time  and  place  tluToin  nicn- 
tioni'd,  ho  "  did  falsely  make,  forj^e,  alter,  and  couiitorfeit  a  certain 
false,  forged,  altered,  and  counterfeited  accountable  receipt  foi-  per- 
sonal property,  to  wit,  an  elevator  ticket  for  wheat ;  which  false,  forged, 
altered,  anil  counterfeited  accountable  receipt  for  personal  property,  to 
wit,  an  elevator  ticket  for  wheat,  is  of  the  tenor  following,  that  is  to 
say :  — 


CS  ifj  ei  O 

B  rt  >-.3 
^•o     S 

r  e  o>- 


St.  Paul  &  Sioux  City  Elevator  Coinpaay, 
SI.  PettT,  !»  uio. ,  20  day,  1871. 
Rt'Cfivfd  of  J.  Simmons,  Mornoka, 
Load  No.  L'O,  ticket  No.  2402,  account 
of  VV.  B.  N.  or  beiirur.  No.  1  Wheat, 
Bin  No.  7,  No.  84  05-60  Buslicl.>*. 

M.  Good,  Inspector. 


"  To  Ue  iiiiiorteil  by  the  imrty  to  whom  pjiid ; 


with  intent  thereby  then  and  there  to  injure  and  defraud,  contrary  to 
the  form  of  the  statute,"  etc. 

To  this  indictment  the  defendant  demurred ;  but  his  demurrer  was 
overruled  and  he  was  tried  and  convicted.  A  motion  in  arrest  of  judg- 
ment was  likewise  overruled,  and  the  defendant  was  sentenced  to  im- 
prisonment at  hard  labor  for  two  years.  The  case  comes  to  this  court 
upon  writ  of  error. 

E.  St.  Julian  Cox,  tor  plaintiff  in  error. 

F.  R.  E.  Corndl,  Attorney -(leneral. 

Bij  the  Court,  Riflky,  C.  J.  As  an  instrument,  to  be  the  subject  of 
an  indictment  for  forgery,  must  either  appear  on  its  face  to  be,  or  he  in 
fact,  one  which,  if  true,  would  possess  some  legal  validity ;  ^  so,  if  it  do 
not  so  appear  on  the  face  of  the  instrument  set  out  in  the  indictment, 
facts  must  be  averred  which  will  enable  the  court  to  see  that,  if  it  were 
genuine,  it  would  possess  such  validity.'- 

Tried  by  this  rule,  this  indictment  is  insufficient.  It  is  found  under 
General  statutes :  3  "  Whoever  falsely  *  *  *  forges  any  *  *  * 
accountable  receipt  for  money,  goods,  or  other  property,  with  intent  to 
injure  or  defraud  any  person,  shall  be  punished,"  etc. 

The  instrument  set  out  purports  to  be  a  statement  by  "  M.  Good,  in- 


1  2  Bieh.  Cr.  L.,  sec.  60;J. 
"  2  Hish.  Cr.  L.,  sees.  512,  51;!;  People  r. 
Shall,  9  Cow,  7T8;  People   v.   Harrison,  8 


Harb.  5G0;  Com.  f.  Ray,  3  Gray,  441 ;  2  Ruts, 
on  Cr.  ;174 ;  Rex  v.  Wilcox,  UuBS.  &  Ry.  50. 
3  eh.  90,  sec.  1. 


STATK    V.  WIIKKI.KU. 


27 


'oUct  County 
Llu'ioia  nu'ti- 
I'it  a  certain 
L'ipt  foi-  per- 
fiilsc,  forged, 
property,  to 
ig,  that  is  to 


y. 


lector. 


,  contrary  to 

lemurrer  was 

rrest  of  jui'.g- 

tcnced  to  im- 

to  this  court 


he  subject  of 

0  be,  or  be  in 
;  1  so,  if  it  do 
le  indictment, 
lat,  if  it  were 

1  found  under 

my  *  *  * 
with  intent  to 

M.  Good,  in- 


Griiy,  441 ;  2  Rms. 
UuB8.  &  Ky.  50. 


spcctor,"  that  the  Si.  Paul  and  Siu.ix  City  Kh'vator  Company  had  r.- 
ci.Jved  at  St.  I'eti-r  eighty-four  l.ushels  and  live  pounds  of  number  on-' 
wheat,  for  account  of  W.  15.  N.  or  bearer.  «,.,., 

It  is  said  by  the  (U>fendant  in  error  that  the  h'gal  effect  of  this  kind 
of  instrument  "is  to  entitle  the  innocent  lu.hUr  f..r  value  to  that  number 
„f  bushels  of  number  one  wheat  on  presentation  to  the  St.  I'aul  and 
Sioux  City  KIcvator  Company. 

Suppose  that  it  is,  how  does  that  appear  on  the  face  of  this  instrument. 

In  point  of  fact  it  does  not  purport  to  bo  signed  on  behalf  of  the 

company.  .         ,       .,       i 

The  addition  of  "  inspector"  after  the  ,mme  of  the  subscriber  does 
not  indicate,  in  itself,  the  existence  of  any  relation  whatever  between 
l,i,nself  and  the  company,  much  less  of  any  sueli  rehition  as  would  in  it- 
self import  anv  authority  on  his  part  to  act  for  it. 

It  is  said  by  the  <lefendant  in  error  that  it  is  apparent  from  the  mere 
i„specti(m  of  "the  paper,  and  from  the  known  way  in  which  that  kind  of 
paper  is  used  in  business  matters,  that  it  is  possible  that  this  instrument 

could  be  used  to  defraud.  ,  .  i 

That  is  to  say  — to  make  this  indictment  good,  the  way  in  which 
-<uch  a  paper  is  used  in  business  matters  must  be  known,  but  that  is 
something  of  which  the  court  can  not  take  notice.     It  is  a  fact  to  be 

proved.  ,     ,      .^  , 

If  the  St.  Paul  and  Sioux  City  Elevator  Company,  whether  it  be  a  cor- 
poration, or  a  firm,  or  an  individual  doing  business  under  that  name,  re- 
ceives wheat  and  gives  its  obligation  to  account  therefor  to  any  one,  or 
iu  any  way,  signed  by  its  agent,  it  is  good  against  it,  and  any  forgery  of 
such  obligation  would  l)e  indictable;  and  an  indictment,  settmg  out 
such  forged  instrument  would  be  good  without  extrinsic  averment. 

But  the  company  would  not  be  bound  by  such  an  instrument  signed 
by  a  mere  stranger.  Therefore,  if  no  connection  between  the  company 
and  the  subscriber  of  the  instrument  appear  on  its  face,  such  connection 

must  be  averred.  ,,   r,      j 

It  can  not  be  intended,  in  support  of  the  indictment,  that  "  M.  Good, 
inspector,"  was  an  agent  of  the  company.  The  paper  must  purport  on 
its  face  to  be  good  and  valid  for  the  purpose  for  which  it  was  created. 
This  does  not;  no  connection  appearing  between  the  company  and  the 
signer  of  the  instrument.  .,     ,      4. 

A  statement  by  a  stranger  that  the  company  had  received  said  wheat 
for  said  purpose  would,  as  already  remarked,  of  itself  import  no  legal 
liability  on  the  part  of  the  company.  Nor  would  it  import  any  on  the 
part  of  such  stranger.  . 

A  note,  purporting  to  be  the  note  of  the  elevator  company,  and  signed 


l'.S 


rOIMlKUY. 


"  M.  Tiooil.  inspector."  would  no  nioir  import  viilidity  of  itself,  tlianl 
the  note  ill  tlic  cii^c  of  /'ed/ile  v.  .S7(((//.  iilrc'iuiy  citi d,  wiiirh  was  puyahlof 
ill  work,  ami  did  not  piir|)ort.  to  he  for  viiliie,  "  thoujjii  in  coiii)linirj 
ft  <,'ciiiiiiii(  note  like  it  witii  ii  consideration,  a  cause  of  action  would  bel 
made." 

So,  here,  in  coiipjiiifr  suel.  an  instrument  as  the  one  before  us  witli| 
the  fact  of  an  authority  in  "  M.  Good,  inspector,"  to  issue  it,  a  liabil- 
ity in  the  company  would  appear. 

ITcrein  is  the  distinction  l)itweon  this  case  and  that  of  People  v. 
«S7ea/viN,'  cited  by  the  defendant  in  error. 

The  New  York  statute  proviiled  that  "  the  counterfeiting  witii  intent  to 
injure  or  defraud,  of  any  instrument  or  writing,  l)elng  or  purporting  to  I 
be  tlie  act  of  another,  Ity  which  any  rights  or  property  whatever  shall  [ 
be,  or  purport  to  be,  in  any  manner  affected,  by  which  any  person  may 
be  affected  or  in  any  way  injured  in  his  person  or  property,  shall  i)e 
fortjery  in  tlie  third  degree." 

The  following  was  held  to  be  within  the  statute:  "  To  the  cashier  of 
the  Union  Bank:  Sir  — Please  deliver  to  Messrs.  Burton,  (Jurley  & 
f^dmonds  tiie  plates  of  our  hank,  aud  receive  them  again  on  deposit,  I 
and  oblige  your  oltdlieiit  servant,  G.  C.  Gwathmay,  cashier,  Bank  of  | 
Kentucky,  Louisville,  I)eceml)er  20,  18.">7,"  without  any  extrinsic  aver- 
ment in  the  indictment  that  G.  C.  Gwathmay  had  authority  to  make  such 
order,  or  that  the  cashier  of  the  Union  Bank  had  any  control  over  the 
plates.  "  It  seems  difficult,"  says  Cowen,  J.,  in  delivering  the  opin- 
ion of  the  court,  "  to  mistake  the  apparent  import  of  the  instrument  in 
question.  It  purported  to  be  an  order  from  an  ofllccr  representing  the 
Bank  of  Kentucky,  duly  empowered  to  make  it,  which  order  was 
directed  to  another,  purporting  to  be  the  depositary,  and  desiring  him 
to  deliver  the  plates  of  the  bank." 

It  appeared,  therefore,  that,  from  the  language  of  the  instrument  it- 
self, it  might  have  the  effect  to  defraud. 

The  ca.se  at  bar  is  of  an  accountable  receipt,  not  purporting  to  be 
signed  by  an  oflicer  of  the  elevator  company  duly  empowered  to  sign  it- 
It  is  not  on  the  face  of  the  instrument  of  any  apparent  legal  effect.* 

The  demurrer  should  have  been  sustained.  The  judgment  of  the  Dis- 
trict Court  is  reversed. 


1  21  Wend.  409. 


s  F«ople  V.  Skall,  tupra. 


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Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  ^■.Y.  14S80 

(716)  873-4503 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


I. 


1 
■  1 


iiitt 


PEOPLE   V.  FITCH. 


21» 


FORGERY  — PAPER  WHOSE  PURPOSE  HAS  BEEN  SA.'ISFIED. 

People  v.  Fitch . 

[1  Wend.  198;   19  Am.  Dec.  477.] 
In  the  Supreme  Court  of  New  York,  August,  1S2S. 

Fraudulent  Alteration  of  Satisfied  Order  by  Diawer  not  Forsrery.  -  An  alteration 
of  Itio  (late  of  an  order  tor  the  delivery  of  goods,  made  liy  llic  dra-.ver  with  fraudulent 
intent,  after  the  order  had  been  satisfled  and  rciurnod  to  him,  ia  not  forgery. 

Indictment  for  forgery,  tried  at  the  Geuesee  Oyer  and  Terminer. 
Tlie  iiulictmeut  contained  two  counts,  the  first  ehar<,Mng  tlie  defendant 
with  the  forgery  of  a  certain  order  previously  drawn  hy  himself ;  and 
second,  charging  him  with  uttering  and  i)uhlisliing  the  order  as  true, 
with  intent  to  defraud  one  Bangs.  It  appeared  tiiat  the  oider  in  ([ues- 
tionwa-s  drawn  by  the  defendant  November  1,  \X2o,  on  a  settlement 
of  accounts  between  himself  and  one  Bangs,  and  that  it  directed 
Kellogg,  the  drawee,  to  deliver  a  certain  cow  to  Bangs,  and  that  the 
il.fendant  at  the  same  time  gave  a  note  to  Bangs  for  the  balance 
lietween  them  ;  that  the  order  was  presented,  and  the  cow  delivered  to 
Hangs,  and  that  the  plaintiff  afterwards  sued  the  defendant  on  the 
note  mentioned  above;  that  the  defendant  set  off  the  order  referjed  to 
when  it  api)eared  that  the  date  had  been  altered  from'  November  4th  to 
November  Mtii;  and  an  opinion  being  expressed  to  that  effect,  the 
defendant  withdrew  the  order,  and  the  suit  was  discontinued  ;  that  the 
defendant  afterwards  sued  Bangs  for  the  jjrice  of  the  cow  delivered  by 
Kellogg  when  Bangs  set  off  the  note ;  and  on  the  trial,  the  delivery 
of  the  cow  being  proved,  the  order,  however,  not  being  pri)duced,  the 
present  defendant  obtained  judgment  for  the  balance  of  the  price  of 
the  cow  after  deducting  the  amount  of  the  note.  The  judge  charged 
the  jury  that  the  order  Iteing  fuiatun  officio,  the  subsequent  alteration 
(.f  it  was  not  forgery  under  the  statute,  but  that  they  might  find  the 
defendant  guilty  at  the  common  law  if  they  thought  the  alteration 
[.roveil.  The  jury  found  the  defendant  guilty  under  the  first  count, 
l)ut  not  guilty  under  the  second  ;  whereupon  judgment  was  suspended 
luitil  the  advice  of  this  court  could  be  taken. 

/..  7^^»l.s('^,  district  attorney,  cited:  2  East's  Pleas  of  the  Crown,' 
')  Chitty's  Criminal  Law,'-'  5  Johnson, ^  ArchboM.^  East's  Criminal  Law,'^ 
McNaliv's  Evidence, '■  1  Chitty's  Criminal  Law." 


1  pp.  MZ,  .S55,  iC'J. 

2  pp.  I'.ia,  780,  "99. 

<  pp.  189, 193. 


'  Jip.  S54.  855. 
0  p.  4;!9. 
;  p.  218. 


;}() 


FOKOKin 


//.  ./.  Redjlchl,  for  Ilu'  (Iffi'iiiiant,  citi'd :  I  lihicUstoiu's  Commen- 
taries,' Kasi's  Criminal  Law,-  2   Lord  Haynioml,-'  Ri-.i:  v.  Kiti'jht.^ 

liil  the  Court,  S \vA(iK,  C.  J.  Is  this  for;jfery  ?  Foifjery  has  often  been 
(lelined  by  learned  jurists.  Ry  Mr.  Justice  Hlackslone.  "  forj^jery  is  tlie 
fraudulent  makiiijj,' or  alteration  of  a  writing' to  the  |)reJudieeof  another's 
rijilit  ;  "  by  HuUer,  jusliee,  "tin;  making  of  a  false  instrument  with 
inti'nt  to  deeeivi';  "  l)y  Haron  Kyre,  "  a  false  sifinature  with  intent  to 
deceive."  .Vi^ain,  "the  false  making  an  instrument  which  i)uri)orts  on 
the  face  of  itl<.  tie  gond  and  valid  for  the  [)ur|)oses  for  wlii<.!i  it  was  cre- 
ated with  a  desiLjn  to  defraud;"'  i)y  <!rose,  Justice,  "  the  false  making 
of  note  or  otlier  iastninicnt  with  intent  to  defraud  ;  "  by  Mr.  East, 
the  false  making  of  any  written  iii'^trument  for  the  purpose  of  fraud  and 
deceit ;  "'  ■'''  by  Mr.  Cliitly,  "  the  false  making  or  altcr.-ition  of  such  writ- 
ings as  either  at  common  law  or  by  statute,  are  its  objects  wilii  intent 
to  defraud  another.""  This  writer  notices  a  distinction  betw>  en  for- 
gery ami  fraud;  that  the  latter  must  actually  take  effect,  while  the 
former  is  complete,  though  no  one  is  actually  injured  if  tiie  tendency 
and  intent  to  defraud  1)C  manifest.  As  to  what  false  making  is  neces- 
sary to  constitute  the  offense,  it  has  i)een  held  that  a  party  may  make 
a  false  deed  in  his  own  name  by  antedating,  for  instance,  so  as  to 
prejudice  a  prior  grantee.  So  by  indorsing  a  bill  of  exchange  in  his 
own  name  when  he  is  not  the  real  |>ayee.'  On  this  principle  we  held 
Peacock  guiltv  of  forgery  for  indorsing  the  permit  for  the  delivery  of  a 
(piantity  of  coal  in  his  own  name,  knowing  that  he  was  not  the  real 
consignee  of  the  coal,  though  of  the  same  name.'*  So  making  a 
fraudulent  alteration  or  erasure  in  any  material  part  of  a  true  instru- 
ment or  any  alteration  which  gives  it  a  new  operation,  as  by  altering  the 
date  of  a  bill  of  exchange  after  acceptance  whereby  the  payment  was 
accelerated.'-' 

As  to  what  shall  lie  considered  a  warrant  or  order  under  the  statute, 
the  document  forged  must  be  such  as  api)ears  to  give  the  bearer  a  dis- 
posing power  over  the  projjcrty  which  he  demands;  it  must  assume  to 
transfer  the  right,  at  least  of  the  custody  of  the  goods  to  the  offender."* 

Such  are  ihe  principles  applicable  to  cases  of  forgery  of  the  descrip- 
tion of  llie  present.  This  is  not  like  the  case  of  a  bill  of  exchange  with 
the  date  altered  after  acceptance,  and  before  payment.  Here  the  order 
was  jKiid.  Supi)ose  a  bill  of  exchange  or  promissory  note,  paid  and 
taken  up  by  the  maker,  who  then,  for  purposes  of  fraud,  alters  Ihedute, 


I   p.  '.MS. 

v;  lip.  S40,  st">i. 

:i  p.  UCil. 
*  Si\lk.  ;i7.'i. 
>■  2  Kiisl'g  r.  (' 

0  3cait.  Cf,  I.. 


■  2  KaRt'»  r.  C.  SV);  4  I..  K.  2S. 
*  (i  Cow.  'i. 

«  4  r,.  U.  :!'iO;  :i  CUit.  Cr.  L.  U«8;  2  East's 
r.  C.  ;l,V). 

!*>  3Clut.  Cr.  I..  10;!!. 


's  Conimcn- 

s  often  been 
)ri^H'rv  i-i  tlie 
of  ivnuUK'r"s 
runu'iit  with 
rith  intt'iit  to 
l)iiri)()rts  on 
li  it  was  cre- 
'iilso  making 
y  Mr.  Eust, 
of  fraud  and 
)f  such  writ- 
s  witli  intent 
l)et\v>  cMi  for- 
■t,  wiiile  the 
lie  tendency 
ing  is  neccs- 
y  may  make 
ee,  so  as  to 
iiango  in  liis 
•iple  we  held 
k'iivery  of  a 
not  the  real 
I)  making  a 
,  true  instru- 
■  altering  the 
aj'uient  was 

•  the  statute, 
bearer  a  dis- 
iit  assume  to 
le  offender.'" 
tiie  descrip- 
Lcliange  with 
ere  the  order 
)te,  paid  and 
ers  the  dt.te, 


L.  1(«8 ;  2  East's 


lutowN  ;•.  non.r.. 


31 


would  .neh  alteration  constitute  forgery  V     Suppose  the  defendant  ,n  tins 
:         n^'ad  .>f  prelixing  the  figure  one  to  the  four  in  tluMlatc  of  the  nnler 
;„,,  ,„,l  be..n  paid  and  taken  up,  had  drawn  an  ent.re   new  order  o 
;:  Uae  of  the  fourteenth  of  Novend>er,  would  that  have  -en  for,er> 
U,.,,  was  no  intermeddling  with  an  instrument  the  property  of  anoth  ,. 
..  ,vas  no  use  of  the  name  of  another.     Here  was  u.deed  a  frandu- 
,„t  intent  -,  but  in  the  aet  of  altering  the  date,  or  drawing  a  new  o.de, 
i    own  there  was  no  necessary  tendency  to  fraud.     The  order  was 
La  all  necessary  to  aid  in  the  perpetration  of  the    -ud  w  .eh 
aefendant  contemplated,  and  which  he  effected  wUhout  the  orde        I 
,,,per  in  his  own  hands  couldhare  no  effect,  and  was  no  ev.denc^  u.     s 
.  ence  to  the  action  on  the  note  ;  and  had  he  produced  te  w.  n  s^ 
„..,ve  the  delivery  of  the  cow  under  it,  that  w.tness  --^  'uu-    f  Im 
ho  order  and  defeated  the  fraud.     It  is  not  necessary,  bowe  er,  th.vt 
,u    should  be  perpetrated  to  conslitutc  this  offense.     An  m tent  .s 
.1       with  a  tendency  to  effectuate  ^raud.     My  ob  ect.ons  to  tins 
:  ^^io^are:    1.  That  this  paper  ^^^er  it  was  delivered  .,>  to     i.d- 
f.ndvnt,  was  no  instrument  at  all,  iu  the  legal  acceptance  of  the  term. 
T     re  was  no  false  making.     The  order  purported  to  be  drawn  by  the 
l^n,  and   it  was  so  drawn.     It  purported  to  ^^  f^^^^;;^';;;;^^ 
teenth  of  November,  and  it  was  so  dated.     '.    Ihe  order  1.    no  t  nd 
...u.y  to  aid  in  the  fraud.     I  am,  therefore,  of  opuwon  that  the  CoUit  of 
Oyer  and  Terminer  be  advised  to  arrest  the  judgment. 


FORGERY  -  FICTITIOUS  DKCUKE  OF  COUKT. 

BitowN  f.  Fi:oPi.E. 

[8>'.  111.  •-•:'.!•.] 

In  the  Supreme  Court  of  Illinois,  187S. 

A  Fictltlou-  Decree  or  a  court  of  another  .ta.e.  Kot  up  with  latent  to  d.c.ve,  is  not  tne 
subject  of  forgury. 

EuBOu  to  Knox  County. 

Bheesk,  J. ,  <lelivered  the  opinion  of  the  court. 

This  is  an  indictment  preferred  by  the  gran.l  jury  of  ^-^  Co"n*>^ 
at  the  June  term,  IHTfi,  against  John  Brown,  for  forgery  1 1-  cbar^ 
was  that  in  the  county  of  Knox,  on  the  1st  day  of  t-^'^rua.,,  1^^  , 
:i:^mlant  unlawfully  feloniously  and  ^:^;^^"»>y' ^f  ^^f  ^  ^^  !' 
dama.re  and  defraud  one  Eliza  Venn,  did  then  and  the.e  unlawfully, 


32 


FOK(}ERY. 


feloniously,  knowingly  and  falsely  forgo  and  counterfeit  a  certain  in- 
strument in  writing  purporting  to  be  a  public  record,  viz.  :  a  decree  of 
divorce  pretendei  to  be  granted  in  Clarion  County  Circuit  Court 
of  the  State  of  Indiana;  which  said  false,  forged,  and  counterfeited  in- 
strument of  writing,  is  as  follows:  — 


State  of  Indiana 
Makion 


)F  Indiana.  ) 

iN    COINTV,      ) 

In  Marion  Count}/  Circuit  Court,  to  January  Term,  A.  D.  2876. 


John  \V.  Brown  ^ 

vs.  >  Di  orce. 

Mahy  J.  BuowN,  ) 

And  now  this  cause  coming  on  for  a  final  hearing  in  said  court,  and 
the  evidence  being  hoard,  and  it  was  proven  thjit  John  W.  Brown  was 
married  to  Mary  J.  Sluini,  now  Mary  J.  Brown,  was  guilty  of  repeated 
abuse  and  desertion  for  the  space  of  two  years  previous  to  the  filing  of 
the  bill  for  divorce  in  this  cause ;  and  it  appearing  by  the  evidence 
that  the  said  parties  have  one  child,  named  Clara  Brown,  by  said  mar- 
riage, aged  about  three  years.  It  also  a  tearing  by  the  evidence  that 
the  said  Mary  J.  Brown  was  guilty  of  re,  atod  abuse,  and  further  that 
she,  Mary  J.  Brown,  doseited  and  left  hor  husband  on  or  about  the 
15th  dav  of  January,  A.  1).  1871,  without  cause  or  provocation  ;  now, 
theicfore,  it  is  ordered  and  docreed  by  the  court,  that  the  said  John  W. 
Brown  and  Mary  J.  Brown,  arc  henceforth  and  forever  divorced,  and 
that  the  bonds  of  matrimony  heretofore  existing  l)etween  thera  are  for- 
I'ver  dissolved,  and  that  the  said  Mary  J.  Brown  retain  the  care  and 
oustody  of  said  child,  CMara  Brown,  till  she  becomes  of  the  age  of  four- 
teen years,  jiud  that  said  John  W.  Brown  pay  the  costs  of  this  case  to 

the  olHcers  and  witnesses. 

C.  IT.  Maffit, 

Judge  Circuit  Court.  Marion  County,  Ind. 

The  indictment  properly  eoiioludes.  A  motion  was  made  to  quash 
the  indictment,  wliieh  was  doniod,  and  tlie  defendant,  i>leading  not 
guilty,  was  put  upon  his  trial  before  a  jury,  who  found  him  guilty  as 
charged,  and  (i.xeil  his  punishment  at  two  (2)  years  confinement  in  the 
penitentiary. 

A  motion  for  a  new  trial  was  made  and  denied,  and  a  like  disposition 
was  made  of  defendant's  motion  in  arrest  of  judgment,  and  judgment 
rendered  on  the  verdict. 

To  reverse  this  judgment,  defendant  has  obtained  a  writ  of  error,  and 
brought  the  record  to  this  court. 


nnowN  V.  I'KorLK. 


33 


certain  in- 

a  decree  o{ 

rciKt  Court 

terfeited  in- 


D.  2876. 


1  court,  and 
Brown  was 
of  repeated 
the  filing  of 
he  evidence 
l)y  said  mar- 
vidence  that 
further  tliat 
r  about  tiie 
at  ion  ;  now, 
iiid  John  W. 
ivoroed,  and 
liera  are  for- 
he  care  an<l 
ape  of  four- 
tliis  case  to 

Maffit, 
Jotmty,  Ind. 

■de  to  quash 
|)leading  not 
lim  guilty  as 
ement  iu  the 

e  disposition 
lid  judgment 

of  error,  and 


Various  errors  are  assigned,  but  wc  have  considered  but  one,  which 
strii<i'3  at  the  foundation  of  the  prosecution  ;  it  is  this:  Tlie  instrument 
of  writing  set  out  in  tlie  indictment  does  not  on  its  face  purport  to  bo 
an  authenticated  copy  of  a  record,  and  no  indictment  could  be  founded 
upon  it.     The  statute'   is  in  tliese  words:   "  pA'cry   person   who  shall 
sliall  falsely  make,  alter,  forge,   or  counterfeit  any  record   or    other 
authentic    matter    of    a   iMil.lic    nature     •     *     *     with     intent,   etc. 
Every  person  so  offending  shall  be  deemed  guilty  of  perjury  and  shall 
be  punished."     The  section  embraces  almost  every  conceivable  instru- 
ment of  writing  known  to  the  law  and  in  common  use  in  tiio  vaiinus 
transactions  of  life,  and  the  whole  purport  of  it  leads  to  the  conclusion 
that  the  instrument  alleged  to  be  forged,  must  be  such  an  iinstrumeut 
vhich,  if  genuine,  would  be  effective.     A  glance  at  tliis  alleged  forged 
record  will  satisfy  any  one,  that  it  has  few  if  any  indications  of  a  record 
of  a  court.     It  could  deceive  no  one.     Even  tlie  young  woman  whom 
it  is  alleged  it  was  designed  to  deceive  and  defraud,  testified  on  her 
recross-examination,  as  follows:   "At  the  time  he  showed  the  divorce, 
I  irlanced  at  it,  and  said  it  was  no  divorce,  because  there  was  no  seal  or 
Ptainp  on  it.     He  says  that  it  is  legal."     Again  she  stated,  when  the 
divorce  decree  was  shown  to  her,  she  looked  at  it  and  said  she  couM  get 
up  just  as  good  a  one.     Again  her  brother  Charles,  testified  that  all  he 
know  about  it,  was  what  his  sister  told  him.     She  said  it  was  not  a  legal 
divorce,  as  it  had  no  stani';  on  it. 

Nobody  could  be  deceive*!  by  such  an  instrument  of  writing  who  was 
not  ((uite  willing  to  be  deceived.  The  paper  does  not  purport  to  be 
a  copy  of  any  record,  n(^r  has  it  the  scmlilance  of  one,  save  in  a  few 
particulars.  The  worst  that  can  be  said  of  the  instrument  is  that  it  is  a 
fictitious  decree,  and  for  making  such  no  penalty  is  provided  by  the 
statute,  whilst  there  is  a  severe  penalty  provided  by  section  107 
against  any  one  who  shall  make,  utter,  or  publish  with  an  intention  to 
defraud  any  other  person,  or  with  like  intention  shall  attempt  to  pass, 
utter  or  publish,  or  shall  have  in  his  possession  with  like  intent,  any 
bill,  note  or  check,  or  other  instrument  of  writing  for  the  payment  of 
money  or  property,  etc.,  knowing  the  same  to  be  fictitious,  viz.:  that 
he  shall  be  imprisoned  in  the  penitenti.ary,  etc. 

The  instrument  in  question  is  at  best  but  a  fictitious  decree  of  a 
court  of  another  State,  got  up  with  the  intent  to  deceive  no  doubt,  but 
against  which  no  penalty  seems  to  be  provided  by  law. 

Tlie  instrument  not  being  or  purporting  to  be  a  record,  no  indict- 
ment for  forging  it  can  be  founded  on  it.  And  the  finding  and  judg- 
ment were  erroneous.  The  judgment  is  reversed,  and  the  prisoner 
will  be  discharged. 


8  Pkfexces. 


Rev.  Stat,  cap.,  38,  eec.  103. 
8 


FOUUEKY. 


FORGKRY  -  RKAL    OF    COURT  —  UTTKRING    FALSE    IMPRESSION    OV 
SAMJi  — INSTRUMENT  FORGED  MUST  BE  APPARENTLY  VALID. 

Fadneu  V.  Pkople. 

[2  N.  Y.  Crim.  Rep.  553.] 
In  the  Supreme  Court  of  New  York,  Fourth  Department,  Ma>i,  1^84, 

1.  ForKlnK  any  Instrument  or  writing  which,  as  appears  on  its  face,  would  have  bLvn 

void,  it  genuine,  is  not  an  indictable  otfeniie. 

2.  The  Plaintiff  in  Error  on  a  Trial  for  Bitramy,  put  in  evidence  an  alleged  copy  i.f  h 

decree  granting  him  u  divorce  from  his  flrst  wife,  and  he  was  thereby  acquitted.  <  >ii  ilio 
back  of  the  paper  was  an  iniprcssiou  pu.  porting  to  bo  the  seal  of  New  York  County,  and 
also  the  following  writing:  "Filed  August  14,  IHTJt.  A  Copy.  Hubert  O.  Thoniii-.n, 
clerk."  He  was  indicted  for  forgery  in  having  uttered  a  false  and  forged  impression  o( 
the  seal  of  the  Supreme  Court  with  intent  to  defraud,  and  it  appeared  on  the  tri.il  tli at 
no  such  Judgment  had  ever  been  grant.d,  and  that  the  alleged  copy  -.vas  a  forgery,  //i  /■'. 
that  assuming  the  act  of  the  prisoner  In  uttering  the  false  Impression  of  the  seal  t.ul- 
within  the  condemnation  of  2  Revised  Statutes,!  and  constitutes  forgery,  if  the  sanu-  i~ 
published  in  connection  with,  and  as  any  part  of  a  ccrtiflcato  which  the  county  clerk ,  as 
keeper oJ  the  seal,  is  authorized  to  make,  in  his  oQicial  capacity,  yet,  as  the  pretencK.! 
cortiflcate  was  not  in  the  form  proBcribed  l.y  the  Code  of  Civil  Procedure,"  it  was  voi.i 
on  its  face,  and  the  alleged  decree  was  inadmissible  in  evidence,  and  the  acts  specified 
did  not  furnish  the  basis  for  an  indictment  for  forgery. 

Writ  of  eiTor  to  the  Court  of  Sessions  of  Oneida  County,  to  review 
the  triiil  and  conviction  of  the  plaintiff  in  error  Frederick  C.  Fadiier 
of  forgery. 

The  phiintift  in  error  was  tried  and  convicted  in  the  Oneida  County 
Court  of  Sessions,  lion.  N.  B.  Sutton,  County  Judge,  presiding,  wltii 
associates,  and  sentenced  to  State  prison  for  the  period  of  seven  yaars 
and  six  niontlis. 

Tlie  indictment  was  found  in  January,  t881,  and  contained  four 
counts.  In  the  first  Fadner  is  charged  with  forging  the  impression  of 
the  seal  of  New  York  County,  wliicli  is  tlie  seal  of  the  Sui)reine  Court 
in  and  for  the  county  of  New  York.  In  tlie  second  count  he  is  charged 
with  having  uttered  a  false  and  forged  impression  of  the  same  seal, 
with  an  intent  to  defraud,  knowing  the  same  to  be  forged.  In  the  third 
count  he  is  chai-ged  with  having  forged  the  seal  of  the  county  of  New 
York,  that  is,  the  metallic  instrument  with  which  the  impression  is  made. 
In  the  fourth  count  it  is  averred  that  he  uttered  the  forged  seal,  that  is, 
put  in  circulation  the  metallic  instrument,  purported  to  be  the  genuine 
seal  of  said  county. 

The  trial  court  ruled,  that  upon  the  evidence,  there  could  be  no  con- 
viction upon  the  first,  third  and  fourth  counts  of  the  indictment,  and 
80  instructed  the  jury. 


1  p.  674,  sec.  39. 


t  sees.  63:!,  !!.'>:,  058. 


FADNKK    '•.   rKOI'I.K. 


.>;> 


IPRKSSIOX 
FLY  VALID. 


OF 


nt,  Mail,  1>'S4. 

c,  would  hiive  boin 

an  alleged  copy  nt  a 
y  acquitted,  oiillie 
iw  York  County,  and 
ibert  O.  Tlioniii>oii, 
Forged  impression  o( 
ired  on  tlie  trial  lliat 
vas  a  forgery.  //( /•/, 
;t:ion  of  the  peal  i.iil- 
rgery,  if  llio  same  i- 
1  the  county  clerli.  a- 
et,  as  the  preteiukil 
r.oduro,*  it  was  vni.l 
Qdthe  acts  speciflud 


3unty,  to  review 
erick  C.  Fadiier 

5  Oneida  County 

,  prcsiilhig,  with 
1  of  seven  yaars 

contained  four 
le  impression  of 
1  Sai)reine  Court 
int  be  is  charged 
f  the  same  seal, 
ed.  In  the  third 
B  county  of  New 
pression  is  ma<1e. 
•ged  seal,  that  is, 
,0  be  the  genuine 

could  be  no  con- 
!  indictment,  and 


(1»  the  second  count  the  jury  rendered  a  verdi'.t  uf  guilty  as  charf;cd 

tbcieiii. 

In  tlio  second  count  of  tlie  imlictment.  it  is  cliarired,  that  tlie  defend- 
:,iit  feloniously  !ind  ftilsely  did  utter  and  pui)li.',li  iis  true,  with  intent  to 
injure  and  defraud  (eertain  specilied  persons),  a  eerlain  false,  forged, 
falsified  and  conuteifeit  impression  of  a  eeilain  seal,  purporting  to  be 
tlio   inipi-ession  of  the  etninty  seal,  an<l  of  the  eleik  of  the  county  of 
New  York,  and  of  the  courts  of  record  in  and  for  said  county  an<l  of 
the  Supreme  Court  in  and  for  snid  county,  which  said  last  mentioned 
false,  forged,  falsified  and  counterfeited  impression  of  said  seal,  pur- 
po.ting  to  be  the  impression  of  the  seal  of  said  county,  tuul  of  the  clerk 
of  said  county  and  of  said  court,   is  as  follows:  that   is   to  say  (full 
description  of  seal);  the  same  being  fitted  an.l  impressed  on  and  to  a 
certain  instrument  in  writing,  purporting  to  be  a  certificate,  order,  judg- 
ment, decree,  allowance  and  proceeding  of  the  Supreme  C  iirt  of  the 
State  of  New  York,  ami  for  the  county  of  Niw  York,  the  same  being  a 
competent  court,   and  puri)orting  to  be  for  that  c.u.t  and  entered  in 
said  couit  in  the  words  and  figures  following:  that  is  to  say  (here  fol- 
lows judgment  and  decree). 

The  decree  purported  to  have  been  enteied  August  11,  1S70,  in  an 
action  brought  by  the  prisoner  Faduer  against  Alta  Fadner,  his  wife, 
at  a  special  terra  of  the  Supreme  Court,  in  and  for  New  York  County,  at 
which  Hon.  CiiAUi.KS  H.  Vas  Bijint,  presided,  and  it  also  purports 
to  grant  to  the  plaintiff  therein  (the  prisoner),  a  divorce  from  the 
defendant  thci-ein,  his  said  wife,  on  the  ground  of  her  adultervj^  At  the 
end  of  the  paper  in  the  usual  place  was  a  siixnatnre  which  purported  to 
be  that  of  said  justice  in  his  ollieial  capacity,  an.l  on  the  back  thereof, 
were  the  impression  of  the  seal  and  the  certiliuate  of  the  clerk.  The 
indictment  did  not  charge,  that  the  paper  puri)orting  to  be  a  decree 
was  false  or  counterfeited. 

The  defendant  took  divers  exceptions,  which  bring  up  the  .piestion 
whether   or  not  the   offense  of  forgery   was   proved.     On   the   same 
grounds  defendant  moved  in  arrest  of  judgment. 
Further  facts  appeared  in  the  opinion. 
J.  I.  Sayles,  for  the  prisoner,  plaintiff  in  error. 
Wiliiam  A.  Matteson,  District- Attorney,  for  the  People,  defendant  in 

error. 

Bakker,  J.  The  first  point  made  by  the  plaintiff  in  error  is,  that 
the  facts  set  forth  in  the  second  count  of  the  indictment,  and  upon 
which  he  was  convicted,  do  not  constitute  the  crime'  of  forgery,  nor 
was  that  offense  proved  by  the  evidence  produced  on  the  trial. 

As  the  count  in  the  indictment  upon  which  the  defendant  was  found 
guilty,  only  charges  the  publishing  aud  uttering  of  a  forged  and  couu- 


3(5 


FOKCIKUY. 


tcrfeitcd  impression  of  tlic  sonl  of  tlic  county  f'lerlt  of  the  city  ami 
coui\ty  of  New  Yolk,  timt  sict  iniHt  he  ili-ciurctl  a  criiiit!  by  some  pro- 
vision of  tho  statute  relative  to  forgery,  or  tlie  same  is  not  an  indictable 
offinse  in  this  Stutc. 

By  the  cointnin  law  it  was  not  forgery,  to  make  and  publish,  as  true, 
a  false  and  forged  impression  of  a  seal,  but  it  was  high  treason  in  a 
subject  of  the  realm  of  England  to  counterfeit  the  king's  great  or  privy 
seal.' 

Under  our  statute  it  constitutes  forgery  to  make  and  forgo  an  Im- 
pression purporting  to  lie  the  impress  of  a  genuine  seal  of  a  public 
offlcer  authorized  by  law  to  have  and  keep  a  seal.  Tho  entire  provision 
is  as  follows:  Section  21.  "  Kvcry  person  who  shall  forgo  or  counter- 
feit tho  great  or  i)rivy  seal  of  this  State  ;  the  seal  of  any  public  olHcor 
authorized  by  law ;  the  seal  of  any  court  of  record,  including  Surro- 
g.ate's  Court,  or  the  seal  of  any  body  corporate,  duly  incorporated  by 
or  under  the  laws  of  this  State,  or  who  sliall  falsely  make,  forge,  or 
counterfeit  any  impression  purporting  to  be  tho  impression  of  any  such 
seal,  with  an  intent  to  defraud,  shall,  upon  conviction,  be  adjudged 
guilty  of  forgery  in  the  second  degree."  ~ 

I'rior  to  this  enactment  there  was  no  provision  by  statute  creating 
and  defining  the  offense  whicli  is  inentioned  therein. 3  It  will  be 
observed  that  there  is  no  provision  in  this  section  of  the  s  atute  against 
uttering  and  publishing  a  false  impression  of  a  seal.  The  act  <lcclared 
to  be  a  forgery  is  the  making  of  a  forged  and  counterfeit  seal,  or  the 
false  making  of  an  imiiression  purporting  to  be  the  impression  of  a 
genuine  seal. 

If  no  other  provision  can  be  found  in  the  statute  than  that  contained 
in  the  twenty-fourth  section,  then,  under  tiio  laws  of  this  State,  it  is  not 
forgery  or  a  crime  of  any  character,  to  utter  and  publish  as  true  a  false 
impression  of  tiie  seal  of  a  court  of  record,  and  it  was  so  conceded  by 
the  learned  district  attorney.  It  is  argued  in  behalf  of  the  People,  in 
support  of  the  conviction,  that  the  false  and  forged  impression  of  a 
court  of  record  is  a  "counterfeit  instrument,"  within  the  meaning  of 
the  provisions  contained  in  section  ;V,»,  which  declares  that  "  every 
person  who  shall  bo  convicted  of  having  uttered  and  published  as  true, 
and  with  intent  to  defraud,  any  forged,  altered  or  counterfeited  instru- 
ment, or  any  counterfeit  gold  or  silver  coin,  the  forging,  altering  or 
counterfeiting  of  which  is  hereinbefore  declared  to  be  an  offense,  know- 
ing such  instrument  or  coin  to  be  forged,  altered  or  counterfeited,  shall 
suffer  the  same  punishment  herein  assigned  for  the  forging,  altering  or 
counterfeiting  the  instrument  or  coin  so  utteicd,  except  as  in  the  next 


1  4  Bla.  Com.  *},  247;  1  Colby's    Cr.  L. 


667. 


a  2  Rev.  .SLits.  m.  p.  671. 

3  Sec  tho  reviser's  note  to  this  section. 


FADNKi;    r.   I'KOI'LK. 


'M 


the  city  ami 
by  some  pro- 
t  UQ  indictable 

blisii,  as  true, 
li  treason  in  a 
[jrcat  or  privy 

I  forgo  an  Im- 
xl  of  a  pnblic 
iiti  re  provision 
^e  or  countcr- 
'  pnblic  olHcnr 
iluding  Surro- 
iforporated  by 
alic,  forge,  or 
in  of  any  such 
be  adjudged 

atute  creating 
3  It  will  be 
r  atute  against 
le  act  <lcclarod 
eit  seal,  or  the 
uprcssion  of  a 

Lhat  contained 
State,  it  is  not 
as  true  a  false 
0  conceded  by 
the  People,  in 
npression  of  a 
.he  meaning  of 
that  "  every 
ilished  as  true, 
;rfeitcd  instru- 
ng,  altering  or 
offense,  know- 
iterfeited,  shall 
ing,  altering  or 
;  as  in  the  next 

71. 

Lo  to  this  section. 


section  specined."  Sucli  was  the  coiwlruction  put  upon  this  section  of 
tlu.  statute  by  the  court  below,  and  the  jury  were  instructed  th:it  a 
false  uupression  of  a  genuine  seal  punxu'ting  to  bo  the  impressinii  of 
such    seal,    was    a   written   instrument,    within   the    purview    of    the 

^tatiitL. 

In  disposing  of  the  case  as  now  presented,  we  shall  not  enter  upon  a 
discussion  of^tiiis  (pu'stion,  but  leave  tlie  same  vnisolve.l,  an<l  assume, 
fur  the  puri)OSi's  of  this  case,  that  the  act  of  the  defendant  in  uttering 
the  false  impri-ssion  of  the  seal  falls  within  tlie  condemnation  of  section 
;;-(,  and  constitutes  the  crime  of  foigery,  if  tiic  same  is  published  iu 
connection  with  and  as  a  part  of  any  certilicate,  wiiich  a  county  clerk, 
as  keeiier  of  Uu>  seal,  is  authorized  to  make  in  liis  olllcial  capacity. 

To  constifvite  the  complete  crime  of  forgery  in  falsely  making  and 
foiling  an  imijression  purporting  to  be  the  inipressiou  of  the  olllcial 
seal  oMhe  clerk  of  the  court,  as  mentioned  in  the  twenty-fourth  section, 
the  same  must  be  impressed  upon  a  i)aper  of  some  kind  purporting  to 
be  a  legal  and  valid  document,  and  also  purporting  to  be  duly  ailtlieu- 
ticated."  The  mere  forging  the  impression  of  an  official  seal,  discon- 
nected from  a  certilicate  nuule  by  tl;    clerk,  could  not  deceive  any  person. 
So,  to  constitute  forgery,  in   uttering  and  publishing  as  true,  a  false 
ami  counterfeit  impression  of   the  seal,  it  is  al<o  necessary  that  the 
impression  so  published  sliould  be  in  like  form  and  manner  attached  to 
and  be  a  part  of  ceitilication,  purporting  to  be  made  by  the  clerk  of 
llie  court.     No  one  but  the  clerk,  or  some  one  of  his  deputies,  is  author- 
ized by  law  to  use  Hie  seal  of   the  court.     Vnless  the  impression  of 
tlie  seal  is  made  to  accompany  the  clerk's  certilicate,  attached  to  some 
record  or  document  in  his  oliicial  custody,  or  placed  in  his  hands  for 
his  certification  in  his  official  capacity,  it  is  a  misuse  of  the  same  which 
the  law  presumes  every  citizen  knows.     Tlie  statute  on  tlic  suliject 
authorizes  seals  to  be  nuide,  kept  and  used  by  the  county  clerk,  for 
lliese  purposes  and  none  other,  and  he  is  made  the  sole  and  only  law- 
ful custodian  of  the  same.     On  the  back  of  the  paper  writing,  purpoit- 
ing  to  be  a  decree  in  a  divorce  suit,  the  impression  was  made.     The 
inscription  on  the  face  of  the  true  seal  was  "  New  York  Seal."     On 
the  face  of  the  counterfeit  impression,  the  same  words  appear  in  lilve 
juxtaposition.     On  the  right  haml  of  the  imiiression  are  the  following 
words:     "Final,    August    Hth,    1870."     "A   copy."     "Hubert    O. 
Thompson,  clerk."     No  other  words  or  figures  are  written  near  the 
impression,  or  over  it,  of    what  purports  to  be  the  signature  of  the 
clerk.     The  paper  or  document,  ui)on  which  the  seal  is  impressed  and 
the  certificate  written,  purports  to  be  a  decree  in  a  suit  ii^  which,  the 
defendant  is  plaintiff,  and  Alta  Faduer  defendant,  grantetl  at  a  Special 
Term  of  this  court  held  in  and  for  the  city  and  county  of  New  York, 


38 


roiM'.r.itv 


anil  the  hiuih'  w:i-^  offered  in  evidence  in  the  Oneidii  County  Court  of 
Sessions,  iuid  tiie  same  \v;is  ieceive(l  by  llie  court  lis  proper  and  compe- 
tent evidence,  on  tiie  trial  of  tlie  dpf.'iidiint,  on  an  indictment  cliarginj; 
him  with  the  crime  of  hi^uniy.  If  tliese  documents  had  been  genuine 
and  in  due  form,  tliey  wotdd  liavi?  constituted  competent  and  material 
evideMce  in  bin  lielialf.  He  was  aeipiitted  on  tiie  trial  by  tin;  verdict  of 
the  jury.  The  IV'oph'  on  tiie  trial  of  liie  case  now  here,  gave  evidence 
tendinji  to  prove  tiiat  tlie  paper  purporting  to  be  a  decree  was  wholly 
false  and  faliricated.  and  tliat  tiiere  was  no  record  of  the  same  in  the 
otHce  of  the  clerk  of  this  court  in  and  for  the  city  and  county  of  New 
York. 

The  evideni-e  also  tended  to  show  that  the  impression  of  the  seal 
alleged  to  l»e  forge<l  and  counterfeited,  was  in  form  and  similitude  like 
the  genuine  seal  ke|it  and  used  l>y  the  county  clerk,  but  that  in  fact  it 
was  false,  forged  and  counterfeited. 

We  now  come  to  what  I  regard  as  the  important  question  we  have 
before  us,  ami  it  is  whether  the  making  the  false  impression  of  the  seal 
and  forging  of  the  clerk's  certiticate,  constituted  the  crime  of  forgery 
under  the  law  of  this  State. 

The  rule,  as  now  established,  is  this,  if  the  instrument  be  invalid  on 
its  face,  it  can  not  be  the  subject  of  a  forgery.  Forging  any  instru- 
ment or  writii'g  which,  as  aj)|)i'ars  on  its  face,  would  have  been  void,  if 
genuine ,  is  not  an  indictable  offense.' 

The  English  cases  are  to  tlu-  same  effect,  and  the  rule  applies  as  well 
to  the  statutory  offense  of  forger}'  as  to  connnon-law  cases.  If  the 
impression  of  the  seal  had  been  taken  from  the  true  one  and  the  clerk's 
certiticate  had  been  ungenuine,  the  certificate  would  have  been  incom- 
plete and  iin|)erfect,  and  did  not  antliori/e  the  court  to  receive  in 
evidence  tiie  documents  to  wliicli  tliey  were  attached.  That  paper  pur- 
ported to  be  a  judgment  of  this  court,  and  was  offered  and  received  in 
evidence  in  another  triliunal,  and  could  not  have  been  legally  used  as 
evidence,  without  u  certilication  in  form  and  to  the  effect  as  provided 
by  law.  IJy  section  !•.">■$  of  the  Code,  jirovision  is  made  that  copies  of 
papers  duly  filed,  kept  and  recorded  in  the  ofllce  of  one  of  the  clerks 
of  this  county,  may  be  read  in  evidence  in  place  of  the  originals  w'nen 
properly  certified  by  the  cli'rk.  The  form  and  contents  of  such  certifi- 
cate, and  the  mode  and  manner  of  attestation,  are  contained  in  sections 
957  and  9r)8.  The  olTlcer  making  the  certificate  must  state  therein  that 
the  paper  or  document  has  been  compared  by  him  with  the  original, 
and  that  it  is  a  correct  transcri[)t  therefrom  and  of  the  whole  of  the 


1  People  V.  Slinll,  9  Cow.  TTf*;  People  v. 
Fitcli.  1  Wend.  I'.W;  People  r.  Steams', 'Jl  lit. 
409;   People  r.  Harrison,  8  IJurb.  .'iCO;  Cun- 


iiinghain  r.  People,  4  Kun,  4!)5;  2  Bisfi.  Cr. 
L.,  sec.  5iS;  Warburtou's  Am.  Cr.  L.,  par. 


mm 


FADNKK    r.   I'KOI'I.E. 


35) 


iinty  Court  of 
T  and  compo- 
nent fliargini,' 

been  gonuini' 
t  and  material 

tlu!  vi'rdict  of 
gave  evidcnot' 
■ee  was  wlioHy 
ho  Hamo  in  the 
ounty  of  New 

on  of  the  seal 
similitiido  like 
that  in  fact  it 

:!Stiou  we  have 
ion  of  tlie  seal 
me  of  forgery 

;  be  invalid  on 
iig  any  instru- 
e  been  void,  if 

applies  as  well 
cases.  If  the 
iiid  the  clerk's 
'e  been  incom- 

to  receive  in 
hat  paper  pur- 
nd  received  in 
legfilly  used  as 
'ct  as  provided 

that  copies  of 
e  of  the  clerks 
originals  when 
)f  such  cortili- 
ned  in  sections 
lie  therein  that 

h  the  original, 
e  whole  of  the 


in,  455;  2  BIsn.  Cr. 
s  Am.  Cr.  L.,  par. 


.,,i.inal.  and  the  oertincuto  ,nu  t  then  bo  attostod  by  th..  ofll.ial  seal  of 

"'Vlt'cortilioato,  if  genuine,  is  .loarly  dofeotivo  in  form  and  sul.- 
.,,,K0  Tho  dofoot  is  fatal  to  tho  validity  of  tho  same,  and  it  is  appai- 
,,;,  .,„"tho  face  of  it.  It  ought  notto  have  deceived  anyone.  Because 
.^  ,,i,,  .,.,,..i,„,  „,.  ,nurt  below,  undoubto.Uy  through  inadvortonoo  can 
,  hnv  n„.:Uo  it  a  forgery.  U  was  do..idod  in  / Vo,/.  v.  Jlnrn^on^ 
;,„  i,..,iot.nont  wotdd  not  iio  for  forging  a  oerti.ioate  of  an  aeknowl 
;.!;•,,,,;;;.,  of  a  deed,  when  the  cortiflcate  di.l  not  state  that  the  grantor 
„  kuowledgod  tho  oxeoution  of  tho  conveyance,  the  statute  roqu.nng 
iIm' ccrtilieate  to  state  tlial  fact. 

1„  r,n,>h-  V.  C,un,in>ihomr  it  >vas  said  criminal  forgery  can  not  be 
,.,:,do  out  by  i.nputing  a  p..ssible  or  oven  aotual  ignorance  of  the  law 
.„  „...  porson  intended  to  bodofraudod.  If.  therefor.,  ^tatute  author- 
i/os  an  instrument  not  known  to  the  oonunon  law,  and  .  r-scr.  n  s  ts 
fonn  as  to  render  any  other  form  null,  forgery  can  not  bo  -'■'•-"-^^y 
„,,,dn.r  a  false  statutory  .n.o,  in  a  form  not  provuV  d  by  statute,  even 
„,„,gh  it  is  so  like  the  form  prescribed  as  to  be  i.ible  to  deceive  most 

'"  hi' /Vo./.  V.  Sh<dl,*  the  indictment  charged  the  defendant  with  making 
.,.1  forging  an  instrument  in  the  following  form :  -rhroe  months  a  e 
.la.e.  1  pr^uiise  to  pay  Sebastian  I.  Shall,  or  bearer,  the  -nn  of  three 
.;„„ars  i'.  shoemaking,  at  cash  price,  the  work  to  be  done  at  h.s  dwe  11- 
,n.'-house."  It  was  hold  that  the  forging  and  passing  an  instrument  in 
that  form  did  not  eo.istitute  the  crime-  of  forg.-ry,  the  i-^^^'-''^^"  '^ 
faoe  being  invalid  and  not  enforceable  against  it.  maker  as  it  did  not 
..press  any  consideration.  The  court  remarked  that  the  instrument,  to 
1.0  the  subject  of  forgery,  must  purport  on  the  face  of  >t  to  be  good  and 
vali.l  for  the  purpose  for  which  it  was  created. 

For  the  reason  that  criminal  forgery  was  not  averred  in  the  s     ond 
..ount  in  the  imlictment,  nor  proved  on  the  trial,  tl- -"v.ctujn  s  o  1 
,„  reversed  an<l  a  new  trial  awarded.     We  have  n<,t  inspect...    the^ 
aonce  for  the  purpose  of  determining  whether  it  was  sulhcun    to  war 
he  convi  tioi  under  the  count  charging  the  defendant  with  mak.ng 
luid  forging  the  seal,  as  that  question  was  withdrawn  from  the  consider- 

''";^:^':ti;:;\ery  senous  doubts  as  to  the  correctness  of  some,  c^  the 
rulin-s  receiving  evidence  over  the  defendant's  objection   an.lif  tier 
::;;;^  l  .  J^^l  ..pon  some  of  the  other  counts  of  ^1-  .n-  k  -nU^ 
is  not  likely  that  the  same  class  of  evidence  will  be  offered  m  the  same 


1  sxtpra. 
s  siipra. 


3  2  Blbh..  BCC.   65,s;  rouplo   v.  Harrison. 
nipra. 
*  $upra. 


40 


FOKUEKY. 


form  and  for  the  same  purposo  as  it  was  upon  this,  and  we  therefore 
pass  over  tliosc  ('X('('))tioiis. 

At  tlic  time  of  tlie  trial  of  and  sentence,  tlie  Code  of  Criminal  Pr.)- 
ccdure  wa-  in  full  force  and  effect,  and  the  i)roi)er  niiinncr  of  bringincj 
the  case  into  tins  court  for  review,  was  Ity  appeal  and  not  l)y  writ  of 
error;  but,  as  tlie  District- Attorney  has  waived  the  jioint,  that  tiie  case 
is  not  properly  here,  we  jjive  the  defendant  tlu;  benefit  of  the  errors 
whicli  iiave  been  pointed  out,  and  reverse  tlie  jud<rment.  and  <rrant  a 
new  trial  on  the  indictment  in  I  lie  Oneida  County  Court  of  Sessions. 

Smith,  r.  J.,  and  Hakdin,  J.,  concurred. 


FORGERY— MUST  PURPORT  TO  BE   ACT  OF  AMOTUER  — FICTITIOUS 

NAME. 

Commonwealth  v.  Baldwin. 

[11  Gray,  197.] 

In  the  Supremo.  JwUcinl  Court  of  }f<is!iachusetts,  1S5S_ 

Si»nlnK  a  PromlsBory  Note  in  tlic  naiiKM.f  a  (Irtitious  rirm,  wiUi  intent  to  dcfnuul,  nnd 
fnlHi'ly  roprfscnting  tliat  tlio  linn  consists  oi  the  writer  and  another  person,  il  not 
forgery. 

Thoma.s,  J.  This  is  an  indictment  for  the  forging  of  a  promissory  note. 
The  indictment  allej^es  that  tiie  defendant  at  Wotcester  in  this  county, 
"feloniously  did  falsely  make,  forge  and  counterfeit  a  promissory  note, 
which  false,  forged  and  counterfeit  promissory  note  is  of  the  following 
tenor,  tliat  is  to  say :  — 

"$457.88. 

"  WoucKSTKU,  August  21,  1856. 
"Four  months  after  date  we  promise  to  pay  to  the  order  of  Rug- 
sell  rheliis,  four  hundred  fif+y-seven  dollars  *"</ioo,  payable  at  P:xchange 
Bank,  lioston.  value  received. 

"Sciioii.KH.  Baldwin  &  Co. 

"  With  intent  thereby  then  and  there  to  injure  and  defraud  said  Rus- 
sell riiclps." 

The  circumstances  under  whicli  the  note  was  given  are  thus  stated  in 
the  bill  of  exceptions:  Russell  IMielps  testified  that  the  note  was  exe- 
cuted and  delivered  by  the  defendant  t )  him  at  the  Bay  State  House  in 
Worcester,  on  the  21st  of  August,  1850,  fur  a  note  of   etjual  amount, 


COMMONWEALTH    i\  BALDWIN. 


11 


and  we  tlieref(»ro 

of  ('lirniiial  Pio- 
inncr  of  bringing' 
(1  not  1)y  writ  of 
iiit,  that  tlie  case 
'fit  of  the  errors 
lent,  and  jrrant  a 
't  of  Sessions. 


iR  — FICTITIOUS 


iiteiit  to  defraud,  nnd 
lothcr  person,  is  not 


promissory  note, 
r  in  tiiis  county, 
promissory  note, 
of  tlie  following 


?iist  21,  1856. 
e  order  of  Rus- 
ble  at  f^xcliange 

M.uwiN  &  Co. 
'fraud  said  Rus- 

e  thus  stated  in 

e  note  was  exe- 

•  State  House  in 

e(iual  amount, 


wiiich  he  held,  signed  by  the  defendant  in  liis  individual  name,  :uid 
whicii  was  ovenhie ;  and  tiiat  in  reply  to  the  incjiiiry  who  were  the  mem- 
lu'is  of  ti\e  firm  of  Schouler,  IJaldnin  &-  Co.,  the  defendant  said: 
"Henry  W.  Haldwin  and  William  Sehouler,  of  Columbus."  He 
further  said  that  no  person  was  represented  by  the  words  "  «!t  Co." 
It  appeared  in  evidence  that  the  note  signed  Sehouler,  Baldwin  &  Co., 
was  never  negotiated  by  Russell  I'helps.  The  gtivernment  offered  evi- 
dence which  tended  to  ])rove  either  that  there  never  had  been  any  part- 
ncixhip  between  Sehouler  and  Baldwin,  tlie  defendant ;  or,  if  there  ever 
had  been  a  partnership,  that  it  was  dissolved  in  the  month  of  July,  l.H,")(J. 
The  cpiestion  r.aised  .at  the  trial  and  discussed  here  is  whether  the  ex- 
ecMlinn  and  delivery  of  the  note,  under  the  facts  stated,  and  with  intent 
to  (U'fraud,  was  a  forgery. 

It  would  be  difficult  perhaps  by  a  single  definition  of  the  crime  of 
forgery  to  include  all  possible  cases.  Forgery,  speaking  in  general 
terms,  is  the  false  making  or  material  alteration  of  or  ad(Hiion  to  a  writ- 
ten instrument  for  the  purpose  of  deceit  and  fraud.  It  may  lie  tlie 
making  of  a  false  writing  purporting  to  be  that  of  another.  It  may  be 
the  alteration  in  some  material  particular  of  a  genuine  instrument  by  a 
ciiaiige  of  its  words  or  ii-,ures.  It  may  be  the  addition  of  some  mate- 
rial provision  to  an  instrument  otherwise  genuine.  It  may  be  the  ap- 
pending of  a  genuine  signature  of  another  to  an  instrument  for  whicli  it 
WHS  not  intended.  The  false  writing,  alleged  to  have  been  made,  may 
purport  to  be  the  instrument  of  a  [lersou  or  firm  existing,  or  of  a  ficti- 
tious person  or  firm.  It  m.'iy  bo  even  in  the  name  of  the  i)risoner,  if  it 
[lurports  to  be,  and  is  desired  to  be  received  as  the  instrument  of  a 
tliird  person  having  the  same  name.  As  a  general  rule,  however,  to 
constitute  forgery,  the  writing  falsely  made  must  purport  to  be  the 
writing  of  another  party  than  the  person  making  it.  The  mere  false 
statement  or  implication  of  a  fact,  not  having  reference  to  the  person  by 
whom  the  instrument  is  executed,  will  not  Lonstitute  the  crime. 

An  exception  is  stated  to  this  last  rule  by  Coke,  in  the  Third  Insti- 
tute,' wheie  A.  made  a  feoffnu'ut  to  li.  of  certain  land,  and  afterwards 
made  a  feoffment  to  C.  of  the  same  land  with  an  antedate  before  the 
feoffment  to  H.  This  was  certainly  making  a  false  instrument  in  one's 
own  n.ame;  nraking  one's  own  act  to  appear  to  have  been  done  at  a  time 
wiien  it  was  not  in  fact  done.  We  fail  to  understand  on  wh.at  principle 
this  case  can  rest.  If  the  instrument  had  been  executeil  in  the  presence 
of  the  feoffee,  and   antedated  in  his  presence,  it  clearly  could  not  ha\e 

been  deemed  forgery.     Beyond  this,  as  the  feoffment  took  cffi'ct t 

by  the  charter  of  feoffment,  but  by  the  livery  of  seisin  —  the  entry  of 


p.  16U. 


42 


rOiUJKKY. 


the  feoffee  upon  the  land  witli  the  ehnrter  and  the  delivery  of  the  twii: 
or  cli)d  in  tlie  name  of  tlu'  seisin  of  nil  the  land  contained  in  the  deed  — 
it  is  not  easy  to  see  how  the  date  eould  lie  material. 

The  case  of  Mr((il  v.  Youmj,^  is  eiled  as  another  exception  to  tiie 
rule.  A  l)ill  of  cxehanj^e  payalile  to  A.  came  into  the  hands  of  a  per- 
son not  the  payee,  bnt  havin<;  the  same  name  with  A.  This  i)erson  in- 
dorsed it.  In  an  action  hy  the  inilorsce  against  the  acceptor,  the 
(piestion  arose  whether  it  was  competent  for  tiie  defendant  to  siiow  that 
the  jterson  indorsing  tiie  same  was  not  the  real  ])ayee.  It  was  held  com- 
petent, on  the  ground  that  the  indorsement  was  a  fcrgery,  and  that  no 
title  to  the  note  could  I'c  derived  through  a  forgery.  In  this  case  of 
Mcfid  V.  Yoniifj,  the  i)arty  assumed  to  use  the  name  and  i)Ower  of  the 
payee.  Tiie  indorsement  imriiorted  to  lie  and  was  intended  to  l)e  taken 
as  that  of  another  person,  tiie  real  payee. 

The  writing  alleged  to  he  forged  in  the  case  at  Inir  was  the  hand- 
writing of  tiie  defendant,  known  to  lie  such  and  intended  to  be  received 
as  such.  It  hinds  tiie  defendant.  Its  falsity  consists  in  tiie  implication 
that  he  was  a  partner  of  Sclioulerand  authori/.ed  to  bind  liim  by  his  act. 
Thi",  though  a  f>siuil,'is  not,  we  tliink,  a  forgery. 

Siijipose  tiie  defendant  ha.i  said  in  terms,  >•  I  have  authority  to  sign 
Schouler's  name,"  and  then  had  signed  it  in  the  presence  of  the  prom- 
isee. He  would  have  olitaiued  the  discharge  of  the  former  note  by  a 
false  pretense,  a  pretense  that  lie  had  autiiority  to  bind  Schoulcr.  "  It 
is  not,"  says  Sergeant  Hawkins,  "  tlie  bare  writing  of  an  instrument  in 
another's  name  witiioiit  iiis  privity,  but  the  giving  it  a  false  appear- 
ance of  having  been  executed  by  him,  wliich  makes  a  man  guilty  of 

forgery."  '^ 

If  the  defendant  had  written  upon  tlie  note,  "  William  Schouler,  by 
his  agent,  Henry  W.  Haldvun,"  the  act  plainly  would  not  have  been  for- 
gery. The  party  taking  the  note  knows  it  is  not  tiie  personal  act  of 
Schouler.  He  d«u's  not  rely  upon  his  signature.  Ho  is  not  deceived  by 
the  semblance  of  liis  signature.  He  relies  solely  upon  the  averred 
agency  and  authority  of  the  defendant  to  bind  Schouler.  So,  in  the 
case  before  us,  the  note  was  executed  in  tlic  presence  of  the  promisee. 
He  knew  it  was  not  Schouler's  signature.  He  relied  upon  the  defend- 
ant's statement  of  his  autiiority  to  bind  him  as  partner  in  the  firm  of 
Scliouler,  HaUhvin  &  Co.  Or  if  the  partneisltip  had  in  fact  before  ex- 
isted, but  was  then  dissolved,  the  effect  of  the  defendant's  act  was  a 
false  ie|iresentation  of  its  continued  existence.  In  llie  case  of  Regina 
v.  H'/n'(','' tlie  prisoner  indorsed  a  bill  of  exchange  "  per  procuration, 
Thomas  Tomlinson,  Kmauuel   White."     He  had  no  authority  to  make 


1  4  T.  II.  2!*. 

2  1  llawk.,  I'U.  Til,  sec. 


>  1  Dea.  208. 


^im 


STATF.    V.  YOINO. 


4;} 


V  of  tlic  twii: 
11  the  deed  — 

'ption  to  tiu' 
iiids  of  a  JH  r- 
lis  i)crson  iu- 
acct'ptor,  tlie 
t  to  sliow  that 
was  held  com- 
,  and  that  no 
1  this  case  of 
l)Owcr  of  the 
.'(1  to  l)e  taken 

\a.s  the  hand- 
o  be  received 
lie  implication 
lini  by  his  act. 


the  indorsement,  but  the  twelve  judges  held  unanimously  that  the  act 

''''iV,!mu'.s'-T>'-^'«  case  of  R<'(,hH,  v.  Rogers,^  has  some  resemblance  to  the 
...,se  before  us.  The  indietn.ent  was  for  utterin-  a  forged  acceptance 
,i,  bill  of  exchange.  It  was  sold  and  .lelivend  by  the  ^l^^^-ff^' 
,lu.  acceptance  of  Nicholson  &  Co.  Some  evi.lence  was  offered  that  it 
w.s  accepted  bv  one  T.  Nicholson  in  V^o  name  of  a  fh.tU.ous  hvm. 
-n,..  instructions  to  the  jury  were  perhaps  broad  enough  to  include  the 
c...se  at  bar,  but  the  jury  having  found  that  the  acceptance  M-as  not 
written  by  T.  Nicholson,  the  case,  went  no  further.  The  instructions  a 
„,-,s.-  priu^  have  no  force  as  precedent,  and  in  principle  are  plainly  beyond 

the  line  of  the  settled  cases.  ,      „„„  *ri«l 

The  result  is  that  the  exceptions  must  be  sustained,  an.l  a  new  tr ml 
ordered  in  the  Common  Pleas.  It  will  be  observe<l.  however  that  the 
grounds  on  which  the  exceptions  are  sustained  seem  necessarily  to  dis- 
pose  of  the  cause.  Exreptions  suMctined. 


hority  to  sign 
2  of  the  prom- 
mer  note  by  a 
chouler.  "  It 
instrument  in 
false  appear- 
raan  guilty  of 

I  Schouler,  by 
have  been  for- 
ersonal  act  of 
ot  deceived  by 
n  the  averred 
•r.  So,  ia  the 
the  piomisee. 
OQ  the  defend- 
'  in  the  firm  of 
fact  before  ex- 
mt's  act  was  a 
nise  of  Reyina 
er  procuration, 
hority  to  make 


FORGEliV- INSTRUMENT  MUST  PUUPOUT  TO  BE  THE  ACT  OF 

ANOTHER. 

Statk  V.  Young. 

[46  N.  11.  L'Oti.J 
In  the  Snpreme  Court  of  Xew  Hampshire,  1865, 

isHliiiHgilisis 

wiihout  their  consent. 

regardto  the  trutl.  or  faUehood  ol  the  statement  which  the  writing  contams. 

The  grand  jury  found  a  bill  of  indictment  against  the  respondent, 
containing  two  counts,  as  follows,  viz. :  —  ,.    .        .u 

-  The  grand  jurors  for  the  State  of  New  Hampshire,  upon  tlie.r  oath, 
present  that  Otis  Young,  junior,  of  Plymouth,  in  the  countv  of  (.ra  ton 
i.usbandman,  on  the  twenty-lifth  day  of  July,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  sixty-five,  at  Gilford,  in  the  county  of 


1  8  C.  *  r.  6."J. 


44 


FOHOKUY. 


Belknap  aforoHaid,  with  foiri'  and  arms,  did  falsoly  make  and  counter- 
feit a  certain  writing  piirportiuf;  to  contain  evidence  of  the  existence  of 
a  certain  debt,  contract,  and  promise,  contracted  and  made  by  one 
Cliarics  C\  Rogers,  of  Sanbornton,  in  said  county  of  Iklknap,  Esciuire, 
for  tJie  payment  of  fifteen  dollars,  wiiich  said  false  and  counterfeit 
writiii-?  is  as  follows:  '  l.^'.t,  M:irch  11,  C.  C.  Ro.uers,  Dr.,  to  one  vest 
cLain,  Sir);'  contained  in  a  certain  book  of  accounts  of  liim,  the  said 
Otis  Young,  junior,  with  intent,  him  the  said  Charles  C.  Rogers,  to 
defraud,  contrary  to  the  statute  in  such  case  made  and  provided  and 
against  the  peaco  and  (li,:rnity  of  the  State. 

"And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present, 
that  said  Otis  Young,  jiinior,  on  tlie  day  and  year  aforesaid,  at  Gilford 
aforesaid,  with  force  and  arms,  feloniously  did  falsely  and  fraudulently 
alter  a  certain  writing  purporting  to  contain  evidence  of  the  existence 
of  a  certain  debt,  contract  and  iiromise,  contracted  and  made  by 
Charles  C.  Rogers,  of  Sanbornton,  in  said  county  of  Belknap,  Esquire, 
for  the  payment  of  fifteen  dollars,  which  said  writing  so  falsely  and 
fraudulently  altered,  was  originally  contained  in  a  certain  book  of  ac- 
counts of  him,  the  said  Otis  Young,  junior,  as  follows,  that  is  to  say, 
'  15'.»,  March  lo.  C.  V.  Rogers,  Dr.,  to  one  vest  chain,  $5,'  by  inserting 
the  figures  '  1.')'  instead  of  tiie  figure  '  T),'  thereby  causing  s.dd  writing 
to  read  as  follows:  '  IT)!*,  March  14,  C.  C.  Rogers,  Dr.,  to  one  vest 
chain.  SIT).'  with  intent  him,  the  said  Charles  C.  Rogers,  to  (Ufraud, 
contrary  to  the  statute  in  siuh  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  State." 

To  this  indictment  the  respondent  demurred  generally  and  the  State 
join,  and  the  questions  of  law  were  reserved. 
Blair,  solicitor  for  State. 
J.  J.  W.  Burroict,  for  defendant. 

Sakokxt,  J.  Lonl  Coke  says:  "To  forge  is  metaphorically  taken 
from  the  smith,  wii(»  beateth  upon  his  anvil  and  forgeth  what  fashion  or 
shape  he  will ;  offense  is  called  crimen  fdlxi,  and  the  offender  falsarions 
and  the  Latin  word  to  forge  is  fal.wre  fabricare,  and  this  is  properly 
taken  where  the  act  is  done  in  V.ie  name  of  another  person."  ' 

"Forgery  at  common  law  denotes  a  false  making  (which  includes 
every  alteration  or  addition  to  a  true  instrument),  amaking  wk/o  (oomo, 
of   any  written  instrument  for  the  purpose  of  fraud   and  deceit."'' 

Forgery  is  the  niiiking  or  materially  altering,  with  intent  to  defraud, 
of  any  writing  which,  if  genuine,  might  apparently  be  of  legal  ellicacy, 
or  the  foundation  of  a  legal  liability.^ 


1  3  liisl.  ItW, 

•-  2  K:tsl  r.  r.  Wi 


.1  1  Uigli.  Cr.  L.,  sec.  4J3;  2  Uish.  Cr.  L., 
>ec.  432. 


e  8U(l  counter- 
10  existiMice  of 

luaile  by  one 
knap,  Esciuire, 
,11(1  counterfeit 
r. ,  to  one  vest 
f  liiiu,  the  suiil 

C.  Rogers,  to 
il  provided  and 

'urther  present, 
said,  at  Gilford 
id  fraudulently 
if  the  existence 

and  made  by 
knap,  Esquire, 

so  falsely  and 
in  book  of  ac- 
,  that  is  to  say, 
,j,'  by  inserting 
ing  Slid  writing 
»r. ,  to  one  vest 
ers,  to  (Ufraud, 
and  against  the 

ly  and  the  State 


phorically  taken 
what  fashion  or 
ender  falsurioiis 
this  is  properly 
)n."  • 

(which  includes 
Ling?(ii(/o  uiiimo, 
and  deceit.""^ 
tent  to  defraud, 
of  legal  eJlicacy, 


m 


STATE   V.  YOl'NO. 


45 


Our  statute  against  forgery  is  as  follows :   "  If  any  person  shall  falsely 
iniikc  or  counterfeit  or   fraudulently  alter  any  public  record,  any  writ, 
process,  or  j)roceedingof  any  court  of  this  State,  any  certilicate  or  attes- 
lationof  a  justice  of  the  i)eace,  notary  jtublic,  clerk  of  any  court,  town 
(lirk  or  other  public  ofllcer,  in  any  matter  wlicrein  such  certilicate  or  at- 
testation may  be  received  as  legal  proof,  any  charter,  will,  deed,  bond 
„r  writing  ob'ligatory,    •    •     •    bill  of  exchange,  promissory  note,  order, 
Mciuittance,  discharge  for  money  or  property     •     •     »     any  certificate 
„r  accountable  receipt  for  money  or  proi)erty ,  any  warrant,  or  re(piest  for 
the  payment  of  money,  or  the  delivery  of   any  property,  or  writing  of 
viiliie,  or  any  writing  whatever  purporting  to  contain   i'vidcnco  of  the 
existence  or  discharge  of  any  del)t,  contract  or  promise,  with  intent  that 
any  person  may  be  defrauded,  he  shall  lie  punished,"  etc. 

The  indictment  in  this  case  was  inten.hv'^  to  be  founded  upon  the 
Inst  clause  of  the  statute,  and  it  is  claimed  that  the  entry  upon  his  ac- 
count book  by  the  respondent  of  a  charge  against  the  complainant  for 
a  vest  chain,  was  a  writing  purporting  to  contain  evidence  of  the  exist- 
ence of  a  debt,  contract  or  promise,  within  the  true  meaning  and  intent 

of  the  statute. 

In  examining  our  statute  it  will  be  seen  that  almost  every  form  of 
writing  or  instrument  known  to  the  law  is  specifically  enumerated  as  the 
suhjecl,  of  forgery,  but  no  mention  is  made  of  accounts  or  books  (.f  ac- 
count. Is  it  not  probable,  then,  if  the  law  was  intended  to  apply  to  so 
common  a  thing  as  accounts,  they  would  have  been  mentioned  with  the 
other  writings  specified? 

The  terms  "  writing,"  "  instrument,"  and  "  written  instrument,"  are 
used  indiscriminately  in  defining  forgery  at  common  law.  Thus,  Black- 
.«tone  says  forgery  is  the  fraudulent  making  or  alteration  of  a  writing, 
(tc.  Baron  ?fvre  says  it  is  the  false  making  of  an  instrument,  etc. 
Close,  J.,  says  it  is  the  false  making  of  a  note  or  other  instrument,  etc. 
East  says  it  is  the  false  making  of  any  written  instrument,  etc.»  We 
see  no  reason  why  the  term  "  writing  "  in  our  statute  is  not  to  be  un- 
derstood in  the  same  technical  sense  as  when  used  by  these  early 
writers,  when  defining  forgery  at  common  law. 

It  has  been  held  in  New  York  that,  at  common  law,  an  indictment  for 
forging  an  order,  by  fraudulently  altering  its  date  by  the  signer  of  an 
order  after  it  had  been  answered  and  returned  to  him,  with  intent  to 
defraud  the  man  to  whom  it  was  given,  could  not  t»e  sustained,  on  the 
ground  that  when  the  order  had  performed  its  office,  and  was  returned  to 
the  man  who  gave  it,  it  was  his  own  paper,  and  that  to  alter  its  date,  or 
even  to  write  a  new  order  like  the  first  one  with  only  a  change  of  date, 


il3;  2  Bish.  Cr.  L., 


1  2  East  r.  C.  8o2,  H-U. 


46 


OKCiKltY. 


would  only  1»('  making  a  new  order,  which  any  man  may  do  without  its  l)eiiiL: 
forj^eiy,  even  thougii  done  with  a  framlule  it  intent,  and  liecause  thvic 
was  no  intenneddliiiLt  with  an  instrument  or  writing  which  was  the  proiu'ity 
of  anotiier.  It  is  also  suggested  that,  if  a  iiill  of  exchange  Oi*  i)ron)i>- 
sorv  note  bo  piud  and  taUen  up  liy  tiie  maker,  who  then  for  the  purpose 
of  fraud  alters  tiie  date  of  the  note,  such  alteration  would  not  constitute 
forgery  at  common  law.' 

The  statute  of  New  York,  which  was  in  force  in  IH.ii,^  provided  that 
"the  counterfeiting  with  intent  to  injure  or  defraud,  of  any  instrument 
or  writing,  lieing  or  purporting  to  he  the  act  of  another,  by  which  any 
rights  or  property  whatever,  shall  i)e  or  purport  to  l)e  affected,"  etc., 
shall  Ite  forgery  in  the  thinl  degree.-' 

So  the  statute  of  Missouri,  against  forgery,  eraplo3'3  this  phrase: 
"Any  instrument  or  writing  i>eing  or  purporting  to  be  the  act  of 
another,  by  which  any  pecuniary  demand  or  oltligation  shall  be  or  pur- 
port to  be  transferred,  created,  increased,  dischargetl,  or  diminished," 
cte.^ 

It  may  well  be  doul)ted  whether  the  statutes  enlarge  or  limit  the  com- 
mon law  in  relation  to  forgery  of  instruments  or  writings,  or  whetiier 
they  only  simply  exi)ress,  in  describing  the  offense,  what  had  been  un- 
derstood as  the  legal  construction  of  the  word  iiistruuK  it  <u- writing  at 
common  law.  For  Lord  Coke,  in  his  Institutes,  says,  a;  vvc  have  before 
seen,  that  forgery  "  is  properly  taken,  when  the  act  is  done  in  the  name 
of  another  person." 

An  exception  to  this  rule  is  stated  by  Coke,  and  also  in  Hale's  Pleas 
of  the  Crown,'"  and  in  1  Hawkins'  Pleas  of  the  Crown,"  and  in  2  Kasl's 
Pleas  of  the  Crown."  and  in  some  of  the  older  writers,  that  a  person 
may  be  guilty  of  the  false  making  of  an  instrument  although  he  sign 
and  execute  it  in  his  own  name,  in  case  it  be  false  in  any  material  part, 
and  calculated  to  induce  and  thereby  to  give  credit  to  it  as  genuine  and 
authentic,  when  it  is  false  and  deceptive.  This  happens,  they  say, 
when  one  having  conveyed  land,  afterwards,  for  the  purpose  of  fraud, 
executes  an  instrument  purporting  to  be  a  prior  conveyance  of  the  same 
land.  Here,  it  is  said,  the  instrument  is  designed  to  obtain  credit  by 
deception,  as  purporting  to  have  been  made  at  a  time  earlier  than  the 
true  time  of  its  execution. 

But  the   Massachusetts    Commissioners,   in  their  repoi  ::->\4, 

discard  tiie  doctrine,   not  di'eming  it  well  fountlcd  on  a;  .-.j,,      '     uud 
Mr.  Bishop  in  his  Criminal  Law."  says  we  may  at  least  d)' 


1  People  v.  Fitoh,  1  Wend.  198;  l-eople  r.  '  y.  083. 

Cady,  ti  Hill,  490.  •  p.  283. 

a  Rev.  StiilH.,  p.  JiliO.efil    »t>0.  .'U.  ■  p.  855. 

S  Pcopla  V.  SteHrns,  '.M  Wciiil.  109.  »  vol  2,  rec.  481. 
4  Slate  V.  Fowlcy,  18  Mo.  445. 


STATK    V.  YOINC 


47 


tlioiit  its  iK'iii:: 
lu'csuise  llnif 
istliopro|u'rty 
ge  oi*  i)ronii>- 
)r  tlic  purpose 
uolcoiistitiite 

provided  tliiit 

iiy  iiistniinent 

liy  wliich  any 

ffet'ted,"  etc., 

>  this  phrase: 
he  the  ait  of 
lail  be  or  pur- 
diminished," 

limit  the  com- 
rs,  or  whetlur 
iiad  been  uii- 
t  or  writing  at 
re  have  before 
le  in  the  name 

1  Hale's  Pleas 
Lnd  in  2  East's 

that  a  person 
jougli  he  sign 

material  part, 
IS  genuine  and 
;us,  tliey  say, 
pose  of  fraud, 
ce  of  the  same 
itain  credit  by 
arlier  than  the 


)Oi 


!ether 


the  giving  a  second  deed  in  the  case  put.  couM  he  deemed  forgery  in  a 
country  where  we  have  registry  laws;  but,  he  adds,  that  perlu.ps  if  a 
man  should  surreptitiously  get  hold  of  his  own  instrument  after  it  had 
been  deli\ere.l,   and  alter  it,  the  alteration  would    bo  forgery,  and  he 
cites  Peoplo  V.  FiU'I,,^  where  it  is  said  that  if  the  maker  of  a  bill  of  ex- 
.luin-'c,  after  acceptance,  should  alter  the  date  whereby  the  payment 
was  accelerate.1,  that  would  be  forgery.     This  would,  of  course,  be  so, 
lucjiuse  after  the  acceptance  it  becomes  the  contract  of  the  acceptor ; 
il  is  then  his  promise  or  writing,  and  ay  alteration  by  the  nuiker  would 
tl,..n  be  the  altcMing  of  the  writing  of  another.     He  also  cites  Common- 
,real/h  V.  M'lcaU,^  where  a  justice  of  the  peace  had  issued  a  writ  which 
lnd  been  served  and  returned,  and  he  then  altered  it  in  a  material  part 
und  it  was  held  forgery.     We  might  also  add  that  where  a  man  had 
made  a  promissory  note  and  delivered  to  the  payee,  and  whde  it  was 
ills  proi)erty  and  in  his  possession,  the  maker  should  surreptitiously  get 
possession  of  it,  and  so  alter  it  as  to  make  it  read  for  a  less  amount,  or 
to  be  paid  at  a  more  distant  time,  that  might  be  forgery. 

The  rule,  then,  seems  to  be  that  the  writing  or  instrument  which  may 

be  the  subject  of  forgerv,  must  generally  be,  or  purport  to  be,  the  act 

..f  another,  or  it  must  at  the  time  be  the  proi)erty  of  another,  or  it  must 

be  some  writini:  or  instrument  under  which  others  have  acquired  some 

ri.rhts  or  have  become  liable  in  a  certain  way,  and  when  thcBC  rights  or 

lirbilitios  are  sought  to  be  affected  or  changed  by  the  alteration  without 

their  consent,  as  in  the  case  of  the  alteration  of  the  note  above  men- 

tioned.     In  that  case,  if  the  magistrate  had  made  some  mistake  in  his 

writ,  he  was  at  perfect  liberty  to  correct  the  error,  and  to  make  any 

alteration  he  saw  lit,  before  it  went  from  his  hands  for  service  ;  but  after 

service  and  return,  when  the  rights  ami  liabilities  of  others  had  become 

involved,  and  others  had  become  interested  by  being  made  parties  to  the 

proceding,  such  an  alternation  might  be  forgery  if  material  and   made 

without  their  consent. 

A  man  mav  make  a  statement  in  writing  of  a  certain  transaction,  and 
may  represent  and  assert  ever  so  strongly  that  his  statement  is  true  ; 
hut  if  it  should  prove  that  by  mistake  he  is  in  error,  and  that  his  state- 
ment is  entirely  wrong,  that  could  not  be  forgery  ;  and  suppose  we  go 
further,  and  admit  that  the  statement  was  designedly  false,  when  made, 
and  so  made  for  the  purpose  of  defrauding  some  one,  it  does  not  altt-r 
the  case,  it  is  no  forgery.  The  paper  is  just  what  it  purports  to  be,  it 
is  the  statement  of  the  man  that  made  it,  it  is  a  true  writing  or  paper, 
though  the  statement  it  contains  may  be  false.  The  truth  may  be 
forged  as  well  as  falsehood.     So,  in  case  of  a  charge  on  book  account, 


1  1  Weiid.  li»8. 


t  2  Maes.  136. 


48 


rOUOERY. 


the  c'lmrgc  may  in  first  instance  be  erroneous,  and  no  one  would  claim 
that  the  person  maldng  it  iniglit  not  correct  it,  so  ns  to  ninke  it  right, 
and  tiiat  would  be  no  forgery.  Hut  if  A.  gives  B.  his  promissor}'  note, 
and  by  mistake  the  amount  of  the  note  is  made  ten  or  fifty  dollars  loo 
small,  B.  can  not  alter  tlie  note  after  he  has  received  it  from  A.,  so  as 
to  correct  this  error  without  the  consent  of  A.  That  would  be  forgery. 
A.  may  make  a  charge  on  his  book  against  B.  for  an  article  which  he 
never  had,  or  he  may  charge  for  an  article  actually  delivered  a  larger 
sum  than  was  agreed  on.  It  is  a  false  account,  and  may  have  been  so 
made  for  the  purpose  of  defrauding  B.,  but  it  is  no  forgery. 

Tiie  writing  is  just  what  it  i)urports  to  be,  a  charge  made  by  A.  on 
his  book  against  B.  ;  it  may  be  wnmg  in  amount,  or  the  whole  charge 
may  be  a  fabrication  througliout,  still  it  is  A.'s  charge  against  B.,  and 
though  wrongfully  made  is  no  forgery.  To  forge  a  writing,  necessarily 
implies  that  a  writing  be  made  which  shall  appear  and  purport  to  be 
something  which  it  is  not  in  fact,  or  that  a  writing  be  so  changed  or 
altered  that  it  shall  not  be  or  purport  to  be  what  it  was  designed  to  be. 
But  in  making  a  false  account  the  writing  is  what  it  was  designed 
to  be. 

.  To  forge  or  to  counterfeit  is  to  falsely  make,  and  an  alteration  of  a 
writing  must  be  falsely  made  to  make  it  forgery  at  common  law,  or  by 
our  statute.  The  term  falstly,  as  applied  to  making  or  altering  a  writ- 
ing in  order  to  make  it  forgery  has  reference  not  to  the  contracts  or 
tenor  of  the  writing,  because  a  writing  containing  a  true  statement  may 
be  forged  or  counterfeited  as  well  as  an}'  other,  but  it  imi)lie9  that  the 
paper  or  writing  is  false,  not  genuine,  fictitious,  not  a  true  writing  with- 
out regard  to  the  truth  or  falsehood  of  the  statement  it  contains  —  a 
writing  which  is  the  counterfeit  of  something  which  is  or  has  been  a 
genuine  writing,  or  one  which  purports  to  be  a  genuine  writing  or 
instrument  when  it  is  not.  The  writing  or  instrument  must  itself  be 
false,  not  genuine,  a  counterfeit,  and  not  the  true  instrument  it  pur- 
ports to  be. 

We  think  it  plain  that  a  man  can  not  falsely  make  or  falsely  alter  his 
own  account  against  another  while  in  his  own  book,  and  in  his  own 
possession,  and  before  any  settlement  or  adjustment  of  the  same, 
whereby  any  person  but  himself  has  acquired  any  interest  in  or  right  to 
the  same,  as  evidence  or  othei-wise,  so  as  to  make  it  forgery.  He  may 
make  false  charges  in  his  book,  or  he  may  alter  the  charges  on  his  book 
so  as  to  make  them  more  true  or  more  false,  so  far  as  the  contents  of 
the  charge  is  concerned,  but  still  it  is  his  own  account;  just  what  it 
purports  to  be ;  it  is  his  own  property  in  which  no  one  has  acquired  any 
right  or  interest ;  it  is  his  own  true  writing,  as  much  if  the  charge  is 
false  as  though  it  were  true.     The  character  of  the  writing  as  being 


STATK   V.  YOUNO. 


49 


10  would  claim 
iiinUo  it  riglit, 
omissor}'  note, 
rty  dollars  loo 
from  A.,  so  as 
iild  be  forgerj'. 
ititle  which  he 
vered  a  larger 
V  have  been  so 
'ry. 

made  by  A.  on 
D  whole  charge 
igaiiist  r..,  nnd 
ng,  necessarily 
I  purport  to  l)e 
so  changed  or 
k'signed  to  be. 
;  was  designed 

alteration  of  a 
Hon  law,  or  by 
altering  a  writ- 
he contracts  or 
statement  may 
mplies  that  the 
c  writing  with- 
it  contains  —  a 
B  or  has  been  a 
line  writing  or 
;  must  itself  be 
;rument  it  pur- 

falsely  alter  his 
and  in  his  own 
of  the  same, 
3t  in  or  right  to 
gery.  He  may 
gc9  on  his  book 
the  contents  of 
it;  just  what  it 
as  acquired  any 
if  the  charge  is 
vriting  as  being 


false  or  fictitious,   instead  of  genuine,  is  not  altered   l>y  tlie  truth  or 
falsity  of  the  stutoment  tiiat  tiie  writing  may  contain. 

Our  attention  luxs  been  called  to  two  cases  by  llie  State's  counsel  as 
fiivoring  the  doctrine  that  this  indictment  may  be  sustained.     Tlie  first  is 
liileti  V.  Comiiionireiinh,^  where  it  was  lield  tliat  the  maUing  of  a  false 
entry  in  the  journal  of  a  mercantile  firm  by  a  conlldential  clerk  and 
hooli-keeper,  witli  intent  to  tlefrand  his  employers,  is  a  forgery  at  conmion 
law.     Eilwin  U.  Biles,  tlie  defendant,  was  charged  with  having  made  a 
false  and  forged  entry  in  the  journal  of  Ilaskins,  llieskell  &  Co.  with 
intent  to  defraud  said  firm.     It  was  charged  that  said  Biles  was,  at  the 
time,  tlie  conlidential    clerk  and  book-keeper  of  said  firm,   and  was 
eiitrustetl  and  emj)loyt'd  by  them  to  keep  the  books  of  said  firm,  to 
nia'o  entries  therein,  and  to  have  tlie  sole  charge  and  keeping  of  said 
books  of  account,  and  of  the  posting,  settlement  and  balancing  thereof. 
The  clerk  had  under  head  of  "  Cash  Dr.  to  sundries,"  entered  twelve 
bills  receivalile  amounting  in  all  to  $•;,  tr).-).);:}  when  correctly  footed, 
hut  had  altered  or  forged  the  footing  and  carried  it  out  $'^,'i^)5.Ct'^,  the 
result  of  which  forgeiy  was  to  represent  the  cash  received  five  luindred 
dolhirs  less  than  the  actual  amount,  and  thereby  enable  the  clerk  to 
abstract  that  sura  from  the  funds  of  the  firm.     Upon  this  evidence  and 
proof  that  Biles  was  clerk  and  book-keeper  as  charged,  a  verdict  of 
guilty  was  sustained. 

Tlie  decision  seems  to  be  based  upon  the  ground  that  the  entry  in 
question  was,  as  between  the  clerk  luid  the  firm  for  whom  he  acted,  in 
substance  an  acipiittance,  or  in  the  nature  of  a  receipt  from  the  firm  to 
the  defendant;  that,  as  confidential  book-keeper,  ho  received  the 
amount  of  bills  receivable  ;  to  discharge  himself  fromliabiUty,he  enters 
tlie  several  items  in  the  journal,  as  the  agent  of  the  firm,  and  then,  not 
as  the  agent  of  the  firm,  but  as  an  individual,  for  his  own  wicked  game, 
so  emses,  or  alters,  or  makes  a  figure  or  figures  in  the  sura  total,  repre- 
senting the  addition  of  the  entire  entry,  as  to  deceive  and  thereby 
(lefraird  his  employers.  The  court  say:  "  We  can  see  no  distinction 
lielwcen  this  case  and  the  very  numerous  decided  cases,  wherein  to 
forge  a  receipt  has  been  held  to  l)e  a  forgery." 

Upon  the  grcuind  assumed  by  the  court  in  that  case,  it  is  in  accord- 
uuL-e  with  the  other  adjudged  cases  ;  but  whether  the  court  were  correct 
or  not  in  all  their  conclusions  in  that  case,  the  decision  is  clearly  no 
authority  for  the  validity  of  this  indictment. 

The  other  case  referred  to  is  Barnum  v.  State.^  Barnum  had  been 
indicted  and  convicted  of  a  forgery  under  the  following  eireumstances  : 
Barnum  had  an  account  against  one  Ayer,  wliich  wsis  settled  in  full  on 


132  Pa.  St.  (8Ca8ey)529. 
8  Defences. 


IJ  OliiP.TH. 


50 


yoUdKUY. 


Barn.nn-.  book,  March  1,  IHlK  u.ul  tins  sottlc.nent  was  s.gn.d  by  bo  ,. 
,ZL,  or  pur  .one.  to  b.,  in  full  oi'  ull  ..nnuncU  to  .lute  ;  and,  on  . 
30th  d  V  o  April.  1H..>,  Harnun.  frauaulenlly  all.ro.  the  U,nne  1  n  - 
afi-'ure  1.  So  that  it  then  purpo-teU  to  be  a  »ettle.acn  .n  ul  t. 
Murd.  1,  184..,tbeHuia  Ayer  th.n  boUling  a  clain,  for  bats  ami  cot 
ZZsi  Harnu.;,,  whi.h  had  aec.ru.a  between  ISU  and  IH.l  and  ..  ..h 
therefore  designed  falsely  to  be  brought  within  the  tenuH  o  he  settle- 
^  nt,  and  to  be  cut  off  or  discharged  by  it  with  intent  to  defraud  sau 
Ave  It  -as  held  that  the  charge  was  well  made  an,l  the  .nd.ctn.ent 
sumcient,  but  the  verdict  was  net  aside  because  certain  evuience  was 
excluded  on  trial,  which  was  bcUl  to  be  competent  and  .natenal. 

„  this  case,  although  the  receipt  was  signed  by  both  P-  -«  -  ^ 
defen.lant's  book,  y. .  it  was  the  receipt  of  both  part.es  u.  ^^^^^^^ 
an  interest,  and  to  the  benefit  of  which  both  ha.l  a  right,  and  for  e.the 
falsely  or  randnlently  to  alfr  it  was  just  a.  n.uch  forgery  as  though  U 
had  been  signed  by  L  other  party  alone,  v  inch  wonhl  be  the  ordinary 
.ase  of  fo,  ;;ing  a  receipt  of  another  person,  wind.,  at  ---  -  J^ 
by  the  express  provisions  of  our  statute,  would  be  forge,  >.  \\  e  laNc 
been  unable  to  find  any  case  or  any  precedent  which  .n  any  way  author- 
izes the  present  indictment,  and  from  the  exanunatton  we  have  made, 
we  are  satisfied  that  the  demurrer  must  be  sustu.nid. 

Indictment  quaahed. 


FORGEUY-rNAUTHOHIZKl)  COUNTY  BONDS. 
Pkoii.k  f.  Mann. 

[75  N.  Y.  484;  111  Am.  Hf|).  4S2.] 
In  the  Court  of  Appeals  of  N'W  York,  IS78. 

of  moncT,  vurpomng  '"'«''",,  ^^n'^Sf     '."    H"".  "ot  to  b.  forgery,  tbo  .ame 

Conviction  of  forgery.  The  defendant  was  county  treasurer  of  Sara- 
toga  County,  and  without  authority  made  the  .nstrumeu  of  w  uch  the 
JoUowing  is  L  copy,  which  the  payee  discounted,  he  recefvmg  the  pro- 
ceeds:—       ^^^^^  _      Sauatooa  CoiNTY  TREAsruEu's  Offick,  > 

Ballstov  Si'a,  June  10,  18"5.      S 

'.  In  pursuance  of  a  resolution  passed  November,  1874,  by  the  Board 
of  Supervisors  of  Saratoga  County,  the  county  of  Saratoga  promises 


I'KOri.E    V.  MANN. 


.n 


^igiR'd  by  l>oUi 
L' ;  aiul,  on  llu- 
e  U^ure  1,  inli' 
uMil  ill  full  t(. 
hiUa  luid  cloth 
■III,  uiul  wliicli 
8  of  the  settlt'- 
Lo  defraud  suid 

the  iiidietnient 
II  evideuce  wus 
natcrial. 

parfn'S  on  the 
wbiLh  both  hud 
,  and  for  either 
•ry  as  tli()iij,'U  it 
be  tiie  ordinary 
oinmon  law  and 
;ery.  We  have 
my  way  niithor- 
I  we  have  made, 

nent  quashed. 


IDS. 


7S. 

lenlR  for  the  payment 
y,  but  signed  only  by 
be  forgery,  the  »ame 
Lite. 

rcasurer  of  Sara- 
ent  of  which  the 
iceiving  the  pro- 

r's  Offick,  ) 
IG,  1875.      S 

^74,  by  the  Board 
aratoga  promises 


to  pay  at  the  Saratoga  County  Trcasnrer'H  omcc,  on  or  before  the  IMt 
ot  Ki'l.rnary,    l'^"'"',  to  tlie    First  National   Haniv  of    llallston    Spa,  or 
hearer,  8l'>,0()U.  at  seven  per  cent  interest,  value  reeeived. 
"810,000.  llKNUY  A.  Mann, 

"  Treasurer." 

Esek  Cowen,  for  plaintiff  in  error.  The  defendant  was  properly 
convicted  of  forixeiy  in  the  third  degree.' 

Kdtlianivl  C.  Mi»il,\,  f  )r  defenihint  in  t  Tor. 

Rai'.u.i.o,  J.  The  statute  under  Mliieh  i';e  defendant  in  error  was 
convicti'd  dellnes  tlio  offense  of  forj^ery  in  tie  third  tlefXive  to  be,  so 
far  as  applicable  to  this  case,  falsely  niakiiii.'  or  alterin<i,  with  intent  to 
(kfraiid,  any  in^liiiinent  or  writing  "beiv.g  or  i)urporting  to  be  the  act 
of  another,"'  whereby  any  pecuniary  demand  shall  be  or  purport  to  be 

created,  etc. 

We  can  not  adopt  the  interpretation  of  this  statute  claimed  by  the 
counsel  for  the  People.  He  contends  that  one  who  without  authority 
makes  an  instrument  purporting  in  its  body  to  be  the  contractor  obliga- 
tion of  a  county,  though  ho  signs  liis  own  name  to  it  as  the  odlcial  rep- 
resentative of  the  county,  comes  within  the  purview  of  the  act.  That 
tlic  words  "purporting  to  be  the  act  of  another"  are  synonymous 
with  "purporting  to  be  the  contract  or  obligation  of  another."  We 
tiiiiik  that  the  "  act"  referred  to  in  the  statute  is  the  making  of  the 
instrument,  an-  that  the  offense  consists  in  falsely  m.-xking  an  instru- 
ment purporting  to  be  made  by  another.  The  offense  intended  to  be 
acfnied  by  the"  statute  is  forgery,  and  not  a  false  presumption  of 
authority.  One  who  makes  an  instrument  signed  with  his  own  name, 
luit  purporting  to  bind  another,  does  not  make  an  instrument  purport- 
iiig  to  be  the  act  of  another.  The  instrument  shows  upon  its  f'.ce  that 
ills  made  by  himself  and  is  in  point  of  fact  his  own  act.  It  is  not 
false  as  to  the  person  who  made  it,  although  by  legal  intendment  it 
would  if  authorized  be  deemed  the  act  of  the  princii)al  and  be  as  bind- 
ing upon  him  as  if  he  had  actually  made  it.  The  wrong  done  where 
Muh  an  instrument  is  made  without  authority,  consists  in  the  false 
assumption  of  authority  to  bind  another,  and  not  in  making  a  counter- 
feit or  false  paper. 

Supposititious  cases  have  been  ingeniously  suggested  for  the  purpose 
of  showing  that  unless  the  construction  claimed  is  adopted,  forgeries 
of  corporate  names  and  of  the  names  of  joint  stock  companies  might 
not  be  reached  by  the  statute.     It  will  be  time  to  deal  with  those  cases 


1  Noakee  f.  People,  25  N.  V.  380,  ;iS« ;  Peo- 
ple r.  Stearns,  21  Weml.  iW,  'i:\  Id.  &M ; 
gupcn  r.  llitfon,  1..  I!.  1  C.  C.  200;  People  v. 


Graham,  6  Park.  Cr.  IX,,  Hex  v.  Piirkes,  '.' 
East  P.  C.  9fi3  ;  narllcld  v.  State,  2'J  Ga.  127; 
People  t'.  Peacock,  u  Cow.  72. 


M 


KOmiKKY. 


wl...n  tl.ov  uriH...  II  is  BudUi.-nt  for  the  pnrpo«o8  of  the  pro.ont  cxs. 
that  the  mHtrnnu.nt  which  th-  .K.f..„.lu.>t  is  d.ur.M.l  with  hav.nj;  furgnl, 
purportH  ,.n  its  fa.e  to  have  heen  UKule  hy  himself  and  not  by  any 

other  person. 

Tlic  judgment  of  the  general  term  should  be  alDrme.!. 

All  concur,  except  ll.v...,  .)..  not  voting.  ^^^^^^^^^^^^  ^^^^^^ 


FORGERY  -  falsi:  ASSUMITION  OF  AUTIIOIUTV. 

State  c.  Willson. 

[28  Minn.  62.] 

In  the  Supr«mp  Court  nf  Minnesota,  18S1. 

oxlX  rulcB  .,f  h.w  UH  to  wl.at  oonHtllule.  a  f.ilBC  or  forgoU  ...nrument. 

he  u  not  guilty  of  uttering  a  false  deed  will.lu  the  mean.ug  ol  the  statute. 

The  defendant  was  convicted  in  the  District  Court  for  the  county  of 
Hennepin,  of  the  crime  of  uttering  a  false  deed,  after  a  trial  by  jury. 
YouNO,  J.,  presiding,  and  was  sentenced  to  imprisonment  for  two  years 
and  six  months.     This  appeal  is  taken  from  the  judgment. 
Bentoii,  Burton  &  lioherts,  for  appellant. 
William  J.  llahn,  Attorney-General,  for  the  State. 
MitruFi  I    J      The  defendant  was  indicted,  under  General  Statutes, 
1878  2  for  uttering  and  publishing  as  true  a  false  deed,  kuowmg  the 
same  to  be  false,  wiM.  intent  to  injure  and  defraud.     The  indictment 
set  out  in  Juvc  verba  the  alleged  false  deed,  which  purports,  on  its  face 
to  be  a  deed  of    conveyance  of  land  by  one  James  D.  Ho.tt  to  Joseph 
F.  Miller,  and  to  be  signed  II.   II.  Willson,  per  procuration  of  said 
Hoitt,  the  form   of  the  signature  being  "  James  D.  Hoitt,  by  H.  V. 


I  ch.  9C  Boc.  2. 


2  ch,  90,  sec,  2. 


mm 


8TATK    >'.  WILLSOX. 


58 


ic  prospnt  CMC 
havinjjj  furi^t'd, 
111  not  by  any 


lent  affirmed. 


lilTV. 


ral  Statulo,  1878,t  are 
o(  tlml  cliaplor,  and 
iHtriimont,  ttio  utter 
•2,  nniHt  b6  one,  the 
lute  enUMieruteg  tin- 
(■suine  to  change  the 
ment. 

se  ABBumptlon  of 
i«  tiice  to  bo  executed 
act  no  authority  from 
10  instrument  is  not  a 
is  no  (ulxe  making  o( 
in,',  when  such  Instru- 
lumption  of  authority, 
statute. 

for  the  county  of 
(r  a  trial  by  jury, 
icnt  for  two  years 
Qcnt. 


General  Statutes, 
Iceil,  knowing  the 
.  The  indictment 
•porta,  on  its  face, 
).  Iloitt  to  Joseph 
rocuration  of  said 
►.  Hoitt,  by  H.  D. 


Willson  his  attomov  in  fact."  I'pon  thr  trial  of  tli.-  cause  it  up  :ircd 
tliut  the  defendant "Hi^rncd  the  deed  in  M'i''«li'>",  chumiiiK  tlie  authority 
so  to  do  under  a  power  of  attorney  from  Hoitt.  Th.!  falsity  of  the 
.l.ed,  elaiiiied  by  tlic  Stale,  consist.'d,  not  in  any  siiuulatioii  or  imi- 
tation of  tlie  si^jnature  of  Hoitt,  or  in  putting?  fortli  llie  instruinnit  with 
llie  false  pretense  tliat  the  si^rnuture  was  the  pernonal  act  of  Hoitt,  but 
ia  tlie  false  assertion,  contaimd  in  Iho  instrument,  that  he,  the  signer 
thereof,  was  antliorized  so  to  make  and  sign  it  in  behalf  of  Hoitt, 
when  in  fact  he  had  no  such  authority. 

Upon  this  state  of  facts  nppeariii<»  from  the  evidence,  when  the  pros- 
ecution rested,  the  defemlant  moved  for  a  dismissal  of  the  action,  upon 
the  ground  that  the  instrument  was  not  a  "  falne  "  deed.  Tlic  court 
ileiiied  the  motion,  and  the  case  having  been  submitted  to  the  jury, 
lesultcdin  a  verdict  of  guilty,  whereupon  defendant  moved  for  a  new 
trial,  which  was  denied,  and  defendant  n|>pealed.  The  same  question 
was  raised  by  the  defendant  in  other  forms,  and  numerous  exceptions 
were  taken  by  him  to  the  rulings  of  the  court  on  other  questions  i  but, 
under  the  view  we  take  of  the  law  applicable  to  the  case,  the  foregoing 
is  a  sufficient  statement  of  the  facts  for  the  purposes  of  a  decision  of 

this  appeal. 

The  real  question,  therefore,  is  whether  an  instrument,  which  appears 
on  its  face  to  have  been  executed  by  an  agent  authorized,  while  in  truth 
lie  was  not  so,  is  a  false  instrument ;  or  to  state  the  proposition  in  an- 
other form,  when  an  instrument  is  really,  in  all  its  parts,  written  or 
signed  by  the  individual  by  whom  it  purports  to  be  written  or  signed, 
and  the  falsity  consists,  not  in  the  simulation  or  counterfeiting  of  the 
act  of  another^  but  in  the  false  assertion  which  the  instrument  contains 
that  he,  the  writer  antl  signer  thereof,  is  authorized  so  to  make  and 
sign  it  in  behalf  of  another,  as  it  purports  to  be,  is  it  a  false  instrument 
within  the  meaning  of  the  statute,  and  upon  negotiation  of  such  instru- 
ment by  the  person  who  has  so  prepared  it,  is  that  person  guilty  of 
uttering  a  false  instrument? 

The  terms  "false  "  and  "  forged  "  a.>  used  in  section  2,  under  which 
the  indictment  was  framed  are  used  in  the  same  sense  in  which 
tliese  words  are  used  in  section  1.  Section  2,  was  never  designed 
to  apply  to  a  different  class  of  instruments  from  those  referred  to 
in  section  1.  Section  1  refers  to  the  making  of  the  instruments  and 
section  2,  to  uttering  or  publishing  them,  and  is  to  be  interpreted  ex- 
actly as  if  read,  "  Whoever  utters  and  i)ubiishes  as  true  any  instrument 
mentioned  in  section  1."  The  instrument,  the  uttering  of  which  is  made 
an  offense  under  section  2,  must  be  one,  the  making  of  which  would  be 
an  offence  under  section  1.  It  will  be  observed  that  neither  section 
attempts  to  define  what  is   a  false  or  forged  instrument.     It  was  the 


trM 


r)4 


FORGERY 


object  of  tlio  statute  to  cmhraoi'  in  ffoiioral  langiiapo  all  instruments 
wliieli  iiiiiilit  lit'  prope  'ly  tlic  sulijrct  of  foij^ciy,  and  not  to  establish  any 
new  kind  of  orinu',  or  to  change  the  ])reviuus  rule  of  law  as  to  what 
foiistitntcd  a  false  or  forged  inatrumeiit.  In  that  respect  our  statute 
iias  iiuL  atleinpti.'d  to  change  the  CDUinion  law.  Therefore,  in  order  to 
<leterniine  wliat  is  a  false  instiiinient,  we  nii'st  resort  to  the  common 
law  on  that  sul)ject.  Now,  according  to  the  ordinary  and  popular 
meaning  of  the  words  "  false  or  forged,"  as  applied  to  a  note  or  other 
instrument  in  writing,  wc  always  understand  one  that  is  counterfeit  or 
not  genuine, — -an  instrument  by  which  some  one  has  attempted  to  imi- 
tate another's  j)ersoiud  act.  and  i)y  means  of  such  imitation,  to  cheat 
and  defraud,  and  not  the  doing  simiething  in  tjio  name  of  another, 
which  does  not  profess  to  l)e  the  other's  personal  act,  but  that  of  the 
doer  thereof,  who  claims  Ity  the  act  itself  to  be  authorized  to  obligate 
the  individual  for  whom  he  assumes  to  act.  Tliis  definition  of  the  words, 
"false"  and  "  forgecl  "  is  ahuodantiy  sustained  liy  authority  as  the 
proi)er  legal  ileliiiition  of  tiiese  words. 

In  JSlate  v.  Yoiin'j,^  the  court  say:  "The  term  'falsely'  *  »  * 
has  reference  not  to  tlie  contents  or  tenor  of  the  writing,  or  to  the 
fact  stated  in  the  writing.  *  »  *  but  it  implies  that  the  paper 
or  writing  is  false,  not  genuine,  fictitious,  not  a  true  writing,  with- 
out reganl  to  the  truth  or  falsehood  of  the  statement  it  contains." 
In  Ilex  V.  Arscott,'-  the  defendant  had  imhu-scd  on  a  bill  of  ex- 
change, "Received  fur  K.  Aickman,  O.  Arscott."  Littledale,  J., 
sayr- :  "To  forge  a  receipt  for  money  is  writi:ig  the  name  of  the  person 
for  whom  it  is  received.  Rut  in  this  case  the  acts  done  by  the  pris- 
oner were  receiving  fur  another,  and  signing  his  own  name."  In 
Rt'gina  v.  White.'-^  a  bill  of  exchange  payabli-  to  the  order  of  Thorcas 
Tomlinson,  was  indorsed  by  the  prisoner  "  Per  procuration,  Thoinaa 
Tomlinson,  Emanuel  While."  White  had  no  authority  whatever  from 
Tomlinson.  It  was  held  by  a  unanimous  court  of  fifteen  judges,  that 
this  was  not  forgery. 

In  Il€tlbo)ni\s  Case,*  a  bill  of  exchange  had  been  made  payable  to 
the  order  of  Charles  Macintosh  &  Co.  It  was  indorsed  by  Ileilbonn, 
"  Received  forChas.  Macintosh  A;  Co.,  Alex.  Heilbonu."  Heilbonnl.ad 
no  authority  to  nuike  the  indorsement.  The  court  said:  "It  is  the 
essence  of  forgery  that  one  signs  the  name  of  another  to  pass  it  off  as 
the  signature,  or  counterfeit  cf  that  other.  This  can  not  be  when  the 
party  openly  and  in  the  face  of  the  papers  declares  that  he  s'gns 
for  another."     In   Commonivealth  \.  Buldwin,-'  the  prisoner  made  iSiid 


1  4U  N.  H.  '.'i.t;. 

2  0  C.  .*  r.  4i)S. 
S  'J  V.  *  Iv.  4W. 


<  1  Park.  (  r.  (N.  V.)  129. 
'  11  Gray,  I'.IT. 


STATE    r.  WILI.SON. 


,'),) 


all  instruments 
to  ostablish  any 

law  us  to  what 
pect  our  statute 
)re,  in  order  to 

to  the  common 
ry  and    popular 

a  note  or  other 
s  counterfeit  or 
Ltemptecl  to  imi- 
tation, to  cheat 
,me  of  another, 
but  that  of  the 
•izi'd  to  obligate 
on  of  the  words, 
.uthority  as  the 

Isely'     *     •     * 
iting,  or  to  the 
tliat  the  paper 
!  writing,   with- 
it  it  contains." 
a   bill    of    ex- 
Littledale,   J., 
\c  of  the  person 
nc  by  the  pria- 
vn   name."     In 
rder  of  Thorcas 
nation,  Thoinaa 
y  whatever  from 
en  judges,  that 

lade  payable  to 
d  by  Ileilbonn, 
Hoiibonnl.ad 
lid:  "It  is  the 
to  pass  it  off  as 
aot  be  when  the 
that  he  s'gns 
soner  made  sad 

20. 


(l.livorcd  !i  note  signed,  '•  Seliouler,  Haidwin  &  Co.,"  stating  at  the 
same  lime  tliat  lie  and  Schouier  composed  the  linn.  There  was  no  such 
partnership.  It  was  held  not  to  be  forgery.  'Ihc  court  say:  "Asa 
j:encral  rule,  liowever,  to  constitute  forgery,  the  writing  falsely  made 
musti)uri.ort  to  be  the  writing  of  another  party  tlian  the  person  making 
it.  Tlic  mere  false  statement  or  implication  of  a  fact  not  having  refer- 
ence to  the  person  by  whom  the  instrument  is  executed,  will  not  con- 
si  it  ute  the  crime."  This  case  is  referred  to  approvingly  in  Commoiiwedlth 
V.  i-Wft,,-  and  the  court  there  say:  "The  distinction  is  plainly 
drawn  *  *  •  between  one  who  assumes  to  bind  another  either 
iniiitly  with  himself  or  by  procuration,  however  groundless  and  false 
may  be  his  pretense  of  authority  so  to  do,  and  who  signs  in  such  a 
manner  that  the  instrument  may  purport  to  bear  the  actual  signature  of 
another  party  having  the  same  name  " 

To  tlie  same  effect  is  the  case  of  Mann  v.  Pi'ople."^  In  this  case  the 
drfendant  made  and  issued  an  instrument  for  tlie  payment  of  money, 
purporting  to  obligate  ihe  county  of  Saratoga,  and  to  be  issued  pur- 
suant to  u  resolution  of  the  board  of  sui)ervisors  of  the  county,  and 
sii,MR'd  Henry  A.  Mann,  Treasurer.  Defendant  liad  no  authority  what- 
ever to  sign  or  issue  such  an  instrument.  The  court  derided  that  this 
did  not  constitute  forgery,  and  held,  in  substance,  that  when  one  ex- 
eeutes  and  Issues  an  i;istrument,  purporting,  on  its  face  to  be  executed 
by  him  as  agent  of  a  princii)al  therein  named,  he  is  not  guilty  of 
forgery,  although  he  has  in  fact  no  authority  from  sueh  principal  to 
execute  or  issue  the  same.  In  fact,  we  have  found  no  authority  to  the 
contrary,  and  the  text-writers  uniformly  lay  down  or  approve  of  the 

same  rule. 

Now,  in  the  case  under  consideration,  the  <leed  docs  not  purport  to  be 
the  personal  act  of  Iloitt.     The  instrument,  on  its  face,  purports  to  be 
tlie  defendant's  own  act,  but  one  which  he  was  authorized  to  do  for  and 
in  the  name  of  Iloitt.     The  reader  of  the  deed  could  not  misunderstand 
it.     By  its  terms,  the  defendant  declares  that  he  made  the  writing,  but 
that  he  so  iTiade  it  for  Iloitt  and  by  authority  from  Iloitt.     The  falsity, 
if  any,  consists  in  the  claim        authority  from  Iloitt.     The  law,  as  we 
buve'seen,  is  well  settled  that  if  a  person  sign  an  instrument  with  his 
own  name  per  procuration  of  the  party  whom  he  intends  or  pretends  to 
represent,  it  is  no  forgery,  it  is  no  false  making  of  the  instrument,  but 
merely  a  false  assumption  of  authority.     This  deed,  therefore,  is  not  a 
false  deed,  and  consequently,  in  uttering  or  publishing  it,  defendant  was 
not  guilty  of  uttering  or  publishing  a  false  deed.     If  defendant  made 
a  false  and  fraudulent  claim  of  authority  to  execute  this  deed,  and  by 


114  MWH.  311. 


'i  Antf,  I).  .W. 


5<) 


KOIUiKItY 


moan.  tl,oroof  ohtainc.l  money  or  property  from  another,  he  m.p:hU,e 
™X  of  oUainin,  n..n..y  or  property  u.ulor  false  pretenses  but  n..  of 
S  erimc  . ilh  .l^ch  he  is  ehar-n^l  in  the  indietment.  ^^  c  are  th  re- 
ore  o  opinion  that  court  helow  erred  in  not  ,rantin,  a  <i«al  o 
the Ition  npon  motion  of  the  defendant,  .Len  the  Sta  e  rested.  T 
defendant  Js,  upon  the  evidenee,  dearly  entith-d  to  a  d.snnssa^  the 
action   orto  a  verdict  of  acquittal  under  the  directum  of  the  couit 

Ordered,  therefore,  that  the  judgment  be  reversed,  and  defendant 
absolutely  discharged. 


FORGEUY-INDUCINC;  VKRSON  TO  SIGN  TArEH  BY  FIUUD  NOT. 

Hill  v.  State. 

[1  Yert!.  7(1;  24  Am.  Dec.  1441.] 
In  the  Supreme  Court  of  Tennessee,  1S24. 

delrau>l  and  injure  linn,  \»  not  forgery. 

The  facts  are  stated  in  the  opinion. 

By  tM  Court,  I'KCK,  .1.     It  is  charged  in  the  indictment,  ^'  that  Jona- 
than lliU,  a  cert  ain  bond,  writing  obligatory,  bill  of  exchange  and  prom^is- 
orv  notJ,  for  the  payment  of  money,  falsely  purporting  to  be  genuin 
from  a    e  t,i„  Dan  el  Ireland,  then  ami  there  did  feloniously  cause  and 
pro"  .r     u       ™,ae,  altered,  forged  and  counterfeited '•  -here  the  iio  e 
Uset  out  and  the  indictment  proceeds-  "  did  feloniously  and  f  ahe  y 
make   alter,  for.o  and  counterfeit;  and  feloniously  and  falsely  th  r 
ar^    th       did  cause  and  procure  the  said  bon.l,  writing  obligatory   bill 
orexehange,   and  promissory  note,  for  the  payment  of  money,  etc., 
airainst  the  form  of  the  statute." 

There  is  no   plea  or  issue  on  the  record,  though  it  appears  that   he 
defend:  nt  was  present  in  court,   and  a  jury  sworn,  who  found  this 
«;  "a  verdict.     -  Hiat  on  the  third  day  of  April.  1KS2,   n  the  county 
o      Vi  1  alon,  the  accused  snld  land  to  Daniel  I.eland  for    our  hun- 
dre    ^n     sixtj'-tive  dollars,  to  be  paid  in  installments  at  stated  period. 
tL  L  note^n  which  the  indictment  is  founded,  was  ™  jd^   ^^ 
time  and  place  aforesaid,  in  part  payment  for  the  land.     Tha   Ireland 
rsaT  Illiterate  man;  that  the  accused  wrote  the  note  with  the  other 
lotes  fo    the  conBidcratiou  money  in  presence  of  the  said  Ireland  an.l 

hsur^^ng  witness,  and  made  it  together  with  the  other  notes,  over 


HILL    V.  STATE. 


r.7 


IT.  lie  mip:ht  be 
use-!,  liut  not  of 
Wc  aro,  then- 
'r  a  (iistnissal  of 
t(!  rested.  Tlie 
lUsmissal  of  the 
f  tlic  court. 
,   and  defendant 


FKAUD  NOT. 


real  Hinount  iliio.  «nil 
mount,  with  a  view  to 


lent,  "  that  Jona- 
liangcandpromis- 
ling  to  bo  gcnuini' 
niously  cause  and 
"  — here  the  note 
liously  and  falsely 
and  falsely  there 
ng  obligatory,  bill 
it  of  money,  etc., 

;  appears  that  the 
1,  who  found  this 
xH-2,  in  the  county 
land  for  four  hun- 
<  at  stated  pcriotls. 
vas  executed  At  the 
lud.  That  Ireland 
inte  with  the  other 
le  said  Ireland  and 
le  other  notes,  over 


to  the  prosecutor  in  the  hcarinj:  of  the  subscribing  witness.  That  he, 
the  accused  had  written  the  note  in  question  for  one  hundred  dollars, 
when  it  should  have  been  written  for  sixty-five  dollars,  and  it  was  by 
the  accused,  falsely  antl  fraudulently  read  over  as  a  note  for  sixty-tive 
,lnll:ir3,  when,  in  fact  it  was  written  for  one  hundred  dollars,  and  that  it 
WIS  done  with  a  view  to  defraud  and  injure  the  said  Daniel,"  etc. 

On  this  special  finding  the  Circuit  Court  gave  judoraont  against  the 
prisoner  from  which  judgment  this  writ  of  error  is  prosecuted.     Waiv- 
i„^r  for  the  present  the  form  of  the  indictment  and  want  of  plea  and 
isrue  let  us  intpiire  if  the  facts  found  constitute  the  offense  of  forgery. 
For<'ery  at  the  common  l;>w  is  the  falsely  making  a  note  or  other  in- 
.Uumlnt  with  intt-nt  to  defraud.     The  definition  implies  that  there  nmst 
he  an  act  done  or  procured  to  be  done,  to  constitute  this  offense.     The 
al.ove  definition  is  taivcn  from  2  Leach's  Criminal  Law,'  where  the  au- 
thor says:  "  A  note  or  other  instrument  may  be  falsely  made,  either  by 
putting  on  it  the  name  of  a  i)erson  who  does  not  exist,  or  by  putting  on 
it  the  name  of  one  in  existence,  witliout  his  consent,  or  by  altering  it," 
tic.     Here  the  accused  has  put  no  name  to  the  instrument,  but  it  is 
found  by  the  special  verdict  that  he  wrote  the  note  for  the  wrong  sum, 
and  then  induced  the  signing  by  a  false  reading ;  still  it  was  the  real 
si.rnatuic  of  the  person,  and  all  that  can  be  said  is  that  he  waj  cheated 
by  a  false  representation  of  the  accused.     This  though  a  cheat  was  not 

a  forgery. 

In  Woocbvitrd's  Case'  [where]  a  soldier  was  induced  to  sign  his  own 
name  to  a  fabricated  country  bank-note,  though  done  knowingly,  and  for 
the  purpose  of  fraud,  it  was  held  no  forgery  ;  and  the  court  immediately 
on  hearing  that  it  was  tlie  real  signature  of  the  prisoner,  said  that  ho 
must  of  necessity  be  acquitted,  for  that  being  signed  l.y  his  own  name, 
it  could  not  be  a  false  instrument  and  therefore  not  a  forgery. 

The  case  relied  upon  is  that  in  3  Institutes:  ■'  "  If  any  person  writeth 
the  will  of  a  sick  man  inserting  the  clause  concerning  the  devise  of  any 
lands  and   tenements  which  he  liad  in  fee  simple,  falsely  without  any 
warrant  or  direction  of  tlie  devisor,  albeit  he  did  not  forge  or  falsely 
make  the  whole  will ;  yet  he  is  punishable  by  the  statute  5  Elizabeth,  etc., 
as  has  often  been  held  in  the  Star  Chamber."     There  is  evidently  an 
ambiguity  in  the  language  used  by  Lord  Coke  in  this  place,  for  it  is  not 
expressed  where  the  insertion  of  tiie  clause  was  made.     But  this  is  ex- 
plained in  3  Dyer,"  in  i=sir  John  Marvin's  Case:  "  It  was  moved  for  a 
doubt  if  one  who  writes  the  will  of  a  man  lying  mortally  sick,  insert  a 
clause  or  article  in  the  will,  afttM-  the  testator  is  speechless  and  without 
memory  and  he  did  not  command  the  writer  beforehand  to  put  m  the 


1  p.  TSS. 

■■i  I^achCr.  1..  TSt. 


p.  170,  margin. 

*  p,  288  a. 


iiX 


FOUGICUY 


article  or  clause,  whether  this  he  forgery  under  the  statute,  etc.,  and 
it  was  ajjreed  and  resolved  l>y  tho  best  opinion  there  that  it  was  not,  nor 
was  it  tlie  intention  of  tiie  nialu-rs  of  said  law." 

I  quote  this  at  large  to  show  tiiat  it  must  be  a  making  or  an  alteration 
of  the  instrument  without  the  consent  of  him  who  would  purport  to  have 
made  it. 

liut  it  can  not  be  pretended  tliJit  any  false  bond  uttered  to  induce  a 
real  signing  of  an  instnuncnt,  can  make  a  forgery  under  our  statute; ' 
because  tlie  party  himself  signed  this  deed,  prim<i  facie,  it  is  his  bond; 
and  to  avoid  it  from  the  facts  found,  he  must  under  the  law,  plead  a 
sjiecial  noti  est  factum,  to  wit,  must  confess  that  be  did  seal  the  in- 
strument, but  that  he  was  induced  to  do  it  by  the  false  reading,  and 
therefore  not  his  deed. 

I  am  of  opinion  that  the  facts  found  make  out  nothing  more  than  a 
cheat  for  which  the  party  might  have  been  and  yet  ought  to  be  indicted. 
For  these  reasons  and  the  want  of  an  issue  in  the  case,  the  judgment 
must  be  reversed. 

Whyte,  J.,  concurred. 

IIavwood,  contra,  on  the  first  point;  accord  on  the  second. 

Judgment  reversed. 


FORGERY  — PUBLIC  WRITINGS. 

RoGEKs  V.  State. 

[8  Tex.  (App.)  401.] 
In  the  Court  uf  Appeals  of  Texas,  1S80. 

The  Fabrication  of  a  Certificate  of  a  Notary  Public,  purporting  to  authenticiite  tbe 
acknowledgment  uf  a  conveyance  or  IruuBfer,  Ih  not  an  ofteuHe  against  the  laws  of 
this  suite. 

Appeal  from  the  District  Court  of  Travis.  Tried  below  before  the 
Hon.  E.  B.  TiKSEK. 

The  indictment  was  found  in  Maj-,  1878,  and  charged  that  the  ap- 
pellant on  July  1.  187.1,  forged  tbe  certificate  of  a  certain  notary  public 
of  Cameron  County  to  a  transfer  of  a  land  certiticate  for  three  hundred 
and  twenty  acres.  The  jury  found  the  appellant  guilty,  and  assessed 
his  punishment  at  two  years  in  the  penitentiary. 

The  time  of  the  fabrication  of  the  certificate,  according  to  the  evi- 
dence, was  July  1,  187;i,  as  laid  in  the  indictment.     The  evidence  is 


1  See  East,  a'lO,  sec.  5. 


KOOKnS    V.  STATE. 


59 


ite,  etc.,  and 
was  not,  nor 

an  alteration 
rport  to  have 

to  induce  a 
)ur  statute ; ' 

is  his  bund: 
law,  plead  a 

seal  the  in- 
reading,  and 

more  than  a 
i  be  indicted, 
be  judgment 


id. 

t  reversed. 


luthentieiite  tbe 
inst  the  laws  of 


w  before  the 

that  the  ap- 
lotary  public 
iree  hundred 
xnd  assessed 

g  to  tlie  evi- 
'  evidence  is 


elaborate,  but  no  detail  of  it  is  necessary,  in  view  of  the  single  question 
of  law  determined  in  the  opinion  of  tiie  court. 

Joe  II.  Stetoart  and  liethd  Cojm-ood,  for  the  appellant. 

nomas  Ball,  Assi-stant  Attorney-General,  for  the  State. 

CivuK  J.  At  the  throshold  of  our  investigations  in  this  case,  a 
crrue  question  is  presented  touching  the  character  of  the  instrument  set 
out  in  the  indictnunt  and  alleged  to  be  forged,  the  solution  of  which 
d.,H,uls  alone  upon  a  proper  construction  of  our  laws  :elating  to  the 
offence  of  forg.rv  in  force  on  the  tlrst  day  of  July,  1H7:?,  the  date  of 
the  alleged  co.nmission  of  the  offense  of  which  the  appellant  has  been 

convicted.  , 

A  fundamental  lairpose  to  be  subserved  in  the  adoption  of  a  general 
sv-   m  of  penal  Laws  in  IH.^f,,  and  manifest  fn.m  the  terms  of  more  than 
one  general  provision  incorporated  therein,  was  to  exclude  an  appeal  to 
any  system  of  foreign  laws,  written  or  unwritten,  in  the  des.gnatH)n  or 
description  of   offenses,  and  to  hold  no  citizen  anu>nable  to  crmunal 
prosecution  in  this  State,  unless  the  offense  of  which  he  was  charged 
was  expressly  defl.ie.l  and  the  penalty  affixed  by  the  written  law  of  this 
Sfite  >     So  careful  was  the  law-making  power  in  its  endeavor  to  carry 
out  this  essential  idea,  and  to  provide  proper  safeguards  for  the  protec- 
tion of  the  citizen  against  prosecutions  for  acts  not  criminal  under  our 
Inv   that  it  was  further  enacted,  in  !«.-)«,  as  amendatory  of  a  provision 
substantially  similar  in  the  original  Code,  that  "  no  person  shall  be  pun- 
istied  for  an  offense  which  is  not  made  penal  by  the  plain  import  of  the 
words  of  a  law."  '-^    These  provisions  are  necessary  to  be  bon.c  in  mind 
in  ascertaining  whether  a  certificate  of  acknowledgment  to  an  instru- 
ment for  registration  comes  within  the  meaning  of  -an  ir  itrumcnt  of 
writin-',"  as  emi)loved  in  our  statutes  relative  to  forgery.     And  this 
must  be  determined  affirmatively  before  it  becomes  necessary  to  con- 
sider any  of  the  other  errors  assigned  by  appellant  as  cause  for  reversal 
of  the  judgment  of  conviction. 

At  common  law,  one  of  the  chief  excellences  of  which  system  was  its 
comprehensive  adaptability  to  the  ever  varying  phases  of  human  con- 
duet,  an  affirmative  solution  of  the  question,  though  not  entirely  free 
from  difficulty,  coul^  nevertheless  in  our  opinion,  bo  reached  and  sus- 
tained upon  satisfactory  principles.  Its  definition  of  the  offense  of 
foreery,  to  wit,  "the  fraudulent  making  or  alteration  of  a  writing  to 
the  prejudice  of  another  man's  right,"  '  is  sufficiently  comprehensive 
to  embrace  every  character  of  writing,  official  or  unofficial,  and  to 
render  amenable  to  punishment  any  person  who  might  concoct,  manu- 
facture, or  alter  any  instrument  whatsoever,  that  could  in  any  manner 


1  Pasr.  Dig.,  art.  IfiOB. 
'i  Paso.  Dig.,  art.  ItSll. 


1  4  Bla.  Com.  24T. 


CO 


FOKOEUV 


tend  to  tho  prfjudice  of  another's  right.  |)iovide(l  the  same  was  done 
with  a  fraiidiilint  intt-iit.  And  numerous  cases  cduUI  be  readily  citnj, 
showin^t  convictions  for  forging  ahuost  every  chiss  of  writing  known  t<i 
the  affairs  of  men.  lint  our  Code,  hke  ail  other  works  of  a  siniihir 
nature,  possesses  no  such  tkxibility,  and  in  Us  attempt  to  more  specifi- 
cally d(  fine  many  offenses  known  to  the  common  law,  it  often  heii.,'is 
the  prosecution  with  new  and  arbitrary  rules,  which  tend  sometimes  to 
the  failure  of  justice;  which  may  i)e.  and  most  probably  is,  a  lesser 
t'vil  than  an  a|)peal  to  some  v.-ist  and  unfamiliar  system  of  laws  in  order 
to  sustain  prosecution  for  crime. 

Our  definition  of  forgery  is  as  follows:  "He  is  guilty  of  forgerv 
who,  without  lawful  authority,  and  with  intent  to  injure  or  defraud 
shall  make  a  false  instrument  in  writing,  purporting  to  be  the  act  of 
another,  iu  such  manner  that  the  false  instrument  so  made  would,  if 
the  same  were  true,  have  created,  increased,  diminished,  discharged,  or 
defeated  any  pecuniary  ol)ligation,  or  would  have  transferred,  or  in 
any  manner  have  affected,  any  property  whatever."  ' 

Without  further  legislative  provision,  this  statute,  standing  alone, 
might  be  held  sulHcient  to  support  a  prosecution  and  conviction  for 
forgery  of  a  certificate  of  acknowledgment.  The  latter  is  certainly 
"  an  instrument  in  writing,"  in  its  common  acceptation  at  least,  and  in 
some  manner  its  fabrication  would  necessarily  affect  property  of  some 
kind.  In  the  paitieuhir  cas((  at  bar,  the  forgery  of  the  notary's  certi- 
cato  to  the  transfer  of  the  land  certificate,  if  in  fact  it  was  forged,  gave 
the  transfer  additional  etficacy  as  an  instrument  for  use  in  the  general 
hind  olHce,  besides  apparently  perfecting  it  for  registration  uj)on  the 
county  records  of  the  State. 

But  the  Legislature  has  left  but  little  latitude  to  the  courts  for  con- 
struction and  interpretation  of  the  statute  it.=»elf,  and  the  several  terms 
and  phrases  employed  in  defining  the  offense.  The  terms  •'instrument 
in  writing."  "alter,"  "another,"  "  pecuniary  obligation,"  etc.,  are 
all  carefully  defined  and  explained,  so  as  to  leave  little  or  nothing  to 
intendment  in  the  administration  of  the  law  ;  and  these  definitions  are 
as  much  a  part  of  the  law  of  forgery  in  this  State  as  the  statute  quoted 
at  length.  In  ascertaining,  therefore,  what  is  mpant  by  an  instrument 
which  would  "in  any  manner  have  affected  any  property  what- 
ever," recourse  must  be  had  to  the  statute,  and  there  we  find  its 
definition  as  follows:  "  Ry  sin  instrument  which  would  'have  trans- 
ferred, or  in  any  manner  have  effected,*  property,  is  meant, 
every  species  of  conveyance  or  undertaking,  in  writing,  which 
supposes  a  right  in  the  person  purporting  to  execute  it,  to  dis- 
pose of  or  change  the  character  of  property  of  every  kind,  and  which 

1  Pmc.  Dig.,  art.  2093. 


mm 


KOdKlJS   r.  STATE. 


61 


samo  was  done 
3  readily  citxi, 
iting  known  [n 
ks  of  a  similar 
;o  more  specifr 
it  often  bod.:is 
d  sometimes  tu 
bly  is,  a  lessor 
if  laws  in  order 

Ity  of  forgery 
ire  or  defraud 
0  be  the  act  of 
nado  would,  if 
tlischarged,  or 
isf erred,  or  in 

;anding  alone, 
conviction  for 
er  is  certainly 
it  least,  and  in 
iperty  of  some 
notary's  certl- 
s  forged,  gave 
in  the  general 
tion  upon  the 

jonrts  for  con- 
*  several  terms 
9  "instrument 
on,"  etc.,  are 
J  or  nothing  to 
definitions  are 
statute  quoted 
an  instrument 
poperty  what- 
e  we  find  its 
'  have  trans- 
y,  is  meant, 
riting,  which 
te  it,  to  dis- 
nd,  and  which 


,«n  have  such  effect  when  genuine."  '  The  instrument  assigned  as  a 
f.,r.-ery  in  this  case  is  certainly  neither  a  conveyance  nor  an  uudertak- 
inc'^in  any  .ensc  in  which  those  terms  can  be  employed,  nor  does  it  sup- 
...tc  a  ri-ht  in  the  person  purporting  to  execute  it  (tl>c  notary)  to  d.s- 
'  ;,e  of  or  change  the  character  of  the  land  certificate,  nor  could  .t 
l,ave  had  such  effect  i'  genuine.     But  our  decision  need  not  rest  on 

""rUinlHo  us,  the  legislative  mind,  in  the  enactment  of  the  statute, 
was  notconlempluting  an  olHcial  but  a  private  act,  and  the  former  .s 
altoticther  excluded  by  the  plain  import  of  the  language  employed.     It 
seems  not  improbable  that  if  the  legislative  purpose  had  been  to  in- 
,U,de  an  official  writing  or  certificate  !ik«  this  before  us   exact  terms 
would  have  been  used  to  manifest  this  intention,  especially  in  view  of 
the  particular  exactness  with  which  it  was  sought  to  (Refine  every 
offense  and  to  prescribe  the  essentials  of  each.     And  if  the  law  had 
nlr..idv  fully  provided  for  the  punishment  of  this  class  of  forgeries   it 
wouurnot  have  been  necessary  that  they  should  be  included  expressly 
in  the  act  of  July  28,  187C.,  which  provides  for  the  detection  and  con- 
vic-tion  of  all  forgers  of  land-titles.^    The  fact  that  acknowledgments 
and  proofs  for  record  were  then  for  the  first  time  expressly  enumerated 
us  subjects  of  forgery,  while  not  conclusive,  is  most  significant  as  tend- 
ing to  manifest  the  legislative  opinion  that  past  legislation  hac    failed 
to  provide  for  that  class  of  offenses.     Be  that  as  it  may,  the  laws  ui 
force  at  the  time  it  is  alleged  this  forgery  was  committed  are  unmis- 
takable in  their  terms,  and  even  a  casual  examination  of  them  is  most 
convincing  that  the  act  for  which  the  appellant  has  been  convicted  was 
not  provided  for  by  the  laws  in  force  at  the  date  of  its  alleged  commis- 

"  The  authorities  cited  for  the  prosecution  in  support  of  the  conviction, 
as  well  as  others  examined  in  the  course  of  our  investigation,  l.eing 
based  altogether  upon  statutory  provisions  of  a  nature  essentially  differ- 
ent from  ours,  fail  to  support  the  proposition  that  in  our  State  a  con- 
viction may  be  bad  for  forgery  of  a  certificate  of  acknowledgment 
„rior  to  the  act  of  1876.  In  People  v.  ^farion,=  a  conviction  of  this 
character  was  sustained,  but  under  a  statute  expressly  providing  for 
the  punishment  of  any  person  who  should  falsely  make,  alter,  forge, 
or  counterfeit  any  certificate  or  attestation  of  any  clerk,  notary  pubic, 
etc  *  So  also  in  New  York,  Pennsylvania,  Massachusetts,  and  other 
States,  similar  statutes  have  long  prevailed,  upon  which  these  clecsions 
are  based.^    Similar  statutes  have  also  prevailed  in  Lngland  for  more 


1  Pasc.  Dig.,  art.  2103. 
s  Laws  1876,  ch.  61. 
3  29  Mieb.  81. 


«  2  Comp.  L.,  Mich.,  \Mr>. 

»  a  Whart.  Cr.  L.,  sees.  131S,  1417. 


63 


FOIMJKUY. 


than  a  century  past,  all  of  which  were  finally  omhodiod  in  21  and  lT. 
Victoria,'  and  upon  tliese  statutes  most,  if  not  all,  of  the  decisions  of 
that  country,  since  the  period  indicated,  have  been  founded.  VVc  have 
been  able  to  find  no  statutes  similar  to  ours  in  force  in  any  other  State, 
nor  any  adjudication  by  courts  of  last  resort  iu  other  States,  upon  whicli 
this  conviction  can  be  rested. 

Because  tlie  act  for  wliich  appellant  has  been  convicted  was  not  made 
penal  by  the  plain  import  of  tlic  words  of  any  law  in  force  at  the  date 
of  its  alleged  commission,  the  judgment  is  reversed  and  the  cause  dis- 
missed. 

Reversed  uikI  dismuised. 


NO  PRESUMPTION  OF  GUILT  FROM  UTTERING. 

MlLLEll    V.  StATK. 

[51  Ind.  405.] 

In  the  Supreme  Court  of  ImlUtna. 

1.  The  Uttering  and  Publishltiff  of  a  forguil  in.strumcnt  by  the  prisoner  raises  no 
prcsiimiiuoii  ol  l.iw  Unit  lie  (iiinmlucil  tli.i  furriery. 

■-.  On  a  Charffe  of  Forpery  tlio  iitteriiiR  iind  |iiiljli»liing  of  tlie  forRccI  instrument  arc  cir- 
cuintitances  to  be  wcigliej  by  llie  jury  in  couuection  Willi  oilier  evidence  in  the  eui-c. 

WoKDKN,  J.  Tiie  appellant  was  indicted  for  forgery  ;  the  indictment 
containing  two  counts.  The  first  charged  liiin  with  having  forged  the 
name  of  Calvin  Mullen  upon  the  back  of  ii  draft  drawn  by  the  First 
National  Bank  of  Xenia,  Ohio,  upon  the  P'irst  National  Bank  of  Cincin- 
nati, Ohio,  for  the  sum  of  eight  hundred  dollars,  payable  to  the  order 
of  said  Calvin  Mullen. 

The  second  count  charged  him  with  having  uttered  and  published  as 
true  a  forged  and  counterfeited  indorsement  of  said  draft,  purjiorting 
to  be  the  indorsement  upon  the  same  of  the  nanxe  of  said  Calvin  Mullen. 

The  defendant  moved  to  quash  each  count,  but  the  motion  was  over- 
ruled.    Each  count,  it  seems  to  us,  was  good. 

The  defendant  moved  to  retpiire  the  prosecutor  to  elect  on  which 
count  he  would  put  the  defendant  on  trial,  but  the  motion  was  overruled. 
Doubtless  the  court  might,  in  its  discretion,  have  required  the  election 
to  have  been  m.ade,  but  there  was  no  error  in  refusing  to  do  so.^ 

On  the  trial,  there  was  a  general  verdict  of  guilty,  and  the  defendant 
was  sent  to  the  State's  prison  for  the  term  of  eight  years. 


>  ch.  98. 


i  Mershon  t>.  Slate,  ni  Ind.  U. 


MILLKK   r.  SIATK 


G3 


in  L'  I  and  lT. 
le  clucisious  of 
led.  \Vc  have 
)y  other  State, 
es,  upon  wbieli 

was  not  made 
rco  ill  the  date 

tbo  cause  dis- 
ci dismissed. 


SG. 


irisonci'  raises  no 

n^trunicnt  arc  cir- 
icc  in  Uie  uui-c. 

the  indictment 
ng  forged  (he 
u  l)y  the  First 
lank  of  Cinein- 
le  to  the  order 

d  published  as 
ift,  imrjiorting 
L'alvin  Mullen, 
tion  was  over- 

leot  on  which 
ivas  overruled. 
3d  the  election 
do  so.^ 
the  defendant 


Several  reasons  were  stated  for  a  n.-w  trial,  hut  we  deem  it  neecssa.y 
to   n..tieo  only  .me.     The  court  iuHtiu.te.l  the  jury,   amongst  other 

lliin"s,  as  follows:  — 

-If  it,  is  shown  tiiMt  tlie  in(lois?!mMit  is  forged,  and  that  the  defend- 
.i„t  had  iu  his  possesMou  and  pussod  said  dieck.  with  the  f..rged  i.i- 
iiors.inent  thereon,  the  presumption  arises  that  the  (KtVn.lunt  n.a.le  the 
inloisemcnt,  and  unless  that  presumption  is  explained  anil  rebutted,  it 
,vill  be  sullleieut  evidence  to  warrant  you  in  coming  to  the  eoiulusion 
lli'il  the  defendant  made  such  indorsement." 

The  charge  thus  given  was  radically  wmng.  The  draft  or  bill  of  ex- 
.iKin.re,  being  indorsed  by  the  payee  in  blank,  would  pass  front  ha..d  to 
ian.r  by  delivery,  without  any  further  indorsement,  so  as  to  vest  Mic 
title  in  each  succ-essive  holder.  The  count  charging  the  defendant  with 
l,i,vin<'  uttered  and  i)ublished  the  forge.l  iu.lorsement  as  true,  necessa- 
rily contained  the  allegali..n  that  the  ,lefeudant  knew  the  in.lorsernet.t  to 
luue  been  forged  at  the  time  be  ut.eivd  and  ,.ublished  it  as  true.  1  he 
..knter  is  a  necessary  ingredient  of  the  offense  charged  in  the  second 
.cunt,  and  the  allegation  must  be  supported  by  competent  evulenrc 

Now,  it  might  happen  that  a  bill,  thus  apparently  indorsed  by  the 
payee  iu  blank,  might  i.ass  tluough  innocent  bands,  an.l  it  can  not  be 
'•iw  that  each  person  through  whose  bauds  such  a  bill  m.ght  pass  the 
iiKlorsement  turning  out  to  be  forgery,  is  to  be  presumed  i-»v.. a  yiu^c 
,0  have  made  the  forged  indorsement.  If  the  instruction  be  coiTcct, 
then  it  foUuws  that,  while  on  a  charge  of  uttering  and  publishing  as 
true  any  such  forged  indorsement,  a  party  could  not  be  convicted  with- 
o.it  averment  and  proof  of  the  snenter,  yet  be  might  be  convicted  on 
I  charge  of  the  forgerv  of  the  indorsement  without  any  other  proof 
than  the  mere  uttering  an.l  publishing  as  true  of  the  forged  indorse 

""u-e  do  not  think  it  can  be  laid  down  as  a  rule  of  law  that  the  utter- 
in.'  and  publishing  as  true  of  a  co.nmercial  instrument,  with  the  name 
of  the  payee  forged  thereon,  raises  a  presumption  that  the  person  litter- 
in-  and  publishing  is  guilty  of  forging  the  indorsement.  On  a  charge 
.f^the  forgery  of  the  name,  the  uttering  and  publishing  are  circum- 
stances to  be  considered  by  the  jury,  with  any  other  ev-i.lence  bearing 
on  the  question  of  the  forgery,  and  what  weight  shal  be  g'ven  to  the 
uttering  and  publishing  is  to  be  .letermined  by  the  jury,  ">  ^be  «a^^ 
manner  as  they  determine  the  weight  of  other  evidence  ,n  crimina  casc^ 
The  judgment  below  is  reversed,  and  the  cause  remanded  for  a  new 

^"'Fhe  clerk  will  give  the  proper  notice  for  a  return  of  the  prisoner. 


nd.  U. 


1  2  G.  A  II.  146,  tec.  SO. 


64 


I'DUllKUV. 


NOTES. 

§  4()'i.  Forgrery—  Intent  to  Defraud  Bssenttal.  —  An  Intent  to  defraud  is  es- 
scntliil  to  tin?  crlinc  of  forgery,'  itiid  the  inteut  must  In,  to  defniud  some  par- 
ticiiliir  |)erHon.''' 

In  Montgomenj  v.  State,^  it  was  held  In  the  Court  of  Appeals  of  Texas  that  the 
jnteiit  was  not  proved.  The  forpery  for  which  the  Indietineiit  in  this  case  wa,, 
presented,  and  of  which  the  dcfendiint  was  convicted,  c<  islsted  In  writln;?,  wltli- 
out  lawful  authority,  the  nanio  of  "A.  II.  Mont;;oniery,"  across  the  buck  of  a 
bank  check  for  ^m,  which  he  cashed  at  the  banking  house  of  I'utman,  Chambers 
&  Co.,  Gainesville,  Cooke  County,  Texas.  His  punl.shment  was  assessed  by  thp 
jury  at  Imprisonment  In  the  penitentiary  for  two  years. 

The  instrument  upon  which  the  name  of  A  II.  Montgomery  was  alleged  to 
have  been  written  by  the  appellant  without  nutliorlty,  was  as  follows:— 

"No.  21,526.  N.\TioSAi.  B.ink  of  Lancartkr.  1 

"  La.ncastkh,  Ky.,  Nov.  22,  1880.      i 

"Pay  to  the  order  of  A.  H.  .Montgomery,  sixty  dollars. 

"  To  the  Mercantile  National  Bank,  New  York  (^ity. 

„„ "  \Vm.  II.  KiN.N.Aiui),  Cashier. 

"Wm.  H.  Kinnaird,  Cash'r. 

"  Gkurue  Denny,  Pres't." 

The  names  of  A.  II.  .Montgomery  and  A.  M.  Montgomery  were  indorsed  across 
the  back. 

A.  II.  Montgomery  testified  for  the  State,  that  ho  lived  In  Denton  County, 
one  and  a  half  miles  south  of  Pilot  Point.  He  received  his  mail  matter  at  Pilot 
Point.  The  witness  was  orijiiiu'lly  from  Kentucky.  His  wife's  name  was  Mat- 
tie  Montgomery.  The  witness  w  is  familar  with  the  signature  of  the  cashier  of 
the  Lancaster,  Kentucky,  National  Bank.  The  check  In  question  being  exhib- 
ited to  the  witness,  he  te.stitled  that  it  was  sent  to  him  by  his  wife's  brother 
James,  as  rent  for  a  small  piece  of  land.  The  first  the  witness  ever  saw  of  the 
check  was  when  it  was  sent  to  him  by  Putman,  Chambers  &  Co.,  with  a  letter 
asking  if  the  indorsements  on  the  bi-k  were  genuine.  The  two  signatures 
"A.  II.  Montgomery  "  and  "  A.  M.  Montgomery  "  are  not  the  signatures  of  the 
witness.  He  did  not  sign  this  check  nor  authorize  the  defendant  nor  other  per- 
son to  sign  it  for  him. 

L.  B.  Edwards  testified,  for  the  State,  that  the  first  time  he  saw  the  defend- 
ant was  about  the  last  of  December,  1880,  when  the  latter  cayne  into  the 
banking-house  of  Putman,  Chambers  &  Co.,  and  cashed  a  check  for  8G0.  The 
witness  recognized  tlie  check  shown  him  as  the  one  he,  as  cashier,  cashed  for 
the  defendant.  The  defendant  wrote  the  two  signatures,  "A.  H.  Montgomery  " 
and  "A.  M.  Montgomery,"  on  the  back  of  the  check.  When  the  defendant  came 
to  the  bank  and  exhibited  the  check,  the  witness  told  him  to  indorse  it  by  writ- 
ing his  name  across  the  back.  He  wrote  the  Indorsement,  "A.  M.  Montgon.^iy," 
and  the  witness  told  him  that  the  check  was  payable  to  '<A.  H.  Montgomery," 
and  not  to  "A.  M.  Montgomery."     Defendant  said  that  it  ought  to  be  A.  M. 


1  State  V.  nedstrake,  39  N.  J.  L.  36.1. 
>  B.  V,  UodgsoD,  Dears.  &  U.  3  (1856). 


'  12  Tex.  (Anp.)  323  (1882). 


KOKOKKV  —  INTKNT   TO    DKt'UAl'D. 


(;:> 


'  defraud  Is  en- 
iiud  some  par- 
Texas  that  the 
\  this  case  wa,. 
wrltlnjj,  wltli- 
s  the  l)iick  of  a 
nan,  ChambcrR 
ixscssed  by  thp 

was  alleged  to 
ows: — 

Lancastrr. ) 
•.  22,  1880.      i 


Ri>,  Cashier. 


Jdorscd  across 

cnton  County, 
natter  at  Pilot 
mine  was  Mat- 
thu  cashier  of 
n  being  exhlb- 
wife's  brot  her 
/er  saw  of  the 
,  with  a  letter 
wo  signatures 
natures  of  the 
nor  other  per- 

aw  the  def eud- 
nvtme  Into  the 
for  8G0.  The 
ier,  cashed  for 
Montgomery  " 
efenduntcame 
)rse  it  by  wrlt- 
Vlontgoru^iy," 
Montgomery," 
It  to  be  A.  M. 


Mciittroniery.  The  witnes-i  tolil  him  there  nnmf  be  somi-  ml.Ktake  if  his  nume 
u  IS  A.  M.  Montiroiner.v.  The  tlefemliiiit  thiii  ^ald,  "  Yes,  It  should  be  'A.  M. 
Mmitaomery; '  "  he  had  a  letter,  which  he  looked  at  and  then  wrote  the  name 

•  A  II.  Montgomery."  The  witness  understood  the  defendant  to  be  A.  M.  Mout- 
-oimry  and  that  the  elieek  w.is  his.  The  witness  paid  the  defendant  the  money 
,11  the  cheek  and  sent  it  to  New  York.  It  was  soon  returned  with  information 
ihil  the   bank  lit   Lancaster,  Kentucky,  refu,sed  t(»    pay  It      It  was   marked 

•  (orixed  indorsement."  On  eros.s-examlnation,  the  wllne-s  stated  that  he  eoidd 
iiiit  ninember  that  he  told  the  defendant  that  clerks  in  banks  .sonietlm.s  make 
^il^t.lke8.  As  a  fact,  they  sometimes  do  make  mistakes.  When  clucks  are 
,lr,iwn  on  I'utman,  Chambers  &  i  'o.'s  bank  in  favot  of  the  wife  lt|ls  common  for  the 
liiishaiul  to  sign  his  wife's  name,  I  lit  such  priietlcc  Is  not  permitted  with  bills  of 
.\ihunge.  The  defendant  did  not  say  that  his  uaiue  was  A.  M.  Montgomery. 
Till'  witness  inferred  It  from  the  transaction. 

.1.  A.  Bolton  testitled,  for  the  Stale,  that  he  was  the  sheriff  of  Cooke  County, 
Texas,  and  arrested  the  defendant  on  this  charge  In  December,  1S81.  He  told 
ilie  ilefendant  that  he  wanted  him  to  go  to  Gainesville  about  a  cheek.  Defendant 
-.aid  that  he  knew  nothing  about  a  check.  After  studying  awhile  he  said  that  he 
had  cashed  a  check  tiiere  for  his  daughter.  The  defendant  was  ai)pareiitly  a 
VI  rv  poor  man.     lie  had  not  been  able  to  give  his  bond  of  8.")00. 

Miss  Mollie  Montgomery  testitled,  lor  the  defence,  that  the  defendant  was 
her  father.  They  live  live  miles  west  of  Pilot  Point,  and  Pilot  Point  is  their 
liust-olllce.  Tiere  Is  a  private  neighborhood  box  at  Baker's  st(»re,  about  a 
.(iiarter  of  a  mile  from  defendant's  hou.se,  where  the  defendant's  family  usually 
L'nt  their  mail  matter.  Some  time  in  October,  1880,  word  was  sent  her  by  her 
little  brother  tlnit  there  was  ii  letter  for  her  at  Baker's  store.  She  went  to  the 
siore  and  Mr.  Baker  gave  her  a  letter  containing  a  cheek.  That  letter  the  wlt- 
iirss  had  at  the  trial.  The  direction  on  the  envelope  of  this  letl.r  was  "  Miss 
.Mnllie  Montgomery,  "  the  Inside  address  was  "  Dear  sister,"  and  it  was  signed 
"  Your  brother  Jimmie."  The  letter  was  read  In  evidence,  and  contained  men- 
tion of  but  two  matters,  which  the  witness  did  not  understand.  In  the  letter 
the  writer  stated  that  "  Mr.  Dunn's  folks  were  well,"  and  that,  in  sending  the 
.  iiiek  for  the  rent  money  of  the  witness'  land,  he  had  "reserved  two  dollars  to 
|iay  for  the  Advocate  next  year."  The  witness  did  not  know  "  Mr.  Dunn's  folks," 
iKir  could  she  understand  why  two  dollars  had  been  retained  to  pay  for  tlie  Ail- 
vnmte.  She  had  a  brother  Jim  living  in  Kentucky,  who  attended  to  her  father's 
liii-iness  there.  In  writing  to  the  witness  for  the  family  he  usually  signed  his 
letters,  "  Your  brother  Jim,"  and  generally  commenced  them,  "  Dear  sister." 
Oilier  allusions  in  the  letter  were  to  persons  and  matters  In  Kentucky,  with 
wliich  the  witness  and  others  of  the  family  were  perfectly  familiar,  and  from 
Hum  the  witness  entertained  no  doubt  that  the  letter  was  Intended  for  her. 
Her  father  gets  money  from  Kentucky,  and  was  expecting  some  when  the  letter 
arrived.  Her  mother's  name  was  Cassey  Ann  Montgomery.  Her  maiden  name 
w  IS  Howard,  which  she  still  retained.  All  the  family  thought  the  check  was  in- 
tended for  their  mother,  and  entertained  no  doubts  concerning  the  name  "A. 
11.  Montgomery."  There  were  some  words  in  the  letter  which  could  not  be 
made  out.  It  was  badly  written,  in  dim  ink,  but  in  the  handwriting  of  the  wit- 
ness' brother,  —  so  much  so  that  it  was  not  questioned  on  that  ground.  The 
Utter  was  shown  to  several  neighbors,  many  of  whom  advised  that  the  check  be 
cashed.  Either  the  witness  or  her  mother  gave  the  check  to  the  defendant,  one 
day  when  he  was  coming  to  Gainesville  to  get  It  cashed.    The  witness  presumed 

3  DKFKNCK8.  5 


ct; 


I'OIKIKKY. 


timt  lie  dill  cu.Mh  It,  UM  ho  iMiiii'  buck  with  the  iiioni'V.  None  i)f  the  family  h<  ii  I 
that  iiiiylhlnti  wus  wroiiu  with  tin-  chfok  until  llio  (Icfi'iulanl  wun  urrcHiid,  .•>.'mi( 
two  months  licforr  this  tiiiil.  Thin  k'ttcrwan  lost  lit  the  tlinu  of  the  pri'lliiilii  in 
triiil,  hill  h:i(l  hfoii  Mince  foniiil.  The  dill  niiine  of  the  wltiiesn  wus  Mary  .In  . 
MoiitKoriu'ry,  hut  hIic  was  gcncnilly  luUlresHud  as  MolUe  Moiityoiiu'ry.    Cii>«^- 

cxuiiilned  who   staled  thut  mIic  rcinenilured    her  father  receiving  money  fi 

Kentucky  but  iiuee,  untl  that  was  In  1H7i;,  in  Sun  Saba  Coiinty,  Hhortly  after  th.  y 
came  out  to  Texas.  The  iimoiint  was  abonl  «Unt,  bnt  the  witness  could  not  -.t) 
whether  it  came  by  draft  or  post-ollhe  money  order.  Her  father,  the  deft  nl- 
ant,  had  four  farms  In  Kentucky.  One  is  called  tl'e  Illoominnton,  one  the  Wlnu 
Oak,  one  the  Hed  brush,  and  the  other  (he  Hlue  Grass  farm.  Her  father  hdil 
said  tliat  he  would  not  take  »l,iiOO  for  his  Hloominntoii  farm.  A  recent  letter 
from  the  witness'  uncle  announced  the  sale  of  the  Hlue  (Jrass  farm  for  $1,ii(mi 
The  defendant  now  owns  but  one  teai-  of  horses,  and  three  cows  and  culvo, 
and  raised  some  three  or  four  Itales  of  cotton  this  year.  Re-dlrect,  the  wltn.  s- 
stated  that  she  wrote  her  brother  iicknowledRlnn  the  receipt  of  the  letter  uml 
contents.  She  had  written  to  her  brother  Jim  since  the  defendaut's  arrest,  uml 
is  ilally  expecting  a  reply. 

The  defence  then  read  In  evidence  the  written  testimony  of  Mrs.  Kate  Cas- 
slty,  daughter  of  llie  defendant,  taken  before  an  examining  court.  The  siili- 
stance  of  it  was  that,  about  a  year  before  tills  trial,  her  sister  MolUe  Montgoniery 
received  a  letter  from  their  brother  Jim  In  Kentucky,  Inclosing  a  check.  In 
general  detail,  so  far  as  her  memory  served  her,  this  witness  corroborated  tlie 
testimony  of  Miss  MolUe  Montgomery,  concerning  the  letter,  Its  contents  and 
Its  Inclosure  of  the  check.  Her  sister,  the  witness  .stated,  was  sometimes  ad- 
dressed as  Miss  Mary,  sometimes  as  Miss  M.  J.,  but  generally  as  Miss  MollU' 
Montgomery.  Her  mother's  full  name  was  Cassle  Ann  Howard  Montgomery. 
Her  father  was  expecting  a  remittance  of  money  from  Kentucky  at  the  time  tliut 
this  letter  and  check  were  received. 

John  M.  Montgomery,  a  son  of  the  defendant,  testified  that  he  arrived  home 
from  Arkansas  two  or  three  days  after  his  sister  MolUe  received  the  check,  lie 
saw  the  letter  and  the  envelope.  The  latter  was  directed  to  Miss  MoUle  Mont- 
gomery. There  wei  some  things  In  the  letter  which  were  understood,  and  the 
letter  and  check  were  shown  by  the  family  to  several  neighbors,  with  whom 
they  advised  about  the  matter,  relating  to  them  all  of  the  circumstances.  Mr 
Devaull,  among  the  number,  pronounced  the  check  all  right.  The  wltncs."; 
thought  so  too,  and  oflfered  8^.'  for  It.  The  defendant  has  land  In  Kentucky  In 
charge  of  two  sons,  Jim  and  Tois.  He  has  many  other  relatives  In  that  State. 
His  father's  (the  defendaul)  imiiie  is  J.  J.  Montgomery,  that  of  his  sister  M.  J. 
Montgomery,  and  that  of  his  -nother  C.  A.  H.  Montgomery.  He  knew  of  no  cue 
in  his  family  named  A.  M.  Montgomery. 

The  defendant  brought  a  great  deal  of  money  with  him  to  Texas,  hut  had 
spent  it  traveling  around.  The  witness  only  knew  of  his  own  knowledge  of  his 
father  receiving  money  from  Kentucky  but  once  since  they  left  there,  but 
had  heard  him  say  that  he  received  money  from  there  a  number  of  times. 

A.  J.  Devault  testltted,  for  the  defence,  that  he  was  at  the  defendant's  house 
when  they  had  the  letter  and  check,  and  saw  them  at  that  time.  He  came  with 
the  defendant  to  Gainesville,  when  the  latter  cashed  the  check.  The  letter  was 
badly  written,  In  pale  Ink.  The  defendant  and  his  family  made  no  secret  about 
tbe  receipt  of  the  letter.    It  was  generally  known  in  the  neighborhood. 


ikB 


KOIMIKIIV MIST    UK    OK    "  ixxlMKNTS. 


07 


llir  fiunily  h(  :u'l 
I?*  iirrL'Hii'd,  fi'iui 
if  tlio  {)rrlllIlllMr\ 
IS  WHS  Mary  .Imx 
[(J!oiiu'ry.  Cru"- 
liig  inuiu-y  fi'i'iii 
HliortlyuftiT  Ihi  y 

UHN  CUUllI  not  ••:>) 

thrr,  the  tloft  nl- 
Jll,  one  the  Willie 
lli'i'  (atlier  ha<l 
.  A  recent  h'tliT 
t  farm  for  $l,iiiiii. 
eows  und  eiilvo, 
Irect,  the  wltnt  s" 
of  the  letter  uml 
iluutV  arrest,  uiiil 

if  Mrs.  Kate  Cas- 
eonrt.  The  siili- 
oilie  Montgoniiry 
Ming  a  check.  lu 
corroborated  tln' 
,  its  contents  and 
IS  sometimes  ud- 
lly  as  Miss  Mollis 
arti  Montgomery. 
<y  at  the  time  thut 

t  he  arrived  home 
•d  the  check,  lie 
illsB  Mollie  Mont- 
derstood,  and  the 
ibors,  with  wluini 
[:um8tauces.  Mr. 
[ht.  The  witne.s.'i 
nd  in  Kentucliy  in 
Ives  In  that  State. 
ot  bis  sister  M.  J. 
lie  knew  of  no  one 

.0  Texas,  hut  had 
I  knowledge  of  lii» 
y  left  there,  but 
cr  of  times, 
defendant's  bouse 
le.  He  came  with 
i.  The  letter  was 
le  no  secret  about 
iborhood. 


Cross-examlnt'd  ilie  witness  stiiteil  llial  tlie  envelope  was  udtlr'  se.i  to  Mrs. 
Molll.  .Montgomerv.  and  not  to  Miss  Mollli'  Montgomery.  He  called  iittentlon  to 
the  iiiiine  .\.  II.  Montgomery  in  tlie  cluck.  Tim  defendant  has  lived  near  the 
witness  for  two  yciws,  Is  ii  very  poor  niiin  und  generally  very  hiird  np  for  money. 
The  witness  can  not  read  writing  very  well.  Then-  are  some  li.iiids  whl';h  lie 
r;in  not  read  ut  all.  This  letter  ^\mh  directed  In  a  very  dim,  and  a  very  bad 
liiind.     The  witness  took  the  snpen  i  i  iptlon  to  be  Muttle  Montgomery. 

The  written  tesiiin.itiy  of  .\.  T.  Cassity  before  the  examining  eonrt  was  read. 
Ills  statement  was  thiit  a  yi'ar  before  he  lived  about  a  ipiarter  of  a  mile  di-tant 
(lom  the  deleniiunt.  Miss  Mollie  Montgomery  received  a  letter  inclosing  a 
clu  ck  for  iJtiO.     The  witness  dlil  not  remember  to  whom  it  was  payable. 

A.  W.  ll.iiinier  testllled  that  In  .Inly  or  August  before  the  receipt  of  the  letter 
in  DecemlMT,  the  defendant  told  the  witness  tlmt  he  wanted  to  buy  ti  couple  of 
horses  from  l.lm,  and  that  lie  could  get  or  was  expecting  money  from  his  boys  in 
Kentucky.  He  afterwards  saw  the  defendant  at  Haker's  store,  when  defendant 
told  him  he  hud  received  money,  Imt  not  enough  to  buy  the  horses,  but  that 
he  wanted  to  buy  a  cow,  which  the  witness  sold  him. 

II.  Martin  testllled  that  he  knew  the  general  reputation  of  the  defendant  in 
the  community  In  which  he  lives,  and  that  it  was  good. 

,1.  M.  IJaker  testllled  that  he  was  tlie  propri'.'tor  of  Haker's  store.  The  mail 
for  the  neighborhood  is  sent  to  his  store  for  distribution  from  I'llot  Point.  Tlie 
•Montgomerys  receive  and  mail  letters  at  the  witness'  store.  He  liad  noticed  let" 
li  rsjaddressed  to  .lames  Montgomery  botli  liefore  and  since  the  letter  and  check 
were  received  by  the  Montgomery  family."  Letters  are  usually  addressed  to 
"Miss  Montgomery,"  "Miss  Mollie  Montgomery."  The  defendant's  general 
repuUtlon  In  the  community  was  good.  He  lived  about  as  well  as  the  "  com- 
mon run  "  of  farmers. 

White,  1'.  J.  A  mature  consideration  of  the  evidence  adduced  on  the  trial 
ticlow,  as  the  same  is  sliown  by  the  record  before  us  in  this  case,  has  failed  to 
convince  us  of  the  justice  and  correctness  of  tlie  virdico  and  judgment  to  that 
degree  of  certainty  as  tliat  we  would  feel  warranted  In  pcrmltlL.g  the  convic- 
tion to  stand  as  a  precedent.  There  Is  certainly  a  strange  conjunction  of  facts, 
circumstances  and  coincidences  In  behalf  of  defendant  which  go  far  to  deprive 
tlie  transaction  of  that  criminal  Intent  essential  to  constitute  the  crime  charged, 
and  another  trial  may  lead  to  the  developmeut  of  other  facts  of  a  more  conclu- 
!-ive  an.l  satisfactory  character. 

Kecause,  lu  the  opinion  of  the  court,  the  evidence  Is  Insufficient  to  support 
the  judgment,  the  same  is  hereby  reversed  ana  the  cause  remanded  for  a  new 

Reversed  and  remanded. 

§  406.  Forgery  Must  be  of  Some  "Document."  —And  the  false  mak- 
ing must  be  of  some  "  document "  or  "  writing."*  A  painting,^  a  printed  wrap- 
per for  baking  powders'  or  a  college  diploma,*  Is  not  within  these  terms. 

§  407.  incomplete  Instrument.— The  forgery  of  an  Incomplete  Instru- 
ment Is  not  a  crime,'  as  making  a  bank  note  without  the  name  of  any  cashier 


1  See  Foulkes  f.  Com.  2  Hob.   (Va.)  8:!U 
(1843). 

■i  U.  r.  C108S,  D.  A  R.  4<iO  (18.%8). 
3  n.  f.  Smith,  D.  &  U.  -M  C1858). 


«  K.  V.  Ilodsine,  D.  *  K.  3  (18«i). 
»  It.  V.  Turpin.  2  C.  *  K.  820   (184!)) ;  U.  v. 
Musgrave,  1  Lewlii,  i:t8  (IS2T). 


68 


FOriOKIJY, 


countersigned  tliereto'  or  a  paper  which  lucks  any  sii'nu*"'-.'.'-'    So  a  check  pay- 
able to  the  order  of  ,  Is  not  the  subject  of  fortjery.' 

§  408  Instrument  Must  be  Valid  on  Its  Face.— The  instrument  must 

be  valid  on  its  face;  '  if  it  lie  of  no  lejjal  oblipition  forfj;ing  it  is  not  a  crime. 

So  tlie  forgery  of  a  certilluate  of  the  genuineness  of  a  record  Is  not  punishable 
where  tlie  certillcate  is  legally  defective.'  So  a  bond  given  l)y  husband  to  vife 
not  being  l)inding  is  not  the  subject  of  forgery."  Nora  void  bill  of  exchange." 
Nor  a  guarantee  where  there  is  not  a  debt  due  to  the  party  to  whom  the  guar- 
antee is  given  from  the  one  for  wlioni  it  is  given."  So  an  Indictment  will  not 
lie  for  forging  a  certificate  of  acliuowledgnient  of  a  deed  which  certificate  does 
not  state  as  re(iuired  by  law  that  tiie  grantor  acknowledged  the  execution  of 
the  conveyance." 

So  of  a  satisfied  order  for  the  delivery  of  goods '"  or  a  decree  of  divorce  void 
on  its  face." 

In  Drake  v.  S'taf,^-  the  prisoner  was  charged  with  forging  a  transfer  of  a  blil 
of  exchange  by  falsely  indorsing  the  name  of  "  Drake  Hros."  Tlie  bill  was 
payalile  to  IJlake  Bro.s.  It  was  helil  that  as  the  indorsement  of  strangers  to 
the  bill  could  not  legally  transfer  it,  the  charge  was  not  sustained.  "Drake 
Bros.,"  said  the  court,  "  were  strangers  to  the  bill  and  the  indorsement  of  their 
names  thereon,  if  genuine  could  not  have  operated  as  a  transfer  of  it.  No  in- 
«lorsement  save  that  of  the  names  of  the  payees  could  have  the  effect  of  trans- 
ferring the  title  to  the  bill,  and  the  indorsement  alleged  to  have  been  falsely 
made  purported  to  be  of  quite  a  different  character.  The  oral  representaticn  of 
the  defendant  that  he  was  indorsing  the  name  of  the  payee  (which  the  face  of  the 
bill  clearly  shows  to  be  false)  can  not  constitute  the  crime  of  forgery.  Nor  can 
the  ciiaracter  or  effect  of  the  indorsement  actually  made  by  the  defendant  be  at 
all  affected  by  the  mistaken  belief  of  the  bank  ofllcial  that  he  was  making  an 
indorsement  of  a  wholly  different  kiud." 

In  CunniiiQham  v.  Peopk,^'  the  prisoner  had  pro,  ured  engraved  public  war- 
rants of  the  State  of  Mississippi.  They  had  no  impression  of  seals  upon  them; 
and  by  tlic  la>.'  of  Mississippi,  where  the  warrants  were  to  be  pa.ssed,  a  warrant, 
without  a  8e;il  was  invalid,  and  the  forged  warrants  lacked  vitality  also, 
because  they  did  not  pur|)ort  to  be  registered.  It  was  held  thai  the  instru- 
ments were  not  the  subject  of  forgery.  •'  Legal  forgery,"  .said  the  court,  "  can 
not  be  made  out  l)y  imputing  a  possible,  or  even  actual  ignorance  of  the  law,  to  a 
person  intended  to  be  defrauded.  However  dark  may  be  the  moral  hue  of  a 
transaction,  courts  of  justice  can  only  act  upon  the  legal  crime,  upon  criminal 
l)reaches  of  perfect  legal  obligations.  How  clear  soever  the  fraudulent  purpose 
unles"  the  writing  is  sulllclent  to  accomplish  that  purpose,  it  is  not  forgery 
.since,  with  a  single   exception,  actions  only,  and  not  evil  Intentions,  are  pun- 


)  Com.  f.  BoyiUoii,  -•  Milti8.  78  (ISlW). 

2  U.  V.  ratemaii,  U.  *  l{.  4M  (1«1) ;  «.  f 
Harper,  U  Cox,  .i74. 

a  Williams  v.  state,. "51  Ga.  .^,15. 

♦John  V.  Stale,  23  Wis.  B04  (ISiW)  ; 
Henderson  r.  State,  14  Tex.  .10:!  (IHSM  :  Stale 
V.  Wheeler,  ".)  Minn.  9.S  (IS7'.>). 

»  Faiiner  r.  IVople, :«  Hun.  240  fl!«4^. 

•  State  r.  I.ytle,fi4  N.  C.  ir^r>  (is70). 

'  K.  V.  Moffutl.a  Loach,  4.S6  (1787). 


'  State   t>.    Humphreys,   10  Humph.  442 
(18.)0). 

•  People  r.  Harrison,  8  Barb.  860  (I8!50), 
1"  People  r.  Fitch,  1  Wend.  1!W  (1828). 
11  llri>»Tn  r.  People,  an<e,  p.  :il ;  Fndnerr. 
People,  2  N.  Y.  t^iin.  Kep.  563  (18jM). 
1-'  I'J  Ohio  St, '211  (ISWt). 
11  11  N.  Y.  S.  C.  4J.i;  4  Hun;  2  Cow.  Cr. 
lieii. '.'U  ',187.1). 


INSTRUMENT    MIST    UK    VALID    ON    ITS    I'ACK 


C!) 


So  a  check  pay- 


-Tlic  instrument  must 
ig  it  is  not  a  crime, 
cord  is  not  punisliablp 
;n  i)y  luisliand  to  vifo 
•oid  bill  of  exchange.' 
rty  to  whom  the  giiur- 
iin  indictment  will  not 

I  which  certificate  does 
dged  the  execution  of 

decree  of  divorce  void 

ing  a  transfer  of  a  blil 
Hros."  Tlie  bill  was 
ement  of  strangers  to 
t  sustained.  "  Draku 
le  indorsement  of  their 
transfer  of  it.  No  in- 
dve  the  effect  of  trans- 
d  to  have  been  falsely 
:  oral  representaticn  of 
,'  (which  tiie  face  of  the 
c  of  forgery.  Nor  can 
by  the  defendant  be  it 
that  be  was  making  an 

engraved  public  war- 
on  of  seals  upon  them; 
to  be  passed,  a  warrant 
s  lucked  vitality  also, 
!  held  thai  the  instru- 
"  said  the  court,  "  can 
lorance  of  the  law,  to  n 
be  the  moral  hue  of  a 
il  crime,  upon  criminal 
the  fraudulent  purpose 
pose,  it  is  not  forgery 
ril  intcntlous,  are  pun- 

imphreyg,  10  Ilumpb.  442 

irrison,  8  Barb.  S<tO  (1860). 
ch,  1  Wend.  1!18  (1S28). 
nple,  an{«,  p.  :il ;  Fndnerr. 
Tim.  «ep.  563(18jM). 

II  (ISliSt). 

C.  4J.'>;  4  Uun;  2  Cow.  Cr. 


ish:il)le  by  tlie  Entilishlaw.    The  invalidity  of  the  warrant  upon  its  face     •     »     • 
nndervS  It  improper  to  convict  tlie  prisoner." 

Jn  HmoiH  v.  Si<itr,^  tliu  court  in  reversing  a  conviction  .say:  "The 
(lofeiiilant  w;is  indicted  under  article  20'J4,^  for  forgery,  in  altering  the  fullow- 
jii;i  in>lrument  or  niemorauduni  In  writing,  viz.:  'two  hides  §J  00;  Sitnian.' 
This  writing  upon  its  face,  is  .vidence  of  no  pc(-uui:iry  obligation,  and  lis 
alteration,  by  simply  changing  llio  figures,  could  neither,  increase  or  dimiii- 
i^li  any  pecuniary  obligation;  and,  therefore,  tliat  act  can  not  be  considered 
forgery  nmler  the  statute.  Forgery  is  defined  by  one  of  the  best  authori- 
ties on  criminal  law,  to  bo  'the  false  making,  or  materially  alt.-ring  with 
intent  to  defraud,  of  any  writing  which,  if  genuine,  might  apparently  be  of 
k-,Ml  elllcacy,  or  tlio  foundation  of  a  leg;il  liability."  Tiiis  definition  of  the 
CI  line  of  forgery  is  very  similar,  and  in  no  respect  in  conflict  with  that  given 
liy  our  statute,  and  yet  the  same  author  siiys:*  '  When  the  writing  is  invalid  on 
its  face,  It  can  not  be  tho  subject  of  forgery.'  The  Instrument  under  consld- 
eriUiuii  has  no  date,  is  addressed  to  no  one,  and  on  Its  face  h;is  no  money  or 
vane  for  its  object,  and  indeed,  iias  none  of  the  reipiisites  of  an  obligation, 
iiiid  the  alteration  of  it  could  affect  the  legal  liability  of  no  one.  The  indict- 
ment charges  that  under,  and  by  virtue  of  this  writing,  the  defendant  was 
authorized  to  demand  and  receive  of  W.  G.  Kandall  &  IJrother,  certain  moneys. 
Hut  under  the  law  ho  had  no  right  to  demand  of  W .  (i.  liandall  &  Brother,  or 
any  one  else,  any  money  o.-  other  property,  upon  the  face  of  that  instrument. 
Tlu're  may  have  been  an  uuderstauiling  between  liandall  &  Hrother  and  Sltmaii, 
fiiat  they  would  pay  on  siieli  a  memorandum  of  Sitmaii,  and  if  the  defendant, 
iKtving  obtained  a  knowledge  of  that  understanding,  has  made  use  of  it  to 
>\vindle  Randall  &  ISrother,  he  Is  punishable  by  indictment  for  swindling,  but 
not  for  forgery.  The  ct)urt  therefore  erred  In  overruling  the  motion  In  arrest 
of  judgment,  and  for  which  error  the  judgment  Is  reversed  and  the  case  re- 
manded, that  a  proper  indictment    may,  if  thought  advisable,   be  preferred 

against  the  defendant. 

"  Reversed  and  remanded.'^ 

§  408(1.  Instrument  Void  on  Ita  Face  —  Deed  of  Married  Woman  without 
AcinowledHrment.  — In  lioode  v.  Slatf,^  It  was  held  that  a  married  woman's 
ileed  being  by  statute  void  without  an  acknowledgment,  an  indictment  for  for- 
gery of  such  an  Instrument  would  not  lie.  Gantt,  J.,  delivering  tlie  opinion  of 
ihe  court,  said:  "The  indictment  charges  the  plaintiff  In  error  with  forging  and 
counterfeiting  a  certain  deed  purporting  to  convey  the  title  of  certain  lots  of 
.'round  In  the  village  of  Nashville,  In  the  State  of  Michigan.  The  deed  is  set 
forth  in  fxtemo  in  the  body  of  the  Indictment,  and  by  It  Jolin  K.  Roode  doth 
grant,  bargain,  sell,  and  convey  to  one  J.  E.  Davis,  the  lots  described  therein, 
with  full  covenants  of  warranty,  and  then  foUows  this  language :  '  The  said  John 
>•'  iloode  and  Maggie  Rootle  relin(|uish  all  claims  in  and  to  the  above  described 
premises.'  The  names  of  both  John  K.  and  Maggie  Roode  are  signed  to  the 
deed;  It  Is  regularly  executed  and  acknowledged  by  John  K.,  but  Is  tot  ac- 
knowledged by  Maggie  Roode,  and  the  gist  of  the  offense  Is  that  the  name  of 
Maggie  Roode  was  forged  and  counterfeited  to  tlie  Instrument  with  intent  to 
damage  and  defraud  said  Maggie  Roode,  who   is  the  wife  of  the  plaintiff  in 


1  37  Tex.  Bill. 

2  Piisc.  Diff. 

3  Uiiih.  Cr.  L.  W»- 


'  vol.  11.,  p.  500. 
■■>  6  Neb.  475  (187B). 


70 


l'OI!(iKUY 


eiTcpi'.  Till'  accused  ilt!imirrt"l  to  tlit-  iudictinunt  on  the  ground  tliiit  tlie  f:ict-i 
staled  tlicniii  are  not  suincieni  In  law  to  constitute  auoffen.se  i)unishablc  by  tlic 
laws  of  this  Stale.  Tiie  demurrer  was  overnded  by  tlie  court  and  exceptions 
duly  taken.  After  the  trial  the  accused  filed  a  motion  In  arrest  of  judgment  for 
the  same  reasou.s  stated  In  lii.s  demurrer,  which  motion  was  overruled  and  ex- 
ception was  taken.  The  only  (luestlons  raised  In  the  case  are  whether  the  deeii 
set  forth  in  the  indictment  is,  upon  its  face,  void  as  to  Maggie  Roode  and 
whetlier  an  Indictment  fo'-  the  forgery  of  such  an  Instriimeut  can,  in  law,  bo 
sustained. 

"  It  is  well  understood  that  under  the  strict  rules  of  the  common  law  tlie  trans- 
fer of  real  estate  was  by  livery  of  seisin  and  therefore  the  validity  of  the  trans- 
fer of  sucli  estate  l)y  deed  of  conveyance,  depends  wliolly  upon  statutory 
authority.  It  seems  that  the  re^xistration  of  such  deeds  of  conveyance  was 
intended  to  stand  in  the  place  of  livery  of  seisin ;  and  the  validity  of  registration 
depends  upon  the  instrument  having  been  first  properly  acknowledged  as  re- 
quired by  tlie  statute.  Hence,  the  life  and  legal  effect  which  such  deeil 
accpiireil  is  wholly  derived  from  and  given  to  it  by  the  statute,  and  the  execu- 
tion, ackuowieiigment,  and  registration  of  the  deed  must  be  strictly  within  the 
province  of  tlie  law,  for  in  these  respects  the  statute  can  not  be  taken  as  merely 
directory,  but  must  be  considered  as  matter  of  substance  and  must  be  strictly 
pursued.*  And  in  Clnrk  v.  Graham,'  it  is  said  that  it  is  perfectly  char  that  no 
title  to  lands  can  lie  acquired  or  passed  unless  according  to  the  laws  of  the 
State  in  whicli  they  are  situated.^ 

"  The  registry  laws  of  Michigan  require  deeds  of  conveyance  of  lands  to  Ix' 
acknowledged  or  proved  and  recorded,  and  provide  that  '  if  any  such  deed  sbaii 
be  executed  in  any  other  State,  territory  or  district  of  the  United  States,  such 
deed  may  be  executed  according  to  the  laws  of  such  State,  territory  or  district, 
and  the  execution  thereof  be  acknowledged  before  any  ju<lge  of  a  court  of 
record,  notary  public,  justice  of  the  peace  or  other  oflker  authorized  bylaw 
to  take  such  acknowledgment;  and  in  all  cases  of  such  acknowledgment  there 
must  lie  attached  to  the  deed  a  certificate  of  tlie  clerk  or  other  proper  certify- 
ing olllcer  of  a  court  of  record  of  the  county  or  district  within  which  sucli 
acknowledgment  was  t.iken,  under  the  seal  of  his  ofllce,  that  the  person  whose 
name  is  subacrilied  to  the  certillcate  of  acknowledgment  was  such  ofBcer  as  he  is 
therein  represented  to  be,  that  he  believes  the  signature  of  such  person  suli- 
scrilied  tlureto  to  lie  genuine  and  that  the  deed  is  executed  and  acknowledged 
according  to  the  laws  of  such  Stale,  territory  or  district.' 

"Now,  tlie  instrument  set  forth  iu  the  indictment  is  not  acknowledged  hy 
Mag;,'ie  Iloode  and  it  is  not  certilled  as  required  by  the  laws  of  Michigan;  nor 
Is  it  esecuted  and  acknowb'dged  by  her  according  to  the  laws  of  Nebraska 
Therefore,  it  need  only  be  observed,  that  as  to  Maggie  Koode  the  instrument  as 
a  deed  does  not  come  within  the  purview  of  tiie  laws  relating  to  the  transfer  of 
lands  by  deed  of  conveyance  eitlicr  in  Michigan  or  Nebraska.  Hence,  it  is  clear 
as  to  .Maggie  llooiie,  the  instruiiieiit  is  no  deed,  and  is  void  upon  its  face.  In 
Peityde  v.  Galtoirity,*  it  is  said  that  an  instrument  purporting  to  be  the  deed  of 
a/eme  covert  is,  before  acknowledgment,  utterly  void.     It  is  not  her  deed.' 


1  1  niirr.  447;  3  Yootcs,  ISC. 
■-'  «  Whent.  .')77. 
■  :t  Wanli  im  Keiil   I'rop, 
Diabler,  13  Ciil.  33U. 


*  17  Wend.  541. 

■  .Smith  r.  Hunt,  13  Ohio,  2r>0, 208;  Carney 
.'16;  Liesr.  !>•       e.  U<.|iiiloV   Heirs,   17  Ohio,  80;  Perdue    r. 
Aldridge,  It)  liul.  290. 


INSTRUMENT   VOIP    ON    ITS    FACE. 


71 


liilt  tlie  f;lft.-i 
shable  by  tlic 
I  exceptions 
udgincnt  for 
uled  and  e.x- 
;her  the  dted 
!  Roo'lc  and 
D,  ia  law,  bt; 

aw  tlic  trans- 
of  the  traus- 
oa  statutory 
veyanco  was 
[  registration 
ledged  as  n - 
li  such  dceil 
id  the  execti- 
ly  witliin  the 
veiius  iiiert'Iy 
Bt  be  strictly 
char  that  no 
laws  of  tilt' 

lands  to  !)(> 
cb  deed  shall 

States,  such 
y  or  district, 
)f  a  court  of 
irized  by  law 
Jgment  there 
oper  certlfy- 
I  which  sucli 
>er80ii  whose 
)fflcer  as  he  is 

person  sul)- 
eknowledged 

lowledged  i)y 
[Ichigun;  nor 
of  Nebraska 
nstrument  as 
le  transfer  of 
ice,  it  Is  clear 
its  face.  lu 
i  the  deed  of 
;r  deed.' 


[IM,  2C8;Carnry 
3U;  Perdue    v. 


"  The  next  question  is  can  such  an  instrument  legally  1h<  the  sul)iect  of  forgery, 
if  not  genuine?    I  tliinlv  the  doctrine  can  not  be  maintained  upcm  principle  or 
Uw  that  an  instrument  absolutely  void  on  its  face,  and  which  could  work  no  in- 
i„rv  to  the  person  for  whom  it  was  olHained,  can  legally  be  made  the  subject  of 
(or-.'ry  if  not  genuine.     In  the  case  of  People  v.  Galloway,'  it  is  said  of  tlie 
stamte  in  relation  t..  forgiry  that '  it  was  made  to  protect  men  in  the  enjoy- 
ment of  their  property,  and  if  the  instrument  can  by  no  possil)iiity  prejudice 
anv  one   in  relation  to  his  estate,  it  will  not  be  on  offense  witldn  the  stat- 
ute    •     •    •     In  prosecuting  for  forgery  it  is  material  that  the  Instrument 
should  not  upon  its  face  appear  to  be  illegal  and  void.' »    And  Baron  Eyre  said 
in  Jones  <t  /'((/m-r's  Case,^  tliat  the  instrument  to  be  the  subject  of  forgery 
must  <  purport  on  the  face  of  it  to  be  good  and  valid  for  the  puri^ose  for  which 
it  was  created.'  • 

"The  demurrer  to  the  indictment  should  have  been  sustained. 

"  Judgment  reversed." 

^  409    Instrument  void  on  its  Pace  —  Promise  to  Pay  a  Sum  In  Labor. 

but  no  Consideration. -In  Vvople  v.  ShalW  the  prisoner  was  ludicted  for  forK- 
iug,  the  following  Instrument:  — 

"Three  months  aft.r  date,  I  promise  to  pay  Sebastian  I.  Shall  or  bearer 
three  dollars  in  shoemaklng  at  cost  price,  the  work  to  be  done  at  his  dwelllng- 

DaVID  W.  H0l(iIIT.4UN0" 

house. 

This  was  held  not  the  subject  of  forgery.    Cowkn,  J.,  delivered  the  follow- 
in-  exhaustive  opinion.    «•  It  Is  scarcely  necessary  to  ol)serve  that  the  Instru- 
raent  set  out  in  this  indictment  is  not  a  promissory  note  within  the  statute  of 
Anne-  and  it  is  agreed  that  the  writing  does  not  come  within  any  of  the  stat- 
utes of  forgery;  it  being  payable  neither  in  money  nor  goods,  but  labor.'    The 
indictment  Is  therefore,  based  upon  the  common  law.    Another  defect  renders  it 
utterly  void  of  itself,  as  a   common-law    contract.    It  expresses  no  value 
received,  nor  any  consideration  whatever,  and  no  action  could  be  maintained 
upon  it  if  genuine,  as  a  special  agreement  to  perform  laljor,  without  averring 
and  proving  a  consideration,  dehors  the  instrument.'    The  indictment  avers 
no  extrinsic  fact  by  whleh  it  might  be  made  operative;  nor  is  it  conceivable  how 
matter  for  such  an  averment  could  exist.    The  question  presented  is,  whether 
the  fraudulent  making  of    a  writing  void  In    Itself,  and  so  appearing  in  the 
indictment  be  the  subject  of  a  prosecution  for  perjury.    That  it  may  be  we  arc 
referred,  through   Chlttv's  Criminal  Law,  to  what  was  said  in  BeJ.  v.  Ward, 
that  the  fabrication  of  an  instrument  whereby  another  may  be  defrauded  is  for- 
gcrv.    The  information  in  that  case  stated  that  Ward,  being  chargeable  to 
deliver  315i  tons  of  alum  to  Duke  Edmund,  fabricated  a  schedule,  and   in- 
dorsed upon  it  a  direction  to  himself  in  the  name  of  the  duke,  to  charge  fioOi 
tons  of  alum  to  the  duke's  account,  part  of   the  quantlt/  mentioned  In  the 
schedule,  and  out  of  the  proceeds  of  sales  of  alum  in  VVa  i's  hands,  to  pay 
himself  £10  for  every  ton  according  to  agreement,  and  for  so  doing,  the  m- 


1  titpra. 

i  Kingr.  Moffat,  1  Leacli,  4;il. 

3  /,/.  36ti. 

*  2  Bisti.  Crlm.  Law,  606. 

'  9Cow.778(182'.t). 


«  1  K.  t..  4(U,Ii.  r,. 

I  Carlos  r.  Knncourt,  5  T.  U.41B ;  Lansing 

t'.  McKillup.SCuini'B.  2ST. 
»  2  l.d.  Uaym.  1461.  HOC,  MO'J. 


72 


FOl:(}KI!Y 


dorsoment  shoul.l  )).■  his  fWardN)  discliargc.  This  was  hohllni,'  forgery  sit 
coinriion  law.  In  uiiswi-r  to  iiii  (ilij,  <t,i.)n  taken  in  arr.st,  that  "iio  pnblicM- 
tlon  of  the  instrument,  or  actual  fraud  upon  the  duke,  was  nverr.d  in  tlie  infor- 
mation, tiio  court  said  tliat  the  act  was  complete  hy  tlie  acf,  of  foru'ery;  pub- 
licition  or  actual  fraud  were  not  necessary;  but  it  was  sullleient  tiiattiio  duii.' 
niinlit  liave  l)een  defrauded.  Au  ol.jction  in  arrest  was  also  taken,  that  tlie 
statement  of  tlie  (meraliilis  crist,  nn ad  drliln'raudnm,  did  not  lay  the  time  so  as  t^) 
connect  it  witli  tlie  instrument  forced.  Tliis  time  was  holdeu  sulliciently  cer- 
laln;  and  tlie  information  was  sustained  against  every  objection.  One  rcmarii 
si'j;gcsted  by  tliis  case  is,  that  tlie  instrument  would  liave  l)eeii  void  in  Itsi  if ; 
and  the  averment  of  onirahills  cxislcnn  became  necessary  lo  complete  tlir 
crime,  otherwise  the  duke  could  not  possibly  have  been  impose<|  ui)on;and  lie 
was  ..he  only  person  state. 1  in  tl  e  iiiiormatiou  to  be  the  object  of  the  fraud.  U 
Is  plain,  too,  tliat  such  an  instrument  could  have  had  no  Ic^mI  effect,  and 
could  have  Imposed  upon  no  one,  if  none  of  the  duke's  aluin  had  been  in 
Ward's  liaiuis. 

Ward's  is  a  leading  case.  It  underwent  f^reat  examination,  and  in  tlie  course 
of  the  discussion  almo>t  every  aulliorily  ujion  coinmoii-la'v  forgeries,  then  ex- 
tant, apiiears  to  have  been  considered.  Tlie  cases  referred  to  were  these:  J{(.x 
V.  Stnck;');i  for.,'ery  of  a  bill  of  lading;  Hoy  v.  Fprrers,"  Uiraiug  the  acquittance 
of  a  prosecution  by  Lady  (irautliain,  there  beinn  s.'veral  suits  between  them; 
Farr's  Cas<','  forging  a  warrant  of  attorney;  Ihidlofa  Case,*  forging  a  marriage 
register;  Lr/,;,;/  v.  Dmlin.i;'  forjiinga  protection  in  the  name  of  Sir  Anthony 
A.  Cooper,  wlio  was  of  the  privy  council,  but  not  a  nobleman.  It  was  objected 
that  because  he  was  not  a  nobleman  nor  member  of  I'arllaiiiont,  the  jirotection 
was  void,  none  but  nobles  or  members  having  power  to  grant  such  an  instru- 
ment;  and  so  no  one  could  l)o  imposed  U|)on.  The  obj.'ctbm  was  overruled, 
doubtless  on  the  ground  that  the  defect  was  latent.  It  did  not  appear  upon  the 
face  of  the  paper,  which  imrported  to  l)e  a  valid  one.  Domini  llegina  v.  Var- 
rtn;/<»H,nwas  the  forgery  of  a  letter;  and  the  judges  in  WanVs  Case  refer  to 
manuscript  cases  of  coiuinon-law  indictments  for  for«ing  a  general  release  and 
a  bill  of  exehaii-e;  and  Fortescue,  justice,  mentioned  a  similar  indictment  for 
forging  tlie  indorsement  on  an  army  debenture.'  In  Savaui-'s  Case,'*  the  defend- 
ant'  was  indicted  for  forging  and  publishing  of  letters  of  credenco  to  gather 
money,  and  was  convicted,  and  judiiuient  given  against  him  upon  his  own  con- 
fession, and  £100  line  set  upon  him.'  Of  Hoy  v.  Ferrers,  it  is  proper  to  obserre 
that  I  li.iv(!  looked  into  1  Treinaine's  Kutries,'  where  the  indictment  is 
set  forth  in  full ;  and  I  liiid  that,  in  order  to  show  the  application  and  effect  of 
the  forged  ac()uittancc,  a  real  demand  is  recited,  which  the  acquittiince  purported 
to  discliargc.  This  was  evidently  necessary,  or  the  instrument  would  have  been 
no  more  than  blank  paper.  la  all  these  cases  the  Instruments  forged  were,  as 
far  as  wo  can  see,  apparently  available  for  the  purpose  inten<le<l;  to  acquire  or 
defeat  .lonie  right,  or  to  work  a  iirejiidice;  and  we  have  seen  that.  In  two  of  the 
cases,  the  papers  not  being  jirejudiclal  on  their  face,  the  defect  is  supplied  by 
averment  or  recital,  showing  how  they  might  be  made  to  act  injuriously  by  rea- 
son of  matter  aliunde. 


I  B  Mod.  HIT  ;  1  Salk.  H2. 
«  1  Sitl.  278. 
8  Sir  T.  Kaym.  81. 
«  a  Sid.  71. 

*  1 8ia.  la. 


•  I  Salk.  ioa. 

'  2  I.il,  Raym.  1465. 

•  Style's  Kep.  12. 

•  (ol.  129. 


«■ 


INSTUIMKNT    VOID   ON    ITS    TACK. 


73 


I  Mi;  forgery  nt 
It  ii'>  |inl)lic;i- 
1(1  in  tlitt  liifor- 

forircry;  pijlj. 
t  tliattlio  (liiki- 
laki'M,  that  the 
(•  time  so  us  ta 
iilHcicntly  ccr- 
.     One  remark 

void  in  itsiif; 
I  <;oni[)lete  tin' 
!  ui)on;  anil  iiu 
tlie  (raud.  It 
al  effect,  and 
had  boen    in 

d  in  the  course 
;enes,  then  ex- 
■n;  tlicsc :  Ecx 
lie  aciiuittancc 
etwecri  tliein; 
Mii  a  niarriaue 
f  Sir  Antliony 
'.  was  objected 
tlic  j)roteclion 
ich  an  instru- 
•as  overrided. 
ipear  upon  tlie 
Uegina  v.  Yar- 
Case  refer  to 
•al  release  and 
indictment  (or 
e,"  the  defend- 
jnco  to  gather 
1  his  own  con- 
)cr  to  ohserre 
indictment  is 
I  and  effect  of 
nee  purported 
uld  liave  been 
rged  were,  as 
to  acquire  or 
in  two  of  the 
9  supplied  by 
iously  by  rea- 


"  I  now  come  to  a  class  of  cases  whicli  hold  that  a  writing  void  of  itself,  and 
not  made  good  l)y  averment,  is  not  the  subject  of  a  iirosecution  for  forgery.     In 
W.iU'.i  Caxr,HU(i  conviction  was  on  an  indictment  for  forging  a  will  of  all  the 
preinises  beionging  to  J.  S.,  whidi  he  bought  of  T.  W.  and  S.  li      Tlie  will  was 
attested  by  only  two  witnesses,  and  was,  tlierefore,  void  as  a  devise  of  a  inv- 
hold;  but  would  have  been  good  us  a  beipiest  if  tlie  [ireteiideil  testator's  iiiter- 
ot  had  been  bnta  term  for  years.    It  was  suggestetl  to  be  llie  latter,  but  no 
Mil  li  fact  apiiears  to  have  been  averred  in  tlie  indictment,  and  it  was  not  in  proof 
at  the  trial.     Tlie  judges  on  conference  held  the  coiivietlon  wrou;.',  for,  as  It  was 
not  shown  to  l)e  a  chattel  interest,  it  sliould  be  presumed  to  be  freehold.     In 
.Vr//<(('s  Case,''  the  conviction  was  for  uttering  as  true  a  forged  acce|)tauee  on  a 
bill  of  e.xcliauge  void  by  the  statute  17  (jieoige  III.,-'  and  all  the  judges  held  thecou- 
victiou  wrong;  for  if  it  had  been  a  giiiuiiie  instnimeiit  it  would  have  been  al)so- 
liitely  void,  and  nothing  could  have  made  it  good.     In  the  late  case  of  Jlix  v. 
Iliirke,*  the  defendant  was  convicted  of  putting  away  the  following  instrument: 
'  1  promi.se  to  take  this  as  thirty  sliiliings,  on  demand.  In  i)art  for  a  two  pound  note 
luluc  received.     ForCundiffe,  Brooks  .*c,  Co.,  K.  Cuiidlffe,'  with  Intent  to  defraud 
tlio  linn  of  Cundiffi',  Brooks  &  Co.    The  indictment  was  ilr.iwn  as  at  common 
law,  and  called  the  iustruiuent  a  proniis.sory  note.     The  defendant  was  convieied 
at  the  Lancashire  Summer  Assizes,  in  isi'-j,  after  which  it  was  mentioned  to  tlie 
iuilu'e  of  assize  that  this  was  not  a  promissory  note,  as  It  was  called  In  the  in- 
dictuient;  and  he  reserveii  that  point.     '  It  also  struck  the  learned  judge  that 
there  was  great  doubt  whether  the  genuine  instrument  or  writing  su|iposud  to 
be  forged  or  uttered  had  any  legal  validity,  and  whether  it  was  not  a  mere  nul- 
lity, for  tlie  forgery  of  which  no  indictment  could  be  sustained;  and  the  lord 
fliief  justice  concurred  in  that  doubt.'     On  the  case  being  sul)mitied  to  the 
judges  they  decided  tiiat  tlie  judgment  should  be  arrested.     The  rei)ort  does 
not  mention  on  which  of  the  two  grounds  suggested  at  the  assizes  the  decision 
of  the  judges  proceeded.     It  is,  however,  manifest  from  the  case,  that  it  could 
not  have  b"en  tlie  grouud  mentioned  by  counsel.    Thouuh  the  indictment  might 
have  miscalled  the  instrument,  yet  it  was  set  out  verhaiim.     Clearly  the  words 
promissory  note  might  have  been  rejected  as  surplusage,  and  could  not  have 
l)een  the  foumlatiou  either  of  a  motion  In  arrest,  or  an  objection  for  variance. 
I  can  not  but  regard  this  ca.se  as  having  directly  decided  the  point  raised  by  the 
judge  of  assize.     The  writing  was  obviously  in  nature  of  a  receipt  or  acquit- 
tance of  thirty  shillings  on  a  two  imund  note ;  and  If  the  indictment  had  averred 
the  existence  of  a  note  to  which  it  would  apply,  as  In  Roy  v.  Ferrers,  it  would 
have  made  out  the  case.     People  v.  Fitch, ^a.\so  holds  that  forgery  of  a.  paper 
which,  if  genuine,  would  be  a  legal  nonentity,  does  not  form  the  subject  of  an 
indictment.     In   Commonwealth  v.  LuUou,"  the  defendant  was  convicted  on  an 
indictment  for  forging  a  bail  bond.     A  motion  was  made  In  arrest  of   judg- 
ineut  ou  the  grouud  that  the  bail  bond  was  not  binding  on  its  face.    The  court 
did  not  question  that  the  objection  would  have  been  available  if  It  had  been 
founded  on  fact,  but  they  applied  themselves  to  show  that  the  bond  was  good; 
and  on  thla  ground  denied   the  motion.    The  case  of  Ames  and  othrs,^  is 
founded  on  Savage's  Case,  wrhlch  I  before  cited  from  Styles.     In  Ames^  Case  the 


I  2  East's  V.  C.  953,  and  note  (a)  and  (b). 
a  a  East's  P.  C.  954 ;  2  Leach,  483,  S.  C. 
3  ch.  30,  sec.  1. 
*  1  Buss.  &  Ry.  Cr.  Cas.  496. 


■  1  Wend.  198. 
•  2  Va.  Cbs.  476. 
'  2  Ureeul.  369. 


74 


FOIUIKRY, 


di'fonilant  was  convicted  of  forging  a  written  recommendation  purportiii;;  to  bo 
sijriied  l).v  the  scleciinen  of  Hanuerville,  stating  tliiit  J  L.  was  a  respoiisibli; 
man,  al)lc  to  satisfy  adeinaiid  of  JJOm);  tliatlie  iiad  bouglit  Ames'  land,  etc.;  ami 
that  th('>  (tlie  siluctiiuMi)  sboulil  not  be  afraid  to  be  L.'s  bondmen  for  0iJOO  to 
4800.  Un  luotion  in  arn^st  the  court  held  that  siicii  an  instrument.  If  genuine, 
would  have  bounil  the  selectmen  as  a  letter  of  credit  to  the  amount  of  $500,  or 
woiiUi  have  subjected  them  to  an  action  for  deceit  as  a  false  and  fraudulent 
representation.  The  court  say  it  would,  in  either  mode,  'operate  as  the  foun- 
dation of  liability,'  and  they  make  this  the  test  of  the  forgery.  In  the  princi- 
pal case  I  have  sliowii  tluit  the  paper  forced,  if  genuine,  would  be  u  mere 
nullity  for  any  purpose;  nor,  to  my  mind,  could  it  be  made  good  by  any  possi- 
ble averment.  It  could  not  be  made  the  foundation  of  liability,  like  the  letter 
of  credit.  It  does  not  come  within  any  of  the  cases  sustaining  indictments, 
but  to  me  it  appears  to  be  directly  within  the  cases  cited  holding  tliat  an  Instru- 
ment purporting  to  be  void  on  its  face,  and  not  shown  to  be  o|)erative  by  aver- 
ment. If  genuine.  Is  not  the  subject  of  fory;ery.  How  is  It  possible  in  the 
nature  of  things,  that  it  should  be  otherwise?  '  Void  things  are  as  no  things.' 
Was  it  over  heard  that  the  forgery  of  a  nudum  pactum,  a  thing  which  could  not 
be  .I-  .  I  on  or  enforced  in  any  way,  is  yet  indictable?  It  is  the  forgery  of  a 
»•'■(;).  ,  jr-.mt  that  on  conplinga  genuine  note,  like  the  one  in  question,  with 

a  (•  "     )M,  a  cause  of  action  would  be  made      But  you  must  aver  the  con- 

sideiation  in  your  declaration  and  show  It  in  proof  on  the  trial.  It  is  the  sub- 
}tct  of  a  direct  issue.  In  that  sense,  liere  may  be  the  forgery  of  a  piece  of 
e\i  (ince  '-hich  '  '•  •'  '  be  eked  out  by  other  evidence,  the  whole  forming  a  mis- 
ciilcvous  il;. pi. Hill  T!;a'  answer  woidd  hold  e<iually  In  every  case  cited:  the 
void  will,  the  ■  oid  bill  ol  exchange,  the  void  receipt.  We  are  not  to  be  put  in 
an  exploring  expedition  for  possible  evils.  They  must  be  palpable  and  tangible; 
u  practicable  fraud  must  be  shown  in  thi-  iiidictment,  so  that  the  finger  may  be 
put  upon  it.  That  a  false  writini;,  purporting  to  be  nothing  of  itself,  may  be 
put  to  some  fancied  use  as  an  ingredient  in  the  work  of  miscldcf,  can  not  be  the 
criterion  of  forgery.  As  Baron  Kyre  said,  in  Jones  and  Palmer'' s  Case,^  the  instru- 
nil  nt,  to  be  the  subject  of  forgery,  must  'purport,  on  the  face  of  it,  to  be  good 
and  valid  for  the  purpose  for  which  it  was  created.'  This,  says  Mr.  East,'^ 
'  must  be  understood  in  respect  to  the  frame  or  terms  of  the  instrument  or 
wilting  itself.' 

"  I  agrt!e  that  a  man  ignorant  of  the  technical  requisites  of  a  special  agree- 
ment niiifiit  be  imposed  upon  by  the  paper  in  (juestion.  This  remark  probably 
einl)races  a  majority  of  the  community  in  which  we  live,  and  most  likely  the 
very  i)arties  named  in  the  false  instrument.  In  this  view,  no  doubt,  the  deed  of 
which  the  defendant  stands  convicted,  involves  all  the  moral  guilt  of  forgery. 
Me  believed  that  he  had  succeeded  in  fat)ricating  what  purported  to  be  a  valid 
promissory  note.  But  legal  forgery  can  not  be  made  out  by  imputing  a  possible  or 
even  actual  ignorance  of  the  law  to  the  person  intended  to  t)e  defrauded.  How- 
ever dark  may  be  the  moral  hue  of  a  transaction,  courts  of  justice  can  only  act 
upon  legal  crime,  upon  criminal  lireaches  of  perfect  legal  obligation.  Had  this 
paper  been  used  as  a  token,  and  thus  nnule  the  medium  of  actual  fraud  by  the 
defendant,  he  would  be  punishable  as  for  a  cheat.  The  instrument  might,  in  the 
relative  sense,  l)ecome  the  subject  of  an  indictment.     It  here  stands  alone;  and 


I  1  Leacli,  4UJ. 


-  1'.  c;.  853,  note  v"). 


iiMi 


80ME   ONE   MUST    BE    INMURED. 


75 


irportiii;;  to  be 

a  responsibit; 
and,  etc.;  and 
en  for  8aoo  to 
ut,  if  gunuinc, 
int  of  $500,  or 
nul  frimdulpnt 
te  as  tlie  foun- 

In  tlio  prlnci- 
ild  be  u  mere 
1  by  any  poasi- 

likc  the  letter 
g  indictmunts, 
that  an  instru- 
rative  by  aver- 
)os8ible  in  tlic 
!  as  no  tilings.' 
lilch  could  not 
le  forgery  of  a 
question,  witb 
It  aver  the  con- 
It  is  the  sub- 
f  ot  a  piece  of 
forming  a  mis- 
case  cited :  the 
lot  to  be  put  in 
e  and  tangible ; 
t!  finger  may  be 
I  itself,  may  be 
,  can  not  be  the 
ise,^  the  instru- 
f  it,  to  be  good 
ays  Mr.  East,^ 

instrument  or 

L  .special  agree- 
'mark  probably 
most  likely  the 
ibt,  the  deed  of 
lilt  of  forgery, 
i-d  to  be  a  valid 
ing  a  possible  or 
THuded.  How- 
Ice  can  only  act 
tion.  Had  this 
lal  fraud  by  the 
nt  mi^ht,  in  the 
nds  alone ;  and 


we  do  not  think  that  legal  forgery  can  he  predicated  of  such  a  writing,  for  the 
reason  fully  csttiWi.she(l  by  authority  and  principle,  that  it  is  not,  on  the  face  of 
the  indictment,  of  any  appall  legal  value.  ^^  ^^^^^^^^^^  ^^^^^^^  „ 

410.  Some  one  Must  be  Injured.  —  Some  one's  rights  mxist  b.i  preju- 
diced by  the  forgery.'    The  making  and  alteration  must  injure  some  one.' 

Thus  an  interlin.atlon  of  words  in  a  lease  so  as  to  miike  it  conform  to  the 
intention  of  the  parties  is  not  forgery,'  or  a  mere  verl)al  alteration  in  an  instru- 
ment not  affecting  its  legal  ol)ligatlon,«  or  falsely  i)Uttlng  a  witness'  name  to  a 
b.ind  which  does  not  reiiuire  a  witness.* 

In  Clarke  v.  State*  the  indictment  charged  that  C.  with  intent  to  defraud  L- 
lalscly  altered  a  receipt  made  l)y  L.  to  a  county  treasurer  for  the  payment  of 
e.  rtai .  taxes  due  from  L.  for  a  given  year  so  that  tlie  receipt  In  Its  altered  form 
represented  the  pavment  of  a  sum  larger  than  originally  expressed.  It  was 
h,.l(l  not  to  show  aiiy  offense.  "As  by  its  terms  solely  the  receipt  had  no  legal 
clllelency  as  against  L.,  it  could  not,  therefore,  in  contemplation  of  law  impair 
any  of  his  rights."  ^  ^     j 

In  CoMn  v.  Slate,'  C.  was  charged  with  forging  a  deed  with  Intent  to  de- 
fraud A.  It  appeared  that  C.  had  given  A.  the  deed  us  an  equitable  mortgage 
to  secure  a  debt  for  board  alrea<ly  due  and  not  to  secure  the  price  of  future  board 
and  without  the  intent,  as  A.  knew,  to  l)oard  longer  with  him.  This  was  held 
ni.t  forgery.  "  No  fraud,"  sai<i  the  court,  "appears  to  have  been  perpetrated 
upon  A  The  del)t  already  existing  was  not  canceled,  but  remained  due,  and 
the  right  to  enforce  payment  of  It  left  unimpaired.  No  new  credit  from  A.  was 
obtained  upon  the  deed.    He  was  in  no  worse  situation  after  taking  the  deed 

than  before."  .    »u    t    s  n 

In  li    v   Marcus,''  A.  was  indicted  for  forging  a  deed  of  transfer  in  the  L.  &  l.- 
Railway  Company,  with  the  intent  (1^  to  defraud  the  company,  (-')  to  defraud 
i .   L     (3;  to  defraud  W.  Q.    The  facts  were  that  in  July,  1845,  E.  11.  transferred 
hy  two  deeds  of  transfer,  one  hundred  shares  in  this  company  to  I).  L.,  and  that 
tliese  deeds  purported  to  be  executed  by  D.  L.  as  transferee ;  but  the  signatures 
1)  L  were  in  fact  written  by  A.  with  the  authority  or  knowledge  of  D.  L.    On 
\u-ust  2,  1S45,  by  seven  deeds  of  transfer  which  purported  to  be  executed  by 
1)  "l     as  transferor  tliese  shares  were  transferred  to  live  different  persons 
and  by  one  of  tliem  ten  of  the  shares  purported  to  be  transferred  to  W.  B.    The 
name  of  1).  L.  was  signed  to  all  tliese  deeds  by  A.  without  the  authority  or 
kii(nvled"e  of  D.  L.    On  these  seven  transfers  there  was  a  profit  which  D.  L. 
refused  To  receive  from  A.,  and  it  did  not  appear  that  any  fnrth.r  call  on  these 
.hares  could  be  made.     It  was  held  that  on  these  facts  A.  must  be  acquitted  as 
neither  the  railway  company.  D.  L.  nor  W.  B.  coul.l  be  defrauded.    Cuf.sswki.l, 
I    said  •   "  If  after  hearing  my  opinion  of  the  law  of  this  case,  Mr.  Hall  wislies 
the  case  to  go  to  the  jury,  I  will  leave  it  to  them,  reserving  for  the  consideration 
of  the  judges  the  .piestioii,  whether,  on  this  evidence,  anything  has  been  proved 


1  Slnto  1-.  Ward,  7  Unxt.  Tii  (1872). 

2  n.iriuiin  f.  State,  !.■>  Ohio,  717;  4S  Am. 
Dec.  (101  (1846) ;  Com.  f.  Mulliollaiid,5  W.  N. 
C.   (I'a.)   203  (W);  t^lalo  ''•  HrlBK".  S*  ^'' 
.Wl  (ISO!) ;  .state  v.  Uivoiis,  5  Ala.  747  (lS43j ; 
People  f.  Toiulinsoii,  iT)  Cal.  503  (1S68). 


^  Paul!  r.  Com., 89  Pa.  St.  432  (1879). 
<  State  r.  nicl)0,27  Minn.  Hl.l  (ISSO). 
'  State  1'.  Glierkin,  7  Ircd.  20«  (1B47). 
«  S  Ohio  St.  (M  (I'^.Wj. 
■  U  Ircd.  301  (1S.")S). 
8  2C.  &  K.-.m  (1*47). 


76 


FOKOKRY. 


which  shows  nil  intent  to  (iofnuKl  in  point  of  law.  At  present,  my  view  of  tlir 
case  is  this :  It  is  not  required  certainly  to  constitute  \u  point  of  law  an  intent  to 
titfraud,  that  in  these  cases,  the  party  sl)onld  have  present  In  his  mind  an  iutenf 
to  defraud  u  particular  |)erson,  if  tiiii  consequences  of  his  act  would  necessarily 
or  possibly  be  to  defraud  some  person;  but  there  must,  at  all  events,  bo  a  p()>- 
slbiiityof  some  person  b-ing  defrauded  by  the  forgery;  and  there  docs  not  seem 
t()l)e  any  such  possibility  In  the  present  case,  either  as  rcijards  Mr.  LupNm, 
Mr.  Booth,  or  tlio  company.  With  respect  to  Mr.  Luplon,  the  transfers  wr,- 
made  to  him  in  consequence  of  money  actually  paid,  and  the  jierson  who  so  jiio- 
eured  the  transfer  got  Jlr.  Lujiton's  name  into  the  list  of  proprietors  in  the 
company,  so  as  to  entitle  him  to  a  dividend  in  their  profits,  there  beiiiir,  so  far 
as  appears,  no  call  of  which  the  company  could  enforce  payment.  So  that  Mr. 
Lupton  might  possibly  receive  money,  but  could  not,  uudor  any  circumstances 
be  required  to  pay  any.  N«'ither  was  there  any  possibility  of  the  company  Ix-iu- 
defrauded,  as  it  does  not  appear  that  they  had  any  power  to  demand  any  f  urtlicr 
calls  from  the  shareholders;  so  that  the  substitution  of  Mr.  Lupton's  credit  for 
that  of  any  otlier  person,  or  the  substitution  of  any  other  person's  credit  for  his, 
could  do  no  injury  to  the  comii.iny. 

Hall.  I  submit  that  there  might  be  a  fraud  uiion  Mr.  Lupton  by  the  transfer 
of  shares  fronj  hini,  which,  in  point  of  fact,  stood  in  his  name  in  the  boolts  of 
the  company. 

CuKS.swKi.i.,  J.  It  is  merely  taking  from  Mr.  Lupton  something  in  which  he 
never  claimed  any  interest;  and  tlie  person  to  whom  the  shares  arc  transferred 
is  not  prejudiced,  Inasmuch  as  he  has  actually  got  the  shares  for  which  he  has 
paid  his  money. 

JIdll.  Might  not  Mr.  Lupton  be  liable  on  his  covenants  in  the  transfer? 
Every  person  executing  a  deed  conveying  |)roperty  covenants  that  he  has  a  right 
to  transfer  it. 

CKi;ssrtKi.i.,  .1.  But  the  shares  artually  are  transferred.  The  purchaser  1ms 
got  them.  How  could  the  transferor  be  damnitled  by  such  a  covenant,  if  there 
Is  no  one  in  a  position  to  gainsay  it?  By  the  company's  act  the  register  is  tlio 
title. 

Ildll.    By  tliat  act,  the  company  are  er  powered  to  make  certain  calls. 

Cuks.swkii.,  J.  So  far  as  appears,  these  calls  may  have  been  made,  and  the 
whole  money  paid  on  them.  In  all  probability  the  fact  is  so.  We  know  that 
the  company  have  completed  the  line,  and  have  been  working  It  for  a  very  con- 
siderable time. 

IMl.    That  l)eing  your  lordship's  opinion,  I  shall  not  press  the  case  farther. 

Ckeswki.1,,  J.,  directed  an  ac<iuittal. 

Verdict,  not  guilty. 
In  State  v.  Smith,^  the  prisoner  was  indicted  for  forgiiig  the  following  paper 
writing:  — 

"  Rowan  Coi'nty,  ■> 

"Statu  ok  Noktii  Cahouxa.  / 

"  The  bearer,  Martin  Rivers,  was  raised  by  William  E.  Williams,  of  said 
county  and  State:  This  is  to  certify  that  Martin  Rivers  was  free  born,  and 
bound  to  me  until  he  was  twenty-one  years  of  age;  his  time  was  out  in  1819, 


1  9  Yerg.  150  (1835). 


80MK    ONK    MUST    1»K    INMIUKD. 


77 


my  view  of  t In- 
law an  intciUlo 

mind  an  iutcnr 
iiltl  nccPSMarily 
•I'uls,  be  a  !)()>- 
3  (lot's  not  si'i'iii 
lis  Mr.  Liipidii, 

transfers  wit" 
on  wlio  so  ino- 
iprlctors  in  tiu> 
re  bfliisr,  so  far 
t.  So  tliat  Mr. 
clrcunistanci'-i, 
company  Ix-iui: 
md  any  furtlur 
ton's  credit  for 
1  credit  for  his, 

by  the  transfir 
in  the  books  of 

ng  in  which  ho 
arc  transferred 
r  which  he  has 

I  the  transfer? 
t  he  has  a  ri^ht 

purchaser  has 

•cnant,  if  there 

register  is  tho 

u  calls, 
made,  and  the 
We  know  that 

for  a  very  con- 

;  case  further. 

ct,  not  guilty. 
sllowing  paper 


liams,  of  said 
ree  born,  and 
as  out  in  I8I9, 


;iii<l    has  onducti'd  liimM'lf    liom-stly   and  soberly,   and  behav<-d  hims.'lf  so- 
Im  fly  and  is  a  well  moanins:  man.    This  friveu  under  my  haml,  thi.s  May.  is-.'.'. 

"WiLU.\M  K.  Williams. 
"  Signed  and  witnessed  in  the  presence  of 

"  .1.   ■Ir.lKKII.S, 

'•.Ji-.iirdii   ilAMiu.i.N." 

The  Indictment  alleged  that  the  paper  was  feloniously  and  franduleully  de- 
livered to  a  negro  man  slave  named  Charles,  the  property  of  James  Caruthtrs,  as 
,,  , crtincate  of  freedom,  with  the  Intent  to  defraud  said  {"aruthers,  the  defend- 
ant Smith,  well  knowing  said  negro  man  Charles  to  be  a  slave,  ami  the  pro|>ertv 
..f  said  Caruthers.  There  are  several  counts  In  tho  indictment,  all  grounded 
upon  the  same  pai)er.  One  of  them  charges  the  Intent  to  defraud  William  E. 
Williams.  The  defendant  was  convicted  generally  on  all  the  counts. 
Catkon,  C.  J.,  delivered  the  opinion  of  the  court. 

"  Forgery  is  the  fraudulent  making  or  alteration  of  a  -.vltingto  the  prejudice 
of  another's  rights.    This  is  tlie  delluition  given  by  the  fortieth  section  of  the 
Iienltenliary  act,  extracted  from  Hlackstone's  Commentaries,' and  must  be  pur- 
sued.   The  '  prejudice  '  to  another  man's  right  must  be  an  Intent  to  (-heat  and 
defraud  that  other  of  a  right  to  property,  to  liberty,  etc.    This  indictment 
charges  the  instrument  set  forth  was  forged  to  defraud  James  Caruthers;  and 
second,  to  defraud  William  K.  Williams.    Couhl  the  right  to  either  be  preju- 
<liced  by  the  instrument?     First,  as  to  Caruthirs :  Suppose  the  instrument  true, 
as  it  purports,  an<l  that  It  had  been  made  by  William  i:.  Williams,  would  it  fur- 
nish any  evidence  for  any  purpose  affecting  the  legal  rights  of  James  Caruthers? 
Suppose  the  slave  Charles  had  claimed  to  l)c  free,  could  the  counterfeited  paper 
have  been  given  in  evidence  to  prove  the  fact?    No  law  authorized  William  E. 
Williams  to  give  such  certillcate,  and  It  could  not  have  any  force  in  law,  how- 
ever It  might  Impose  on  the  coutlding  Integrity  of  mankind,  and  afford  facilities 
to  the  slave  to  pa.ss  as  free,  and  thereby  enable  him  to  escape  from  his  iraster's 
service.    As  a  falsehood  the  paper  Is  of  a  most  dangerous  character,  l)Ut  this  is 
not  the  question.    Is  the  counterfeiting  of  It  forgery  and  felony?    Could  It  de- 
fraud Mr.  Caruthers  of  a  legal  right,  had  It  been  made  as  It  purports?    Asa 
legal  instrument  it  Is  nugatory  on  its  face,  furnishing  no  evidence  of  a  right  to 
freedom  In  the  slave,  nor  could  the  owner's  vested  right  to  his  services  be 
legally  prejudiced  thereby. 

"An  Instrument  void  In  law  upon  Its  face  is  not  the  subject  of  forgery,  because 
the  genuine  and  counterfeit  would  be  equally  useless,  imposing  no  duty  or  con. 
ferring  no  right,  as  the  forgery  of  a  will  for  lands,  having  only  two  witnesses 
when  three  were  required,  where  the  court  hold  the  instrument  void  on  its  face 
and  no  forgery.*  This  adjudication  was  grounded  on  Moffatt's  C'a.te,^  who  was 
indicted  for  forging  a  bill  of  exchange,  void  on  Its  face.  These  were  extremely 
strong  cases  compared  with  the  present.  This  Instrument  claims  no  pretense 
on  its  face  to  legal  validity,  and  whether  true  or  counterfeit  Is  the  assertion  of 
a  mere  falsehood,  calculated  to  Impose  upon  the  credulity  cf  society. 

"  It  Is  sulllcient  to  say,  Mr.  Williams,  whose  name  was  counterfeited,  could 
sustain  no  injury  by  tlie  act  of  the  defendant  for  the  reason  that  the  instrument 
imposed  upon  him  no  duty,  nor  could  its  use  be  to  the  prejudice  of  his  right. 


1  vol.  4,1).  '-MT. 

■-'  Valo'8  Ciuc,  'i  Kast  C.  U,  cli.  I'J,  sec.  4.'i, 


1  2  l.caili,  »s;i. 


78 


KOIMIKKY 


"  Much  as  W("  may  ri'j;r»t  llw  \v:int  i>f  power  to  punish  the  dcffiulaiil  on  lliis 
Imllttnicnt,  hIIII  we  think  he  Is  elearly  uol  subject  to  the  penultles  of  felony  ami 
that  the  jutl^ment  must  l)e  arrested." 

§  411. L.etter  of  Introduction— No  LesralRlKbtB  Affected.  — In  fVatn. 

man  V.  Pitii.h,^  It  wa.x  held  that  a  Utter  of  lntro(lu<-tl()n  addressed  to  "any  Mil- 
road  superintendent,"  and  askinif  eonrteshs  to  lie  shown  the  hearer  was  nut 
the  subject  of  forgery.  "The  writing,"  said  Bukk/k,  J.,  "alleged  to  liavt- 
been  forged  was  us  follows;  — 


••  •  I'lii:  Dki.awauk  \  IIidsun  Canai.  Co.mi'any,  j 

"'  Al.UANY  AMI  SiSglKIIA.N.NA   DKI'AKT.MKNT,  > 

"  '  Ai,UANY,  N.  v.,  August  23,  1873,  ) 


"'  //.  ,1.  Foiidn,  Supei'iiUcHdent. 

"  'To  ANY  KAii-noAii  Si  ii.iti\TKXi>KNT:     The  bearer,  T.  II.  Wiley,  has  been 
employed  on  the  A.  v«i  S.  H.  I{.  as  brakeinan  and  freight  hantl.     Any  courtesh  > 
sbowu  him  will  be  duly  appreciated,  and  reciprocated,  should  opportunity  off.r 
"  '  Very  respectfully  and  truly  yours, 

"'  11.  A.  Fonda,  Superintendent.^ 

•'The  indictment  framed  upon  this  writing  contains  not  a  single  averment  of 
any  extrinsic  matter  whicli  could  give  the  Instrument  forged  any  force  or  effect 
beyond  what  appears  on  its  face.  No  connection  is  averred  between  the  part; 
to  whom  the  writing  is  addressed  and  the  Chicago,  Rock  Island  &  Paclllc  Rail 
road  Company.  Nor  is  it  averred  that  the  prisoner  attempted  to  pass  the  writ- 
ing upon  that  company.  The  writing,  if  genuine,  has  no  legal  validity,  as  it 
affects  no  legal  rights.  It  is  a  mere  attempt  to  receive  courtesies  on  a  promi.se, 
of  no  legal  obligation,  to  reciprocate  them.  We  are  satisfied  that  the  writing: 
in  question  is  not  a  subject  of  forgery,  and  no  Indictment  can  be  sustained  on 
it,  and  no  averments  can  aid  it.  It  Is  a  mere  letter  of  introduction  which,  by 
no  possibility,  could  subject,  the  supposed  writer  to  any  pecuniary  loss  or  legal 
liability.  As  well  remarked  by  the  prisoner's  counsel,  courtesies  are  not  thr 
subject  of  legal  fraud.  The  motion  in  arrest  of  judgment  should  have  been 
allowed.  To  refuse  it  was  error.  As  no  prosecution  can  be  founded  on  the 
writing,  the  judgment  must  be  reversed,  and  the  prisoner  discharged  from  cus- 
toily. 

"Judgment  reversed.''* 

§  41-'.  False  Certificate  of  Character.  —  In  Commonwealth  v.  Chandler,* 

it  was  held  tliat  making  a  false  certificate  of  character  to  induce  the  person  to 
employ  the  prisoner  was  not  forgery.  In  the  first  count  the  offense  was  cliarged 
as  follows,  namely:  That  the  defendant,  on  the  ITtli  of  March,  1828,  did  utter 
and  publish  as  ti  ue  to  one  Samuel  G.  Perkins,  a  certain  false,  forged  and  coun- 
terfeit certificate,  purporting  to  be  a  certificate  of  one  Mary  Eaton,  of  the  char- 
acter of  him,  said  Vinson,  with  Intent  to  induce  the  said  Samuel  to  retain  and 
employ  the  said  Vinson  as  a  domestic  In  said  Samuel's  family,  at  a  stipulated 
rate  of  wages,  and  thereby  to  cheat  and  defraud  the  said  Samuel,  which  certifi- 
cate Is  as  follows,  to  wit:  "March  17,  1828.  This  is  to  certify  that  Vinson 
Chandler  Is  a  good  young  man,  attentive  to  his  duties,  and  a  good  disposition 
young  man,  as  I  wish  to  have  in  my  family.    Mrs.  Mary  Eaton,  Pearl  Street,  bos- 


1 «:  111.  m. 


•i  Thatch.  Cr.  Cas.  187  (1828). 


^■i 


FAISK    (  KKTIFICATK   OK    CllAKACTER. 


79 


fciulunt  on  ili|4 
18  of  felony  mul 


Bd.  — In  fVatn. 
(I  to  "any  r:iii- 
l)C'in'r  WHS  nm 
llfged  to  liiivc 


OMI'ANY,  I 
I'.MKNT,        > 

Ti,  1873.  ) 


l^iloy,  has  born 
Any  coiiitesio 
mrtunliy  off.  i 

oerintendent.' 

le  averment  of 
force  or  effect, 
veen  the  parly 
&  ruclllc  Kail 
pass  the  writ- 
validity,  as  it 
M)na  promise, 
at  the  writing' 
e  sustained  on 
tion  which,  l)y 
y  loss  or  lej;al 
!9  are  not  thr 
uld  have  been 
lundcd  on  the 
rs^ed  from  cus- 

nt  reversed.^' 

hv.  Chandler,^ 
the  pi-rson  to 
0  wascliarKed 
18L>8,  did  utter 
ged  and  couu- 
n,  of  the  char- 
to  retain  and 
It  a  stipulated 
which  certlfl- 
y  that  Vinson 
od  disposition 
rl  Street,  bos- 


ton  "     Vnd  that  he,  sai.i  Vinson  Chandler,  then  and  there  well  knew  the  said  cr- 
tliu'ate  to  be  false,  f..rf?ed  an.l  counterfeit,  against  the  dl«nity  of  the  Comnion- 

'"TI.'e"8econ.l  count  set  forth  that  the  .sM.l  Vinson  Chandler,  on  said  17th  of 
M  ireh,  contrlvlntsan.l  intending  to  deceive  Samuel  (i.  IVrkins,  Ks<,.,  one  of  ih- 
„oodeitl/.ensof  this  Commonwealth,  and  to  Induce  him  to  employ  and  retain  tlie 
said  Vinson  In  his  service,  and  to  pay  him  a  large  sum  of  money  as  wages  from 
,„onth  to  n,onth,  <lid  exhibit  and  deliver  to  said  Samuel  a  certain  false  and  pre- 
tended cerllllcate  of  one  Mary  Katon,  purporiinu'  to  be  the  ccrtlllcate  of  said 
Marv,  that  he,  said  Vinson,  was  attentive  to  his  duties  and  of  a  good  disposition, 
and  which  said  false  and  prcten.lcd  certitic.ile  is  as  follows:   (as  in  the  llrst 
.ount),  which  sai.i  certilicate  he,  sai-    Vinson,  then  and  there  well  knew  to  be 
faUe  and  pretended,  against  the  peace  of  the  said  Commonwealth.     I  pon  the 
misoner's  arraignment  he  pleaded  guilty,  and  the  court  took  time  to  consider 
the  suincicncy  of  the  Indictment.     Upon  the  \l'th,  he  was  brought  Into  court 
and  ordered  to  be  discharged. 

TiiACUKU  .1  Tlie  llrst  question  which  arises  upon  tills  record,  Is  whether 
iudgraent  can  be  rendered  against  the  defendant  as  for  forgery,  at  common  law? 
if  judgment  can  not  be  rendered  as  for  a  forgery.  Is  any  offen.se  suHlclently  de- 
scribed, to  authorise  a  judgment  to  be  rendered  against  the  defendant,  as  for  a 

misdemeanor?  „      ,       .  .    • 

1    Forgery  at  common  law  Is,  In  this  Commonwealth,  as  in  Kngland,  a  misde- 
meanor.   F;)r  a  long  time,  this  offense  at  common  law  was  limited  to  the  false 
fabrication  of  Instruments,  of  a  public  nature,  or  to  tho.se  of  peculiar  solemnity, 
as  records,  deeds,  wills  and  other  instruments,  under  seal ;  and  It  was  doubted 
whether  It  extended  to  promissory  notes  of  hand,  ac(,ulttances  an.l  other  priv- 
ate Instruments  prejudicial  to  indlviiluals.     But  It  was  settled  by  Ward  .  C<>.e,i 
and  for  more  than  a  century  It  has  been  established  law,  both  In  Kngland,  and 
in  this  Commonwealth,  that  to  counterfeit  any  writing  of  a  private  nature,  with 
a  fraudulent  Intent,  and  whereby  another  may  be  prejudiced,  is  forgery  at  com- 
mon law.*    In  the  case  of  Henry  Reed,  who  was  tried  at  tills  present  term,  for 
altering  two  forged  promissory  notes  of  hand  for  Hie  payment  of  money,  in  the 
name  of  James  Smith,  It  appeared  at  the  trial,  that  no  such  person  as  James 
Smith  was  in  existence;  and  upon  thatground  It  was  denied  by  I).  A.  Simmons, 
Ksq.,  the  defendant's  counsel,  that  the  offense  was  a  forgery  within  the  statute 
of  1804  •    The  Indictment  concluding,  «'  against  the  peace  and  the  form  of  the 
statute,"  etc.,  a  general  verdict  was,  under  my  Instructions,  found  against  the 
defendant.     Upon  looking  at  the  authorities,  It  appeared  to  be  well  settled,  that 
to  forge  a  note  or  other  Instrument  In  the  name  of  a  llctltlous  person,  and  for  the 
purpose  of  fraud.  Is  a  forgery  under  the  statute  in  Kngland,  and  undoubtedly  Is 
so  bv  the  statute  of  this  Commonwealth .♦    Fraud  an.l  deceit  are  the  chief    n- 
grclients  of  forgery,  whether  by  statute  or  at  common  law.  It  is  not  essential 
to  the  offense,  that  any  per.son  should  be  actually  injured,  but  there  must  be 
the  intent  to  deceive;  It  can  not,  therefore,  be  material,  whether  the  fraud 
should  be  effected,  by  using  the  name  of  a  real  or  of  a  fictitious  person.    Sim^ 
mons  did  not  afterwards  prosecute  his  motion,  and  Reed  was  sentenced  under 
the  statute. 


1  12  Geo.  1. 

2  naion  Abr.  tit.  Forgery,  B. ;  Kuss.  on 
Cr.  U«7;  2U1.  Kayin.  «(H. 


^  ch.  120. 

*  Ru98.  on   Cr.  1420;  Anne  Lewis'  Case, 
Fost.  Cr.  L.  116. 


«0 


FOIJOKKV. 


•>.  If  It  Im.l  hern  nUf'ffvi]  in  tliN  Indictment,  llwit  Mn-  ilcf.'iuliint,  faliriratcd  or 
ultiTrd  the  f.iN(>  ccrtlllcati-  In  the  casf,  with  tin-  evil  Intent  to  lie  rcliiliicd  li.  tlic 
service  of  Siiniu.l  (i.  PerkhiH,  tliiit  uftcrl>eliiK  ho  retained,  lie  inlijlit  friunliilenlly 
convert  to  his  own  use  tlie  money  or  kooiN  of  siild  IVrkhm  witliont  hl.sknowl- 
ed'.'c,  and  ii«alnst  his  will,  I  shonhl  have  conshlered  It  a  misdemeanor,  and  upoij 
eonvlcilim,  eltlicr  liy  verdict  or  confession,  lio  wonid  be  pnnlshalilo  for  tliV 
offense;  because  this  would  hIiow  an  actual  Intention  to  defraud,  coupled  w(*' 
an  act  done  liiiMirsuance  of  wncli  unlawful  Intent.' 

Such  evil  desliin  Is  not  char«ed  in  cither  of  the  rountH  of  this  Indictment. 
For  it  does  not  f  dlow,  that  because  the  defendant  meant,  as  Is  allcu'ed  In  t!ie 
first  count,  by  utlerinj;  this  letter  to  tiuluce  Perkins  to  retain  and  eini  loy  him  as 
adomcHtlc  servant,  tluit  he  had  the  further  unlawful  design  to  defraud  IN  rkin.s 
of  his  money  or  Roods.  He  nilnlit  have  adopted  this  course  to  ^et  Into  the 
service  of  a  fiDod  master,  and  it  is  not  lmpossll)le,  althougli  the  act,  was  ex- 
tremely indiscreet,  that  ho  nU'jht  have  Intended  to  be  u  faithful  servant.  The 
Intent,  as  alleged  In  the  second  count,  was  to  "deceive  Mr.  IVrkins  and  to  In- 
•luce  lilm  to  employ  and  retain  the  defendant  in  hishicrvicc  and  to  pay  him  larae 
wa;.'es  fr(Mn  month  to  mouth."  Hut  It  Is  not  alleged  tliat  the  defendant  was 
not  capable  of  niakiu;,'  a  good  .servant,  or  of  deserving  and  oaridng  lar-je  waRes; 
nor  that  he  did  not  possess  such  <haracter  as  Is  de.scriljcd  In  the  writing  and 
therefore  It  does  not  follow,  from  anything  alleged,  that  Perkins  would  neces. 
.sarily  have  been  Prejudiced  l>y  taking  the  defendant  Into  his  service.  The  paper 
Is  a  fal.se  token;  and  if  l)y  tlie  unlawful  use  of  It,  the  defendant  had  defrauded 
any  one  of  his  money,  or  goods  It  would  have  been  a.  cheat,  and  he  would  have 
bein  Kuliject.d  to  a  heavy  ))unishment.  Uoing,  for  these  reasons,  of  opinio- 
that  this  Instrument  does  not  com.'  within  the  description  of  any  of  the  instri 
ments  which  are  enumerated  in  the  statute,  nor  within  aiy  case  <.f  forgery  »i 
common  law,  and  that  no  suHlclcnt  offense  is  dcscriijcd  hi  either  count  of  the 
Indictment,  the  judgment  must  be  arrested  and  the  prisoner  be  discharged. 

The  prigoner  teas  discharged. 

§  *1S-  False  " Maklner "  Necesaary.— Thus,  it  Is  not  forgery  to,  with 

Intent  to  defraud,  rub  out  and  era.se  an  acquittance  indorsed  on  a  bond.  In 
State  \.  Thornhm-g,"  \\\e  v.o\nt  my :  "  Forgery  is  a  fal.se  making— making  malo 
animo  —  ol  a  written  Instrument  for  the  pur|>o.se  of  fraud  and  deceit,  the  word 
'making'  being  considered  as  Including  every  alteration  of  or  addition  to  a 
written  instrument.''  The  charge  against  the  defendant  In  the  second  count  Is 
for  falsely,  wittingly  and  corrujuly  rubbing  out,  erasing  and  obliterating  an  ac- 
quittance for  eleven  dollars,  which  ac(iulttancc  had  been  Indorsed  on  the  bond 
mentioned  In  tlie  Indiciment,  with  an  Intent  to  defraud  one  Caleb  Llneberger, 
the  obligor,  against  the  form  of  the  statute,  etc.  We  have  no  statute  making 
the  act  of  erasing,  rubl)ing  out,  and  obliterating  an  acquittance,  forgery;  and 
the  Intentional  destruction  of  an  acquittance,  In   whatever  way,  can   not  be 


1  Salk.  37.5.  ITiilesB  the  falsity  tend  to  tlio 
prejudice  of  anotlier's  right,  it  u  not  forpciy 
M'hero  tlio  obligee  of  a  bond  Icsticned  llio 
sura  in  the  obligutlon  It  was  considered  to 
liis  own  prejudice,  and  not  forgery.  IMay,  '.19. 
It  was  hold  liy  tlio  twelve  judges  in  the  ciiso 
of  I'arkcs  ami  Itrown  (East,  I>.  C.  '.»«),  that 
where  one  uttered  bis  own  note,  but  in  the 


name  of  another,  and  as  the  note  of  that 
other,  it  was  forgery,  and  it  being  in  the 
saiiio  name  as  his  own,  could  not  make  auy 
dilfcrcnce. 

s  (Ured.  (L.)67(1845). 

'  2  Hnss.  on  Cr.  317  ;  2  East's  P.  C.  852,  965; 
Hex  V.  I'arkes,  2  Leach,  786. 


ibrlrati'd  or 
iiiiK'd  i  I.  till' 
'riiuiliili'iitlv 
i  hl.sknowl- 
r,  uiul  U|)(iii 
ble  for  tli^ 
Dupled  \v'4' 

indictment. 
I'lli'd  In  t!ic 
1 1  loy  III  in  us 
iiid  IVrklns 
;i't  Into  the 
let.  Wii.s  I'x- 
rvant.  The 
>  and  to  lii- 
y  III  in  larjio 
I'lidaiit  was 
irjxe  wages; 
n-riting  and 
anid  nt'ces. 

The  paper 
I  defrauded 
would  have 

of  opinio- 
tlio  instri 
t  forgfry  ut 
>unt  of  the 
tiargcd. 
achargi'd. 

Tj  to,  with 
I  bond.  In 
aking  tnalo 
;,  the  word 
ditlon  to  a 
id  count  Is 
ting  an  ac* 
n  the  bond 
'.ilneberger, 
ute  making 
rgery;  and 
an   not  be 


note  of  that 
icing  in  tliu 
ut  luako  auy 


P.  C.  852,905; 


FALSK    M.\KIN(»    NKCKS.SAUV  . 


81 


either  a  making  a  written  inHtrnment  or  the  alteration  of  or  addition  to,  a  truly 
written  InNtrdiiiciit  *o  ;i8  to  bring  the  act  within  tlie  deiiiiition  of  forgery." 

(j   III. Instrument  Must  Purport  to  be  tho  Act  o(  Another.  —The  In- 

.•<triinii'iit  must  juirpiMt  to  he  llie  act  of  anollier.'     A  false assmuptlon  of  author- 
ity i>  not  forgery. - 

ji   115,  False  Mftltlngr  Necessary  —  B'alao  AsBunaptlon  of  Authority. — 

In  U.  V.  ir/ii>,'  the  jx'isoner  wa.s  Indleted  for  foiiiing  a  eerlain  Indorsement  on 
a  eertain  bill  of  exihange  for  ils  li's  with  intent  to  defraiul  Tlionias  Toin- 
ilnsoii;  and  In  another  court  the  Intent  was  laid  to  l)e,  to  defraud  Francis  Sharp 
and  another.  It  was  proved  by  Mr.  Thomas  Toinllnson  tlial  the  prisoner  had 
been  in  his  employ  ami  had  left  him  about  two  yen'N  ngo;  that  while  the  pris. 
oner  was  in  his  employ,  he  had  sent  him  with  "K  .s  to  Messrs.  Hart's  l)ank  to 
get  the  money  for  them,  but  he  was  not  si.  e  wlietle  r  he  had  ever  sent  him 
with  a  bill  of  exchange;  tliat  lie  never  authorized  the  pri.-<oner  to  indorse  iiilLs 
fur  him,  or  to  ac<'cpl  l)ills,  or  to  sign  his  name,  or  to  use  his  name;  and  that, 
if  he  ever  did  send  him  to  get  the  mimey  on  auy  bill  of  exchange,  it  was  ready 
indorsed.  This  witness  ul.so  proved  that  he  was  In  Noitingham  on  the  1st  of 
September,  Itflti;  that  the  prisoner  was  not  then  In  his  employ;  that  he  did  not 
send  the  prisoner  to  Hart's  bank  on  that  day;  anil  tliat  he  never  saw  or  heard  of 
the  hill  in  (piestiou  until  it  was  presented  to  him  for  payment. 

The  bill  was  dated  on  the  I'.Hhof  August,  18-»(!,  and  payable  three  months  after 
date.  It  professed  to  be  drawn  by  Matthew  Clarkson  on  Wili  mi  Nicholson, 
payaliie  to  his  own  order,  and  to  be  accepted  by  William  Nicholson  and  In- 
dorsed by  Matthew  tUarkson  on  them  "  per  procuration. 

"Thomas  To.mi.inson, 

"  IvMANIKI,   WlllTK." 

Mr.  Alfred  Thomas  Fallowes  was  called.  He  said:  "1  am  a  pirtnerwlth 
Mr.  Francis  Hart  in  a  bank  at  Nottingham.  On  the  Isi  of  Seplemlier,  I84t!,  tho 
prisoner  came  to  our  bank  with  this  bill,  which  he  asked  me  to  discount.  lie 
said  he  had  brought  it  to  be  dl.scounted;  that  ho  came  from  Mr.  Tomliuson.  I 
called  In  a  clerk  named  Newt(m,  who  said  he  knew  him;  fthat  he  sometimes 
came  from  Mr.  Tomlinsuu,  who  was  very  good;  so  I  discounted  the  bill.  1  told 
the  prisoner  that  Mr.  Tomlinson  had  not  indorsed  It.  He  said  Mr.  Tomllnson 
was  from  home,  but  that  he  could  Indorse  it  for  him.  I  asked  if  he  could,  and 
he  said  'Yes.'  I  asked  hira  Mr.  Tomlluson's  Christian  name,  he  said, 
'Thomas; '  and  I  wrote  on  the  bill, '  per  procuration,  Thomas  Tonjlinson.'  He 
said  he  would  sign  his  mime.  He  did  sign  his  name  and  I  gave  him  the  money." 
In  his  cross-examination,  this  witness  said:  I  said  I  diil  not  know  him,  and 
sent  for  my  clerk  Newton.  He  said  that  Newton  knew  him.  I  asked  him  If  he 
could  indorse  it  for  Mr.  Tomlinson;  ho  said  if  I  would  prepare  It  he  would  in- 
dorse it.  It  was  not  till  after  the  dishonor  I  was  called  on  to  recollect  what 
had  passed.  When  the  bill  was  dishonored  I  sent  for  the  prisoner;  I  asked  him 
to  pay  the  bill ;  I  found  him  at  his  own  house.  If  he  had  paid  tlierc  would  have 
been  no  more  said  about  it.  I  did  not  thl.ik  of  a  felony.  Ho  said  he  had  not 
the  money  !>y  him.  He  asked  me  to  go  to  Mr.  Malpas  in  order  to  ascertain 
whether  he  iiad  siiown  him  the  bill  before  he  brought  it  to  me.     I  went  and 


1  Com.  V.  Baldwin,  U  Gray,  1!>7  (li«0) ; 
State  r.  Young,  46  N.  II.  281  (1805) ;  People  v. 
Mann,  75  N.  Y.481  (1878). 

3  Dkfences.  6 


a  state  V.  Willson,  28  Minn.  .VJ  ^881) 
3  a  C.  ft  K.  4(M. 


82 


FOnOKHV. 


totiiKl  that  lie  had.  Five  or  six  days  c'ln|)so(l  hofdrc  wc  proceeded  against  the 
prisoner.  We  liad  applied  to  other  parties  when  we  found  the  aceeplance  wu;; 
forfied.  We  dlreeted  our  attorney  to  proceed  again.st  the  prisoner.  I  thoutjlit 
the  prisoner  iniKht  have  done  it  ignorantly." 

P.vTTKSox,  J.  (in  summing  up),  told  the  jury,  that  if  they  were  of  opinion 
thaltlie  prisoner,  at  the  time  when  ho  sijnied  thisindorsemenl,  had  willfully  mis- 
represented that  he  came  from  Mr.  Tomlinson  with  intent  to  defraud  him  or 
the  banlters,  and  had  no  authority  from  Mr.  Tomlinson  they  ought  to  find  him 
fjuilty. 

Verdict,  guilty. 

Pattkson,.!.,  reserved  the  ca.se  for  the  con.sideration  of  the  fifteen  judges, ou 
the  question  wliellK-r  the  facts  proved  amounted  to  the  crime  of  forgery. 

Before  Loni.  Dicnman,  O.  J.;  Wii.di:,  C.  J.,  I'oi.i.ock,  C.  H,;  Pahkk,  IV; 
COLTMAN,  J.;  Hoi.lK,  J.;    WKiHTMAN,  J. ;    CrKSSWKLL,  J. ;   EltLE,  J. ;   Pl.ATT,  J. 

and  W1L1.IAM.S,  J. 

WiUmon;  for  the  prisoner.  What  I  must  lake  to  have  been  proved  is,  that 
the  prisoner  witli  intent  to  defraud,  and  without  any  authority  from  Mr.  Tom- 
]iu.son  to  indorse  their  hill,  wrote  by  the  hand  of  the  banker  the  wonis,  "Per 
procuration,  Thomas  Tomlinson,"  and  wrote  with  his  own  hand  tihs  own 
name,  •'  iCmanuel  White."  The  statute  1  Wiiliam  IV. 1  doe.s  not  alter  the 
meaning  of  the  term  forgery,  and,  from  the  first  appearance  of  that  term  in 
our  law,  It  appears  to  consist  of  the  counterfeiting  of  the  writing  of  anotlier; 
and  tliere  is  no  instance  of  a  person  being  held  to  be  guilty  of  forgery  by  merely 
assuming  to  hiuc  antliority  which  he  really  had  not.  In  Pleta,  who  is  cited  by 
Lord  Coke, 2  forgeries  are  described  as  the  falsifying  of  seals,  instruments 
then  being  usually  sealed;  and  Lin!  Coke.s  in  treating  of  obligations  forged, 
takes  a  distinction  between  the  acknowledgment  of  a  siatute  staple,  which  is 
under  the  .seal  of  the  party,  and  of  a  sfitute  merchant  wliich  Is  not;  and  from 
tliis  it  is  to  be  inferred,  that  no  false  representation  would  constitute  the  crime 
of  forgery.  Mr.  Serjeant  Hawkins,  in  his  Pleas  of  the  Crown,  in  treating  of 
forgeries  by  alteration,  says  tliat  there  "  a  man's  hand  and  seal  arc  falsely  made 
use  of  to  testify  his  assent  to  an  instrument  which,  after  such  alteration,  is  no 
more  Ids  deed  than  u  stranger's."  In  the  present  case  the  prisoner  does  not 
counterfeit  or  imitate  anything;  he  merely  says,  -'I  have  an  authority,"  and 
that  is  false.  If  he  had  so  really,  it  would  only  have  been  a  false  pretense; 
and  I  do  not  see  why  It  is  auythiuf;:  more  because  the  false  pretense  is  in  writ- 
ing. He  merely  makes  an  assertion  wliich  is  not  true.  Mr.  Serjeant  Hawkins 
says:  "  The  notion  of  forgery  doth  not  seem  so  much  to  consist  in  the  counter- 
feiting a  man's  hand  and  seal,  and  wliich  may  often  bo  done  Innocently,  but 
In  the  endeavoring  t()  give  the  appearance  of  truth  to  a  mere  deceit  and  falsity, 
and  either  to  impo-^e  that  upon  the  world  as  the  solemn  act  of  another,  which 
he  is  in  no  way  prhy  to,  or  at  least  to  make  a  man's  own  act  appear  to  have 
been  done  at  a  lime  when  it  was  not  done,  and  by  fori^e  of  such  a  falsity  to  give 
it  an  operation  which  in  truth  and  justice  it  ought  not  to  have."  In  the 
present  case  there  are  neither  the  counterfeiting  the  writing  of  another,  nor 
attempt  to  offer  what  the  prisoner  wrote  as  being  the  act  of  another.  So  Mr. 
Serjeant  Hawkins  says,  that  "  it  hath  been  resolved  that  a  man  sliall  not  be 
adjudged  guilty  of  forgery  for  writing  a  will  for  another  without  any  directions 
from  him  who  becomes  uon  compos  before  it  is  brought  to  him ;  for  it  is  not  the 


I  ch.  66. 


8  3  Inst.  169 


3  ;l  Inst.  171. 


)ccp(lcd  ngalnst  the 
tlio  acceptance  \va;; 
risoucr.     I  tlioiifilit 

•y  WLTo  of  opinidii 
I,  had  willfully  iiiis- 
to  (U'fraiui  him  or 
y  ought  to  find  hlin 

Verdict,  guilty. 
e  nftei'U  judges,  <iu 
;  of  forgery. 
\    B,;  I'AHKK,    B.; 
:i{LE,  J.;    Pi, ATT,  J. 

L:en  proved  is,  tliat 
ty  from  Mr.  Tom- 
T  the  words,  "Per 
ivii  haud  his  own 
Iocs  not  alter  tiic 
:;e  of  that  term  iu 
•riting  of  another; 
i  forgery  by  merely 
ta,  w'lo  is  cited  hy 
seals,  instruments 
obligations  forged, 
te  staple,  wliich  is 
1  is  not;  and  from 
3n.stitute  the  crime 
•wn,  in  treating  of 
al  arc  falsely  made 
;h  alteration,  is  no 
!  prisoner  does  not 
[in  authority,"  and 
I  a  false  pretense; 
)retense  is  in  writ- 
Serjeant  Hawkins 
list  iu  the  counter- 
ne  Innocently,  but 
deceit  and  falsity, 
of  another,  whicb 
act  appear  to  have 
ch  a  falsity  to  give 
to  have."  Iu  the 
g  of  another,  nor 
another.  So  Mr. 
man  shall  not  be 
loutany  directions 
II ;  for  it  is  not  the 

3  ;t  Inst.  171. 


FOK(!KHY  —  K.\I..>^K    ASSU.MPTION    <)l'    AITIIOHITV. 


^3 


bare  writing  in  another's  name  without  Ids  privity,  but  tlic  giving  il  a  fal<e 
appearance  of  having  been  exccutetl  by  him,  which  mattes  a  man  guilty  of 
forgery."  It  therefore  seems  essential  to  tlie  crime  of  forgery  that  a  iierson 
should  put  forth  tlio  forgery  as  the  writing  of  another,  it  being  either  false 
entirely,  or  made  false  by  adding  or  taking  away,  ami  it  must  cither  be  a  false 
Instrument  to  a  true  signature  or  a  true  iustrument  with  a  false  signature.  Sir 
Edward  Ilydo  Kast  in  ids  I'leas  of  the  Crown  merely  coullnes  the  delhiitiou  of 
forgery  as  given  by  llie  earlier  authorities. 

Wii.DK,  C.  J.     You  say  tliat  this  iiulorsemeut  was  all  that  it  purported  to  be. 

Willmorc.  Tlie  signature  was  the  prisoner's  own  writing,  and  it  purports  to 
be  so,—  it  is  only  a  false  pretense.  If  a  man  were  to  write  a  paper,  in  which 
he  stated,  "John  Stiles  has  given  me  authority  to  take  U])  so  many  sacks  of 
wheat  of  you,"  — that  would  be  no  forgery  if  John  Stiles  had  given  no  author- 
ity, because  the  pri>oner  writes  it  as  Ids  own  act. 

WiLDK,  C.  J,  If  a  niau  write  in  his  own  name,  "  I  have  authority  to  obtain 
such  and  sucli  goods  from  you;  "  that  would  not  be  a  forgery  even  if  he  had  no 
such  authority.  Here  tlie  prisoner  said  he  had  authority  to  imlorse  a  bill.  Iu 
the  action  for  deceit  for  accepting  a  bill,  void  iu  whosoever  hands  it  came,  it 
never  occurred  to  any  of  the  judges  that  the  deceit  was  merged  in  the  felony. 

Willmore.  It  woidd  be  no  countcrfeitiug  of  tlie  coin,  if  the  person  put  a 
legend  on  his  counterfeit-:,  staling  that  he  had  authority  to  coin,  and  yet  that 
would  be  asserting  tliat  he  had  an  authority  which  in  fact  he  had  not. 

Pollock,  C.  B.  You  say  that  tliis  indorsement  is  everything  that  it  purports 
to  be.  I  can  t  quite  acceed  to  that,  b'.^cause  it  purports  to  be  an  authorized 
signature,  ami  U.  is  not  an  authorized  signature. 

PL.VTT,  n.  You  put  it  that  the  indorsement  itself  is  true,  but  accompanied 
liy  a  false  representation. 

Willmore.  In  IL(rre>/n  Case,^  the  indorpement  alleged  to  be  forged  was 
written  by  the  person  wliose  handwriting  it  puritorted  to  be,  and  the  prisoner 
personated  him,  and  so  obtalued  credit  ou  the  bill,  and  this  was  held  to  be  not 
a  case  of  forgery. 

Lord  Den'm.vn,  C.  J.  No  one  can  pretend  that  there  was  a  forgery  if  there  is 
nothing  done  to  the  writing  or  the  seal. 

Patteson,  J.  A  man,  whose  name  was  Henry  Davis,  wrote  his  own  name  on 
a  bill,  and  put  it  off  as  the  bill  of  another  Henry  Davis,  and  this  was  held  to  be 
forgery. 

Willmore.    There  was  an  attempt  to  pass  his  own  signature  as  that  of  another. 

Pauke,  B.  The  case  put  by  my  brother  Patteson,  was  put  by  Mr.  Justice 
BuLLEii  iu  the  Term  Reports. 

Willmore.  The  precise  point  in  the  present  case  has  arisen  once  before,  but 
no  decision  was  ever  pronounced:  but  in  the  case  of  Ilex  v.  Arscott,''  it  was 
held,  that  If  a  person  write  ou  the  back  of  a  bill  of  exchange,  "  Received  for  R. 
Aickraan,"  and  sign  his  own  name  to  it,  this  is  not  a  forgery  of  a  receipt;  and 
Mr.  Justice  Llttkdale  then  said:  "I  take  it,  to  forge  a  receipt  for  money,  is 
writing  the  name  of  the  person  for  whom  it  is  received.  But,  In  this  case  the 
acts  done  by  the  prisoner  were  receiving  for  another  person,  and  signing  his 
own  name." 

Patteson,  J.  The  case  I  referred  to  is  Mead  v.  Young,'  and  there  the  person 
put  his  own  name  as  that  of  another. 


1  2  Bast's  F.  C.  856. 


2  6  0'.*  p.  408. 


»  4  T.  K,  28. 


84 


lOlMiKUV 


I'oi.i.iMh,  (  .  I!.  Tliu  ucciik'iil  of  tho  person  Imviiig  the  same  name  makes  no 
(llffir.iicc.  Suppose  that  the  person  whose  indorsement  was  put  on  the  bill 
liad  really  nominated  an  attorney  to  Indorse  bills  for  him,  and  the  forger  had 
si>{ued  the  name  of  the  attorney,  wonld  that  be  forgery? 

ir)7/(/i../v'.  1  think  it  wonld;  because  the  indors"nient  is  put  off  as  the  writ- 
Ins;  of  another.  Indeed,  it  would  be  so,  even  if  it  were  a  name  of  a  fictitious 
perM  II. 

I'oi.i.tKK,  C.  n.  If  a  man  said  lie  had  authority  when  he  had  not,  and  signed 
a  false  name  "  per  |)rocuratioii  "  would  that  be  foffrery? 

M'illmore.  1  apprehend  that  it  wonld,  as  it  would  purport  to  be  what  It  is 
not. 

.S'.  V.  Deninon,  for  the  prosecution.  I  submit  that  this  indorsement  la  forgery. 
The  detlnltion  of  forgery  in  Kleta  Is,  "Crimen  falsi  dicitur  cum  quis  accn.sa- 
tus  fuerit  vel  appcllatus  <|nad  sigillum  Regis,  vel  domlni  sul  de  cujus  fandlia 
fuerat,  falsaverit,  et  brevia  inde  consignaverit ;  vel  cartam  ali(iuam  vel  literani 
ad  exhacredatlonem  domlni,  etc.,  sigillaverit,  in  quil)us  causlssl  quis  convietu.H 
fuorjt,  detractarl  merul  et  suspendi.  Et  quod  de  hujusmodl  falsarlls  dicltnr, 
de  sigilla  adultcrlna  cartls  et  literas  apponentibus  dicatur  Id  Idem;  "  but  Lord 
Coke  says  that  "one  may  make  a  false  writing  within  this  act,'  though  it  be  not 
forged  In  the  name  of  another,  nor  his  seal  nor  hand  counterfeited. "  So  Mr 
Serjeant  Hawkins  says,  that  "the  notion  of  forgery  doth  not  seem  so  much  to 
consist  in  the  counterfeiting  a  man's  hand  and  seal,  but  in  endeavoring  to  give  an 
appearance  of  truth  to  mere  deceit  and  falsity;  "  and  Sir  K.  H.  Kast,  in  his 
rif  as  of  the  Crown,  likewise  deHnes  forgery  to  be  "a  false  making  (which 
Includes  every  alteration  of,  or  addition  to,  a  true  instrument),  a  making  ma/o 
animo,  of  any  written  instrument  for  the  purpose  of  fraud  and  deceit;  "  and  he 
adds,  that  "tliis  delinition  results  from  all  the  authorities,  ancient  and  modern 
taken  together."  The  criminal  law  commi.ssioners  define  forgery  to  be  "the 
fal.sc  an(i  framlnlent  making  of  an  instrument,  with  Intent  to  prejudice  any 
public  or  private  right;  "  and  in  the  present  case,  there  certainly  was  a  making 
of  an  Indorsement  malo  animo,  for  the  purpose  of  fraud  and  deceit,  and  a  coun- 
terfeiting of  a  person  w  ho  had  authority  to  Inilorse  bills  for  Mr.  Tomllnson. 
With  respect  to  the  case  of  PollhUl  v.  Wnlter,^  which  Is  an  action  against  the 
defendant  for  falsely  representing  that  he  was  authorized  to  accept  bills  by 
procuration,  It  has  been  remarked  by  Lord  Chief  Justice  Wilde,  that  the  judges 
did  not  advert  to  the  acceptance  of  the  bill  being  a  forgery,  but  in  thatca.so  the 
jury  negatived  all  fraud,  and  the  judges,  therefore,  would  not  suggest  an  ImllU- 
ment  for  forgery.  Tlie  statutes'  makes  it  a  felony  to  forge  "  any  "  "  Indorse- 
ment on  "  "  any  bill  of  exchange  or  promissory  note  for  the  payment  of  money," 
"  with  Intent  to  defraud  any  person  whatsoever."  In  forging  an  indorsement. 
It  may  be  that  forgery  is  committed  by  foiglng  the  name,  or  it  may  be  that  It  Is 
committed  by  forging  the  words  "  per  procuration."  This  case,  in  its  conse- 
(piences,  Is  very  Important,  as  more  bills  are  Indorsed  "  per  procuration  "  than 
otherwise. 

Willmore,  In  reply.  The  passage  cited  on  the  other  side  from  Lord  Coke,*  i.^ 
founded  on  the  word  "make"  which  is  in  the  statutes,*  but  which  does  not 
occur  In  the  sUitutes;"  and  Lord  Coke,  in  treating  of  the  words  "forge  or 


1  5Eliz.,di.  U. 
ISK.A  A<l.  U4. 
«  1  Wm.  IV.,  cIj.  tlG,  sec.  3. 


•  ;i  liKt.  \t". 

'  .'.  Fliz  ,  >  h     i4. 

•  IWin.  lV.,ch.  Oa. 


FOKOK!{V 


"  rTTKKIMi  "  nCTITIOfS    NAMK. 


85 


lame  makes  no 
lit  on  the  bill 
the  forger  Imd 

S  as  the  writ- 
of  a  tlctitious 

ot,  and  signed 

0  be  what  it  is 

lent  is  forgery, 
n  quis  accusa- 
;  cnjiis  faniilia 
am  vel  literaiii 
qiiis  convictUH 
Isariis  dicitnr, 
n;  "  but  Lord 
lOu^h  it  be  not 
ted."  So  Mr 
;m  so  mueh  to 
ring  to  give  an 
:.  Kast,  in  bis 
laivlng  (which 
a  making  malo 
!ceit;  "  and  he 
It  and  modern 
■ry  to  be  "  the 
preiudlce  any 
was  a  maliini; 
It,  and  a  coun- 
[r.  Tomlinson. 
on  against  the 
iccept  bills  by 
mt  the  judges 
11  that  case  the 
tgest  an  Indict- 
y  "  "  indorse- 
ntof  money," 

1  indorsement, 
iiy  be  that  it  is 
I,  in  its  conse- 
u  ration  "  tlian 

Lord  Colic,*  is 
thieii  does  not 
ds  "forge  or 


make  "  says  of  tlu'  words  "  or  make,"  "  these  lie  longer  words  than  to  forge;  " 
:iii(i  with  respect  to  the  dellnitlon  of  forgery,  given  l)y  the  criminal  law  com. 
Tnissioncrs,  it  does  not  accord  with  the  definitions  given  l)y  tlie  text  writers; 
and  in  tlic  cases  il  fref|Uently  liappens,  that  a  part  of  the  detinltion  of  a  crime 
is  left  out  for  convi'uieuco,  wlicre  lliere  is  no  part  of  the  case  that  is  not 
affi'cteil  l)y  that  pa^t  of  tlie  detinltion.  'I'lius,  to  dutlni!  that  a  fraudulent  writ- 
ing to  the  predjudicc  of  another,  is  ii  forirery,  is  too  large,  as  a  person  might 
write  a  false  account  of  the  price  of  corn  to  leave  the  market,  and  make  th(! 
holders  of  it  sell  for  less  tlian  they  ought,  and  yet  this  would  not  be  forgery. 
In  the  case  of  Ilex  v.  ll'i»'//(,'  where  the  name  of  the  acceptor  was  genuine,  but 
a  false  descripUou  of  Bai/.emaker,  Rumford,  Essex,  was  given  of  him  in  the 
adilress  of  the  bill,  this  was  held  to  l)e  no  forgery.  So  in  the  case  of  Hex  v. 
/(*He.«,' where  the  prisoner  was  chargeil  with  forging  a  writing  purporting  to  be 
a  bank-note,  but  wldcli  liad  no  si'iiiatnre  to  il  except  the  words  "  For  sell  and 
Company  of  my  Bank  ii!  Kngland,"  and  where  the  prisoner,  when  he  paid  the 
forgery  away,  avowed  that  it  was  a  good  bank-note,  Lord  Manstleld,  C.  J., 
said  "tliat  tlie  re|iresentation  of  the  prisoner  afterwards  could  not  vary  the 
pui'port  of  the  instrumeiit;  on  the  face  of  it,  It  did  not  purport  to  be  a  bank- 
note." 

P.\RKK,  B.  If  the  prisoner  li.id  saul,  "  I  am  authorized  I)y  Mr.  Tomlins<ui  to 
write  his  name,"  and  had  written  it  in  the  presence  of  the  Ijanker,  how  would 
that  be? 

IFi7/»io(v.  I  should  sul>mit  no  forgery;  and  I  submit  that.  In  the  present 
case,  although  tiie  prisoner  might  be  guilty  of  a  false  pretense,  still  that  is  no 
^orgery. 

The  case  was  afterwards  considered  by  the  fifteen  judges,  vho  held  the  con- 
viction wrong;  and  that  indorsing  a  bill  of  exchange  under  a  false  assumption 
of  authority  to  indorse  it  per  procuration  is  not  forgery,  there  being  no  false 
making. 

§  410. Forgrery  —  "  Uttering."—  In  I{.  v.  Ifeyteood,^  A.  gave  B.  a  forged 

certificate  of  a  pretended  marriage  between  himself  and  B.  In  order  that  B. 
might  give  it  to  C.  This  was  held  not  an  "  uttering."  "  If  you  can  show  no 
uttering,"  said  Aldkr.sox,  B.,  "  except  to  B.,  wlio  was  herself  a  party  to 
the  transaction,  I  think  you  w  ill  fail  to  show  an  uttering  within  the  statute. 
It  is  like  tlie  case  of  one  accomplice  delivering  a  forged  bill  of  exchange  to 
another  with  a  view  to  uttering  it  to  the  world." 

<!417.  Forgery  —  Fictitious  Name.  —  In  A',  v.  Bmitipn,*  It  was  held  that  to 
support  a  charge  of  forgery  by  suliscribing  a  llctitious  luinie,  there  must  be  sat- 
isfactory evidence  on  the  part  of  tlie  ju-osecutor  that  il  is  not  the  party's  real 
name,  and  that  it  was  assumed  for  tlie  purpose  of  fraud  In  that  instance.  As- 
suming and  using  a  llctitious  name,  though  for  purposes  of  concealment  and 
fraud,  will  not  amount  to  forgery  If  it  were  not  for  that  very  fraud  or  system 
of  fraud  of  which  the  forgery  forms  a  part. 

The  prisoner  was  tried  before  Mr..Iustlce(;ibbs,  at  the  Old  Bailey  Sessions, In 
the  year  181!t,  on  an  indictment,  the  first  count  of  which  charged,  for  that  he, 
the  said  Thomas  Bouticu,  on  the  12th  ilay  of  November,  1810,  at  Totueuliam, 


1  R.  A  K.  4US. 

J  2  Kasfs  I'.  C.  88S. 


■  IV.k  K.  :W2(1847). 
•  U.  X  K.  259  (1813). 


8() 


i-<)i;(!i;i!>  . 


Iiuviiii;  ill  lii-s  ciiJtoily  ami  possession  ii  corlairi  l)ill  of  exchange,  which  said 
liiii  of  .•xc!mii{;i'  is  as  iollows,  lliat  is  to  say:  — 

*'  ^"l''-  •♦■  f  ToTTKMIAM,  Nov.   l-'lh,  1810. 

"  S  \  wi'cksaftprdatp  pay  to  my  onlcr,  tho  sum  <>f  iiiiu-tuoii  i.oiiutls,  fourteen 
>!liiliiii','>,  value  reeeivid. 

•'  U.  Lawkenck. 

'•Jo 

".lAc.  Thomas  Scntt 

'•  at  .Vfx.srs.  Trrri'n  &   Whitfi, 
"  No.  4  S/<iiiiii!ij  Lmir, 
"  Wood  6lriit,  Londiiii ." 

felonlou.sly  did  falsely  make,  fortre  and  counterfeit  upon  the  said  bill  of  exchange 
a  ••.rtaln  acceptance  of  Mic  said  bill  of  .•xc|iaiij:e,  uhicli  said  false,  forged  and 
counterfeited  acceptance  of  llie  said  bill  of  excliauge  is  U8  follows,  that  Is  to 
«ay, 

"Accepted, 

"  TIlllllHlX    .Sflltt. 

•'  payal)le  No.  I,  Staining  Lane, 
"  London." 

With  intention  to  (l<friud  Hannah  Lawrence,  spinster,  against  the  statute,  etc. 

Tlie  second  coiim  cliai-jzed  ilie  said  prisoner  witli  feloniously  uttering  and 
pulplisjiiiifr,  as  true,  a  like  false,  forg'.tl,  and  counterfeited  acceptance  of  a  like 
bill  of  exchange,  he  well  knowing  the  same  to  be  false,  forged,  and  counter- 
feiinl,  witli  the  likeinteiii,  au'ainst  the  statute,  etc. 

T!ie  third  count  charu'e«l  the  prisoner,  with  feloniously  disposing  of  and  put- 
ting away  a  like  false,  forged,  and  counterfeited  acceptance  of  a  like  bill  of 
exchange,  he  well  knowing  the  same  to  be  false,  forged,  and  counterfeited  with 
the  like  liitent,  against  the  statute,  etc. 

Tlicre  was  anotlier  iiidictincnt  against  the  same  prisoner  for  a  like  offense  of 
forging  an  acceptance  on  anotlier  bill  of  exchange  for  twenty  pounds,  with  an 
Intent  to  defraud  the  .said  Hannah  Lawrence  with  two  other  counts  similar  to 
those  in  the  former  indicinuut. 

it  appeared  from  the  evidence  of  Hannah  Lawrence,  the  drawer  of  tho  bills  in 
question,  that  she  occupie  1  a  house  at  Totl  nliam,  In  ()ctoi)er,  1810,  but  being 
desirous  of  leaving  it,  she  advertised  the  housn  to  be  let.  In  the  same  mouth 
of  October,  she  saw  the  prisoner,  who  was  at  that  time  a  perfect  stranger  to 
her;  he  said  he  canu'  to  take  the  house,  and  said  he  would  take  the  iLxtures  of 
the  shop,  and  what  furniture  she  had  to  dispose  of.  If  slic  wouhi  take  two  bills 
In  payment  for  the  furniture;  the  llxtures  of  the  shop  he  .said  he  could  pay  for 
in  ready  money,  whl.h  amounted  to  twenty-six  pounds,  fourteen  shillings  hut 
instead  of  doiuir  so  lie  made  a  payment  of  twenty  pounds,  and  added  the  six 
poun.ls,  fourteen  shlUingH  to  the  bills.  He  took  i-osse.ssion  of  the  house  on  the 
L'oth  of  November,  and  the  bills  in  qiiesLiou  were  dated  on  the  12th  of 
November,  1810,  being  the  day  they  were  given.  The  prisoner  sent  for  stamps 
.•mil  wrote  the  bills;  the  body  of  tho  bill  iiroduced  (the  one  for  nineteen 
poutids,  fouiieen  shillin-s),  was  in  the  prisoner's  h:iudwritiug,  and  Ilaunah 
Lawrence  put  her  name  to  it  as  the  drawer;  the  prisoner  wrote  across  the  body 
of  the  bill,  '•Aecei)ted,  Thomas  Seott,  payable  No.  4,  Staining  Lane,  London." 
He  also  wrote,  "  To  Mr.  Thomas  S<:ott,  at  .Messrs.  Ferres  &  White's,  No.  4, 
Staining  Lane,  Wood  Street,   London,"  ami  called  Terres  i  White,  hl.s  agents! 


1.0KGF.KY  —  riCTITIorS    NAMK. 


87 


c,  which  8uid 

.  V2lh,  1810. 
uUs,  fourteen 

Lawkk\ck. 


11  of  exchange 
e,  forged  and 
<ws,  that  iu  to 


e  statute,  etc- 
uttering  and 

,inci!  of  a  like 
and  counter- 

ig  of  and  put- 
a  like  bill  of 
terfeited  with 

ike  oftunse  of 
iinds,  wiih  an 
ints  similar  to 

of  the  bilia  in 

310,  but  beiug 

3  same  month 

ct  stranger  to 

tlie  llxtures  of 

take  two  bills 

could  pay  for 

shilling-i,  but 

added  the  six 

'  house  on  the 

tlie    12th   of 

'ut  for  stamps 

for  uinetoeii 

and   Ilaunah 

-TOSS  tlie  body 

me,  London." 

'Iilte's,  No.  4, 

to,  his  agents. 


,,„,,,  Lawrence  under.ood  from  ^-:;:-- ^J-.^l^r^U^^t  "ati:: 
,,.  th.  place  at  whicl>  both  the  "'  ?  ;  'r,,.'  ^     ;.,„,  .,f  the  bills  for  two 

,,n,oncr  said,  if  she  could  accommodate  hun  b>  "  '  "^    -  ^„^  ,d 

1 .->.,  it  would  suit  >.im;u3Uer  than  J^^  ^^  :      '-^^ll-^L.tt,  and  .aid 

•"  ^'-   .'^'"'  ''T  a  T::;':^1  W      rwi  f  wc^o  his  age.Us,  ...  wouW.  tiud  it  ail 

,,,,,,  a  waspres.ntcdatMessr..Tcrn.>^W^nU^V.^^^^ 

„„  ,„,  „„t  was  dishonored,     fcrres  *.  ^^      •  ;  ^^       '^,         J,  ^it  they  had  not 

,,,,,,.irhandsl>..lon,u,.o=.n-^..o    o^^^^^ 

K„„wn  anything  of  h.m  (or  .some  tin  c  p.i  t    J  •■  ,,,^,,  ,„,  j^. 

"-  not  paid,  w,.nt  cK.wn  -  '  -^^  -^^^  ^^ c^  :id  ..ot  take  up  the  bi... 

,.  ,view  witl,  bin.,  and  he  sa.d  he   sas  n ..y  s  •  i  ^^ ^^.^^^  ^,^^  ^^^„. 

,„„  that  if  sac  would  wa.t,  he  would  take  "P  '" J^^,;^  ^^  ^^  •^^;,,,  ^„,  ti.ne  to  bo 
s..ntcd;  t.v  thr.e  days  being  '■'^P''-''-^  ^''%''V^°";,;  ;;.,,,,,,,.,  „,,  more  of 
„:cnd.d  ir  another  week  wltich  was  «';"'^«f..^'^;;:,  .,,;',,,  ^soj  pre- 
„„„.,..  until  the  second  bill  ^^'^'^^^  '^';^'' ^"^^^  .olused;  She 
oui.d  at  the  place  where  it  was  n.ade  "^  _ ;/  '  ,  f,^.,  m^.  Scott.  After 
,,„..  .vcntto  Tottenhan.  again  but  d.d  ';;*;-^,  ;  V  .!  '  o  U  .ion  Hall,  for  the 
a  1-iod  of  twelve  months  had  elapsed      .  wunc     .   ut^         ^^^  ^^^^^  ^^^^^^  ^^_ 

purpose  of  ->cing  the  pnsom-.,   sho  ;'''f  ;/    "      ^     ^^.,,i^  ,  i,p.  ^.^.s  i,,,Ucted. 
Lviscd  by  different  names,  as  well  as  by  ^''^  '^^^  '  ^^^^^  ;';;,;;^,  „,„,  that  the 
U  appeared  front  the  evidence  of   «"«  »'    '>^,  j\  ^,  .,' \,  .'^'rjued  wlntt  his 
prisoner  was  brougia  there  in  ^^'"•-'J;,  ^  i:'.;"^,,^!  "  J'  "r.^n.-ted).    The 

:z-:;:^:^^^^^^^^^^  -^  --'•  -  -^  -  ^'^^ 

uiilv  name  lie  gave  liunself.  .,,,„„.■,..,..«<    who  had  known  the 

';::,r;t:. ... .« .::  ~.. «««., .,.».-.., .....  ...„. ... ....... ... ..«. »., 

•"'r.':rr:;;,.e....  .o™ ...  ...........  »<  »-;'-;:':":,■'  ":r;;,"t 

„.u  1,0  „p,„.....,.ie.i «..  >;;'»""' "',;,™'t,,  ..V^^^^^^         t„.  ,,.,..0  o. 

an>  of  them  contained  the  nan.e  of  Scott   '  ^^     ^^^  ^^^^^ 

^,..  „H.o.u.r  in  his^  em-e  c  H^      l^]^ ,,,,  ^f  .Vugust,  1810,  and 
pn.vcd   that  he  1.r>t  kDeN%  the  I'"''"  "^"^^  '  prisoner  had  a  nickname 

U,u.w  l>im  continually  by  the  -"^  "^^;;\  ;,;  '^   '.rj.d  that  h.  had  tran..- 
uf  Bout,  and  Honiien  at  times.     Th  s  ^•""'*'*  "  ,„  ^,,     ...,r  1810, 

„s;:arrr'\v:,;irrr.t':,.,.:,o..  o, .,.. ,..,..» ..,.o.. .... 

above  case.  , «,.^   .,11  the  iud-es  met  at  Lord  Ellcuborough's 


.S8 


F()l!(iF.i:V 


iippparinu  of  a  contrary  oi>lnioii :,  ilKniu'lit  tbat  it  ilid  not  siinick'Utly  appenruixin 
thf  evidence,  tliat  tlic  prison,  r  has  ni)'„  jjone  liy  tin-  name  of  Scott  bofdrt'  ilw 
time  of  aoci'iitlngllic  bill  in  lliat  name,  or  that  lie  had  nssuined  the  name  for 
that  pnrpose,  and  they  therefore  tliouuht  the  conviction  wron}:. 

In  U.  V.  »V/-'.,i  tlie  indictment  clur;:ed  the  prisoner  with  feloniously  forfjin;; 
and  couuterfeltlnfj;  a  certain  hlU  of  exchange,  as  follows:  — 

"  Wilton,  Wklts,  December  21,  HH. 
"  £1M,  l'.»s.  Od. 

"Two  months  after  date,  pay  to  my  order,  one  hundred  and  rit;y-f<jur 
pounds,  nineteen  shiUini^s,  for  value  received,  and  balance  of  account. 

"John  Webb. 
"  To  Mr.  Tlwiniis  liowden, 
"  Baize  Manufacturer, 
"  Koinford, 

"  Kssex. 

"  Accepted,  Thomas  Bowden, 

"payable  when  due  at  No.  40, 

"  Castle  Street,  Ilolborn,  Loudon." 

With  Intent  to  defraud  Wadhaui  Locke,  William  llu^'hes,  and  Henry  Saun- 
ders against  the  statute,  etc. 

Tlic  second  count  charged  llie  prisoner  with  feloniously  uttering  and  pub- 
llshiii^  as  true  the  said  bill  of  exchange,  with  the  like  intent.  The  third  count 
was  [or  forging  an  acceptance  (setting  out  the  acceptance  as  before),  with  the 
like  intent,  and  the  fourth  count  was  for  uttering  and  publishing  the  said  ai - 
ccptance  with  tlie  like  Intent 

It  was  proved  on  the  part  of  tlie  prosecutor  that  no  one  of  the  name  of 
Thomas  Bowden  (the  person  appearing  on  the  bill  to  be  the  acre-'  ^r),  lived  at 
No.  40,  Castle  Street,  Ilolborn,  and  that  no  such  person  e-  •  Jed,  orcarrled 

on  his  business,  or  was  ever  heard  of  at  Homford,  In  Esse-.,  8>:J;that  there  was 
no  baize  manufactory  in  Koinford. 

On  the  part  of  the  prisoner,  It  was  proved  by  a  person  who  stated  himself  to 
have  been  a  partner  In  business  with  Thomas  Bowden  (the  acceptor),  that  the 
acceptance  was  the  handwriting  of  the  said  Thomas  Bowden.  On  the  cross- 
examination  of  this  wltnes.s  It  appeared  that  Bowden  never  carried  on  the 
business  of  a  baize  manufacturer  at  Romford;  and  that  the  prisoner  had 
known  Bowden  many  years.  It  further  appeared  from  the  evidence  of  a  per- 
son who  kept  the  house  No.  40  Castle  Street,  Ilolborn,  the  place  where  the  bill 
was  made  payable,  that  lie  was  well  acquainted  with  the  handwriting  of  the 
said  Thomas  Bowden;  and  that  the  acceptance  was  In  Bowdcn's  handwriting; 
he  also  stated  that  he  was  surprised  at  Bowden's  accepting  the  bill  payable  at 
No.  40  Castle  Street,  Ilolborn,  as  he  did  not  reside  there,  and  had  no  authority 
from  this  witness  to  make  any  bills  payattle  at  that  house. 

The  learned  judge  desired  tlie  jury  llrst  to  consider  whether  there  was  any 
such  person  as  Thomas  Bowden,  and  If  there  was,  whether  the  acceptance  was 
his.  The  learned  judge  also  told  them,  if  there  was  no  such  person,  or  the  ac- 
ceptance was  not  his,  and  that  the  prisoner  at  the  time  he  offered  the  bill  to  the 
prosecutor,  knew  either  that  there  was  no  such  person  oi  if  there  was,  that  he 
had  not  accepted  it,  they  should  llnd  him   guilty.    The  '.earned  judge  further 


It.  A  H.  411.')  (1819). 


FOHOKUY  —  riCTITIOl  S   NAMK. 


89 


appear  uixiii 
tt  l)i'f(in'  t!M' 
tlie  name  for 

)usly  forjiiiiu 

;r  21,  HH. 

Liid  rif;y-f<nir 

iiiit. 

UN  Webb. 


llcury  Saun- 

rlng  and  pub- 
le  tliiril  count 
ore),  with  the 
;  the  Bald  ai  - 

the  name  of 
I"'  >r),  lived  at 
(ed,  orcarrlt'il 
hat  there  wua 

ted  himself  to 
(tor),  that  the 
On  the  cross- 
arrled  on  the 
prisoner  hud 
inee  of  a  per- 
where  the  bill 
writing  of  the 
1  liaudwriling; 
bill  payable  at 
1  no  autliority 

there  was  any 
Lcceptance  was 
sou,  or  the  ac- 
I  the  bill  to  the 
•e  was,  that  he 

judge  further 


.  inumstances  to  the  judges.  Thomas  Bowdcn.    But  the 

T,>e  jury  found  that  there  was  -/J^J^f^  ^2",;"^  ,,,  UK-re  was  such  a  ...r- 
,,,rue.l  judge  being  of  opnuon,  '  «";'•-  ^'^^^  ,.,  ^.s^rved  the  ease  to  take 
.„,  and  that  the  acceptance  ^^.>s  '''  '  '^"^^.^.^'i';  ''';,,,..,,,,,g  that  the  acceptance 
U,e  opinion  of  the  judges  on  he  P"  "  '^  ;;;\;;„  ,,,  ^  ^,„  the  face  ..f  the  bill 
,va.  the  hand  writing  of  Bowden,tesH,^  H  was  accepU.l  by 

s:^..  Of  -^-^-;x:^^:zz:::;:z:r.. ..  ca..  Amajon 

;;r^^X^i::;:;=^r:;-or=n;t  a  forgery,  and  the,  .rected  a 
pardon  to  be  applied  for.  ^    j    iggi  ^here  the 

j--h:fs:r^-=~^ 

:::r;;:;b:rir:rt;:^:r';^ 

-.  be  contemplated  t^,^;ung  Of  ^..^^^^^  _^,^_  ,,  ^  ,         , 

The  prisoner  was  '  'f  •^^'^^^'V*^,';,;  "..i  „„«  Samuel  Morris.     It  appeared    n 
oKchange  for  £'J0,  w.th  intent  to  '^f""'''  „„.,,  j.i  October,  IK.-O,  the 

..vidence,  that  the  Prosecutor  vvas  a  Yrelo,™  ,    .resented  that  he 

prisoner  opened  an  account  ^^^^^;^  wu  ffl  who  was  ids  brother-in-law. 
las  in  partnership  with  J-^P^^Yl  ut^  -  "  -l.y  nccount,  and  tl,e  tirst 
,„d  resided  at  Brentwoo.i.  J'^\;^,',""  '  '  j^onergot  intonrrears,  and  wanted 
„.d  second  were  paid ;  but  afU"-wards  ^  ^  '»;"  ^^^^  ^„  ,.„„,,„te„  ,o  d..  The 
.he  prosecutor  to  dtaw  upon  'f^/'™;"'' ;*,'",,  u,  in  the  nan.e  of  J.  V. 
UUl  in  question  was  drawn,  '-^^^^ ^^^^^,^  stated  that  he  had  ..ever 
r :  ::rLrS^:;u;r :;--  r  U  .«  .tter  any  authority  to  u.e 

Uis  name  in  connection  with  his  busi.u3SB  or  otherw^  ^^^^  ^^^^^^_^^^^ 

Parn,,  for  the  prisoner,  contendc^l  *'    t^^^^^^^^^^^  ,,  ,,,,  „e,:e-ary  to 

..o..ld  not  be  convicted  of  forgery.    To  ;"'  PJ    \'';;;^;7,„^^  of  the  forgery 

M.o^v  that  the  name  had  been  f-"';"^**  ^rlleptl^  i.e  priso..er  had  traded 
i,„nestlon;  '>ut  here,  long  be  ore  the  bll  was  ac^^^^^^^  1^  ^^  ,j.  v.  Jio.aVn.' 

uJler  the  ua.ne  of  Whiffen  &  Co  ^'ll^l^^nli  be  proved  to  be  a  false 
There  it  was  held  not  ^^^^^^^ ^^^^'..rjo...  oi  fraud  in  the 
;:n^r  rrtr;.r  v^--«-'  or  .--^.o.....  ..e  name  b> 


.  Vide  Parker  *  Brown's  Cos..  2  EasfB  P. 
C.  96;t,  >.  f.  2I.carliC.  C.T"8. 
:5Cox,'JlH)(18.'.l). 


!  HUBS.  *Uy.  260. 
«  3  Mau.  &  9.  537. 


yo 


FOIMIFUY. 


which  a  man  was  married  was  a  false  uarao,  »)til  he  liad  iissumed  It  some  time 
before  for  purposes  of  coiieealinent,  lje  Imviii},'  .leserted  fn.in  the  army;  It  w:ih 
held  that  the  iiuirria«e  was  valid,  tiic  name  not  having  l)uen  taiven  for  the  {nn- 
poses  »)f  fraud  respeeling  the  marriage  itself. 

liolnnson,  tor  the  prosecution,  submitted  tliat  if  tlie  prisoner  assumed  liw 
name  of  Whiffen  for  tlio  puri.oses  of  fraud,  and  he  fraudulently  aceepled  ihr 
bill  in  his  broUier-iu  law's  name,  he  would  be  jjnllty  of  for-ery.  It  was  imnia- 
trrlal  tliat  ho  liad  used  that  name  before,  if  he  liad  no  authority  to  use  it  wlieii 
lie  aceepled  the  bill. 

Tai.k()1ui>,  .1.  I  tliiulc  it  will  scarcely  be  sulflcicnt  to  show  that  the  name  of 
Wliiften  was  assumed  for  the  purposes  of  fraud  {{eneraily,  it  must  liave  l)een 
talien  for  tlie  specillc  oljject  of  piissin-  off  this  bill.  The  carryiui,'  on  business 
in  the  false  mime  mifjht  be  for  tiie  purpose  of  creatiu-  a  false  impression,  witli 
a  view  to  obtainint;  credit;  that  mi^'ht  support  a  charge  ol  obtaining  money  or 
goods  l)y  false  pretenses,  but  not  a  charge  of  forgery. 

Aldkuson,  B.,  concurred. 

Robinson  contended  that  at  ail  events,  it  was  a  question  for  tlie  jury  whctlier, 
when  tlie  prisoner  tlrst  assumed  tiie  name,  It  was  not  with  tlic  view,  anu)ngst 
other  things,  of  drawing  bills,  aud  to  supi)ortin«  a  false  credit.  In  SltrphenV^ 
Case,'  it  was  held  lliat,  although  a  man  had  l)een  previously  known  by  the  tictl. 
tious  name  In  which  he  had  accepte.l  a  Wll  of  exchang.;,  it  would  not  avail  him 
In  a  defence  to  charge  a  forgiTy. 

TvLi.(>rui>,  J.  1  propose  to  leave  the  case  to  the  jury  in  this  way.  First, 
whether,  when  the  prisoner  accepted  this  bill  in  his  brother-in-law's  name,  he 
had  reasonable  grounds  for  believing  he  had  authority  to  do  so,  and  secondly, 
whether  he  assumed  the  name  of  .1.  F.  Whiffen&  Co.,  with  a  vi.-w  of  defrauding 
tiie  parties  with  whom  lie  dealt,  by  issuing  false  bills  of  e.xcliange,  of  whicli  this 
was  one.  I  do  not  thinii  it  would  be  sullicieut  that  he  assumed  the  name  for 
the  purposes  of  fraud  generally.  The  jury  must  find  that  ho  contemplated 
issuing  this  particular  bill  aud,  as  far  as  my  judgment  goes,  1  .lo  not  see  that 
there  is  sufflclent  evidence  to  warrant  them  In  coming  to  such  a  conclusion. 

Verdict,  not  (jnilty. 

lu  U.  V.  Aickles,"'  it  was  held  that  a  person  who  has  for  many  years  been 
known  bv  a  name  which  was  not  his  own,  aud  afterwards  assumes  his  real 
name,  and  in  that  name  draws  a  bill  of  excluinge  is  not  guilty  of  forgery, 
though  the  bill  was  drawn  for  the  purposes  of  fraud. 

§  418.  Inducing  One  to  Sign  Note  lor  Larger  Sum  than  He  Intends, 

Not  -  In  Commonwenlth  v.  6'u»Ae;/,'  the  court  say  :  "  Tlie  defendant  wrote  a  note 
payable  to  himself,  for  one  hundred  and  forty-one  dollars,  and  gi>t  an  illiterate 
man  to  sign  it,  by  falsely  and  fraudulently  pretending  that  it  was  for  forty-one 
dollars  only.  On  a  special  verdict  finding  these  facts  the  court  gave  judgment 
in  favor  of  the  accused.  The  act  was  a  forgery  according  to  all  the  text  writers 
on  criminal  law,  from  Coke  to  Wharton.  But  their  doctrine  is  not  sustained 
by  the  ancient  English  cases,  and  is  opposed  by  the  modern  ones.  Only  three 
American  decisions  were  cited  on  the  argument;  and  we  take  It  for  granted 
that  there  are  no  others  on  the  point.    Two  of  xhese,  Putnam  v.  Sullimn,*  Hill  v. 


1  2  East's  I*,  r.  9(i7 

2  2  Leiicii,  4'.'2  (1787). 


a  22  Pa.  St.  390  (ISSSj. 

*  4  Mass.  i!t ;  3  Am.  Doc.  206. 


iMl 


FOKOKUY  — KUAll)    ON    MAKrtt    «'l- 


I'M'KU. 


91 


It  some  tlinft 
army;  It  w  is 
II  for  tlio  piir- 

nssunieil  I  lie 

uci'cpled  Uif 

It  was  iiniiiH- 

,o  use  it  wlioii 

t  tbu  name  of 
ist  liHve  bft'ii 
ig  on  Ijusliii'ss 
)r('ssioii,  with 
ling  money  or 


jury  wfictlier, 
/WW,  amongst 

In  Sltfpheril's 
vn  l)y  tlie  (let!. 

not  iiviiil  liim 

s  way.  First, 
aw's  name,  lie 
and  secouilly, 
of  defrauding 
,  of  wliicli  tlds 
I  tlie  name  for 
contemplated 
lo  not  see  that 
conclusion. 
•t,  not  guilty. 
iny  years  been 
iumes  Ins  real 
ty  of  forgery, 


in  He  Intends, 

nt  wrote  a  note 
H>t  an  illiterate 
8  for  forty -one 
gave  judgment 
lie  text  writers 
•i  not  sustained 
■9.  Only  three 
it  for  granted 
tiUican,*  Hill  v. 


20i;. 


^^^,^.  .^,..  ^,,..,  .uu  tiie  -•--- -:i^^,::;-r :;;;;;:::;' tj: ;;;!;: 

,,„„;  „e  argument  of  .he  <^7';-'-;;  ^     ,,  ^    , d    Is  no  torgery.     We  tlunU 
^,,^,  ,„.Uonti.s  is  in  f.vorof  l''^'''''.'' ""'",,.,,,,.,,,  of  .he  tldng,  prepon- 

-U.t  the  arg nts  dn.vn  ^-^  ;-";;;;  ;;,;^;;r.;::  > r.is  such  a, .s- 

,,,,,,te  on  the  same  side        •  "  '"^    '  ^,;\„,,kiMg  of  a  false  paper.     Hul  *veu  a 

„„,  ,,  this  stands  no  ''f--     "^  ,;'  J  ,   .^.....se  he  has  i.e.-u  g-il.y  of  au- 

,,,ve  must  not  be  pumsh...!    •'"^^'^;]     _^,,.,,..,„^, .,,  „  .vritlng  to  the  P-eju- 

,  ,r      Forgery  is  tlu'  fniuduh^nl  milsm.-  <»  '        '  ^  ^^^^^  ^^^^^  ,,j  ^„^, 

,J.,  another's  right.    '^^^ ;^f:;^::':Z P^^'^^'^  ">  I^-^"" ''  '"^ 

„,,Uin..    The  paper  was  made  lie  "   '  ,,  .,„,„„„^  j,,  ,,„..i,...  a 

,„,,  ri.ht.    To  complete  ^^'-'V'"^'"^";' "\'      ,'.'t,  i.u.oeent  without  the  former, 
f,,,,,,.U.Mt  intent  and  making  botl^i      l\^^  Un^     .1  __  ^    _^  ^.^^^.^^^      ,j 

„,,  the  f<.rmerif  carried  '-'^^ ;f'''''^'^'^^^^  M  ^^  V^-r-^'- ^^  ^^^^^^'^^ ''' 

■  -y  '.-'^  "••  ^'^>-  "r::h;;  1  hi-  "  ri  't:  i^ise  Le  s,gned,  ^ ... .. 

,,„,  iiiM  name  lo  a  paper  whuh  lu    woui  .  .,,,,,,„.  the  rule?     Isitforgerv 

„.,  ,  f„,,.„y.  Where  shall  he  stopV  and  .    :U  '^     ^      ;;,,,. ^  ,^  „^,.,  ,,  valti- 

,.,  ,aue  a  note  for  a  debt  not  ''"o-"   "  "     '    J  ,  ,  ^..l.,    ,,,„er  that  it  is  worth- 

.Me  land  by  fraudulently  ^^^^'^^^l^'^^^^l^V''^^-^  -'  ^  -'■'^*^  '""'  '"  "" 
los^y     or  to  get  a  leua.-y  u.se.ted  ...  *^v        >  J:  ,„^  ,„,  ,„.,.,,ose 

'-^.f :;..:;:  si:::;-^:  .:r;;^:ni.>ci>  •.  co ...d . .. ..... 

"•'!.r ';;.:ie:e:r :;:  ;;"— «  ^'ven  m  the  court  ..dow.  which  we  fuUy 
adopt,  the  judgment  is  to  be  aHlrmed" 

,  ,,  __  ..ucln.  Signer  ««  -P^  ^ -^l -.^rltn'^n-^- 
.o,,  ,t  is  not  forgery  to  pn.ej.e      e -.s  .U.d  ^      m^^^       ^^^^^  ^,^^,  ^^,^,,^^„„,. 

,,:.,  alteration  made  w.lhont  h.s  ''>'*>'>    'J  [J  ^^,,^^„,  „„  ,^,H,ition  that  the 
u,s  of  no  in.portance  to  him,  lhom:h  he  gave  Ins 

iriirc-entatiou  is  t.ue.  „,,_»anv«'  i' forcerv  co.isists  in 

"v„.«  V.  .7.,.....^  a  case  .,f  this  ><  "  l^^  ^■•^:^,.  '^ul  eLnce  of  the 

falsely  making  or  altering  a  wr.t  ing,  with  n  tent  to    ef  ra  _  ^^^^^^  ^^^^  ^^^^^^,^^^^^^,^^^ 

.Time  is  contained   in  the   unio..  of    't.^     a       udulent  purpose.    The  false 

:.  a  .iction,  and  that  it  is  a  tict.o.i  '''-X;!'::    a     ule,.t  purpose  for  which  it 

,,,aracler  of  the  lustrume.it,  '■'^'-''-■"  ''       "    '      H,^,  «i,nature-  u.at  Is.  one 

,s  prepared,  may  consist  in  ^''Y'''     iCtur   i    pmports  to  be- toany  Uistru- 

.Uich  is  not  that  of  the  party  whos.  ^^"  ^^  j;;;"^^,  ,,,  ,,.„  ,,  u.e  applica- 

„„nl,  whether  genuine  or  false,  «'' ^;  5,,^.,,  ■„  i^.i.e- that  is,  whuh  is 

,,.„  of  a  genuine  signature  to  -  ;-\";^';  V\;     ^  -.ed  Ids  signature.     In  both 

„.,t  in  fact  the  L.stru.nent  ^";;^'f^,^;.f;;;',i,  pp^^r.,  wl.e.i  it  is  shown  that 

cases  the  f.ilsity  in  the  character  of    he  paper  d      n  ^^^^  ^^^^^  ^^^^^  j,,  ,,, 

,„e  application  of  the  genuine  '''S"^t..re   n  tl^^.  o"      ,  ^^^^^^^  ^^^  ^^^^^^^^ 

,.„.er  was  made  by  the  coasent  a..d  ^^^^^^^^^  and  it  cui  n.ake  no  dd- 
„,  or  was  assente.1  to  a.ul  ^-^'^"^^J'^i^^^^^^U^.i  the  asset  was  ,  .0- 
,..,-euce  in  the  latter  case,  ...ore  than  ..       «;  ^"^  '  ^      „  ^  p.^ty  is  i..due.  d 

,.ured  by  means  of  ^''l--"'^ '■•7,^t  "        >«"  "■"*  ""'"'  '"  ^'  "'"""" 


I  Yerg.  :•«;  *  A"'-  l>oe.  i^l- 
:  18  Me.  371. 


ijSN.  1I.:;2KISS9)- 


93 


romiKKV. 


paper,  than  If,  indiircd  by  Midi  roproscnUtinii^,  he  imil  siirnoil  It  hlnistlf:  ;ii„| 
it  Is  p<|""lly  "K  in  tlic  ca-c  <if  !i  snl)xc.|ii(iit  asMfiit,  prixnicd  hy  siicli  niian-  t„ 
an  iniaiilliori/cd  siL-iiatmc  or  lo  tlic  appllcMtion  tif  a  jH'MiiIno  Nljtnatiiro  tn  an 
i.iNtriinu  lit  to  which  it  was  not  .>il;:inally  applied.  In  cvny  such  cns<,«  th.'  as- 
sent  of  the  party,  voluntarily  uivcn,  though  procuicl  ihrouKh  falscliood  .itnl 
fraud,  removes  the  false  chanuier  which  witliout  It  iid«lit  lu' imputed  lo  t  tic 
instrument.  The  fraud  may  exonerate  tlie  party  from  llaMlity  upon  it  as  a  eon. 
tr.ict,  and  under  some  eireunistances  may,  in  Itself,  constitute  an  offense  siil). 
jecilnj;  the  party  to  indictment;  hut  because  false  means  an-  employed  t„ 
procure  the  consent  to  the  Instri'nient,  the  Instrument  itself  can  not  for  tliat 
reason  lie  deemed  fal-e.  I  have  fouiid  no  authority  upon  tlie  point  except  tlic 
caseH  of  7i''.r  \.  C/i^uhriei  ,*  and  h'cc  v.  Collins.-^  AlllioUfih  they  arc  merely 
jii:*ipriii.s  ruiiiifjs.tliey  are  cite<|  l.y  Uox-oe,  In  his  treatise  on  Criminal  Kvldencf, 
as  oslaljllsiiinfi  the  law  in  aci'ordanee  with  tlie  views  here  nuiiuested.  Tlic 
rulings  were  that  It  is  not  for-ery  to  induce  a  party  to  ex(  cute  an  Instrument 
hy  a  fraudulent  misrepresentation  of  its  eonfents,  or  to  procure  the?  signature 
by  fraud  to  a  document  which  had  l)een  altered  without  the  party's  knowl- 
edge." 

§  )•-'(). Dmwing  Checlt  on  Bank  In  PrlBoner'a  Own  Name,  Having  no 

Money  In  Bunk,  Not  —In  h\  v.  Martin,^  the  pri.soner,  whose  name  was  Hobert 
.Martin,  in  i.aynient  of  p'o.ls  illh  d  up  a  banker's  check  and  handed  it  to  tli.' 
seller.  He  signed  it  "  William  Martin  "  but  the  seller  took  it  as  the  jirlsonerN 
without  uoticiuK  the  alt.raticni  iu  the  Cliristian  name.  I'pon  presentation  at 
the  bank  where  the  prlsom  r  bad  no  assets  the  check  was  dishonored,  on  the 
pround  that  the  signature  was  ii..t  tiiat  of  any  customer  of  the  bank.  It  was 
held  that  he  was  not  guiltv  of  foriierv. 


§  ■*-!• Paaslng Counterfeit  Money. 

Is  not  forgery.' 


-  To  pass  a  counterfeit  note  or  check 


§  42'-'  Falsely  Attesting  Voting:  Papers  Not.  --  In  R.  v.  Hartshorn,^  a  statute 
enacted  tliat  at  ei(ction  "  if  any  voiircan  not  write,  he  shall  alllx  his  mark  at 
the  foot  of  a  voting  paper  In  the  presence  of  a  witness,  who  shall  attest  ami 
write  the  name  of  the  voter  against  the  same  as  well  as  the  Initials  of  such  voter 
against  the  name  of  every  candidate  from  whom  the  voter  Intends  to  vote." 
The  defendant  who  took  an  active  part  on  behalf  of  some  of  the  candidates  at 
an  election  went  to  the  h.uises  of  voters  wlio  were  marksmen,  to  assist  In  till- 
ing up  the  voting  papers,  and  having  ol)tained  the  express  or  Implied 
consent  of  voters  or  meinliers  of  thi  ir  families  tilled  up  the  paper  with  the 
propcT  names  and  marks  of  the  voters,  and  put  their  own  names  as  attestln- 
witnesses  w  ithor*,  obtaining  the  actual  signa'ures  or  mark.-s  of  the  parties  th<  m- 
selves.  Oa  a.i  Indictment  for  forgery  Compton,  J.,  said:  "This  does  not 
amount  to  forgery,  although  it  is  undoubtedly  an  Irregular  proceeding.  It  ap- 
pears tliat  the  voting  papers  had  been  filled  up  by  the  defendants,  either  with 
the  express  or  Implied  ciniseiit  of  the  voters,  or  with  the  consent  of  some  per- 
son whom  the  defendants   mi^ht  reasonable  believe  to  have  authority.     The 


1  2  MooU.  ,t  Hob.  ,'►».'!, 

^  Id.  tlA. 

»  U  Cox.  375  (1879). 


<  VTailc's  Case,  2  City  11.  Uec.  4r.  (1S18). 
'  flCox,3'.l,i  (185;t). 


WHAT    NOT    iM.KCiKUY  — IMX\STRATIONS. 


\K\ 


It  lllniS(lf:    :ii,,l 

y  siii'li  UK  •■111- 1,, 
slstimtiirc  til  .1:, 
iicti  case  till'  IIS- 
ii  f:il<i<-liootl  .itnl 
'  iinpilti'd  Id  t)ti< 

I  poll  it.  IIM  II  Cllll. 

ail  offcnsi'  si:l). 
re  I'lnplojiil  til 
ciiii  not  for  tliat 
>oiiit  except  tlif 
they  arc  niercly 
miiijil  Evidence, 
iiitruested.  Tlic 
1'  «n  liistrumiiu 
re  tlic  slgnatiirt 

party's  knowl- 


me,  Havlnir  no 
nine  WHS  Holxri 
hiuiili'd  it  to  tlif 
s  the  jirlsoncrN 
presi'iitaiion  at 
lioiiored,  on  the 
'.'  biiiik.     It  was 


lit  note  or  cbecic 


lAorii,'  a  statute 
iflix  liis  mark  ut 
shall  attest  and 
lis  of  such  voter 
iteiids  to  vote." 
le  candidates  at 

to  assist  In  till- 
!ss    or    Implied 

paper  with  the 
Ties  as  attestliif; 
le  parties  th<m- 

This  does  not 
eeding.  It  ap- 
nts,  either  with 
It  of  some  per- 
luthority.     The 

I.  Uec.  4C.  (ISI8). 


rn  .vil  eall.d  upon      U  is  possibly  that  the  Irrcjiularlty  committed  .m.y 
voiers  were  al     a  1    1  u      n  ^^  ^^^^^_^^  ^^^^^^  ^^^^  ^._^^^  ^.  ^,^,^^^,„  ,^,„^  ,,„ 

"•■  '!""■'      „      I  ,t   lee      tic,  m  tl.,.  mode  a.lopted  in  this  case  Is  not 
r  r^i:      ^^    Z  stluneiit  implied,  and  the  essence  of  the  crlm-  of 

;;;;-u;;;;^.;afa,...tryor«^^^^ 

;::;:;ir;:i;n«'  ;:;i:;;;;'tu:i;;'i;::«';ra  to  me.  tms  case,  „.., .  ...r. 

'"tI:.  ll!:^^:;."  then  directed  tiie  jury  ,0  acnnlt  the  defendant. 

,  .....    Cutting  Pieces  out  of  Bank-Note.  to  Make  New  One.  -  It  Is  not 

j;;:,;n:;n""'...t  of  ba„k.«otes  a-m  pastm^  them  together  to  make 
another  and  new  note.' 

.  x->i  What  '8  Not  Forgery-Other  lUustratlonB.  -  The  alteration  o( 

rt.  posited  With  tn^citrK.       »  .  .innceived  84(1,  .Tannary  21, 

Aiiril,  18-'0,  an  acceptance  by  Messrs.  yviiuams  *  ^    . 
change  as  follows,  viz. :  — 

"No.  117.    £-'00.  ««  March  28th. 

"  Sioannea  Bank,  1820. 

.„  M,    Tniin  Tinner,  or  order  two  hundred 
"Two  months  after  dale,  pay  to  Mr.  John    upper, 

pounds.  "For  yalue  received. 

"  IlY.  WlUUAMS  &  Co. 

"To  Messrs.  WilUams  &  Co., 

Bankers,  Birchin  Lane, 
.1'^  London." 

With  intent  to  defraud  Thomas  Bayles,  John  Boutledge  and  Jonathan  Uainsey. 


1  Com  f .  llayward,  10  Mass.  34  (1813) ; 
Tlic  iiiiMincr'8  method  in  tlii><  case  wa«  to 
Like  seven  bills  of  the  Bumo  bank  ami  valuo 
ami  to  out  a  strip  perpenaieulaily  from  o.irh 
bill,  uniting  tlio  pans  thua  scpuratcl,  and 
with  tlie  i^even  Rtrips  mnV.u  an  eighth  bill. 

s  Stale  V.  DavU.  53  lo.va,  352  (1880). 


s  State  f.McLcran,  1  Aik.  (VI.)  311  (1826). 

4  U  I'.  Preston,  21  I',  f.  Q.  V..  .-r.. 

i  State  V.  Monnler,  8  Minn.  iVl  (1««3)- 

0  Walton  f.  State,  tt  "ierg.  377  (1»3*)- 

!  10  Cox,  fill  (l-^'')- 

s  K.  4U.  136(1S21). 


04 


|-t)lI(>KUY, 


Till'  M'coiid  <i>iiiit,  cli.iru't'l  tlif  prlsoiiiT  wllli  uttfiiii;:  ami  piilili-lilii;:  lus  iru, 
th.'  Hiiid  fornctl  a.(i|iiiiiici'  on  Iho  siii<l  bill  of  t-xclmnx.',  km)\vlii|.r  Ibu  winie  to  lie 
foriicd,  Willi  u  like  llllrllt. 
'I'll.'  iirisoiuT  uii.s!if(|iilltf(loii  tlic  tlrsl  iiiid  <  oiivicli'il  «>ii  the  necoiid  count. 
It  app.uiod  (ri.in  the  fvidcuoc,  timtin  April,  IWO,  tlio  pri.soncr  puiThuHia  .f 
thf  iin.scciiiori  wlnat  to  tlic  ainimnt  i>t  two  Imiidrcd  and  forty  pounds*.    Ai 
the  tiuif  hi'  uiudo  111.'  imiTlia,.',  ho  a-rci'.l  to  pay  lln'  amount  hy  tlu'  ucccplaiic.. 
of  a   l.ondon  banker.      Uffori'  tin-  wlnut  wa>i  dclivi-rcd  to  lilni,  he  produfcil  <n 
the  pro.st'cutors  a  1)111,  a.M  follows:  — 

"^"^•""''     ''''■  '  ..  MarH,  l.'8th. 

"  Sn-iinsi'd  Hank,  Ihjo 

"Two  nioulhu  after  diite,  pay  to  Mr.  Joliu  Tijiper,  or  orih  i  two  hundrti! 
I'""'"'-^-  '  ..For  value  received. 

"  llY.  VVU.I.IAM8  &Co 

<'  To  Messrs.  Williams  &,  Co., 

"Uank'-.s,  1),  /i)V(7t(n/-a»e, 
"3  London." 

"Aecepted,  Williams  &  Co." 

The  prisoner  was  asked  how  he  proposed  to  pay  the  remainder  of  the  money: 
he  said  he  shonlil  <lraw  on  tlu'  same  bankers  for  the  balance,  he  theil  drew  the 
following.'  bill  In  the  prosecutors'  eonipting  hou.se:  — 

£4,1.  South  I.awUm,  April  t;th,  1820. 

••Two  monlbs  after  date,  pay  to  our  order  forty  pounds,  value  received,  :u 


"Thomas  W^tt.s, 
'•For  /'.  W'tUtK  d  Co. 


advined  by 

"  Swansea  Bank. 
"  .Messrs.  Williams  &  Co. 
"  H;inkers,  IhreUin  Lane, 
"  London." 
•'  Accepted,  Williams  &  Co." 

The  prisoner  s;dd  lie  should  send  this  bill  to  Loudon  to  get  It  accepted,  and 
It  was  afti  rwanis  sent  b:ick  to  the  prosecutors  with  "  Accepted,  Williams  &. 
Co."  wiitten  ;;cross  It. 

Whilst  the  prisoner  was  drawlufj  the  bill,  one  of  the  prosecutors  asked  him, 
If  Williams  &  Co.,  the  acceptors,  were  Williams,  Birch  &  Co.  The  prisoner 
said  the  acceptors  were  Williams  Birch  &  Co.    Tlic  prosecutor  said  It  wiis 

hnprobal)lc  there  should  be  two  llrmsof  the  same  name  In  the  same  sti I  ■   ( 

prisoner  answered  it  was  Improbabl.-.    The  tl-nrc  !?,  which  stands  belv  een  th, 
words  bankers  and  Birchin  L:ine,  in  thv-  two  hundred  pound  '  ■'  .t  then 

on  the  bill.    The  witness  did  not  observe  whether  the  sii  3,  whicli 

stands  at  the  comer  of  the  bill,  was  on  the  bill  at  that  time 

This  small  llsure  ;l  at  the  corner,  u|)peared  to  a  witness  acc,  uted  wit'i  bill.-, 
not  to  be  part  of  llie  address,  but  was  like  a  tljjure  that  the  .lolders  .f  bllli* 
sometimes  put  .ui  them,  before  they  leave  them  for  acceptance.  But  tli.  person 
who  presented  this  bill  had  not  observed  whether  it  was  on  the  bill  when  he  pre- 
sented It  for  pavmeut  or  not.    The  person  to  whom  the  bill  was  presented  at, 


lOIMiKIU  —  "  ACCCnjNTAIlI.K    ItKCKIIT. 


\K) 


ili-lilii;!  ii!i  Iriii 
the  Hunie  to  tn 

ecoiul  e<>uiit 
■r  purclm8cili( 
ly  i)(Hiii(l!<.    Ai 
the  uccopliiiicf 
he  proiUifcil  '.. 


\UiTvU  28tli, 

t.v,',(   Uilllk,   iHL'tl 

■1    two  hiindrt;il 
If  rt'Cflvcil. 

1I.I.1AM8  &  Co 


I  of  lliL'  money : 
e  thoil  drew  the 

•il  t;tll,  1820. 
ue  received,  a* 

iiAS  W  \nt*, 
P.  Watts  d  Co. 


It  accepted,  and 
ted,  WlMliiras  &. 

jtorw  asked  him, 
(.  The  prisoner 
itor  said  it  wn.» 
same  strei't :  t' 
in>l8  botv  een  tli< 
-t  then 
3,   which 

.iited  witU  bill.s 
juiders  <>t  bills 

But  til.  fKTSon 
bill  when  he  prc- 
K&s  presented  at 


„., .  B.rch.ni.a..  took .;.  .111...;.  ---;•  i!;!;;,::;;::;:;:;;!!:^ :;:; 

U  A  thUim.e  there  were  Lon.h.n  Linkers  ut  N...  •-'0.  Hireh.u  Uuu;  of 
TZ^:  of  V  m  .  S  1^  d.  ^  Co..  who  usually  aeeepU  .1  hills  in  the  .,.  .u  ol 
V^uZ7('o  ruu  ;>ll  was  n<.t  accepted  by  that  .Irn,.  No  other  banke  s 
\M1  hams  ^.  I  o  ,„  earry  on  business  In   IMr.hln 

of  the  nan,,  s     f  N        •  ;  •   ^^_^  ,  ,^  „,^^,  „,.,„      ,,„,  „,,r.„ 

1:  wluilll^r  W- w!.:  on';;  LLs   p.a,e  on  the  d f  No.  :,,  ,Ure..i.  Lane. 

I      ,  .  wi.  n  ,  evhhnee  to  sh„W  by  whom  these  hills  were  aeeepled. 

T,:;:;::i::;e:  ;::!'"  ult  tUree  b^s  m  tl.  toUowlu,  fonn  mul  been  paid  at 
So.  ;t,  lUrchin  L'lne,  viz. :  — 

"No.  ;il.''-     i;;"'"-  "SoiTH   I.AWTuN,  March  r.lh,  18-20. 

..TWO  n.on.bs  after  date,  pay  to  onr  order,  thirty  pou,.K  f^  .^.e  received. 

"  /',    Watts  &  C'i>. 

••  Messrs.  Williams  ^  Co., 
"  Hankers, 

"Accepted,  M(vsrs.  Willianis,&  Co. 

"  I'ayahie  at  No.  ;l,  Ibrcliin  Line,- 

"  lioudon." 

,  •     1       wt  It  lo  til.,  iurv  to  sav,  wheMier  the  acceptance  of  ttie 
Th«  If'iirned   ludltc  left   It  to  lUe  jui^    i"  .-•".' i  ." 
Uv,hn';Z  pound  bill  was  the  acceptance  of  any  London  bankers,  and  .he> 

""'n'  Tn,!win".!uestlons  were  reserved  for  the  opinion  of  the  jud.es,  viz,: 

;::;::::;r 'r-pr^ve  Zl.  ««..«  .  m  the  comer,  was  on  tUe  bill  When  it  was 

""InllSa^i  Te;rt8^1.  eleven  of  the  indues  met  (Bavu.v,  J.,  bein«  abseiU) 
In  Hilary  J  cru  ,  lo     ,  conviction  wrong,  Ijeln;,'  of 

;;St:r  t:;ov^r::;::t^;;.:^.rlsoner  d.  not  amount  to  the  crime 

of  forgery,  and  they  directed  a  pardon  to  be  applied  for. 

5  V'5  —  Partnership.  -  A  partner  is  not  indictable  for  forgery  of  an  Instrn- 
nieiit  of  writing  with  intent  to  defraud  the  llrm.' 

,4.,,    xnlury  muat  not  be  Remote. -In  People  v.  C'«dy,=  a  notice  of 

uJ^itution  "^r^rltof  inquiry  bel.^  s^^ved  "^-"; l^""'?^  w^fS'th: 
,.e  of  cecntin.  '^  In  -ier  to  ^oke^i^^^a^^^^^^^  ^^^ 

•the  tendency  and  intent  to  uo  ine  wroiif,  ai  i^ 

conjectural  to  constitute  the  crime  of  forgery. 

§427.  —"Accountable  Receipt." -A    railway  scrip  certificate  is  not 

within  this  phrase.^ 

Boe.  as  to  the  conBtructlon  ol  tlOBC  words. 
StaU  ..Riebe.«  Minn.  315  (1880) ;  State  v. 
Wiioulor,  19  Minn.  98  (1872). 


I  Com.  f.  Brown.  10  Phila.  184  (1873). 
aoili!      190  (1844).  ^     , 

»R.r.  NNcflt/i  C.  *  K.  496  (1847).    And. 


»1 


n 


FOIUJEKY 


§428.  "Acquittance."  —  A  railway  ticket  Is  not   an  '  acquittance;'" 

nor  a  niihvuy  scrip  certillcalc.''' 

(j  l^.c),  "Bank  Bills."  —  CiTtlflcatcs  ol  deposit  purporting  to  be  Issued 

by  an  inaurance  company,  payable  on  ileniaud  to  bearer,  are  not  "  bank  bills." ' 

^430    "Bill  of  Exchange. "  —  As  to  the  construction  of  these  words, 

nee  li.  V.  Mopsc!/.* 

§431.  "Deed."  — The  forging!  of  letters  of  orders  issued  by  a  bishop  i3 

not  the  fcrgery  of  a  deed  under  the  Kn^lisii  statute.^ 

§  4;5o    "Order  for  the  Delivery  of  Goods.  ' —  To  be  within  the  stetuto,  it 

must  i.iirport  to  be  tlie  order  of  the  owner  of  the  goods  or  of  some  person  who 
has  or  claims  an  interest,  in,  or,vlio  has  or  assumes  a  disposing  power  over 
such  uoods,  and  talies  upon  himself  to  transfer  the  property  or  custody  of  them 
to  tlu"i)ersou  in  whose  favor  hi;ch  order  is  made."  Tbo  following  have  been 
held  not  within  the  phrase,  viz. :'  "  1  hereby  authorize  my  servantraan,  Abraham 
Egan,  to  procure  a  watch  of  you."'  "Mr.  McD.,  let  A  have  the  amount  of 
live  dollars  in  goods,  and  I  will  settle  with  you  next  week." «  There  must  ap- 
pear to  l)c  a  drawer,  a  drawee,  who  is  under  an  obligation  to  obey,  and  a  per- 
son to  whom  the  goods  are  to  bo  delivered." 

In  Carherry  v.  *7a«e,"  C.  was  indlctiMl  for  forgery  in  falsely  making  and  pass- 
ing a  forged  "  ortler  for  the  delivery  of  a  pistol  with  a  load."  The  instrument 
•.vas  as  follows  ;  — 

"  Messrs.  Langdon  A  JSro.  — 

"  GK.NT8 :  Let  the  bearer  have  oue  of  you-  smallest,  with  load,  and  charge  to  rae- 

"K.  Chambers." 

This  was  hold  not  such  a  writing  as  alleged  -being  defective  oa  its  face. 
In  li.  V.  AViefoH,"  the  prisoner  was  Indicted  for  altering  a  forged  order  for 
the  delivery  of  goods,  which  was  set  forth  as  follows,  viz. :  — 

"July  11,  1838. 
"  Mil.  L.\N<i:  Vlease  send  one  piece  of  lead  by  the  bearer,  12  long,  16  wide. 

"GEOROE   KlLBY, 

"  Queensborough." 

With  intent  to  defraud  Peter  Thomas  Lang,  and  In  a  second  count  with  an  in- 
tent to  defraud  George  Kllby. 

The  prisoner  pleaded  guilty. 

The  learned  judge  postponed  '.  i  sing  sentence  till  the  next  day,  for  the  pur- 
pose of  looking  into  the  facts,  when  it  occurred  to  the  learned  judge  that  they 


'.  U.  f.  Goodcn,  '1  Cox, 672  (ISTl).  Ami, 
•oe,  auto  IlieconBlnirtloii  ot  this  word,  11.  v. 
Freiioh,  11  Cox,  472  (1870);  U.  f.  Tsrker,  8 
Cox,  274. 

a  H.  t>.  We»l,2C.  &K.  4SM(1847). 

3  Robinson  v.  Stale,  6  Wis. .'««  (1857). 

•llCoz,  UJ(18«S). 


'  R.  V.  Morton,  12  Cox,  4,'Hi ;  L.  R.  1  0.  C. 
H.i'i  (187:?). 

11  n,  V.  Clinch,  3  Le.'lcli.CU  (1791). 

'  R.  V.  Kgttii,  i  Cox,  29  (1843). 

e  Horlou  r.  State,  S3  Ala.  487  (1875). 

»  State  V.  Lamb,  05  N.  C.  419  (1871). 

K'  11  ()hioSI.410(lSilOj. 

u  2  Moody,  89(1838). 


Mi 


KOUoKKV-"onnF.n  fou  thk  vavmknt  or  mom-a.' 


97 


in  '  acquittance;  "' 


porting  to  be  issued 
3  not  "  banli  bills.'" 

ion  of  tliese  words, 


ssuoil  by  a  bishop  i3 


■  within  the  statute,  It 
'  of  some  person  who 
lisposing  power  over 
ty  or  custody  of  them 
following  have  been 
ervantraau,  Abraham 
have  the  amount  of 
>>8  There  must  ap- 
1  to  obey,  and  a  per- 

iely  making  and  pass* 
nl."    The  instrument 


oad,  and  charge  to  me' 
"K.  Chambers. " 

ective  on  its  face . 
ng  a  forged  order  for 

"July  11,  1838. 
>r,  12  long,  16  wide. 

:ORnE   KlLBY, 

"  Queensborough." 
;ond  count  with  au  iu- 


next  day,  for  the  pur- 
arned  judge  that  they 

12  Cox,  4!«!;  L.  B.  1  O.  C. 

Le!icl),6U  (irai). 
lox.W  (18*3). 
e,53  Ala.  4S;  (1S75). 
,05  N.C.  419(1871). 

(18tl0j. 
838). 


'Z ;;:;;  ";,»,,''■•; :;::  .-,..,1,  ..»„«  ,..^.  or ,.;....  ..„.  o„„„„y  ...u., » h. 

„.„„.„ce  till  the  n.xl  as.sizes,  and  *« '"^'""  ^'''; ''"^  "  prisoner's  eonfes- 

,j''r;;:e;:::i;ir  r:\rr;-.  -:,;";;,»:. . ....  ....«„...  -o  ^ 

piiferred  for  forginu',  olc,  a  request. 

,  ,.,., -order  For  the  PaymentotMoney"-Tha  Order  Must  Appear 

•  Z7.^  nn?      I.,  lieainn  v   linshxcc-rih,'  it  was  held  that  a  for;zed  order 

The  following  have  been  held  not  within  the  phrase,  mz.  .  - 
..  S.u:  The  bearer  Mr.  Richardson,  '.elng  our  particular  ^>-''="d.  who  has  occa- 
1  f.  ..n  Now  York  to  Pliiladelphia,  we  have  requested  hini  to  call 

::■;::;;::«  ™u  -  :::;^m.  .-.  <■«  -. »» — »"» ■"-  '•'""" 

vour  compliance  will  much  ol)li-e,  sir, 

<i  Your  obedient  servant, 

"  J.  W.  rilA.VNING.'" 

A  forged  paper  in  this  form:  "  P^r  Bearer  two    U-+   counterpanes"    not 
addressed  to  '"'3  o";"';  ^„„,,  (..^  p.  and  of  draw- 

;.:ini.  toalettertoK.,  ask.ngfoi  i...  ancl.siaun^u  u  u  wis  held  that 

tifv  of  bones.     F.  at  the  time  did  not  owe  any  u.oney  to  1>.     It  v  as  1.  Ui 

au  order  for  the  payment  of  money. 

n.    wait  for  you."    U.  r.  KUor.  1  Leach,  363. 
(1-^4). 

'  c.  AM. f,.w  C1H4.:).  ^    ,„. 

»  Atul  SCO  K.  V.  Williams,  1  Leach.  lU 
(1775);U.-.R"UB«.4C..x.7(W^');U-;';Kll^. 
4  ()<)X,'.'.-.8(lH.'>li)  ;  U.  f.  lie-.pt-lle,  W  U.  (  .  Q-  »• 
2.!0;  It.f.  naker.  1  Moody,  231  (1S2'.')  ;  K.  r. 
l!,,venMToll,  U..tU.  100  (ls,^.);U.e.  I!'«'l'- 

ar;l».  U.  &  H.  Wi  d-^H  ;)  "• ''   ""'^"''  "  ^°*' 

;!'2  (lHr,;i). 

V  iMou'ly.-JSl  (IMl). 


1  'cl'i!  «,  sec.  10.  Sec  Kasfs  V.  C.  OSfi ;  Uav- 
i.ns.ion'8  Case,  Kus^.  &  "V-  I'.l ;  ^^a'-n^y'" 
I'UM'.Moo.  Ml. 

'  1  Siark.  3117  (1HI6). 

*  K.  V.  Denny,  1  Cox,  lT.i  iW.'))- 

■  Tcople  v.  ThompHoii,  2  .lolins.  Cag.  ;142, 

(ison. 

U..V.  Cullen.  B  C.  A  V.  116  (1831).  "IMcas.. 
to  ,  ay  JLIO  by  bearer,  at   I  urn  so  »11  I  <an 

^^   PrFKNCI'-S. 


98 


rOKOKKY. 


Ono  of  tlio  counts  i-hargcd  "tliattbe  prisoner  on,  etc;.,  at,  etc.,  feloiilotiw 
(lUI  offer  and  put  off  a  certain  bill  of  oxchaiifie,  wliich  bill  of  cxchauf.'!'  i>  a- 

follows:  —  „  .,  ,  ,-    1^., 

"'IlYTTON,  February  1.,  1841. 

"  '  IMt^aso  to  pay  on  demand  to  the  bearer  the  sum  of  twenty  pounds  for  v.ilu- 
received,  as  witness  our  hand,  Messrs.  Thc.as  «ially  &  Co.,'  with  inti  ii' 
to  defraud  Matthew  Ilulton,  Chayte.  •UKlot'.^rs,  against  the  form  of  the  statute," 

etc. 

The  other  count  differed  from  timt  stated,  only  in  substitutlns;  the  wor(l> 
order  for  payment,  or  money  for  the  words,  "  bill  of  exehanse." 

The  learned  ju  Ige  respited  tliu  judgment  till  the  next  assiies  in  order  that 
the  opinion  of  the  jiid'.,'es  miRht  be  obtained  on  this  question,  whether  tin- 
counts  or  cither  of  them  could  be  sustained. 

This  case  was  considei'cd  at  a  meeting  of  llie  jud<{es  In  Raster  Term,  1S41,  and 
they  were  unanimously  of  opinion  that  the  conviction  was  bad.  This  case  was 
distinffuished  from  llpguia  v.  Ilawkex,^  in  this,  that  there  the  act  of  putting  the 
acceptance  was  a  sort  of  estoppel  to  say  it  was  not  a  bill  of  exchange. 

§  434. Promissory  Note.  —  As  to  what  Is  not  a  "  promissory  note,"  see 

cases  below. - 

§435. "Receipt   For    Money  "  —  "  Receipt."  —  .V  scrip    receipt    not 

Ulled  up  with  the  name  of  the  subscriber,  Is  not  within  these  terms,'  nor  a  rail- 
way scrip  ccrtillcate,*  nor  a  railroad  ticket.' 

In  li.  V.  Cooper*  it  was  the  practice  of  a  county  treasurer,  when  an  order  had 
been  made  on  him  for  the  payment  of  the  expenses  of  a  prosecution,  to  pay  the 
whole  amount  to  the  attorney  for  the  prosecution  or  his  clerk,  and  to  require 
the  signature  of  every  person  named  in  the  order,  to  l)e  written  on  the  back  of 
it,  and  opposite  to  each  name  the  sum  ordered  to  be  paid  to  each  respectively. 
It  was  hold  that  such  a  signature  was  not  a  "  receipt." 


§  4;!(i. 
statute.' 


Record,  —  A  tax  duplicate  is  not  a  "  record  "  within  the  Ohio 


§  4;57.  "  Shares  "— Scrip    Receipts    Not.— In   E.   v.    Mott,''     several 

defendants  were  indicted  for  conspiring  to  fabricate  shares  ol  a  company.  It 
appeared  that  the  company  had  not  been  legally  established,  and  that  tlu 
papers  ^fhich  the  defendants  were  charged  with  conspiring  to  fabricate  were 
scrip  receipts  given  by  the  bankers  of  the  company  to  the  holders  of  certain 
letK-rs,  in  return  for  the  payment  of  deposits.  "  I  should  say,"  said  Aiut.vr  r, 
C.  J..  "  that  these  receipts  had  not  become  shares,  but  were  only  things  wliich 
might  be  made  shares."    The  defendants  were  acquitted. 


I  2  Moody.  CO. 

•i  It.  f.  Hurke,  U.  K.  4l"5  (ISW) .  t'onner's 
Case, ,»  City  Hall  Kec.  5',t  ( ISIS) ;  H.  v.  Howie, 
llCi>x,3'.'»,  (1SI!9). 

»  U.  f.  l.yi>n,  2  Leach,  iwi  (17«:!). 

*  |{.  r.  West,  2C.  *K.4!I«(1S«7  .  And  as  to 
the  rcinstniction  of  these  wonlH,  nee  R.  v. 
Usrvey,  U.  *.  U.  227  (1812)  ;  K.  t.  I'urker,  2 


Cox,  274;  It.  f.  French,  11  Cox,  472  (1870) ;  11 
V.  narloti,  1  Moody,  141  (1S26) ;  U.  v.  Uussell. 
1  Leiich,  10  (18117). 

i  It.  V.  Uooilen,  11  Cox,  tn2  (1871). 

«  2C.  &K.  .S8li(1847\ 

'  Smith  r.  State,  18  Ohio  St.  420  (1888). 

>  2C.  AP.  521  (1827), 


mm 


lOROERV—  INSUFFICIENT   EVIDENCE. 


99 


c,  feloiiioii> A 
exchaiifrc  i>  i- 

ary  17,  isn. 
uiuls  for  v.ilu' 
.,'  with  iiiti  I!- 
jflhu  statute," 

Ing  the  woi'iN 

s  in  ordor  that 
I,  whether  tlu' 

rcrm,  1841,  iind 
This  caxe  wa-; 
of  puttiug  the 
inge. 

ory  uote,"  see 


ft  receipt  not 
ms,'  nor  a  rail- 

n  an  order  had 
ion,  to  pay  tlie 
and  to  require 
on  the  bacli  of 
:h  respectively. 


Ithin  the  Ohio 


Mott,"  several 
II  company.  It 
and  that  tlu 
fabricate  were 
ders  of  certaiu 
'  said  ABitoTT, 
y  things  wliicli 


,  ,,8    _-  ..undertaking"  — warrant." -in  R.  v.  ^7''';>^^' a  customer  in 

--r;t:r^;;:mrr:i™:r^^^ 

"n-V^r  ,;  ;       P  V    L'     r   B  tb    sun.  of  .•-',  7s,  8d  and  dei,iting  me  with  the 
ol,l.ged  b    >  m    I^^>    '^  ^„j  ,j,  ,,,  „„ount  to  invoice  of  order 

""Jld  •      ll  va     1  e  P  a..tice  of  the  house  to  pay  country  custom.-rs  on  sl.u.- 
iTrCcts      U  Vl^heid  that  ths  letter  was  not  au  "  undertai^iug,"  a     w.  r- 

""!';=:  S;:.rri:rr,u:r;aid  ,.  .  ....U.  .  not  a  ..  warra^  for 

the  payment  of  money."  • 

NO  Pre8umnticn  of  Guilt  from  Uttering. -The  uttering  and 

person  so  doing  forged  It.' 

5  4,0    _  Il«»c«  H.ld  I„al!.01.»..-I0  several  »«>.  In  Ibc  .ppell.te 

III  Dovalina  y.  state  =  HVR-r,  J.,  »>ii^i-      *' '  j  «„„.!.. .>t      This  order 

n„lo  aou«.lc.  !»  ch.rg»d  to  h.»e  been  forged  b,  the  ."='«»*»'•    ™;;''"; 

I""  "TrLS::,."    °p:,r.be' de'eSrL  trder  re>.rrod  to.    .  ..o.,d 
°°T ,   Lt  If    »«•  '.        obulned  Ihc  order  tr„m  P.blo  DovaUn.  about  ,.r„ 

„.,  „„.  '™™''"'*«"y;-,'  "::::;  :t„,r::re  order  fn  cvldonee, 

«"':;:■  r  'Intbt  ,:^'::' T:;onv,'c.,on  wa,  .o„«b.  .,„»e  up.,n  c,re^^^^^ 

untlal  "vldenee.    The  law  appUeable  to  »«ch  a  case  wa,  not  cbarsed.    Il.»r. 

;ir.d:r;.:™d  o'r  ,r  dVcder.    .  Xba.  the  de-e»,.„.  e.U,,  „«  ^^^^^^^ 

I  There  was  no  proof  as  to  who  did  write  the  order,  the  State  rcijiu    au  u 
poTtheTovrircts  to  show  tUat  the  d..fendant  proa.red  s^^^^^^^^^^^^^^ 

tl  e  order  he  having  some  sort  of  claim  on  Gonzalez..     Do  these  facts  '^"^'^r  " 
reasonably  certain ^hat  the  defendant  forged  the  order?    This  is  very  ques Uon- 

I I  hence  we^vould  suggest  that  a  count  for  uttering,  in  all  such  cases,  be 
n    ;ted  in  the  indictment^'Because  the  order  was  not  Introduced  '«  -« 

r^dict  IS  not  supported  by  the  evidence ;  >vUerefo.  U,e  ,u  gmc.    m^^^^^^ 

reversed  and  the  cause  remanded.  Heienea  a 


3ox,  472  (1870);  11 
26);  B.  f.  Kussell, 

!72(1871). 

St.  420  (18«8). 


I  C.  *  M.  206  (1841) ;  2  Moody,  271. 
a  R.f.  Pilling,  lK.&K..Ti.Hl858). 
3  Miller  V.  State,  51  Intl.  40.'). 


»  novalii.a  1'.  State.  14  Tex.  (Apl>.)  3n 
(1883)  ;  MontKOmery  f.  Slate,  U  Tc.\.  (App.) 
T5  C1S82). 

-  Id. 


100 


FUAl  U   AND   I'ALf'E  PRETENSES. 


Part    TI. 
FRAUD  AND  FALSK  PRETENSES. 


FRAUD  —  PRIVATE   INJURY -AT  COMMON   LAW  TO   BE   INDICTABLE 

MUST  HK  PUBLIC. 

H.   r.  WlIEATLY. 

[•-'  Burr.  \l2o;   1  VV.  Bl.  27.S.] 
In  thp  EiKjIixfi  Conrf  of  King's  Bench,  1761. 

An  Offense  to  be  Indictable,  must  be  one  that  tcn.ls  to  injure  tlie  luiblic.  Defrauding 
oiu'  |>erM)iiiiiily,  vvUlioul  the  ii><-  of  fal,-o  \nni:litis,  incaMircH,  or  tokens,  and  without  »ny 
cmfpiracy.  Is,  iit  cinnmou  law,  only  a  civil  Injury,  anil  not  indictable. 

Mr.  Xorton,  ior  Wu-  inosocutor,  showed  ctuisi- why  judgment  should 
not   1)0  amsti'd  ;  u  ink'  for  that  inirposi'  hnviiig  Iwvn  obtained,  upon  ii 
motion  made  by  Mr.  Mm-'ini  on  Monday,  -'Cth  .Tanuary  last,  in  arrest  of 
jnd-finent  iiiuin   this  indietnit  nt  for  knowintrly  selling  amber  beer  short 
of  the  due   and  just  measure   (wlieieof  the  defendant  had  been  con- 
vieled).     The  ehariie  in  ilie  iuiliclmenl  was,  "  That  Thoma.s  Wheatly, 
late  of  the  parish  of  St.  Luke,  in  the  county  of  Middlesex,  brewer, 
being  a  person  of  evil  name  and  fame,  and  of  dishonest  conversation, 
and  devising  and  intending  to  deceive  and  defraud  one  Richard  "Webb  of 
his  moneys,  on,  etc.,  at,  etc.,  fals.dy,  fraudulently,  and  deceitfully  did 
sell  and  deliver,  and  cause  to  lie  soUl  and  delivered,  to  the  said  Richard 
Webb,  sixteen  gallons,  and  no  more,  of  a  certain  malt  liquor  commonly 
called  amber,  for  and  as  eighteen  gallons  of  the  same  li(iuor ;  which  said 
liipioi',  so  as  aforesaid  sold  and  delivered,  did  then  and  there  want  two 
gallcius  .if  the  due  ami  just  measure  of  eighteen  gallons,  for  which  the 
same  wm^i  sold  and  delivered  as  aforesaid  (the  said  Thomas  Wheatly 
then  ;ind  there,  well  knowing  the  same  liquor  so  by  him  sold  and  deliv- 
ered  to  want  two  gallons  of  the  due  and  just  measure  as  aforesaid)  ; 
and  li.  ,  the  said  Tliumas  AVlieatly.  did  receive  of  the  said  Richard  Webb 
the  sum  of  liftcen  .shillings,  etc.,  for  eighteen  gallons,  etc.,  pretended 
to  have  been  sold  and  delivered,  etc.  although  there  was  only  sixteen 
gallons  so  as  aforesaid  deliviu'd  ;  and  he,  the  said  Thomas  Wheatly, 
lim,  the  said  Richard  Webb,  of  two  gallons  of,  etc.,  fraudulently  and 
unlawfully  did  deceive  and  defiaud  ;  to  the  great  damage  and  fraud  of 
the  said   Richard  Webb,  to  the  evil  example  of  others  in  the  like  case 


R.  r.  WIIEATLY. 


101 


INDICTABLE 


)lic.    Defrauding 
,und  without  any 


gment  should 
aiiunl,  upon  ii 
it,  in  arrest  of 
Iht  hoor  short 
had  boon  con- 
man  Wheatly, 
k'bfx,  brewer, 
,  conversation, 
•hard  Webb  of 
k'Cfitfully  did 
e  said  Richard 
nor  coninionly 
or ;  which  suid 
here  want  two 
,  for  which  tlie 
lOiuas  Wheat  I}' 
3old  and  dcliv- 
as  aforesaid)  ; 
Richard  Wel)b 
>tc. ,  pretended 
[18  only  sixteen 
f)inas  Wiieatly, 
audulently  and 
;c  and  fraud  of 
in  tlie  like  case 


..ffendins,  and  against  tl>e   peace  of  our  sovereign  lord  the  kin,.  hi« 

^T  t^ofn'r^/--.   YaU.,  who  were  of  counsel  for  t1.  defendant 
(,;,  arrest  the  jnd.nnent),  ..bjected  that  the  fact  charged  was  notlnug 
r      lu.n  a  mere  breach  of  a  civil  contract;  not  an  ind.ctable  of.ense 
,r     e  this,  thev  cited   /.'-«  v.   Co,»7u-..,'  which  was  exactly   and 
:    llv  the  sanu.  case  as  the  present,  only  .nuMi.  .nUnn.Us.     And 
'Z^  DrifluMr  an  iudictu..nt  for  cheat,  in  selling  coals  as  and  fo 
:     nshels,  whereas  it  .as  a  peck  short  of  ti.at  measure       1   ere  t 
udietment  was  quashed    ou  motion.       Re.   v.    Jla.n.k  ^^-  /' '  " - 
i,.,ie.tment  for  selling  and  delivering  ^'^^^^'^^ ^^^':;  "^'^J^^ 
.„,J   one-i.-df  pint  of  geneva  (and  the  lil<c  of  brau.ly),  as  and  for  a 
ate    M       ti  V,  was  quashed'on  motion.     In  1  SalkehV'  a  .  .^.o.,. 
.  s  g.  u  U.d  to  .'en^ove  the  indictu.ent  fron.  the  Old  Hailey   because  ,t 
.as  tot  a  n,atter  criminal,  -  it  was  "  borrowing  £n  (...0  an.l  prom.smg 
,0  s.nd  a  pledge  of  fine  cloth  and  gold  dust,  and  sendmg  only  some 
arse  cloti^  and  no  gold  dust."     In  Tremaine,"  in<lictment  for  cheats, 
77Zln  either  hw  a  conspiracy,  or  s.u.w  something  amountn.g  to  a 
fdse  token.     A  mere  civil  wrong  will  not  support  an  nul.ctment.     An<l 
;  is  no  criminal  charge  ;  it  is  not  alleged,  "  that  he  used  fa  se  meas- 
u,.!-'     The  prosecutor  should  have  examined  and  seen  that  .t  was  th. 

ri>rlit  and  just  (luantity.  ,     .,     .    i      „„♦ 

^Mr.  Xorton,  pro  rer,  offered  the  following  reasons  why  the  judgment 

should  not  be  arrested.     The  defendant  has  been  convK-ted  of  the    ac 

Me  may  bring  a  writ  of  error,  if  tlie  indictment  is  ernn.eous.      Ih  s  .s 

'    idictable  offense  ;  it  is  a  cheat,  a  public  fraud,  in  the  course  of  lus 

L     •  he  is  state.1  to  be  a  brewer.     There  is  a  .listinction  be  ween 

;  r  V  te  frauds,  and  frauds  in  the  course  of  tra<le.  The  same  fact  may 
rground  for  a  private  action,  and  for  an  indictment  too.  Iso..e  o 
,l,e  dted  cases  were  after  verdict.  It  might  here  (for  aught  hat 
leas  0  the  contrarv)  have  been  prov.-l  '^  that  he  sold  tins  less 
ZnttV  by  f«^l«e  measure;-  and  everything  shr.U  be  presumed  .n 
C  of  a-  verdict.  And  here  is  a  false  pretense,  at  the  least,  and  .t 
appeared  upon  the  trial  to  be  a  very  foul  case. 

'The  counsel  for  the  defendant,  in  reply,  said  that  nothing  can  be  n- 
tended  or  presumed,  in  a  criminal  ea.e,  but  --"^^^  «f  ^"^^j'  " 
l,aa;  it  Bright  happen  without  his  own  personal  '^-^  "f  ^  /^ ' '  Jj  ^^ 
denied  any  distinction  between  this  being  done  privately,  and  ,ts  being 
done  in  the  course  of  trade. 


1  p.  n.M,24  lico.  II.,  B.  R. 

'■:  Tr.  IT.Wi,  '27. 2S  Geo.  II.,  B.  It.  8.  P. 


s  p.  IM,  Nehuff  -s  Cane.  P.  4  Ann.  B.  U. 
4 1  Tremaine'a  i'leas  Cr.  Si-lU. 


10-' 


FUAL-D   AM)    TALSE   VUETENSEH. 


Lonl  Masskiku..     TIk-  qiu-sUoii  is,  whether  the  fact,  here  aUogcd  be 
an  iiidietuhle  criiiu-  or  iKit.     The  fact  alh-ged  is,  — 
(Then  Ills  h)rilshi))  statt'(l  I  lie  t-harfre  n'rhatim.) 

•l-ho  ar-Tument  that  has  h.-on  nr-ccl  by  the  prosecutor's  counsel,  from 
thv  prcsont  cases  couii..-  before  the  court  after  a  verdict,  au<l  the  casc^ 
cite.l  hciuf?  only  of  .luashiug  upon  motion,  before  any  verdict,  really 
turns  the  other  way  ;  because  the  court  may  use  a  discretion,  "  whether 
it  be  ri-dit  to  .luash  u,.on  motion,  or  put  tlu-  defendant  t..  demurer; 
b.it  afte"  verdict,  Ihcv  are  obliszed  to  arrest  tlic  judment  if  they  see  J.e 
,.har.re  to  be  insuillcient.     And  in  a  criminal  charge,  there  is  no  latitude 
<,f  i,rtention,  to  include  anything  more  than  is  cliargcd ;  the  charge  must 
be  evi.licit  euou.^h  to  support  itself.     Here,  the  fact  is  allowed,  but  the 
consequence  is  denied  ;  the  objection  is,  that  the  fact  i.  not  an  offense 
indictable,  though  acknowledged  to  be  true  as  chorgeu.     And  that  the 
fact  here  cliarged  sliould  not  be  considered  as  au  indictable  offense, 
but  left  to  a  dvil  remiMlv  bv  an  action,  is  reasonable  ami  right  in  the 
nature  of  the  thing ;  because  it  is  only  an  inconvenience  and  injury  to  a 
private  person,  arising  from  that  private  person's  own  negligence  and 
carelessness    in   not  measuring  the  liquor  upon   receiving   it,   to   ace 
whetlier  it  held  out  tlie  Just  measure  or  not. 

The  offense  that  is  indictable  must  be  such  a  one  as  affects  the  pub- 
lic.    As  if  a  man  uses  false  weights  and  measures,  and  sells  by  them  to 
all  or  to  many  of  his  customers,  or  uses  them  in   the  genera    course  of 
hisdealin-,  so.  if  a  man  defrauds  another,  under  false  tokens.     For 
these  are  deceptions  that  common  care  and  prudence  are  not  sufficient  to 
trnard  a-aiust.     So,  if  there  be  a  common  conspiracy  to  cheat;  for  or- 
dinary care  and  caution  is  no  guard  against  this.     Those  cases  arc  mucli 
more  than  mere  private  injuries  ;  they  are  public  offenses.     But  here,  it 
is  a  mere  private  imposition  or  deception;  no  false  weights  or  meas- 
ures are  used,  no  false  tokens  given,  no  conspiracy  ;  only  an  imposition 
upon  the  person  he  was  dealing  with,  in  delivering  a  less  quantity  in- 
stead of  a  greater;  which  tiie  other  carelessly  accepted.     It  is  only  a 
non-performance  of  his  contract,  for  which  non-performance  he  may 
bring  his  action.     The  selling  an  unsound  horse  as  and  for  a  sound 
one,  is  not  indictable ;  4he  buyer  should  be  more  upon  his  guard. 

Tlie  several  cases  cited  are  alone  sufficient  to  prove,  that  the  offense 
here  cliarged  is  not  an  indictable  offense.  But,  besides  these,  my 
brother  Dknison  informs  me  of  another  case,  that  has  not  been  men- 
tioned at  the  bar.  It  w.ns  M.  6  George  I.,  B.  K.  Hex  v.  Wilders  a 
brewer;  he  was  indicted  for  a  cheat,  in  sending  in  to  Mr.  Hicks,  an  ale- 
house keeper,  so  many  vessels  of  ale  marked  as  containing  such  a  meas- 
ure   and   writing  a  letter  to  Mr.   Ilicks    assuring  him  that  they  did 


R.  r.  WIIEATLY. 


103 


e  alleged  be 


ninscl,  from 
ii<l  the  ca.s(  •< 
rtlict,  really 
1,  "  whcthor 
i  dciniinM-;  " 
thoy  see  Uic 
s  no  latitude 
charge  must 
wod,  but  the 
at  an  offense 
And  that  the 
able  offense, 
i  right  in  the 
id  injury  to  a 
!2liiience  and 
tr   it,  to   see 

icta  the  pub- 
,9  bj'  them  to 
ital  course  of 
tokens.     For 
)t  sufficient  to 
heat;  for  or- 
ases  are  much 
But  here,  it 
[Thts  or  meas- 
an  imposition 
13  quantity  iii- 
It  is  only  a 
lance  he  may 
d  for  a  sound 
?  guard, 
lat  the  offense 
les  these,  my 
not  been  men- 
t  V.  Wilder 9,  a 

Hicks,  an  ale- 
y  such  a  meas- 

that  they  did 


I    „  ;„  f.iPt   llipv  did  not  contain  such  mean- 

.lutmeut.     It  I'*  ^  in\\M<^  '  makine  the  injured 

r  .v,.,l  nf    it  would  alter  the  course  of  the  law,  i)>  rn.iKmg  i         j 

for  ;aking  a  fool  of  anoth..  ;  ^\^2^l^  -^;,^  ..  'l^^^^y, 
false  tokens,  or  a  conspiracy    it  ,s  another  cas         ^  ^^^^^ 

was  a  conspiracy,  as  well  as  false  tokens.     «  •   v-  U^^    ^r 

.-„  fi.nn  this   and  was  well  considered.      lU.vi  was  i 

stronger  cu«e  than  tl"«'  '^"^^  ^^,^  ,,^,,,  „^,,ke,l  the  vessels  as 

tiou  in  the  course  <>    hi       -^^  '  ^^      '  ^^,„,,„,  ,,a  had  written  a 

containing  more  gallons  than  tbey  ^^'l  •       >  ^^^,  i^ 

letter  to  Mr.  Hicks  attesting  that  ^-^  f  \  ^^;^/^  ^  i,!,,,.!  the  quan- 
„o  more  than  a  mere  breach  of  ^^^^^^^^^^'^  a  discretion  in 
,,y  .hich  he  undertook  to  j^^'-^^  J^^     ^^j^ed  to  arrest  judg. 

r^:x:r r  t  :s;tr  -  .^^  -er  is  not  mdict. 

...;  therefore  the  i-^^™- -^^,;:,:;\rf:^^^^  settled    and  estab- 

Mr  ^7- /:XLaT;  f  1      feterminations  in  cases  of  the  same 
,i.hed  ru^os  alr^d    ^--^^^  /  ^^^^  ^^^  ,  ,,,,„,  «,,«  (too  strong,  per- 

:;:l:  J;r^^^^-tokens,  tl.  vesse.  were  marked  as  contain- 
ing a  greater  quantity  than  they  ^^^'y^f^  ^^  ^ecn  fully  settled 


I  (5  Mod.  301 ;  2  U\.  Uiiym.  1179. 

•i  1  Salk.  379 ;  i  Ld.  Uaym.  1013.  and  6  Mod. 


,1  «  Mod.  302. 


U>5. 


104 


FllAUO   AND   FALSK    PUKTEXSES. 


prude  ncc  may  guiiril  persons  ajraiiist  the  sufffring  from  tliciii,  tW  of- 
fense is  not  indictable,  liiit  the  party  is  left  to  his  civil  remedy  for  llio 
redress  of  tlu^  injury  that  has  been  <lone  him  ;  but  where  false  weigiits 
and  measures  are  used,  or  false  tokins  produced,  or  such  methods 
taken  to  cheat  and  deceive,  as  jieoi-le  cmu  not,  by  any  ordinary  care  or 
prudence,  be  guarded  ajjainst,  there  It  is  an  offense  indictable.  In  tlic 
case  of  Rex  v.  Pinkney^  upon  an  indictment  "  fur  selling  a  sack  of  cum 
(at  Rippou  market)  which  he  falsely  atfirmed  to  contain  a  Winchester 
bushel,  \d>i  rcvcra  et  in  facloplarimam  deficlabat,"  etc.  the  indictment 
was  quashed  ni)on  motion. 

In  the  case  now  before  us,  the  ])rosecutor  might  have  measured  thf 
li(luor  before  ho  accepted  it ;  and  it  was  his  own  indolence  and  negli- 
gence that  he  did  not.  Theielore  common  prudence  might  have  guarded 
him  against  suffering  any  inconvenience  by  the  defendant's  offering 
him  less  than  ho  had  contracted  for.  This  was  in  the  c:ise  of  lice  v. 
Pinkney;  and  it  was  there  said,  that  if  a  shop  keeper  who  deals  in  cloth, 
pretends  to  sell  ten  yards  of  cloth,  but  instead  of  ten  yards  bought  of 
him,  delivers  only  six,  yet  the  buyer  can  not  indict  him  for  delivering 
him  only  six  ;  iiecause  he  might  have  measured  it,  and  seen  whether  it 
held  out  as  it  ought  to  do  or  not.  In  this  case  of  Rex  v.  Pinhiey,  and 
also  in  that  case  of  Rex  v.  Combrune,  a  case  of  Rex  v.  Nicholson,  at 
the  sittings  before  Lord  Raymond  after  Jlichaelmas  term,*^  was  men- 
tioned;  which  was  an  indictment  for  selling  six  chaldron  of  coals, 
which  ought  to  contain  thirty-six  bushels  each,  and  delivering  six  bushels 
short ;  Lord  Raymond  was  so  clear  in  it,  that  he  ordered  the  defendant 
to  be  acquitted. 

Per  Curiam  unanimously,  the  judgment  must  be  arrested. 


FRAUDULENT  DISPOSITION   OF  MORTGAGED  PROPERTY 

PROPERTY. 


MOVABLE 


Uaudeman  r.  State. 

[ICTex.  (App.)  1.] 
In  the.  Court  of  Appeals  of  Texas,  1884. 

1.  Fraudulent  Bispoaltion  of  MortKaged  Property.  —  To  constitute  tte  offense 
denonnccJ  by  articlo  797  of  the  renal  Code,  tlio  property  upon  which  the  lien  was  given 
must  have  boon  "personal  or  movable  property"  at  the  time  the  lien  was  executed. 
The  sale  or  other  disposition  of  real  property  on  which  the  owner  had  executed  a  writ- 
ten lien  is  no  offense  against  the  laws  of  this  State. 


1  P.  SGeo.  II.,B.  B. 


•i  4  Geo.  II. 


IIAKDKMAN    V.  STATE. 


ior» 


tliciii,  tW  of. 
nu'dy  for  tlic 
fulac  wc'iglits 

lich    llK4llO(l8 

linary  care  cr 
alilo.  In  tlic 
11  sack  of  cum 
a  Winehestir 
lie  iiKlictment 

measured  tlu' 
[ice  and  ncirli- 
havc  f^uardod 
ant' 3  offerinfi 
:ise  of  licK  \' 
deals  ill  clutli, 
rds  l)(>uglit  of 
for  delivering 
L>en  wlietlier  it 
I'inkne;/,  and 
Nicholson,  at 
rm,*^  was  nun- 
ron  of  coals, 
njj;  six  bushels 
the  defendant 

:d. 


Y      MOVABLE 


titute  the  offense 
the  lien  was  given 
ien  was  executed, 
d  executed  a  writ- 


ready  for  hiiive^t.                                                 ,..,^,,p„  Uiiit  ImviiiK  exorutc'l  'i  viilxl  moH- 
,I,aiotment.-Tlu.indictmentc|w^^^^^^^^^^^^^  .  „...al,U, 

^..e  1..M.  i..  wriUM«  upon  " '^'«"'^"'"  "  ,^,    ",  „  K.m,Mv.n.  Intonl  to  .l.friu.l  1...  mort- 

„.,...,,,,■„,„  ,„«.M»t,«C,.„rto,K,.U.     ■,-,-i.,n...|..w  ..*-  tUe 

„„„.  (1.  N.  AU."^"">--  i,„j  i|,c  amu-ll»nl  >v«.  .!.» 

■rii»  otfciiso  .itt,.iin>w.l  to  I..   cli,ir„.       ^  1^.^^^  ._^ 

""«-  -"t'r:-""!  '^n:::?:;! '   ';.  1  u;:u,i.,  ..,y  ..t 

„„  i,„V,ctmc,,.  b.,n,.  ,,,  -"    ■•   , ,      '  ^  ,„„,f ,,,..,„  „,.„  ,„  »ri.i„« 

l,s«2,  ox,.onU..l  U.  ""••■■;  „„.„  „,„|tl„T«  \.oi.W  .""'.hU,  ,.r..,,- 
.  „,„>n  dghtecii  aorrsuf  '"""■"",'".,,.,„,,„,  isKJ.  ,nl,llll.-saH 
„,  ,.  1,„  »ul„o„„c„U,v.  „„  t  ,0  ir.t  day       ^     *«■,  ,,,„„„,     .,„„ 

„„„„to  ,Uvcr,pe,s,n„  ';;,,™  ;:'•;;>    ;':';;,,.,t  a„.i  a,»»„a 

;;-:;r ;:"::;?..:--  .u;  ,.,..e„..,y ... «.  - .-^ 

-Z  S..C  n..  ,n.^..u.e.  -vi-- ;;-';^-  ^:^ZX 
indictment,  and,  by  the  witness  J.    ;•    V';^ '  {,,«  mort-a^'O  had  never 

^"^  -f  ?!:^  r:: t:::^—;::!  1 1" Ue  o^^t...  by  the 

,,eeu  satished.     He  ^^'' ^^  ^^  t,,,  execution  of  the  mortgage, 

appellant  to  '">>'«"«•.  ^^f.,"^^^,,.  The  witness  however  encuun- 
„,  ,„,,uant  'f  --:^^;;:;,^ri,rsepte,nber,  IHH.,  and  asked  him 
tered  the  appellant  in  ^y^'^^f  ^""."' ".'  .  ^^,.„„,g,  could  not  make  it  out 
a„„ut  the  debt.     Appellant  replied  that  -    "^^^  «  ,^^^^  „„t  paid 

,n.i,n.  no  then  asked  the  ^^^^^  '/ j'  \";lt.  The  appellant 
,.,  aebt  for  hiin.  Witness  r^^^  '^^^^,^,  „„  twenty-five 
then  said  that  a  man  living  on  C^^'^™'^"" J^  j     ^5^^398.     Witness 

dollars  which  he  would  collect  and  pay  over  to  the  witn 

never  JawtheappeUanti^erwa^  a  witn^s 

The  substance  of  the  .st  mony  ^  ^  ^^.^^^  ^^^^^,^  „, 

for  the  State,  was  that  in  the  fa     oi  , 

purchased  of  the  appellant  t*-  -"- ^  ^ "^^^^^^^  Uiat  he  ever 
Felix  Hardeman,  introduced  ^J  /  '«  ^^^  ^^^^  ,„  Uad  ever  paid, 
promised  to  pay  the  defendant's  f '^  ^^J^^^^  '^er  person  that  he 
or  that  he  had  ever  told  ^^^^'^^^l^'f^Z^  owed  the  defendant 
had  paid  or  had  ever  agreed  to  pay  it.     Witn  ^^.fendant 

nothing;  the  balance  of  ^-/f^^^i^ti^by  defendant  after  he  quit 


1U« 


FKAL'U   AND    VALSK    1M5KTENHKH. 


execution,  and  cautionecl  witness  in  the  event  he  shouUl  enconnler 
Wilson  to  make  his  stutonaMiL  of  tlio  niort-u-e  tnmsaction  harinon./, 
with  the  .U^fcn.lanfs  Htaten.ent  to  Imn.  the  witness,  regarclinK  the  moit- 
.r.v.'i-  Th.^  defen.hinfs  witnesses  had  altenipled  to  i.revuil  upon  tin 
wiUiess  to  testify  that  he,  the  witness,  was  in  the  defendant's  debt,  and 
h:ul  promised  to   pay  WiUou  the  amount  of  ehiiin  he  held  aga.nat  th« 

defrnchint.  ,   .      ,     ^         ,     , 

W  1)  Sims,  for  the  defendant,  testified  that  the  dofi'ndant  worked 
two  m..nlhs  for  Felix  Hardeman  in  the  sprinj,^  of  1mh->.  Witness  asked 
Felix  if  heha.l  not  promised  to  pay  the  <lefendanfs  debt  to  \V  ilsun^ 
Felix  replied  that  he  had  ho  promised,  and  the  witness  communicated 
the  faet  to  llie  defendant.  ...,„»,. 

dolm  Ilardenum,  the  defendant's  brother,  testified  in  his  behalf  that 
in  the  summer  of  iHs;)  Felix  Hardeman  tol.l  him  that  pursuant  to  a 
promise  he  had  previously  madethe  defendant,  he  had  paid  the  defend- 
anfs  debt  to  Wilson.  Witness  asked  to  si'e  the  receipt.  Felix  replied 
that  he  did  not  have  it  at  hand.  Not  satisile.l,  the  witness  went  tu 
Wilson  and  asked  him  of  tlie  trutli  of  his  statement.  Wilson  said  that 
Felix  was  a  liar,  an.l  that  if  he  facc.l  him  with  su(di  a  statement  he, 
Wils..n,  would  -  ju-  •'  him.  Witness  n^peated  this  to  Felix  in  presence 
of  the  defendant,  and  Felix  said  that  Wilson  was  a  d-n  liar,  and  that 

he  would  face  him. 

The  ra<.tion  for  a  new  trial  assailed  tiie  competency  of  the  mort- 
ga.re  us  evidence  because  not  properly  acknowledged,  and  not  of 
record,  and  .lenounced  tiie  verdict  as  unauthorized  by  the  evidence. 

Amzi  Bmdslutw,  for  appellant. 

J.  11.  Burls,  Assistant  Attorney-<leueral,  for  the  State. 

WiisoN  J  In  substance  the  indictment  charges  that  the  defend- 
ant, on'lhe  third  day  of  June,  18S2,  executed  to  J.  E.  Wilson  a 
valid  mortgnge  lien,  in  writing,  upon  "eighteen  aeres  of  cotton,  then 
and  there  being  movable  property."  "and  that  he  thereafter,  on  the 
first  d;iy  of  October,  18.S2,  sold  said  cotton  to  .livers  persons  with  in- 
tent to  defraud  said  Wilson."  etc. 

To  constitute  the  offense  attempted  to  l)e  charged  in  this  indictment, 
the  property  upon  which  the  lien  was  given  must  have  hecn  "  personal 
or  movable  property  "  at  the  time  such  lien  was  executed.^  It  is  no 
offense  against  the  law  of  this  State  to  sell  or  otherwise  dispose  of  real 
property  upon  which  the  owner  has  given  a  written  lien. 

Bef..re  proceeding  fnilher  we  should  determine  wliat  meaning  should 
be  given  to  the  words  "  eighteen  acres  of  cotton,"  used  in  the  mdict- 
ment  in  describing  the  property  mortgaged.     We  think  that  but  one 


I  runulCode,  art.  797 


IIAUDKMAN    '•.  HTATK. 


lU' 


uUl  fiic'oiinU'r 
,ion  liannoni/i' 
iling  llie  mort- 
t'Viiil  upon  tlir 
lilt's  tlebt.  ami 
t'Ul  against  the 

rndant  worked 
Witness  aski'd 

iebt  to  Wilson, 
coinmunicutt'd 

bis  behalf  that 
;  pursuant  to  u 
aid  the  dofend- 
Felix  replied 
vitness  went  to 
Vilson  said  that 
a  statement  he, 
elix  In  presenee 
•n  liar,  and  that 

•y  of  the  mort- 
vd,  and  not  of 
the  evidence. 

e. 

hat  the  defend- 
J.  E.  Wilson  a 
of  cotton,  then 
lereafter,  on  the 
|)erson9  with  in- 

this  indictment, 
hecn  ' '  personal 
i-uted.^  It  is  no 
?  dispose  of  real 
n. 

,  meaning  should 
led  iu  the  indict- 
nk  that  but  one 


»  .  ..I.himI  iii>oii  tliciii.  and  tliat  is  that  the 
,.,,sonabU-  signif.eat.ou  cau  be  pla.  ul  "  '  ^,. 

;r.'Lrr;w:;nr;:i,:;;»' ,„.,„.,— 

:;';r;;;ic,  > , ....  --;t:t;r  :::u:::;:i;::.t: 

,„a  it  was  that  kind  of  property.      1 '"'«' ^''I'lJ  ,  ^^.^^j  ,     ^,^,,^,,., 

„,,  ,„,  property  consisted  in  e.g»;t;'- -       ^^  \^:^'^Zw  contended 

,.,.,ion  .hat  the  ^^^'^^^^^Z^i;^^:^^  that  therefore  the 
,l,ut  the  latter  controlled  the  f(  rnu  r  .ui  ,  allegations 

„„,,„„„„t  charged  the  offense  known  to  ^^J^,  and  thelndi.t- 
.,„,,,,  be  repugnant  to  and  ^^^^^^l;;^:^^  ease  before  us 
n..„t  would  ^^^^^^^^;^X   •-' i^^-l  '"  -  --^  »-""'^ 

::  ,  rl      .'  S"™  »c,o.  „.  co«o„  ■•  m.y  m«.,  .„tto«  U,  Hat  ,Uto  or 
,.1,...',.  which  would  render  it  movable  property. 

'•''■■      ^''"'  '"    ,;'  ;„,.„„, he  PC-son  ot  the  owner  wh.Tovor  he  goes ; 
,„,„„gos  are  saul  '°.'°''°" '"^  ■'^    °"  „„,„  ,,lace  ,  »,.d  he.,ce  they  are 

:;::      :.ch  o.     "  "l.  »<  eLtr„etioo  -«  ..ro„„..t  .ithin  th,s  de  .„.  .on 
,m>  stretcn  oi  ^^^    immovable.     It  may, 

;"  ■"■"■""';'«;!.'o  tva  le     "  ys  the  a,.,hor  las.  quoted :     '•  K,..it», 
l,„»evcr,  Lecome  mnymK  3  gathered, 

:iT;"r";r:rf:;  I'm;  .re  ..,;,  .....ovahte,  or  re. 


Itcv.  stats.,  ttrl.  313S;  Penal  Code.  art. 


10. 


1  2  nouv.  L.  Die,  word   "Movables." 
a  1  ScUoul.  Per.  Prop.  iO. 


108 


M;.\l  I)    .\\I)    Iai.m;    ntKTKN.^^KS. 


OHiMto    1.,.,.:,,,.,.   iUry  ar*-   MUa-nM  m».1   n|.,u.mlant  to  il...  fxrmui.l.      li„, 

wl.n.  II,..  fnnis  ur  m,iMar.  gatl,,,v,l,  ..r  tli.  t.v..s  ,.,,,  ,i.,wn,  as  tl.ov  llun 
ooaM.t,.I.oatta(lu..ltotl,esoiI,tl„.y|„.,.o„n.,novahK.s.-i  Wo  think  it  to„ 
plan,  to  iM,  conln.vvrt.,!,  or  to  r...,ni,v  afurtluT  i-nvsti^rati,.,,  of  anti.on. 
tu-s  that  a  on.p  .,f  nruwi,.-  ,.„ttn>,  is  iintnuvahi..  pn.|uTtv.  and  i,  i,A 
w.tim,  the  nn.anin,^r.,|•  "  n.,.val,l,.  pn-p.-rty."  as  ns...l  in  \u.  artld.-ol 
tlio  I  rnal  (  ,.,1,,  nn.lor  wi.i.li  this  convii-tion  was  ..hiaine.l 

H..t  It  n>ay  U.  sah!  that  tho  c-.ttuu  ^va,s  pusunal,  if  nut  tnovahlo  pm,,. 
••■•ty,  ami  ,f  so  that  tho  offons.  a„..„,p,..,l  ,„  ,,.  char,.,!  ..onl.i   l.e  <,..„- 
nn  t...l  ,n  n-lafon  to  it.     This  position   is  oorre.!.     Jf  ,he  proporly  l„. 
e.lhor  pn-sonal  or  movahh.,  it  is  th.  snl.jc.t  of  tlu,  offense  denoun. ,  1 
.y  the  Co<k..      I,  i.  to  he  ol.s.rv..,l.  however,  that  this  in.Ii.tmentd,,,. 
uot  allege,  or  ,n  any  n.ann.T  show,  that  th.-  property  was    personal 
pro,,erty.      It  eharaeleri/es  the  same  as  n.ovahle  property,  and  the  tw„ 
^onls  are  by  no  n.eans  synonyn.ons  in  their  legal  signilh-ation,  and  do 
not   nean  the  san.e  thing  in  the  en,!..     There  n.ay  l.e  personal  property 
-lu-h  .s  not  movahU..      P.-rsonal  property  not  only  in.lndes  n.ovahK. 
property,  hut  more.     It  is  a  more  eon>prehen,iv.  word.     Thns   cro,,. 
growing  npon  land  are  held  to  be  personal  property,  so  far  as  no!  to  he 
considered  an  ,„ter..st  in  land,  nn.ler  the  statnte  of  frau.ls.i     So   annuMl 
crops,  ,    tit  for  harvest,  may  ae.,niro  the  character  and  incidents  of 
personal  property,  so  far  as  to  he  subject  to  execution  as  personal  chat- 
t.ls.      I  ut  It  has  never  been  hehl  that  an  nngathered  crop,  still  ..ppend- 
un     to   the  gronn.l,  is.  under    any  circutnstances,  movable  property. 
Whilst  the  question  as  to  whether  or  not  cotton  growing  is  personal 
property  within  tl...  meaning  of  the  article  of  the  Code  referred  to  is  not 
presented  directly  for  <,ur  determination,  wo  d.vm  it  not  improper  for 
us  to  say  that,  ,n  our  opinion,  crops  do  not  become  personal  properfv 
as  a  general  ru  e   until  they  are  ready  to  he  harvested.     Until  that  tim^. 
they  are  reganh.d  as  partaking  of  the  realty. '     In  this  case  it  appears 
from  the  uid...,ment  that  the  lien  upon  the  cotton  v      given  in  the  month 
of  Jnne,  at  which  tunc  the  crop  could  not  have  been  ready  for  gather- 
ing, and  It  was  not.  tlierefore,  personal  property 

In  our  opinion  the  indictment  charges  no  offense  against  the  law  of 
this  State,  and  the  court  erred  in  overruling  the  defen.lanfs  motion  in 
arrest  of  ju.lgment.  based  npon  its  insuflleiency  ;  wherefore  the  judg- 
ment  is  reversed  ami  the  prosecution  is  dismiss.-d. 

Reversed  and  dismissed. 


1  1  Schoul.  Per.  Prop.  124.  4  i  e».      .    n      ^ 

I  .  ..ouv.  U  n.....  ..  |.e„o„H,  Property...  o„  kU,  Tc  m.'-  '^'"'-  ^'''  "  '^■•-  *"*•"-• 

3  Ilorno  V.  Gnmbrell,  \V.  A  W.  Con.  Rep 
•ec.  Wl. 


BOHKllTSON    V.  STATK. 


!()!• 


I  lie  <,'roiin(l,  l;i|t 
l«>»vii,  as  lliey  ll.cn 
''  Wi- think  it  ti.M 
iKiitioii  of  aiilliori. 
■ii|nTly.  and  i-.  nnt 
1  in  till-  artiflt'uf 
nt'd. 

not  niovahjp  prnp. 
cil  could  he  (;iiiii- 
If  till!  i)n)|)cily  lir 
)ff»Miso  (ienouncdl 

is  ilKJiclnu'llt  dnr, 

rty  wuH  i)CTS()ii:il 
iTty,  and  tho  twn 
liillcation,  and  do 
pt'i'sonal  pfoportv 
indndi's  niovaiili; 
ird.  Tlius,  crops 
o  far  as  not  to  bi- 
nds.'- So,  anniijil 
and  infitliMits  oT 
as  personal  chat- 
Top,  still  appoiid- 
lovhblo  properly, 
jwing  is  personal 
referred  to,  i.s  not 
not  improper  for 
iTsonal  property, 
Until  that  time 
in  case  it  ai)poar.s 
ven  in  the  month 
ready  for  gather- 

<?ainst  the  law  of 
idant's  motion  in 
Tcfore  tho  judg- 

and  ilmnuised. 


p.  123,  et  ttq.;  Freem. 


i.u.\ii)ri.i;.vrLv  disimsinu  ok  MoimiAiiKU  i-hopkutv. 

UoUKllTSON   V.  Statk. 

[;;Tfx.  (App.)  ."o;!.! 
In  thv  Cntirt  of  Appeals  •>/  Ti-.viis,  JSTS, 

Iiiirrc  lioni  "f  vhp\\  oltciiHo.  , 

jKe.ovato..uchPr.pert...UU....n....r.,n. 

;:;;;;^:vr:::':;r:,:::;:r:; '::  .:i.;:'::v'  ....•••  ..^-  -"  .•'--  -  ---^ 

,.".y„n.l  m,  re.-l.  of  the  U.Mvv  ,.f  tl.o  l.o...  with  such  ........t. , 


Tried  below  before 
The  inrv  found  the 


Am-.M.  from  the  District  Court  of  Matagordti. 

tilC  lion.    W.    n.    Itl  UKIIAKT. 

The  material  facts  will  be  found  in  the  opinion. 
,,,p,.llant  cruilty.  and  assessed  his  pnnishment  at  two  years  m  the  pea- 

"  wI'nki".  K  J.  Tho  appellant  was  indicted  nnder  article  77:5  of  the 
P.,,al  Co.le,'  for  fraudnkntly  disposing  of  a  eertai.i  hale  of  cotton  al- 
,,.,d  to  have  been  n-ort^aged  to  one  Cialen  Ilod^^-s,  as  sccur.ty  f..r  the 
,,;vmcnt  <.f  S.^O  clue  from  Robberson  to  Hodges,  with  mtent  to  defraud 

"''ThrSment  charges  that  the  offense  was  committed  in  Matagorda 
Cumtv.  This  prosecution  was  eommence.l,  the  trial  had,  and  he  ap- 
,„,l:t„t  convicted  in  Ma,agor<la  County.  The  proof  shows  tha  the 
;..„t.m  was  removed  from   Matagorda  County    and    sold   m   Bazona 

^ThUhe  trial  below  the  defendant  re(,uestcd  the  court  to  charge  the 
iurv  that  if  the  hale  of  cotton  was  sold  in  Brazoria  County,  and  not  m 
Mata.^onlo  County  they  must  acquit  the  defendant.  This  charge  was 
nfused,  and  the  defendant  took  a  bill  of  exceptions  to  the  nd.ng,  a.ul 
M  ts  it  out  as  one  of  the  grounds  in  his  motion  for  a  new  trial,  and  as- 

^iirns  it  as  error.  .        ^  •    tj  „  „i,„r<rp 

The  question  here  raised  is  this:  Does  the  proof  sustain  the  charge 

spt  out  in  the  indictment?  .•  i„  «#  ttio 

It  will  readily  be  seen,  from  an   examination  of  \"«  ^'^ 'f  «     .^' 

IVual  Code  under  which  this  prosecution  is  attempte.l,  that  its  pioMS- 

ions  may  be  violated  in  several  ways.     First,  by  removing  the  mort- 


1  rase.  Dig.,  nit  2t'r, 


110 


FRAUD   AXI>    TALSK    rilKTENSKS. 


^anjcd  i)ropcrty,  or  any  part  thereof,  out  of  the  State;  second,  liy 
selliug  tlie  raorlgagetl  property  ;  and,  tliird,  by  otherwise  disposing;  of 
the  mortgaged  property,  with  intent,  in  either  case,  to  defraud  tlie 
mortgagee,  or  person  holding  such  lien,  whether  as  the  origins'l  pruty 
or  one  to  whom  it  may  have  been  transferred.  It  ia  also  necessary  tliat 
the  lien  upon  the  property  be  in  /^rce,  valid  and  subeisting,  and  that 
the  debt  to  secure  which  the  lien  was  created  had  not  been  paid.^ 

The  offense  of  removing  the  properly  would  only  be  complete  on  its 
removal  out  of  the  State.  A  charge  based  on  a  sale  of  the  property 
would  be  supported  by  proof  of  such  salj,  and  would  involve  the  ques- 
tion of  venue,  or  where  the  selling  occurred.  What  would  constitute  a 
disposition  of  the  property  otlicrwise  than  by  removal  or  sale  is  not 
clearly  defined  in  the  Code  ;  but  it  is  believed  that  any  other  placing  of 
the  properly  beyond  the  reach  of  the  mortgage  creditor,  and  with  the 
fraudt'  nt  intent  mentioned  in  the  article,  would  lay  the  party  liable, 
undci  Us  provisions,  to  indictment.  But  the  two  modes  —  namely, 
removing  or  selling  —  would  not  be  included  in  the  expression  other- 
wise. 

This  prosecution  is  not  p-etended  to  be  based  upon  a  removal  of  the 
property  beyond  the  State,  but  can  only  be  maintained  on  the  clause 
making  it  penal  to  sell  the  property  ;  wbich  necessitates  the  inquiry  as  to 
whether,  under  this  clause,  the  prosecution  could  be  maintained  in  a 
county  other  than  the  one  in  which  the  selling  took  place. 

The  Code  of  Criminal  Procedure,-  prescribes  the  counties  in  which 
offenses  may  be  prosecuted ;  by  reference  to  which  it  will  be  seen  that 
by  the  provisions  of  the  several  articles  of  this  chapter  there  are  nu- 
merous offenses  which  may  be  prosecuted  in  more  than  one  county,  and 
by  the  concluding  article  it  is  provided  that,  "  in  all  cases  except  those 
enumerated  in  previous  articles  of  this  chapter,  the  proper  county  for 
the  prosecution  of  offenses  io  that  in  which  the  offense  ia  committed."'' 
The  offense  charged  in  the  present  case  does  not  come  within  any  of 
the  exceptions  mentioned  in  this  chapter  of  the  Code,  and  must  be  pros- 
ecuted in  the  county  in  wiiich  the  offense  was  committed. 

We  ha.e  already  seen  that  if  the  appellant  is  guilty  of  auy  offense 
charged  in  the  indictment,  it  is  for  selling  the  mortgaged  property. 
This  being  the  offense  made  by  the  indictment  and  the  evidence,  we  are 
of  the  opinion  that  proof  of  a  sale  of  mortgaged  property  in  Brazoria 
County  V  ould  not  support  a  conviction  on  a  prosecution  commenced 
and  had  in  the  county  of  Ma^^agorda.  The  <  nirt  erred  In  refusing  to 
give  the  instruction  to  the  juiy  on  this  subject ;  and,  for  this  error,  and 


1  SatclieU  r.  Sliite,  1  Tex.  ^App.)  438. 

2  ell.  2,  lit.  3,  from  nrt.  190  to  iirt.  iOS,  both 
inclusive.    (Pnsc.  I.*g.,  arts.  2057-i07«. 


i  Paec.  Dig.,  art.  M7«. 


R.  V.  INGHAM. 


Ill 


State;  second,  liy 
LTwisc  disposing;  of 
se,  to  defraud   tlie 

the  origiiii'l  i).'irty 
1  also  necessary  tliat 
3ub?isting,  and  that 
t  been  paid.^ 

be  complete  on  its 
lale  of  the  propcrtj- 
Id  involve  the  ques- 
t  would  constitute  a 
noval  or  sale  is  not 
my  other  placing  of 
editor,  and  with  the 
lay  the  party  liable, 
o  modes  —  namely, 
ie  expression  other- 

on  a  removal  of  the 
tained  on  the  clause 
tcs  the  inquiry  as  to 

be  maintained  in  a 
place, 
le  counties  in  which 

it  will  be  seen  that 
lapter  there  are  nu- 
han  one  county,  and 
U  cases  except  those 
e  proper  county  for 
?nse  is  committed."'' 
;  come  ^vithin  any  of 
le,  and  must  be  pros- 
mitted. 

Tuilty  of  auy  offense 
noi-tgaged  property, 
the  evidence,  we  are 
property  in  Brazoria 
secution  commenced 
erred  In  refusing  to 
id,  for  this  error,  and 

rt.  267«. 


lu'cause  there  was  no  sufficient  evidence  to  support  the  verdict,  the 
court  should  have  granted  a  new  trial. 

Other  questions  are  presented  in  the  record  which  have  not  been  con- 
si  Icred,  and  as  to  which  there  is  room  for  controversy ;  but,  as  they 
may  not  arise  on  a  subsequent  trial,  wo  have  not  deemod  it  important 
to  consume  now   the   time   necessary   to  a   proper  understanding  of 

thorn. 
For  the  reasons  above  set  out  the  judgnent  must  be  reversed  and  the 

case  remanded.  t,  ,      j  j  ,; 

Reversed  and  remanded. 


FRAUD  -  BANKRITPT    ACT  -  INTENT    TO    DEFRAUD    CREDITORS    BY 
MAKING  FALSE  ENTRIES -INTENT  TO  DEFRAUD  ESSENTIAL. 

It.  I'.  Ingham. 

[Bell,  C.  C.  181.] 
In  the  1     "h'sh  Court  for  Crown  Cases  Reserved,  1859. 

A  Bankrupt  was  Indicted  Under  the  Bankrupt  act.  for  making  a  false  e.  ..7  i»  »  book 

on.ccouutwith  intent  to  .letraua  creditor..  The  jury  found  that  the  entry  was  inade 
by  him  to  deceive  his  creditors  as  to  the  slate  of  his  accounts  and  to  prevent  '"ve^tiga-^ 
tinn  Ijut  not  to  defraud  auy  of  them  or  to  conceal  any  of  his  j.roperty.  Beld,  that  he 
could  not  bo  convicted,  the  intent  to  defraud  being  the  gist  of  the  offense. 

Tlie  following  case  was  reserved  by  Cuompton,  J. 

The  prisoner  was  convicted  before  me  at  the  June  Old  Bailey  Ses- 
-ons,  1859,  for  having  made  a  fiUse  and  fraudulent  entry  in  a  book  of 
account,  with  intent  to  defraud  his  creditors,  on  an  indictment  fran>ed 
upon  the  two  iiundred  and  fifty-second  section  of  tlie  banlvrupt  act.' 

It  appeared  that  the  prisoner  had  kept  a  book  in  which  he  entered 
1  is  receipts  and  payments,  and  at  the  time  of  his  bankruptcy  that  book 
showed  receipts  of  money  to  the  amount  of  £41  ."lO  IDs  7d,  and 
payments  to  the  amount  of  £3081  lOs,  leaving  a  deficiency  of 
£349  9s  7d  to  be  accounted  for.  Being  uneasy  as  «-  accounting 
for  this  deficiency  he  made  a  false  book  in  whi  n  he  entered 
false  amounts  opposite  many  of  the  items  of  receipts  and  pny- 
i.ients,  so  as  to  show  receipts  by  him  to  the  amount  of  £2,(3(;8 
.^s,  and  payments  to  the  amount  of  $3172,  la  7d.  The  jury  found 
that  this  was  done  by  him  with  intent  to  deceive  his  cre.+.tors  as  to  the 
blate  of  his  accounts,  and  to  prevent  the  exjuninatioo  and  irvestigatoa 

1  12  lU>d  13  Vict.  KKi. 


112 


FRAUD  ANI>  FALSE  PRETEN8RS. 


of  tliera  in  the  due  course  of  bankruptcy,  and  to  save  liim  from  havinij 
to  account  for  the  deficiency  appearing  in  the  genuine  account ;  but 
tbey  found  that  it  was  not  done  to  dc^aud  the  creditors  of  any  money 
or  property,  or  to  conceal  any  money  or  property,  or  in  any  way  lo 
prevent  them  from  recovering  or  receiving  any  part  of  his  estate,  or  to 
conceal  any  jnisappropriation  or  preference  by  liim.  On '.his  finding 
tlie  jury,  by  my  advice,  returned  a  verdict  of  guilty,  suljject  to  a  case 
to  be  reserved  by  me  as  to  whetlier  the  false  entries  were,  upon  tlie 
state  of  facts  found  by  the  jury,  made  "with  intent  to  defraud  liis 
creditors,"  within  the  meaning  of  tliose  worus  in  the  above  mentioned 

section. 

It  may  be  observed  that  the  two  lumdrcd  and  fiftj^-second  section 
rendered  it  necessary  that,  besides  the  act  being  done  to  defraud 
creditors,  it  should  be  done  either  "  after  an  act  of  banliruplcy," 
or  "in  contemplation  of  bar'-mptcy,"  or  "with  intent  to  def(  v 
the  oltject  of  the  law  relating  to  bankrupts,"  wliich  expression  muy 
be  argued  lo  show  that  something  more  than  defeating  tlie  operation 
of  tbe°bankrupt  laws  is  intended  by  the  phrase  "  with  intent  to  defraud 
his  creditors."  ' 

The  prisoner  is  at  large  on  bail. 

ChARLKS  CnOMPTON. 

Section  252  of  12  and  13  Victoria,-  enacts:  "  Tiiat  if  any  bankrupt 
shall,  after  an  act  of  bankruptcy  committed,  or  in  contemplaliou 
of  bankruptcy,  or  with  intent  to  d  feat  the  object  of  tlie  law 
relating  to  bankrupts,  destroy,  alter,  mutilate  or  falsify  any  of  his 
books,''papers,  writings  or  securities,  or  make  or  be  privy  to  the  mak- 
ing of  any  false  or  fraudulent  entry  in  any  book  of  account  or  other 
do°  ument,  with  intent  to  defraud  his  creditors,  every  such  bankrupt 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction,  be  liable 
to  imprisonment  for  any  term  not  exceeding  three  years,  with  or  with- 
out hard  labor." 

This  case  was  argued  on  the  12tli  of  November,  1859,  before  Pollock, 
C.  U.,  "WiLLi-.s,  .r.,  CiiANMir..  B.,  Byles,  J.,  and  IIii.l,  J. 

Ballantinc,  Serjeant,  and  Jacobs,  appeared  for  the  Crown,  and  Law- 
rence, for  the  defendiuit. 

Lmvrencc,  for  the  d.-fer.dant.  This  conviction  is  under  section  252, 
of  the  Bankrupt  L»»r  <  usolidation  Act,  and  I  contend  tlmt  the  de- 
fendant iiad  conimiltiHl  no  offense  within  the  meaning  of  tliat  section, 
the  essenc.  -f  wlmh  is,  the  making  false  entries  with  intent  to  defraud 
creditors.     The  offense  which  the  defendant   really  committed  would 


1  Se«  GoPdun's  Case.  Pears  C.  C.  p.  58fi,  e  ch.  UHi.    The  Bankrupt  Law  Consollda- 

|.  ;.  cif  ;,.  588,  bottom  of  page  ('.00,  and  top  ot       tkm  A't,  lSt9. 
page  661. 


R.  V.  INGHAM. 


113 


I  from  having 
account ;  but 
)f  any  money 
n  any  way  lo 
i  estate,  or  to 
>ii  Ihis  finding 
ijcct  to  a  case 
^ore,  upon  the 
o  defraud  his 
)ve  mentioned 

second  section 
lie  to   defraud 

bankruptcy, " 
cut  to  defi  I 
tjjression  m:iy 

the  operation 
ent  to  defraud 


3  CUOMPTON. 

any  banltrupt 
conteniplation 
ct  of  tlie  law 
ify  any  of  his 
vy  to  the  mak- 
ijcount  or  other 
such  bankrupt 
3tion,  be  liable 
i,  with  or  with- 

lefore  Pollock, 

r. 

own,  and  Law- 

ler  section  252, 
Mid  timt  the  de- 
of  that  section, 
itent  to  defraud 
immittt'd  would 

upt  Law  Consolida- 


be  included  in  tlie  class  of  cases  referred  to  in  section  25G,  which  enacts 
..  that  if  at  the  sitting  appointed  for  the  last  examination  of  any  bank- 
rupt or  at  any  adjournment  thereof,  it  shall  appear  to  the  court,    hat 
the  bankrupt  has  committed  any  of  1  he  offenses  hereinafter  enumerated, 
the  court  shall  refuse  to  grant  the  ba- :    upt  any  furtlier  protection 
from  arrest;  and  if  at  any  sitting  or  adjourned  sitting  for  the  allow- 
,„ee  of  the  certificate  of  any  bankrupt  it  slmll  appear  that  he  has  com- 
„n,ted  any  of  such  offenses,  the  court  shall  refuse  to  S'^^^l]'f^^'^'^: 
(,te   or  shall  suspend  the  same  for  such  time  as  it  shall  think  fit,  and 
shnli  in  like  manner  refuse  to  grant  the  bankrupt  any  further  protcc 
lion  "     One  of  the  offenses  referred  to,  lor  winch  tlie  bankrupt  may 
h.ivr  his  protection  refused  and  bis  certificate  refused  or  suspended,  is 
if    lie  bankrupt  shall,  with  intent  to  conceal  the  state  of  his  affairs,  or 
to  defeat  the  objects  of  tne  law  of  bankruptcy,"  have  kept  or  caused 
,0  be  kept,  false  books,  or  have  n.ade  false  entries,  or  withheld  entries 
in.  or  willfully  altered  or  falsified  any  book,  paper,  deed,  writmg,  or 
other  doc'iment  relating  to  his  trade,  dealings,  or  estrto.       Ih.s  is 
precisely  wh./.  the  bankrupt  in  this  case  has  done.     He  L.s  falsified  his 
bo.  ks  . '  the  jury  have  fo.ui.l,  to  deceive  his  creditors  as  to  the  state  of 
bis  accounts,  and  to  prevent  the  examination  and  investigation  of  them 
in  the  due  course  of  bankruptcy,  and  that  is  one  of  the  offenses  a  pun- 
ishment  for   which  is  provided  by  section  256,  but  certainly  ,s  not  a 
,  r,,inal  offense  contemplated  by  section  252,  the  jury  having  expressly 
fu:  ad  that  there  was  no  intent  on  the  part  of  the  bankrupt  to  defraud 

^' ThTdTauding  contemplated  by  section  252  is  not  simply  deceiving 
the  creditors,  but  defrauding  them  of  money  or  property  ;  and  here  the 
intention  of  the  bankrupt  could  not  have  been  to  defraua  them  of  the 
money  in  question  which  had  long  before  been  spent.     The  decision  of 
Lord  Abingcr,  in  Beoina  v.  Marner,^  is  very  much  in  point      That  was 
,n  indictment  under  the  ninety-nit>th  section  of  1  and  2  \  .ctoria,^  which 
enacts  that  in  case  any  prisoner,  with  intent  to  defraud  h.s  creditors 
willfully  and  fraudulently  omit  in  his  schedule  any  property,  or  except 
out  of  his  schedule  as  necessaries  any  property  of  greater  value  than 
twenty  pounds  he  shall  be  adjudged  guilty  of  a  misdemeanor ;  and  it 
was  held  by  Lord  Abinger  that  an  insolvent,  willfully  or  fraudu  ently 
omitting  sums  of  money  from  his  special  balance  sheet  is  not  guilty  of 
..;  misdemeanor  under  this  section  as  it  only  applies  to  cases  where  the 
omission  would  affect  'he  interest  of  creditors,  and  not  where  it  is  an 
omission  of  money  rr.-ved  and  subsequently  expended  by  the  msol- 


veiit. 


1  Cur.  A  M.  628. 
3  Dkkkxces. 


3  ch.  110. 


114 


FRAUD   AM)   FALSK   PKKTKNSKS. 


The  learned  counsel  wa.  here  stopped  by  the  con.t  who  callecl  upon 

iaX:,  Serjeant,  for  the  Crown.     The  Jnry  f^^^^^^ 

rnnfs  intent  was  to  deceive  his  creditors  as  to  tlie  stale  of  ns  account. 

-;:- ...  u.e,  ^- ""tr:r::";2irr::«'z 

of  the  bankrupt.  ,      .        „.     ,    .,    .  ^ug  jj,,,,. 

Pollock,  C.  B.     The  finding  of  the  jury  is,  in  effect,  tliat  the  man 
n^eant  to  do  himself  some  go..d,  bu.  to  do  his  creditors  "O  1-- 

HiLi   J.     Two  intents  are  contemplate.!  in  the  section  :  tlicie  must 
tufilon  the  part  of  the  bankrupt  to  defeat  theol^t  .  the^ 
relating  to  bankrupts ;  and,  plus  that,  the  intent   o  ^-f^a  'd    -,  cnd.t 
ors  -  to  deprive  them  of  something  to  which  they  .n<  entitled. 

mUa^uZ.     In  statutes  in  which  the  intent  is  so  to  limit  the  sigm  • 

caS  the  language  is  ^'  with  intent  to  defraud  of  money  or  goods ; 

but  bore  the  expression  is  used  iu  its  most  general  sense.    Jo  ^^^^^^^^ 

means  to  deceive,  to  deprive  a  person  of  any  right  by  deeei  .     The 

Teditoilo    the  blinkrupt  had  aright  to  have  a  true  statement  of  U. 

bankrupt's  accounvs;  and  the  jury  have  found  that  these  false  entries 

were  made  with  the  view  of  depriving  them  of  their  righ  . 

Channell,  B.     The  intent  to  deceive  merely  wul  not  do. 

PoiTocK.  C.  B.     Is  there  any  decision  or  dictmr.  that ''  deceive     >n 

law  m'eans  to  defraud?     If  a  man  wears  an  apron  to  conceal  his  worn- 

o Tt  dotlies  he  deceives,  but  he  doe^  not  defraud.     On  some  occasions 

bl  wo;ds  mean  to  cheat,  but  to  .-fraud  means  to  cheat  a  person  out 

°'BvTEfj''The  two  hundred  and  fifty  sixth  section  expressly  pro- 
vicfes  f o;  the  offense  mentioned  in  the  first  part  of  the  two  hundred  and 

''irct  rr-You  can  hardly  contend  that  if  a  man  falsified  his 
books  in  Jrder  to  conceal  from  his  creditors  certain  matters  on  which 
he  had  spent  his  money,  not  with  the  object  of  defrauding  he  credit- 
ors, but 'imply  because  he  did  not  like  such  matters  to  be  known,  he 
would  be  guilty  of  an  offense  within  this  section. 

BallalL.  It  is  true  that  when  money  is  gone  a  knowledge  of  .he 
mode  h  which  it  has  been  expended  may  not  affect  the  position  of  t.,e 
credUors"  but  it  may  have  a  great  bearing  upon  the  sort  of  cert.ficat 
thrthe  bankrupt  would  get.  In  Beginav.  (?orc7o«,Uhe  mdictmeu 
Jjleged  the  intent  to  be  to  defraud  the  creditors  by  depriving  t.em  of 
their  right  to  examine  the  bankrupt. 
Latorenee  was  not  called  upon  to  reply. 


I  Deara.  B86. 


PKOPI.K    '•.  .lACOBS. 


11.') 


who  called  upon 
I  that  the  bank- 
e  of  his  acoouiils. 
to  defraud  tlicm 
mean  to  limit  tin 
i  oi  the  property 

jct,  that  the  man 
•8  no  harm. 
m  :  there  must  \w 
object  u,"  the  luw 
k'fraud  ].[i  credil- 

entitled. 

0  limit  the  signili- 
noney  or  goods;" 
,'iise.  To  defraud 
it  by  deceit.  The 
e  statement  of  the 

these  false  entries 
fight, 
lot  do. 

that  "  deceive  "  in 
)  conceal  his  woni- 
On  some  occasious 

cheat  a  person  out 

;ion  expressly  prc- 
le  two  hundred  and 

a  man  falsified  his 
in  matters  on  -which 
sfrauding  the  credii- 
ers  to  be  known,  he 

a  knowledge  of  ihe 
t  the  position  of  tue 
he  sort  of  certificate 
(7on,^  the  indictment 
)y  depriving  ti^em  of 


I'oLi.ocK,  C.  B.     We  are  all  of  opinion  that  this  conviction  can  not  be 
sustained.  '  The  jury  have  expressly  found  that  this  was  done  b.,  tlie 
defendant  with  intent  to  deceive  his  creditors,  as  to  the  state  of  his  ac- 
counts and  to  prevent  tiie  examination  and  investigation  of  them  in  tlie 
due  course  of  bankruptcy,  and  to  save  him  from  having  to  account  for 
tlie  doliciency  appearing  in  the  genuine  account ;  but  they  also  found 
ttiat  it  was  not  done  to  dcfrau<l   the  creditors  of  any  money  or  prop- 
erty, or  to  conceal  any  money  or  property,  or  iu  anyway  to  prevent  tho 
creditors  from  recovering  or  receiving  any  part  of  his  estate,  or  to  con- 
ceal any  misappropriation  or  preference  by  him.     Now  it  may  be  tliat 
in  doing  this  the  bankrupt  intended  to  defeat  the  object  of  tlie  bank- 
rupt laws;  but  that  alone  is  not  sulHcient  to  constitute  an  indictable 
offense  under  this  section.     It  must  also  appear  tliat  the  intent  :va3  to 
defraud  the  creditors,  and  the  jury  have  expressly  negatived  any  inten- 
tion to  defraud  tlieia;  and  upon  tlie  wiiole  fin<ling  of  the  jury,  there- 
fore, it  is  impossible  that  this  conviction  can  be  sustained.     If  it  could 
he  supported,  the  consequences  to  which  it  would  lead  would  l)e  that 
tiie  enactment  in  question  would  apply  to  a  case  where  a  man  who  had 
hecome  bankrupt  from  a  sudden  pressure,  but  who  was  able  when  his 
resources  were  got  iu  to  pay,  and  who  had  paid  twenty  shillings  on  the 
pound,  might  afterwards  be  indicted  under  this  section  on  its  being  dis- 
covered that  there  was  an  item  of  expenditure  in  his  accounts,  entered 
under  a  false  head  to  prevent  its  being  known  in  what  manner  he  had 
expended  his  money,  a  circumstance   which  from   motives  that  may 
readily  be  imagined,'  he  wished  to  conceal  without  having  the  slightest 
wish  or  intention  to  defraud. 

The  other  learned  judges  concurred. 

Conviction  quashi'd. 


FALSE  PRETENSES  — MATTERS  OF  OPINION. 

People  v.  Jacobs. 

[35  Mich.  36.] 
In  the  Supreme  Court  of  Michigan. 

statements  as  to  the  Value  oi  lots,  or  that  thoy  aro  "nicely  located,"  are  matters  of 
ojiiniou,  and  not  facta,  and  therefore  not  within  the  statute  as  to  false  pretenses. 

Graves,  J.  Jacobs  was  convicted  on  a  charge  of  having  obtained 
money  of  one  Barts  by  false  pretenses,  and  the  case  Comes  here  on  ex- 
eeptions  before  judgment. 


in; 


rUAUD  AND  FALSE  PRETENSES. 


Many  exceptions  seem  to  have  been  taken,  but  much  the  larger  por- 
tion are  properly  abaiuloneil.     There  are  some  others  it  would  be  desir- 
able to  consider  if  the  record  was  in  better  shape.     Jacobs  called  on 
Harts  ti>  borrow  five  huiulred  dollars,  and  proposed  to  secure  him  In 
mortfjaofe  on  land  owned  by  his  wife.  Mrs.  Jacobs.     After  some  talk, 
the  loan  was  made,  but  Barts  retained  ten  dollars,  by  understanding, 
to  pay  his   expenses  in  going  subsequently  to  view  the  land.     Mrs. 
Jacobs  gave  her  mortgage,  together  witli  her  note,  to  Barta  for  the 
money.     In  tlii.s  negotiation,  as  charged  in    the  information,  Jacobs 
made  the  false   representations   concerning  the   land  mortgaged.     It 
alleges  that  he  falsely  and  feloniously  pretended  to   Barts  that  Mrs. 
Jacobs  was  owner  or  lots  thirty-six,  thirty-eight,  forty  and  forty-two, 
in  l)lock  three,  in     larriet.AI.  Clement's  subdivision  of  the  south  one- 
third  of  lifteen  acres  lying  in  a  square  form  in  the  northwest  corner  of 
the  northeast  quarter  of  section  twelve,  in  town  six  south,  of  range 
twelve  west,  according  lo  the  recorded  plat;  that  the  lots  were  situated 
witliin  the  city  limits  of  the  city  of  Grand  Rapids;  were  on  the  street 
running  directly  from  the  business  part  of  the  city  to  the  fair  grounds, 
near  the  city  limits  ;  were  between  such  fair  grounds  and  the  business 
portion  of  the  city ;  that  the  lots  were  nicely  located ;  were  quarter- 
acre  lots  and  constituting  one  square  acre ;  that  they  would  sell  at  any 
time  at  from  twelve  hundred  dollars  to  lifteen  hundred  dollars  cash ; 
were  worth  much  more  than  that,  and  were  entirely  free  from  all  in- 
cumbrance.    These  pretenses  are  afterwards  alleged  to  have  been  sev- 
erally false.     On  the  opening  of   the   trial  it   was  objected  that  the 
information  set  up  no  offense.     The  groinid  of  the  objection  was  not 
explained.     But   al   a  latter    stage   of    the  trial,  the  reason  for  the 
objection  was  stated  to  be,  that  ihe  information  did  not  state  in  words 
that  Barts  relied  on  the  representations.     The  objection  is  not  much  i".- 
sisted  on,  and  is  not  tenable. 

The  allegations  in  this  particular  are  formally  sufficient.  It  was  not 
essential  to  charge  in  express;  terms  that  Barts  gawe  credit  to  the  false 
pretenses.  That  he  did  so  was  a  necesspjy  implication  from  the  allega- 
gation  that  he  was  induced  by  the  representations  to  part  with  his 
money.  ^ 

The  court  charged  that  if  the  jury  believed,  from  the  evidence,  that 
any  of  the  pretenses  charged  were  proved  to  be  false  and  fraudulent, 
and  Avcre  part  of  the  moving  cause  which  induced  Barts  to  part  with 
his  money,  and  that  he  would  not  have  parted  witii  it  had  not  such  false 
pretenses  been  made,  they  would  be  justified  in  finding  him  guilty. 

'J'hc  instruction  must  liave  been  understood  as  assuming  that  each 


i  state  r.  Pealey,  27  Coua.  sm. 


PEOPLE    V.  .TACOnS. 


117 


larger  poi- 
1(1  be  desir- 
ts  called  on 
lire  hiir.  by 
•  some  talk, 
erstanding, 
and.     Mrs. 
rta  for  the 
ion,  Jacobs 
tgaged.     It 
)  that  Mrs. 
1  forty-two, 
!  south  one- 
iit  corner  of 
,h,  of  range 
ere  situated 
m  the  street 
iir  grounds, 
the  business 
ere  quarter- 
>  sell  at  any 
oUars  cash ; 
from  all  in- 
ve  been  sev- 
ed  that  the 
ion  was  not 
,son  for  the 
ate  in  words 
lot  much  i",- 

It  was  not 
to  the  false 
n  the  allega- 
irt  with  his 

•idence,  that 
.  fraudulent, 
to  part  with 
}t  such  false 
1  guilty, 
ig  that  each 


.listinct  pretense  sot  up  was  a  vnlul  ground  of  charge,  and  on  ^vh>ch  a 
:::!;.icUou  might  re.t  if  found  false  and  fraudulent  and  operative  m  any 
dc-crree  on  Barts  to  cause  him  to  maicc  the  loan. 

No  instruction  was  given  that  any  represcntat.on  la.d  as  a  false  pre- 
tense  could  not  legalfy  be  so  laid,  nor  any  instruction  that  any  ropre- 
sontation   laid    as    a  pretense  was  unproved,   or  any   instruct.on  to 

"edl  the  jury  from  resorting  to  the  whole  evidence  and  hnchng  from 
t  a    all  tie  Representations  htid  us  pretenses  were  m  fact  made. 

lete   if  any  representation  laid  as  a  false  pretense  could  not  be  law- 
lldly  iinpressed  with  that  character,  the  jury  were,  in  effect,  permitted 

"Z^lhrCa  pretense  that  the  lots  were  ^'nicely  located,"  was  a 
distinc   pretense^  in  he  information.     But  it  was  not  such  a  representa- 
tn  a    could  be  made  the  subject  of  criminal  prosecution  as  a  false  pre- 
tense      It   could   not    convey  or    be    understood    as  conveymg   any 
Steidea  at  all.     There  is  no  standard  for  drying  «ie  accuracy  o 
such  a  statement.     What  is  a  nice  location  to  one  may  be  far  o  hei wise 
o  another,  and  even  to  the  mind  of  one  using  it  the  expression  ,s  vagiie 
Id  indeterminate.     No  one  can  be  supposed  to  accept  such  a  repre- 
Itltion  as  an  assertion  of  the  existence  of  some  fact  or  -rcumsUince 
sufficient  to  cause  him  to  change  his  situation  in  reliance  on  it,  and  the 
law  can  not  measure  or  weigh  people's  fancies.  ,,,,,,„.„ 

The  alleged  representation  concerning  the  value  of  the  lots  to  be 
mortgaged  can  not  be  construed  as  anything  l>eyond  a  matter  of  opuuon 
and  it  is  not  to  be  supposed  the  expression  was  understood  in  a  sense 
Ire  absouite.     There  is  no  reason  for  implying  that  Barts  relied  upon 
Tor  was  n  any  way  or  to  any  extent  duped  by  it.»    These  allegations 
were  accordingly  not  sufficient  as  grounds  of  charge,  and  it  was  error 
To  allow  the  jury  to  regard  them  as  though  they  were.     There  are  sev- 
eral  topic"  which  would  require  discussion  and  explanation  before  a 
iurv   but  are  hardly  proper  for  consideration  here. 
'   Tie  conviction  must  be  set  aside  and  in  case  another  trial  is  deemed 
expedient,  no  doubt  the  prosecution  will  see  to  it  that  the  proceedmg  is 
quite  differently  shaped. 
The  other  justices  concurred. 

,  Blehop«.8man.63Me,12j  Moonoy  v.  MUlcr.  IC^i  Mass.  217;  Long ..  Worcemau.  38  Mo. 
49,  and  cases  cited. 


118 


FKAUD   AND   FALHK    I'llKTENISES. 


obtaining  goods  with  intent  to  defraud  -bankrupt  act. 
United  States  v.  Pkescott. 

['2  BLss.  325.] 

//(  (he  United  Slates  District  Covrt,  District  of  Wisco7mn^  June  Term, 

JS70. 

1.  In  an  Indictment  under  Bcctimi  44  of  tlic  Bankrupt  Act,  for  obtaining  goods  on  credit, 

with  intent  to  defraud,  tlic  i)roceedinK!<  in  l)ie  biinliruiit  court  niunt  bo  pleaded  and 
proved  Willi  sueli  parti''ularity  as  to  show  anirnialively  that  an  adjualication  of  bank- 
ruptcy was  made  upon  a  case  in  which  the  court  had  jurisdiction. 

2.  The  Indictment,  therefore,  should  set  out  the  filing  of  the  )>etition,  the  name  of  the 

lictilioniiig  creditor,  tlie  amount  of  his  debt,  the  alleged  act  of  bankruptcy,  and  th»» 
adjudication  of  the  bankrupt  court. 

3.  The  Description  of  the  Goods  obtained,  as  "  a  large  quantity  of  boots  and  shoes,"  is 

too  uncertain.    It  should  be  as  dcUuite  as  would  be  reiiuircd  in  a  declaration  in  trover. 

4.  Offenses  Under  Section  44  arc  misdemeanors,  and  the  word  "  feloniously  "  should  not 

bo  used. 

5.  Dates  should  not  be  specified  by  llgures  in  an  indictment. 

This  was  a  inoliDii  to  (|tiash  an  indictment  under  section  44  of  the 
Bankrupt  Act,  for  fraudulently  obtaining  goods  on  credit. 

The  first  count  of  tiie  indictment  charged  that  ou  a  certain  day  men- 
tioned, in  the  District  Court  of  the  United  States  for  the  District  of 
Wisconsin,  under  and  pursuant  to  an  act  of  Congress  entitled  "  An  Act 
to  establisli  a  uniform  system  of  bankruptcy  throughout  the  United 
States,"  approved  ]\Iarch  2,  1807,  proceedings  in  bankruptcy  were  duly 
commenced  against  Alplionso  Prescott,  Leandor  F.  Snyder  and  R.  II. 
Lovell,  as  insolvent  debtors,  and  partners  under  the  name  of  Prescott, 
Snyder  &  Lovell,  who  thereupon  afterwards,  to  wit,  on  a  certain  day 
mentioned  were  adjudged  bankrupts;  that  prior  to  the  dates  last  afore- 
said, and  within  three  montlis  before  tiie  commencement  of  said  pro- 
ceedings in  bankruptcy,  to  wit,  on  the  16tli  day  of  August,  18G9,  within 
the  jurisdiction  of  this  court,  and  at  and  in  the  district  of  Wisconsin, 
the  said  Alphonso  Prescott,  Leander  l'\  Snyder,  and  R.  11.  Lovell,  then 
and  there  representing  themselves  to  be  associated  together  as  co-part- 
ners, under  the  linn  of  Prescott,  Snyd(>r  &  Lovell,  and  holding  them- 
.selves  out  as  wholesale  merchants  and  jobbers  of  boots  and  shoes,  under 
the  false  color  and  pretense  of  carrying  on  business  and  dealing  in  the 
ordinary  course  of  trade  of  Avholosale  boot  and  shoe  merchants  and 
jobbers,  did  then  and  there  wrongfully,  unlawfully  and  feloniously 
obtain  on  credit,  from  one  Lyman  Dike,  certain  goods  and  chattels,  to 
wit,  a  large  quantity  of  boots  and  shoes,  of  the  value  of  live  thousand 
dollars,  with  the  intent  then  and  there  by  the  obtaining  of  said  goods 
and  chattels,  to  defraud  the  said  Lyman  Dike,  contrary  to  the  statute 


TNITED   STATES   V.  PUESCOTT. 


119 


[RUPT   ACT. 


June  Term, 


foods  on  credit, 
10  pleaded  and 
cation  ot  bank- 

thc  name  ot  tlio 
uptcy,  and  th« 

s  and  shoes,"  is 
'Mtiou  in  trover. 
jly  "  gtiould  not 


)n  44  of  the 

tin  (lay  men- 
!  District  of 
h\  "  An  Act 

the  United 
y  were  duly 
r  and  R.  II. 
ot  Prescott, 

certain  day 
s  last  afore- 
of  said  pro- 
18G9,  witliin 

Wisconsin, 
Lovell,  then 
r  as  co-part- 
)kling  them- 
3hoes,  under 
;aling  in  the 
rchants  and 

feloniously 

chattels,  to 
ve  thousand 

said  good.'* 

tlie  statute 


,f  Ui.  United  Slates  in  such  case  made  and  provided,  and  against  Iho 

nn.l  dicrnit  V  of  the  United  Stat.'S  of  America. 
•'' ;;;    e  l^ot h^lilce  counts  of  the  indictment,  except  as  to  the  name 
of  XTfioin  whom  goods  had  been  obtained  by  defendants. 

James  O.  Jenkins,  fur  bankrupt. 

r    r  Jhizleton,  United  States  District  Attorney,  contui. 

M      :,r        It  is  alle-red  in  the  motion  to  .piash  the  indictment  that 

u     Icjwas  presented  to  the  District  Court  by  a  certain  credUo, 

lu™ ly      n  mnst  „l>P«ar  uffinuativcly  .hat  .he  crediu,.- ha.  a  ngbt 
r  IL-  to  CO.  J,!oe  a„«  prosecute  .-.'-'"»^^;;';-™S 
Tl„.  amoimt  of  hi»  Oebt  mii»t  appear,  otherwise  t..«  eourt  ivouW 

°"/;';f  1;::.r„„.  C„„soh<,ated  Act  o,  ..  ana  ..  Vi^^-^-^^t 
ot  the  aet  umler  .hieb  the  ia,lict™e„t  in  ''"^'!<'";'ZT^l^re^°Z 
,  lii,.,»l  c-onv      Several  .leiisions  ot  courls  in  I'.nglaml,  as  to  lequiri 
1  .rnroseeution  ami  trial  ot  imlietraents  under  their  aet,  were 
;;;:;r  L^p^E^rrtore  U.  passage  l,y  Congress  ot  our  Bankrupt 

't  :^:^^::^^^'^^'^^'-''  r  tt 

„,' rlrW,  by  »ea„s  ot  a  -l-™-';- "li; t ."^tTd  n^a^ 

:tr<:;'ra-^^^:;::="^^^^^^^^^^ 


1  Keg.  V.  Lands,  3S  Eng.  L.  & Eq.  636 ;  Reg. 
V.  Ewinglin,  41  Eng.  0.  L.  I'S;  King  v. 
Jones  2-1  Id.  156. 


S  Reg.  «.  Boyd, 5  Cox, 50!.. 


120 


FUAi:i>    AND    lALHE    I'KETKNHKM. 


cortiiiiu'd  from  llio  l)illH  of  sale.  Tlic  dcsciiplion  of  tlio  goods  in  an 
iiuliftiui'iil  should  he  as  delinito  ns  In  a  decliiration  of  trover. 

Tiiu  word  "feloniously  "  should  bo  omitted  in  indictments  under  tin 
act.  The  offenses  made  indictable  are  misdemeanors.  And  in  draw- 
ing  indictments,  figures  for  dates  should  not  be  used. 

This  being   the  first   indictment  in  this   court   under  the  Bankpii|it 

Act,  I  have  prepared  this  opinion  as  a  guide  to  the  district-attorney  in 

future. 

The  indictment  ivill  be  quashed. 


FKAUD  — MEANS  OF  EFFECTING  FRAUD  MUST  BE  SHOWN. 

United  States  v.  Goggin, 

[9  Bias.  769.] 
Tn  the  United  States  District  Court,  Wisconsin,  1880. 

1.  An  Indictment  Oharsinir  Fraud  of  any  Sort  ought  to  aver  wherein  the  fraud  con- 
sisted and  by  what  means  it  was  effected. 

a.  The  General  Bale  that  an  Indictment  for  an  offense  created  by  statute  Is  lufflcicnt 
if  it  foUowB  the  language  of  the  statute  is  subject  to  the  qualification  that  the  accused 
must  bo  apprised  by  the  indictment  with  reasonable  certainty  of  the  nature  of  the  accu- 
sation against  him,  to  the  end  that  he  may  prepare  his  defence  and  plead  the  Judgment 
as  a  bar  in  a  subsequent  prosecution  for  the  same  offense. 

Dter,  J.  This  is  an  indictment  for  presenting  for  payment  to  the 
pension  agent  in  Milwaukee,  a  false  and  fraudulent  claim  for  pension 
moneys.  The  defendant  was  tried  and  convicted  at  the  last  term  of 
the  court,  and  the  case  is  again  up  for  consideration  upon  a  motion  in 
arrest  of  judgment.  It  is  not  without  reluctance  that  I  have  come  to 
the  conclusion  which  I  am  constrained  to  announce,  since  the  evidence 
adduced  on  the  trial  tended  strongly  to  show  the  perpetration  of  a 
gross  fraud  upon  the  government ;  but  it  is  the  duty  of  the  court  to 
administer  the  law  according  to  its  best  understanding,  regardless  of 
consequences. 

The  defendant  was  indicted  under  section  5438,^  which  provides  that 
every  person  who  presents  for  payment,  to  or  by  any  person  or  officer 
in  the  civil  service  of  the  United  States,  any  claim  upon  or  against  the 
government  or  any  department  thereof,  knowing  such  claim  to  be  false, 
fictitious  or  fraudulent,  shall  be  punished  as  the  statute  directs. 

The  indictment  contains  three  counts,  but  as  they  are  equivalent  in 

1  Rev.  Stats.  U.  S. 


UN'ITKO    STATKS    V.  OOOOIN. 


121 


tlip  goods  ill  an 
trovor. 

omenta  under  thf 
.     And  in  draw- 

or  tlie  Bankpujit 
strict-attorney  iu 

ill  be  quashed. 


3E  SHOWN. 


I,  1880. 

rherein  the  Irsad  con- 
by  statute  Is  <!ufficient 
tion  that  the  accused 
he  nature  of  the  accu- 
id  plead  the  Judgment 

)r  payment  to  the 
claim  for  pension 
I;  the  last  term  of 
upon  a  motion  in 
at  I  have  come  to 
lince  the  evidence 
perpetration  of  a 
ty  of  the  court  to 
ing,  regardless  of 

hich  provides  that 
y  person  or  officer 
pon  or  against  the 
,  claim  to  be  false, 
te  directs. 
r  are  equivalent  in 


form   reference  to  one  shall  be  sulHcient.     The  llrst  count  charges  that 
„u  the  4lh  day  of  December,  187lt,  the  defendant  did  present  and  cause 
,.,  be  presented  for  payment  to  and  l)y  a  person  in  the  civil  service  of 
,1,,.  Uiiit*'d  Slutes,  to  wit,  Edward  Ferguson,  a  pension  a<,'ent  of  the 
Initcd  States,  at  the  city  of  Milwaukee,  a  claim  against  the  government 
of  the  United  Slates,  to  wit,  a  claim  for  the  sum  of  821,  then  and  there 
claimed  and  rei)resented  by  the  defendant  to  be  due  to  him  from  tiie  said 
(rnvcrnment  of  the  United  States,  as  a  pensioner,  umler  and  by  virtue 
„f  a  certain  instrument  known  as  a  pension  certillcate,  which  said  pen- 
sion certiflcate  had  been  theretofore  procured  and  obtained  by  the  said 
Hiehard  Goggin  upon  false  and  fraudulent  proofs,  and  by  criminal  and 
fraudulent  devices,  and  witiiout  the  authority  of  law,  and  in  fraud  of 
tlie  law    governing    pensions   and    pension  certilicatcs ;  he,  the  said 
Itichard  Goggin,  well  knowing  at  the  time  and  place  of  making  said 
ilaim,  and  of  presenting  the  same  for  payment,  that  it  was  then  and 
ihorc  false,  fictitious    and  fraudulent.     Objection  is  made  to  this  in- 
aietment,  as  not  stating  any  offense,  or,  in  other  words,  that  no  offense 
is  described  with  such  certainty  as  the  law  of  criminal  pleading  requires. 
'I'he  reply  of  the  learned  district-attorney,  is  that  it  slates  the  offense 
substantially  in  the  language  of  the  statute,  and  that  this  is  sufficient. 
It  will  be  observed  that  the  gist  of  the  offense,  as  it  is  defined  in  the 
stalutc,  is  the  presentation  of  payment  of  a  false  or  fraudulent  claim. 
Tlie  indictment  alleges  no  facts  which  constitute  the  fraud;  it  is  not 
shown  how  the  fraud  was  perpetrated,  nor  wherein  the  claim  was  false, 
except  that  the  defendant  presented  a  claim  which  he  represented  to  be 
due  to  him  by  virtue  of  a  pension  certificate  which  had  been  theretofore 
,,n)cured  upon  false  and  fraudulent  proof,  and  by  unlawful  and  frau.l- 
ulent  devices,   and  without  authority  of    law.     What  the  false   and 
frau.lulent  proofs,  and  unlawful  and  fraudulent  devices  were  is  not 
stated.     The  question  is,  are  these  allegations  sufficiently  certain,  and 
do  they  contain  statements  of  fact  which  will  support  a  conviction? 
My  impression  upon  the  argument  was  that  the   objection   urged  by 
counsel  for  defendant  was  not  one  which  reached  the  substance  of  the 
indictment,  and  that  as  he  had  not  moved  to  quash,  his  objection  was 
not  good  in  arrest  of  judgment;  but  the  rule  is  that  any  objection  to 
an  indictment  which  would  be  good  upon  demurrer  is  fatal  on  motion 
in  arrest,  and  this  being  so,  the  objection  to  the  indictment  if  well 
grounded  in  law,  may  be  as  well  taken  at  the  present  stage  of  the  pro- 
ceedinc^s  as  by  motion  to  quash.     In  the  case  of  United  States  v.  TF«<- 
kins,Hhe  court  had  occasion  to  state  the  rule  with  reference  to  ccr- 
taintyin  alleging  fraud  in  a  case  of  false  pretenses,  and  it  was  there 


I  3Cranch,C.  C.  441. 


122 


FRAUD    AXO    FALSE    I'UKTKNHKS. 


held  that  an  iiulicttncnt  charging  fraud,  should  aver  the  moans  by 
which  the  fraud  waa  effected ;  tluit  fraud  is  an  inference  of  law  from 
certain  facts,  and  the  indictment  must  aver  all  tlie  facts  which  consti- 
tuted the  fraud  ;  that  whetiier  an  act  has  l»een  fraudulently  done  is  a 
question  of  law,  so  far  as  the  moral  character  of  the  act  is  involved ; 
to  aver  that  an  act  was  fraudulently  done,  is  therefore  to  aver  st  matter 
of  law  and  not  a  matter  of  fact. 

It  is  true  that  tliis  was  a  case  of  false  pretenses,  and  there  may  ho  a 
well  grounded  distinction,  as  urged  by  tlie  learned  counsel  for  the  United 
Station,  between  such  a  case  and  the  case  in  hand;  because,  in  a  case  of 
false  pretenses,  it  is,  und()ul)tedly,  essential  tliat  the  facts  and  circum- 
stances should  be  alleged  with  such  certainty  that  the  court  may  ace 
upon  tlie  face  of  the  pleading  that  the  pretenses  were  false,  and  that 
they  were  of  such  character  and  were  made  under  such  circumstances 
as  constituted  false  pretenses,  within  the  meaning  of  the  criminal 
law;  that  they  were  relied  upon  —  acted  upon,  and  that  the  party 
defrauded  had  a  right  to  rely  upon  them  ;  and  herein,  and  i)erhaps  in 
some  other  respects,  such  a  case  is  distinguisliable  from  the  case  at  bar. 
Hut  it  is,  undoubtedly,  ft  sound  i»rinciplc  that  an  indictment  charging 
fraud  of  any  sort  ought  to  aver  witli  requisite  i)articularity  wherein  the 
fraud  consisted,  and  the  means  by  which  it  was  effected,  and  I  have 
livin  unable  to  find  any  cases  which  dis|)ensc  with  the  api)lication  of  this 
rule.  It  is  true  tliat  many  of  the  niceties  and  technicalities  with  refer- 
ence to  form  in  criminal  pleadings  which  once  existed  are  not  allowed 
now  to  prevail,  but  I  do  not  understand  that  there  has  been  any  relax- 
ation of  the  rule  with  reference  to  certainty  and  clearness  as  to  the  mat- 
ter ciiarged.  It  is  also  a  general  rule  that  in  an  indictment  for  an 
offense  created  by  statute,  it  is  sufficient  to  describe  the  offense  in  the 
words  of  the  statute.  In  the  case  of  United  Statesy.  Shnmons,^  the 
Supreme  Court  had  occasion  to  point  out  the  precise  scope  and  limitation 
of  this  rule,  and  after  stating  the  rule,  Mr.  Justice  Harlan  says  in  the  opin- 
ion :  "  But  to  this  general  rule  there  is  the  qualification,  fundamental  in 
the  law  of  cri'  linal  procedure,  that  the  accused  must  be  apprised  by  the 
indictment,  with  reasonable  certainty,  of  the  nature  of  the  accusation 
acainst  him,  to  the  end  that  he  may  prepare  his  defence  and  plead  the 
judgment  as  a  bar  to  any  subsequent  prosecution  for  the  same  offense  ;" 
and  here,  I  think,  we  strike  the  fatal  point  in  this  indictment.  For, 
after  consideration,  I  am  unable  to  see  how  the  defendant  could  plead  his 
present  conviction  under  this  indictment,  and  a  judgment  thereon,  in  bar 
of  a  second  prosecution  for  the  same  offense.  It  is  alleged  only  that 
he  ])resented  to  the  pension  agpu^  a  claim  for  pension  moneys  under  a 


I  96  I'.  S.  300  (sect  2410-U,  infra). 


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SMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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11-25  III  1.4    IIIIII.6 


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33  WEST  MAIN  STREET 

WEBSTER.  N.Y.  14SS0 

(716)  •7J-4503 


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Collection  de 
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Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproducticns  historiques 


^■tt 


VNITKI>    STATKS    ?'.  (U)(i(5IN. 


„..„.ion  c-orlitu'al,-.  which  was  procuro.l  Ly  f.ls.  tu.l  fruvululent  ptoofa, 
;  .ful  :uul  fr.uluU-nt  devi...     Tiu-  f.uul  shnuhl  have  ..eon.  by 
':,    ,„,...Uion,  ...ore  paraoul.rly  iao,.litu.l ;  it  sho..l.l  hav.  hoen  alU-g.d 
,■    ,1  ,1^0  ,.r,.ofs  un.l  ctcvi,...  wm>,  au.l  whorein  thry  wore  f.-a..,l..k-nl ; 
'     1  it  is    in  mv  iu,l-nunl,  i.n.ualofial  who.i  the  proofs  w.tc  ma-lo  «.r 
:  ,n.,.  .vsorti-/l  1o  wlicthor  at  the  time  of  presenting  tlie  claim,  or  at  a 
."„.'.  .Ulterior,  if  they  we.-e  ma.le  as  the  l.asis  f  -r  obtaining  the  pens.on 
■    i,i',.U,       If  the  frau.luh-nt  deviees  had   consisted  of    an  act  done 
;  ,„  ,„vment  was  da.nanded,  it  would.  I  .hi.>k.  be  clear  that  the  .uUnn. 
,;„,'  .i,.vi,.esor  pa.tie.dar  fraud  p.acticed  a.  the  ti.ne  should  be  al- 

i' 1    ,,„l  if  this   is  so,  it  see.ns  also  essential  that  they  should  be 

.,lU..vd',  though  thev  we.v,  in  fact,  praetieo.l  at  and  before  the  Umo  of 
:.t:iui,.g  ,he  pension  eertitieate.  The  offense,  it  is  true  was  one  eom- 
,,  „,,,,  nut  in  \sC,l,  when  the  pension  certilieate  was  obta.ned,  but  u, 
isTT  n.ul  in  ISTS,  when  payment  of  an  installment  was  de,na..de<l ;  that 
,-  a  claim  was  presented  f..r  pay.nent  at  those  times ;  b,.t,  going  back 
■  .„■  tho  ori.nn  of  the  alle-ed  fra..d,  I  -lo  not  understand  why  it  is  not  rus 
,  ,.,..<  >rv^o  alleu^e  wherein  the  fraud  .ousisted  at  its  incept.on  a..d 
„lu.n  made  the  basis  fo.^  obtaini..^  the  pe.isiou  eertilieate,  a.  .t  would  be 
i/  it  ,.„nsisted  of  so...e  .leviee  i-ractieed  at  the  very  time  the  chum  w.va 

1  rcs.ntcd  for  payment.  ,  •   ,      „„ 

,t  was  „e..essarv  to  show  the  alleged  f.'aud  a.,d  the  acts  which  con- 
Mtntod  it.  on  thJ  trial,  and  it  was  therefore  necessary  that  the  same 
f;,,s  sho.dd  be  alU-ed,  at  least  with  sullicient  parti-Milanty  to  enable 
,;„..l.fe„dant  to  plead  any  judgment  which  might  follow,  as  a  bar  to  a 
,u!.cq..cnl  prosecution  f..r  the  sa.ne  offense.     Ihe  allegation  .s  .hat  a 
,.uu,nwas  presented  by  the  defemlant,  as  a  Pensioner    umleramlV^ 
urtueof  u  certain  instrument  known  as  a  pension  ccrt.hcate ;  but  tin 
..rtilicate   is   not  .leseribed  so  that  it  c.ui  be  identified    as  I  tlnnk  i 
,,„„1.1  have  been,  as,  by  date,  the  na.nes  of  the  ,.ersons  -l>o  l>"n-t^_^ 
,„  M,.n  it.  an.l  the  like,  so  as  to  satisfy  the  requirements  of  the  rule  as 
i,„l"lown   bv   the  Supreme  Court  iu  U.Hod  Stag's  v.  Snnmo.s.       If 
...  ad.Tt  us"  authoritative  upon  the  question  uu.ler  consideration  the 
,.:...  .f  United  suae.  v.  IMtiUni:^  which  is  a  case  somewhat  in  opposition 
to  nuted  State,  v.  hnlJard:^  it  i.  v.-ry  .'lear  that  we  should  have  to  h o  d 
,l„s  indictment  insullicient ;  and  1  incline  to  the  opimon  that  the  correct 

rule  is  slated  in  the  former  case.  ,   .      .,      ;  „ii,.t 

Itwasu.-ed  upon  the  argument  that  what  is  alleged  in  ^I-c  nulict- 
„„.„t  in  regard  to  fraud  in  obtaining  the  pension  cert.tieate  relates  to 
,!„.  evidence  of  the  offense,  and  not  the  offense  itself ;  but  .  is  not  the 
presentation  of  the  claim  for  payment  which  makes  the  offense,  it  19 


1  tupra 

'  IJ  int.  llev.  Rec.  3-2. 


:i  l:l  Int.  Ilcv.  Ilee.  V.>r> 


124 


IIJAtl)    AM)    FALSE    PKKTKXSKS. 


the  prcsoiitation  f(ir  jijiviiu'iit  i>f  in,  false  m-  fiauiluloiU  chiiiii ;  and  as  no 
fraud  can  l)e  cdinmittcd  liiil.  liy  dofuitfiil  practice's,  the  particular  prac- 
tices by  wliicli  till'  fraud  was  here  coniuiitted,  or  which  made  the  claim 
fraudulent,  should  have  been  so  set  foith  as  to  make  the  fraud  appear 
upon  the  face  of  the  indictment.  This  may  be  in  a  certain  sense  allcu'- 
ing  the  evidence  of  the  offense,  l)ut  it  is  rather  the  statement  of 
essential  facts  which  constitute  the  fraud,  and  therefore  make  the  i)re- 
scntation  for  paynit'nt  of  the  claim  a  criminal  offense.  The  point  isuii'j 
that  can  not  be  niatle  clearer  by  elaboration.  I  rest  my  judgmeut  upon 
the  fact  that  tlu'  allej^ations  of  the  i)leadinpj  are  not  sufficient,  within 
the  rule  stated  by  the  Supi'cine  Court,  to  apprise  the  defendant  with 
that  certainty  which  the  law  reipiires  of  the  nature  of  the  accusation 
against  him,  to  the  end  that  he  may  prepare  his  defense  and  plead  the 
judgment  as  a  bar  to  any  subsequent  prosecution  for  the  same  offense. 
Judgment  must  be  arrested. 


fraud  — ciiakgk  that  ac  t  was  donk  "  bv  fraudulent  means" 

insufficient. 

United  State.s  v.  Bettilini. 

[1  Woods,  <;j».] 
In  the  United  Stittett  Circuit  Court,  Florida,  1S71. 

An  Indictment  Under  the  Act  of  Karch  '^,  18i'>:i,i  cliarging  tlic  cominisBion  of  the  offenie 
"  by  fraudulent  moaiiH,"  mikI  iidI  "pecifyiiig  the  means,  is  bad  for  want  of  certainty. 

The  in<lictment  in  this  case  is  found  for  the  offense  of  knowingly  ef- 
fecting an  entrj'  of  goods  contrary  to  the  provisions  of  the  third  section 
of  the  act  of  Maich  I,  lHt;3,  entitled  "An  act  to  prevent  and  puni^b 
frauds  upon  the  revenue  ;  to  provide  for  the  more  certain  and  speedy 
collection  of  claims  in  favor  of  the  United  States,  and  for  other  pur- 
I)oses."  -  The  said  section  reads  as  follows:  "  If  any  person  shall,  by 
the  exhibition  of  any  false  sample,  or  by  means  of  any  false  rcpresenta- 
lionor  dexiee,  or  iiy  coUusinn  with  any  officer  of  tlie  revenue  or  other- 
wise, knowingly  effect,  or  aid  in  effecting,  an  entry  of  goods,  wares  or 
merchandise  at  loss  than  the  true  weight  or  measure  thereof,  or  upon 
a  false  classification  thereof,  as  to  quality  or  value,  or  by  the  payment 
of  less  than  the  amount  of  duty  legally  due  thereon,  such  person  shall, 


1  \i  stats.  739. 


>  VI  Stall.  731). 


^^ 


VNITED    STATKS   V.  nKTTlI.IM. 


i-.>r» 


I'laiiu  ;  aiul  a^  no 
le  particular  jirac- 
•h  mado  the  cliiiiii 

the  fraud  apiieur 
■rtain  sense  allcL'- 
the  statement  of 
ore  make  the  pre- 
Tlie  point  i<  iJin' 
ly  judgment  upon 

sufficient,  witliin 
le  defendant  with 
of  the  accusation 
use  and  plead  the 

the  same  offense. 


DULENT  MEANS" 


',  1S71. 

nniission  of  the  offenie 
want  of  rcrtainty. 

e  of  knowingly  cf- 
if  the  third  section 
rcvent  and  punish 
•ertain  and  speedy 
and  for  other  pur- 
ly  person  shall,  hy 
y  false  repres<*nta- 
!  I'eveiuie  or  othcr- 
of  goods,  wares  <>r 
0  thereof,  or  upon 
or  hy  the  payment 
such  i)er8on  shall, 


.nnvictic.n  thereof,  be  iii>ed  in  any  sum  not  exceeding  8:..ono,  or 

:n:,:d;:>t  exceeding  two  years,  or  hoth,  at  the  disc-retion  of  the 

'••     The  lirst  ground  of   objection    is  tl,at  every  count  n>    he    u- 

:        ;..t  L   doubU    and  that   tin-  duplicity  (-.usists   in   tins,  t^.at  the 

i^H  charged  ^vith  both  knowingly  effecting  a.  entry,  and  U^ 

X  ^hlin.  in   Effecting  an  entry,  of  the  goods    at,   the  cms  ou.-house. 

T  .    l-se    created  by  the  act  is  a  n.isdenu.anor  where  al    an-  pr,n- 

,,  L  offense  of  effecting  an  entry,  and  of  aiding  u,  effect.ug  an 

:    ,„av  be  conunitted   by  different  persons,  yet  they  are  different 

^^^;"f-the   san>e  offense,  and  m:,v  be  charged  conjunct.vcly  ,n  one 

n"  :^'ainst  the  san.e  person,  and  the  proof  of  either  wdl  sus  a,n  t^e 

l^^This  has  been  the  unifonn  ruling  of  this  court,  and  tins     .se 

;:;;,rexcepUon  to  those  already  determuu-d.   In  this  respect  the  uuUct- 

'"TUe:::t  ';  •::;;::■  i.  ..at  the  offense  is  not  set  out  in  the  indictment 

.,  ,    s^^li  ient   certainty  ;  that  the  facts  or  circuu.stances  w  nch  const  - 

:      the  dehnition  of   the  offense  in  the  act  are  n<>t  sc.  ^-!">  -\^^^; 

h.rcfure,  the  indictment  is  not  bad.     Mr.  Chitty .  .u  lus  C  run  nal  T.aw. 

V      'tisa  general  rule   that  all  indictments  upon  statutes,  espee- 

'the  mri^nal,  must  state  all  the   circumstances  which  const.tute 

lile'.lliL  of   tl.;    offense  in  the  act.   so  as  to  bring  the  defendant 

'■^U  ^arZieluhia  this  rule  is  relaxe<i  by  the  decision  of  the  Supreme 
clu.:  in  ln,.a  Stages  v.  3/./v'  cited  above    an..  1^^^^;^^;^^^^'^ 
„f  that  decision,  it  is  not  necessary,  in  practu.e,  to  set  "''^    ^  V  ^ 
,,,.,„..„t  any  circumstances  or  facts  to  apprise   he  -—':'-- 
„  ith  which  he  is  charged.     The  court  say,  n>  that  case  :        I       g^  .h m 
rule  is    that  in  indictment  for  misdenu-anors  create.!  by  statute,  it    s 
i  nt  to  charge  the  offense  in  the  wor.ls  of  the  statute.      Ihere  , 
,      t    ^\..chni..annc.4y  re.p.ire.l  as  to  form  which  s..en.s  to  have  l^n 
,  ,,t...l  and  sanctione.1  by  long  practice  in  cases  of  fel.,ny ;  and       h 
,...,Ut  to  some  crin..s,  when  particular  words  must  be  " -  ;   -   - 
2r  words,  however  synonymous  they  .nay  seen.  -"^'^  ^      '  ^^^;,. 
■n,ns  far  the  court  simply  say  that  the  plea.ler  m.cd  not '-      »  ^       ^ 
„...l  words  in  describing  the  offense,  but  that  the  wor.ls  o       -  «t' 
,.Ul  be  suificient.     "  «ut  th.at  in  all  cases  the  o"--;"'-;^^;;^^/;'    ^ 
with  clearness,  and  all  necessary  certainty  to  ap,>r.se  the  ---';'- 
,,,„.  with  which  he  stands  charged."     The  Supreme  Cou,  u^^ 

,u.Ucs  a  distinction  between  the  technical  words  "-^---^^     ;;     ^ 
i„  des..ribing  an  offense,  and  the  circumstances  necessary  to  show  that 


I  rnitcdStatc.r.Mill.s7  I'el.  HO;  Wl.arl. 
I  r  I,.,  BCC.  3U0  and  note. 


a  vol.  l,i).2»l. 
3  7  I'ot. 


12(J 


l'l!.\ll>    AM)    KALSK    I'liKTKX.SKS. 


an  (iffc'iisc  lia>-  hecri  c'oniinittvd.  ;Mr.  Cliitty  iiuikos  tlu'  same  distinction 
In  ]i\>  work  oil  ("liiniiuil  Law.'  lu'  says:  "It  is,  in  ^'cntrnl.  ncoes'-iLiy 
only  t«>  set  forlii  on  tin-  ii't-onl  all  tlic  (•irciiinstaiHTs  wiiirh  make  np  tin- 
statiitiihlc  (IcCmition  of  tlio  offfnsi',  hut  also  to  i)iirsiio  tho  inrcisc  ui^l 
tfjchnical  lanjiuajjc  in  whifii  tiioy  !UT  oxiufssod."  "Tlit'  rcrtainty  i  >• 
sfiitial  to  tin-  c'iiarge  coii^ists  of  two  parts,  the  niattiT  to  !>o  i'liai<;(Ml, 
and  tilt'  niaiiinT  of  cliar^in;.'  it."-  Tlio  terlniical  nicotics,  calli'd  ty 
Lord  Hail!  nnsoeinly  nioi'tii's,  wliicii  wore  allowed  to  prevail  in  llir 
early  Eni^lish  easfs,  were  n\irretted  \>y  many  eminent  and  Karm  .i 
jnd.^es  in  Knjiland —  Lord  Ilale,  I.,ord  Kenyon,  Lord  EUenliorDM^Ii  ami 
Lord  JMansticlil  ixiiig  anion;;  the  numlier;  hut  these  rejirets  related  i  . 
nieie  formal  ohji'ctioiis  hased  upon  the  manner  of  charging  the  offeiiio 
ill  til*'  use  of  wor(l>,  or  evi'ii  in  the  oniissinn  of  a  letter.-' 

Hut  none  of  the  judures  have  gone  so  far  as  to  admit  tliat  it  would  !h' 
safe  in  practice  to  relax  the  rule  which  r»'(iuires  clearness  and  certainty 
as  to  the  matter  charged.  Tiiis  einhraees  '•  a  eerlain  description  of  the 
crime  of  which  the  defendant  is  accused,  and  a  statement  of  the  fads 
i)y  which  it  is  constituted,  that  the  accused  may  know  what  crime  he  is 
called  upon  to  answer;  that  the  jury  may  he  arranted  in  tindiiig  a  ver- 
dict ;  and  that  the  court  may  see  such  a  de..  ,ite  offense  upon  the  rec- 
ord;  that  the  judgment  and  punishment  which  the  law  prescribes  may 
he  applit'il ;  that  the  defendant  may  plead  the  conviction  or  acqnittai, 
should  he  he  again  called  to  answer  a  charge  for  the  same  offense; 
and,  I  may  add,  that  it  may  he  impossilile  to  convict  an  innocent  per- 
son hy  liispensiug  with  proof  of  the  facts  and  circumstances  which  con- 
stitute the  crime."  ^  "Therefore  an  indictment  charging  the  defendant 
with  obtaining  money  hy  false  pretenses,  without  slating  what  were  the 
particular  pretenses,  is  insullicient."  '•  For  the  defendant  must  be  ad- 
vised, not  only  of  what  he  has  to  answer,  but  the  court  must  be  advised 
what  the  pretenses  are ;  for  it  is  not  every  false  pretense  which  will 
bring  the  case  within  the  meaning  of  the  law." 

But  it  is  urged  on  the  part  of  the  prosecution,  that  in  thia  country 
the  courts  have  modified  this  rule,  and  dispensed  with  the  degree  of 
certainly,  formerly  required  in  setting  out  an  offense  in  an  indictment 
and  that  it  is  now  necessary  only  to  charge  the  offense  in  the  words  of 
the  act  creating  it;  that  in  this  case  the  facts  and  circumstances  could 
not  be  set  out,  because  unknown  to  the  attorney  of  the  United  States ; 
and  that  tliis  case  is  governed  by  rules  and  principles  entirely  different 
from  a  case  arising  under  the  law  for  obtaining  goods  by  false  pre- 


1  vol.  1,  p,  iH.1. 

J  I  Chit.Cr.  I..  IfiO,  170. 

.•"Chit.  Cr.   L.l-Oel$eq.;   2  Hale'B   1'.  (  . 


m. 


'  1  Chit.  Cr.  L.  178. 
'  1  (hit.  Cr.  L.  171. 

<■  Hex  V.  Uoodhail,  Kuie.  A  R;.  461 ;  Whart. 
Cr.  l-.,scc«.  2086,2087. 


t^m 


UNITED   STATKS    I'.  liKTTIUM. 


127 


iimo  distinction 
[it'ral,  ncoes'.jiiv 
irh  lUiikc  lip  till- 
tln'  jirocise  uii'l 
"lie  rcrtaiiity  i  >• 

to  lie  c'luiifjcil. 
:etifs,  ciilh'il  ty 

pri'Viiil  in  llu 
lit  and  liaiDi.i 
li'nlioroiitrli  ami 
ijircts  related  lu 

ging  the  offense 
i 

that  it  would  Ic 
<s  and  certainly 
'scriptidU  of  tlic 
lent  of  tlie  fads 
tvliat  crime  lie  is 
in  finding  a  ver- 
se upon  the  rei  - 
prescribes  may 
on  or  ac(piittai, 
J  same  offense ; 
\n  innocent  i)er- 
inces  which  coii- 
igthe  defendant 
ig  what  were  the 
ant  must  be  ad- 
raust  be  advised 
tense  which  will 

t  in  this  country 
th  the  degree  of 
in  an  indictment 
in  the  words  of 
unistances  could 
e  United  States ; 
ntirely  different 
Is  by  false  pre- 


,,n.es-  that  the  false  representation,  or  .leviee,  or  collusion,  with  an 
o.ruvr'of  the  reveiine,  or  the  exhibition  of  any  false  sample,  is  not  a 
,„,U,.rial  part  or  element  of  the  oflVnse,  an.l  therefore  peed  not  be  set 
fn'nh  in  describing  it,  and  that  th<,  words  ••  or  otherwise  "  employe,    in 
.he  statute,  so  far  enlarire  the  delinition  of  the  offense,  as  to  make  what 
,,n.eedes  them  entirely  immaterial,  and  do   in  effect  obliterate  it  alt.- 
Lher,  and  bring  within  the  meaning  .  f  the  act  any  entry  made  by  the 
,,..vment  of  less  tlian  the  amount  of  .bity  h'gally  due  thereon,  though 
'iuh  entry  was  made  through  ignorance  or  mistake,  and  with  no  inten- 
,i„„  to  defraud  the  revenue.     To  sustain  tins  view,  the  attorney  of  iho 
rn=te.l   States  adduces  .a  decision  of  the   district  court  of  the  bnitcd 
Sfiles    iur  the  Kastern  District  of  Michigan,  in  a  case  arising  under  the 
sail  ■  act  of  Congress,  and  the  same  section  of  the  act  as  the  case  here 

under  consideration.'  ,        ,.  -  « 

Before  referring  to  this  decision,  it  may  be  well  to  dispose  of  some  of 
the  positions   asserted  in  the  argument  as  just  stPt  •>■     It  is  clear  that 
,lH.  Supreme  Cru.rt,  in  the  case  of   United  Statrs  v.  MilL^,  above  cited, 
,,ul'  wliich  is  relied  upon  to  sustain  the  position  that  certainty  and  par- 
;,.nluritv  are  no  long-r  necessary  in  charging  the  matter  of  the  olfensc, 
aoes  not  sustain  that  poM.iou,  but  quite  the  contrary,  as  has  been  shown 
above;  that  it  changed  in  no  res,)ect  the  rule  laid  down  by  thitty,  as 
tiu.  exponent  of  the  most  learne.l,  wise,  and  just  tribunals  of  hngland, 
,„akin-  a  distinction  between  formal  and   technical  niceties  xn  words, 
,,„1  the  statement  of  substantial  matters  -  and  that  is  certainly  sub- 
stantial matter  which  is  de^-.rii.tive  of  the  offense,  ami  which  nu.st  be 
,,n,vcd  as  laid -and  nothing  can  be  proved  to  sustain  the  indictment 
wliich  is  not  charged  therein. 

The  reason  given  for  not  having  set  out  the  circumstances  of  the 
offense,  that  it  was  impossible,  because  they  could  not  be  known,  .9  un- 
tenable, because  the  grand  jury  could  find  no  bill  without  proof  of  such 
facts,  and  they  must  be  within  the  knowledge  of  the  prosecuting  officer 
before  he  can  conclude  that  such  offense  has  been  committcl,  and  be- 
fore he  will  cmsent  to  lay  a  bill  before  the  grand  jury,  unless  the  posi- 
tion  be  true  that  the  words   "or  otherwise,"  in  the  statute,  must  bo 
construed  to  create  an  offense  under  the  act  in  which  there  is  neither 
intent  or  ingredient  of  fraud.     If  such  be  the  correct  construction  of 
those  words,  then  the  indictment  need  not  charge  that  the  entry  was 
effected  by  false  sample,  false  representation  or  device,  or  by  collusion 
but  simply  that  the  entry  was  effected  at  less  than  the  true  weight  or 
measure  thereof,  for  that  would  be  otherwise  than  by  false  represc.nta- 
tiou  or  device.     But  the  rule  that  effect  must  be  given  to  all  the  words 


iiF.AR;.  461;  Whart. 


1  13  Int.  BcT.  Uec.  195,  IW.. 


tm 


128 


FKAl'D    AND    FALSK    I'UETENSES. 


of  an  act,  and  that  noiio  of  tlic  |proviH!oiis  of  an  act  must  fail,  unless  so 
ro|)ui;nant  that  tlioy  can  not  l>c  reconciled,  nuif<t  not   be  ovcrlonkftl 
('oufircss   surely  meant   soniethin<?  hy  the  words,  "  by  the  exhil)itiiin 
of   any    false    sainjile.    or    by   means    of  any    false  representation    or 
device,  or  by  collusion   witii   any    olHcer   of   tlie    revenue:"   and    also 
meant  soniethiiit;  by  tlie  words   "  or  otlu'rwise."     Con<:ress  inteudeil 
to  make  any  fraudulent  means,  whether  by  sample,  representation,  de- 
vice, collusion  or  otiierwise,  an  injrre<1ient  of  the    offense:  and  if  tlic 
fraudulent  entry  were  effected  by  any  other  means  than  by  false  sample, 
false  representation   or  device,  or  collusion  with  an  olUcer  of   the  rev- 
enue, such  fraudulent  means  would  be  included  in  the  words  "  orother- 
wise  "  in  the  act.     There  is  no  reasonable  construction  by  which  all  the 
provisions  of  the  act  can  stand  toj,'ether.     The  words  "or  otherwise" 
must  be  interpreted  to  mean  or  by  any  other  fraudulent  means  whatso- 
ever, or  they  mean  nothing  and  are  mere  surplusage.     The  construction 
which  fiives   them  tffcct,  and  does  not    destroy  the  effect  i)f  the  other 
provisions  of    this  section    of  the   act,  is  clearly  correct.     The  means 
used  in    effcctiiiiz  the  entry  is  made  by  tin-  act  the  very  gist  of  the  of- 
fense, and  without  which  no  offense  can  be  committed,  and   if  so.  the 
means  by  wiiich  it  was  i-ffected  must  be  set  out  and  clearly  stated  in 
the  indictment.     Such  facts  and  circumstances  as  will  show  that  a  false 
sample  was  exhibited,  in  what  false  and  to  whom  exhibited,  what  false 
representati(nis  were  made,  and  to  wliuni,  what  f.alse  device  was  used 
and  how,  with  what  otlicer  of  the  revenue  the  collusion  was  had,  or  how. 
or  by  what  other  fraudident  means,  if  any,  the  entry  was  effected.     It 
is  admitted    by  the  learned  judge,  in  the  case  of  United  Stales  v.  Bitl- 
/((»•(/,'  tiiat  the  means    adopted  to  commit  the  offense  would  inevitably 
cuiislitute  one  of  its  elements,  but  for  the  concluding  clause  "  or  other- 
wise :"  that  "  these  words  render  that  unlimited  and  general,  which,  by 
the  preceding  clauses,  witiiout    these  words,    wotdd    be    limited  and 
specilic,"  and  th.at  the  clause  does  not.  like  what  precedes  it,  relate  sim- 
ply to  the  means  by  which  the  offense  is  committed,  but  also  to  the 
manner  in  which  the  entry  is  ni.ado,  and  that,  therefore,  "  the  facts  an- 
swering to  the  preliminary  clauses  of   the  section  may  or  may  not  be 
alleged  in  the  indit-tment  at  the  option  of  the  pleader;"  and  as  a  conse- 
ipience,  if  not  alleged,  they   need  none  of  them  to  be  proved  in  order 
to  convict  the  defendant.     With  this  view  I  can  not  agree,  as  it  would 
seem  entirely  to  change  the  rule   a!)ove  stated  for  the  construction  of 
statutes,  and  introiluce  into  tlie  criminal  practice  a  laxity  and  uncer- 
tainty always  carefully  avoided  by  the  purest  and  wisest  tribunals  in 
the  administration  of  criminal  justice. 


I  $uj>ra. 


UNITED    STATES    V.  HEXNINO. 


120 


fail,  unless  so 
e  ()vcrlookt'il 
he  oxhibitiun 
I'sentution  oi- 
V."  and  also 
cress  inti'udcd 
'sentation.  dc- 
se  :  and  if  tlif 
•  false  samiiii'. 
er  of  the  rev- 
rds  "  orotiuT- 
\-  whieh  all  the 
iir  oUienvise  " 
neans  whatso- 
le  construetiun 
ct  i)f  the  oilier 
The  means 
gist  (if  the  of- 
and  if  so.  the 
■arly  stated  in 
)\\  that  a  false 

ed,  what  false 
viec  was  used 
us  had,  or  how. 
s  effected.     It 

Stales  V.  Bitl- 
)uld  iuevitaMy 
use  "  orotber- 
eral,  which,  by 
le  limited  and 
1  it,  relate  sim- 
)iit  also  to  the 
' '  the  facts  an- 

or  may  not  be 
iml  as  a  conse- 
rovcd  in  order 

ee.  as  it  would 
•onstruction  of 
ity  and  uncer- 
ist  tribunals  in 


It  is  evident,  by  reference  to  and  comparison  of  some  of  the  decis- 
ions of  the  ablest  jud<:es  both  in   England   and  this  country,  that  the 
rule  as  to  certainty  of  the  matter  charged  has  not  been  changed  or  mod- 
ili.d.i     All  the  counts  in  the  indictment  which  profess  to  charge  an 
offense  to   have  been  committed  under  the  section  and  act  abova  re- 
ferred to  are  defective  in  not  having  set  out  the  circumstances  required, 
.^s  I  have  shown   above.     And  this  is  in  accordance  with  the  ruling  of 
Ihi.  court  in  the  the  case  of    United  States  v.  Conant,  and  has  been  the 
uniform  ruling  in  all  similar  cases.     Upon  a  thorough  re-examination  of 
,1,0  authorities,  I  see   no  reason  for  changing  or  reversing  those  decis- 
ions  or  for  adopting  a  different  rule.     Other  defects  have  been  pomted 
out  in  this  indictment,  but  I  do  not  deem  it  necessary  to  examine  it  fur- 
tlier  as  the  question  discussed  disposes  of  the  case. 

Tlie  indictment  must  be  quashed. 


ATTEMPT  TO  UEFRAUl)  NOT  INDICTABLE  WHEN. 

United  States  v.  Henning. 

[4  Cranch,  C.  C.  608.] 
In  tho  United  States  Circuit  Court,  Diitrict  of  Columbia,  lS3o. 
An  Attempt  to  commit  a  statutory  fraud  is  not  inUictable.s 

The  court  (Ckanch,  C.  J.,  contra),  arrested  the  judgment. 
.MoitsELL,  J.,  was  of  opinion  that  an  attempt  to  commit  an  offense, 
created  by  statute,  which  was  not  an  offense  at  common  law,  is  not  m- 

(lielable. 

ruuHSTON,  J.  The  following  remarks  are  rather  an  answer  to  the 
pc.int  made  and  attempted  to  be  sustained  by  the  attorney  for  the 
Inited  States,  than  an  opinion  on  the  indictment  itself.  I  came  into 
court  after  the  indictment  was  read,  and  did  not  hear  it;  but  the  two 
positions  stated  at  the  head  of  the  following  opinion,  were  taken  by  Mr. 
K.v  and  as  they  involved  considerations  of  great  importance,  I  wrote 
(with  little  time  for  deliberation,  and  without  the  means  of  consulting 
hooks),  the  suggestions  which  are  stated  below. 

The  United  States  v.  Haney  Hedley  (otherwise  Washington  Hen- 
ning). Indictment  at  common  law  for  attempting  or  offering  to  sell  a 
free  colored  boy  as  a  slave. 


1  Ucx  V.  Holland,  5  T.  R.  «23;  Com.  v. 
M.  Afce,  8  Dana  (Ky.),  29;  Peoplo  ^-  Taylor. 
>  nemo,  91 ;  Biggs  r.  People  8  Barb.  647. 

3  l)Ki-i-.x<'i;s.  'J 


2  See  antt,  Vol.  III., pp.  (140-748. 


i;',(> 


rUAl  1>    AM'    I  AI-.^'K    I'UKTKNSK- 


The  attornt-y  for  the  Uiiiti'<l  StuU's  fndcavi.r.Ml  to  support  tliis  indiir. 
incut,  on  ii  inoUoii  to  arrost  tin-  judgmeiit  by  tlio  tniver.ser's  (.'ounsol,  on 
two  f^romids. 

1.  Tliat  »'Vfry  atti'inpt  o-  offt-r  to  commit  any  orimo  or  iniadcnu-iuior 
at  fommo:i  law,  or  Ity  Matiiti',  is  an  indictalilc  offi-nso. 

2.  Tiiut  tliu  act  itself  was,  jur  ki',  an  indit-latile  offensf,  because  il 
ainoiiulod  to  a  eonimon-law  elieat  or  fraud. 

As  to  tlie  liist  position:   Its  universality,  if  carried  nut,  would  lead 
to  <rreat  absurdities,  such  as  neither  the  law  nor  common  sense  can  tol- 
eraU',  and,  therefore.  1  can  not  a-ree  to   it;  but  am  of  opinion  that 
there' is  a  rati.mal  limit  to  U,  l)eyon.l  w'ich  we  ought  not  to  jio  ;  and  this 
limit  is  well  delined  liy  certain  rules  aiid  principles,  which,  if  attended 
to,  will  direct  us  into  the  palli  to  be  pursued  ;  this  limit  embraces  onh 
lhi)se  attempts,  or  oilers,  to  violate  laws  whieU,  if  the  attempt  be  carried 
into  effect,  would  invade  the  very  safejruards  of  social  order,  or  lead  to 
the  utter  subversion  or  corruption  of  our  political  institutions;  amoui; 
the  most  considerable  of  those  violations,  perhaps,  we  may  class  mere 
breaches  of  the  peace.     I  mean  actmil  breaches  of  tlie  peace.     Such  is 
the  tenderness  of  the  law,  from  the  earliest  legal  records,  and  its  sensi- 
bility to  any  thing  like  breaches  of  tlie  peace,  that  it  has  been  cherished 
with  uncommon  solieiludi',  as  far  back  as  the  history  of  our  institutions 
crocs;  so  that  it  is  kept  alive,  and  is  universally  inserted,  or  ingrafted. 
Tn  everv  indiciineiil,  even  where  it  would  reipiire  great  ingenuity  to  di>- 
eover  where  the  force  and  arms  coul.l  be  found  in  the  setting  out  of  the 
offense.     Therefore,  if  this  peace,  this  great  and  long-nourished  i)an- 
oply  of  our  social  happiness,  be  not  only  assailed,  but  attempted  to  be. 
by  any  overt  acts,  it  may  be,  prol)ably,  an  indictable  offense.     So  at- 
tempts to  bribe  a  judge,  or  a  iu(inber  of  Congress,  or  an  executive 
ollicer,  to  betray  his  duty  and  trust,  mi-ht  lead,  if  carried  into  effect,  to 
the  utter  corruption  of  the  fountain  of  justice,  of  legislation,  and  of  the 
due  administration  of  the  laws;  and,  ther.'fore,  the  danger  attending 
such  an  act,  its  ruinous  cousequences  to  society,  are  of  such  vital  im- 
portance, that  an  attempt,  even,  to  perpetrate  such  a  crime,  may  rea- 
sonably afford  just  ground  for  an  indictment;  so  of  murder,  robbery, 
arson,  and,  in  short,  every  offense  (to  say  nothing  o(  their  enormity), 
where  the   perpetration  nuist  necessarily  be  attended  with  a  breach  of 
the    pence.     I  will  not    say  that    an  attempt  to  commit  some  other 
offenses  denominated  viala  in  x,',  might  not  be  indictable;  but  I  will 
take  the  converse  of  the  rule,  ami  br)ldly  say,  that  there  are  infinite  acts 
of  moral  fraud,  of  vmla  in  se,  whieh  are  not  indictable,  Init  reniediable 
only  by  civil  process.     For  my  present  argument,  and  as  at  present  ad- 
vised, I  will  take  uiy  stan.l  on  this  tangilile,  visible,  well  defined  ground 
that  an  atterai)t  to  commit  any  crime  or  misdemeanor,  which,  if  car- 


^Mi 


UNITKl)    STATICS    V.   IIKXNINO. 


l;'.l 


port  this  indii't. 
or" Si  (.•(iiiiisol,  mi 

or  misdi'iiU'uiior 

mm:,  because  il 

nut,  would  lead 
n  sense  euii  lol- 
of  opinion  that 
L  to  jio  ;  and  tills 
lieh,  if  attended 
it  embraces  only 
tempt  be  carrieil 
order,  or  lead  to 
itutions ;  amoni; 
may  class  meie 
peace.     Such  is 
Is,  and  its  sensi- 
,s  l)een  cherished 
f  our  institutions 
ed,  or  ingrafted, 
injicnuity  to  di>- 
ietting  out  of  tliu 
I-nourished  pan- 
attempted  to  be. 
offense.     So  at- 
or  an  executive 
ied  into  effect,  to 
lation,  and  of  the 
langer  attending 
of  such  vital  im- 
,  crime,  may  rea- 
murder,  robbery, 
their  enormity), 
with  a  breach  of 
mmit  some  other 
table;  but  I  will 
•e  are  infinite  acts 
i,  Init  remediable 
as  at  present  a<i- 
'U  defined  ground 
or,  which,  if  ear- 


ned into  effect,  wonhl  involve  a  breach  of  tlu'  i)eace.  may  be  indictable. 
I  MK.an  an  actual,  not  a  mere  technical  breach  of  the  p.'ace ;  therefore 
tlu'  actual  selliiiL;  an  unsouu.l  horse,  or  mer-'handise,  umler  faNu  ivpie- 
Miitations,   or  aiiv  other  private  fraud,   are    not    imlictable   offeiisrs ; 
why'  they  are  unattended  with  a  breach  of  the  peace,  are   to  no  public 
d.lriment,  and,  therefore,  to   lu^   redres>e.l  ririliler  only.     Ib.t   these 
are  vuda  in  .se,  and  m.u'ally  criminal.     Hut  it  oe<urs  to  me  that  there 
:.r..  cases  where  the  rule  that  1  have  laid  down  would  lind  an  exception, 
n,mely,  ••that  au  attempt  to  commit  a  crime,  which  if  carried   into 
effect  "must  necessarily  involve  a  breach  of  tlie  peace,  might  be  iiidict- 
!il,lc."     To  constitute  a  breach  of  the  peace,  there   can  be  only  two 
things  necessarv  ;  cither  an  actual  battery,  or  an  assault.     >iow  we  sec 
rvery  day  indit^ments  for  botii ;   but  1  have  never  read  of,  heard  of,  or 
known  an  indictment  for  an  attempt  to  commit  an  assault.     Sujipose  a 
mail  were  to  threaten  another  that  he  w(Hild  beat  him,  and  make  demon- 
strations to  that  effect,  and  is  held  ba.k  by  others,  so  as  to  prevent  an 
assault  even,  would  this  be   indictable?     If  so  out  of  the  million  of 
cases  of  assault  and  battery  in  the  l)ooks,  and  in  this  court,  we  siiould 
have  heard  of,  reail  of,  or  actually  witnessed  such  a  pios.-culion.     These 
considerations  are  apiilicatde  so  far  to  com.iion-Iaw  offenseti  only.      Next, 
as  to  an  attempt,  or  offer,  to  violate  a  penal  statute. 

I  endeavored  to  show  to  wliat  absurdities  this  position  would  lead, 
if  carried  to  ti<c  fullest  extent.  Instanced  the  case  of  attempting 
to  sell  a  gill  of  whisky  without  license ;  who  can  imagine  such  an 
atteiiii)t  only,  not  carried  into  effect,  would  be  indictable?  .So  in  a. 
iiuillitude  of  parallel  cases.  There  are  laws  to  prevent  the  hunting  of 
(leer,  or  fishing  at  certain  seasons.  Suppose  a  man  proposes  to  another, 
to  go  to  hunt  or  fish  in  such  seasons,  and  actually  provides  arms  or  nets, 
;uid  they  go  part  of  the  way  and  turn  back,  would  this  be  indictable? 
My  reason  and  common  sense  forliid  an  allirmative  rci)ly. 

The  first  position,  then,  of  thi"  attorney  of  the  I'uited  States,  does 
uol  amount  to  a  universal  rule  ;  it  is  too  broad.  Show  me  an  universal 
rule  of  law,  holding  in  all  possible  cases,  and  you  will  show  nic  a  i)lie- 
nonieiion  that  my  Lord  Coke  never  dreamed  of.  1  can  not  see  any  dis- 
tinction between  an  attemi)t  to  violate  a  penal  statute,  or  to  commit  a 
.  onimon  law  offense  ;  if  there  be  any,  my  reason  is  too  obtuse  to  dis- 
cover it.  I  can  not  discern  what  gives  this  dignity  to  a  statutory  pen- 
ultv,  or  prohibition,  which  can  not  be  e(iually  claimed  by  the  goo<l  old 
common  law.  In  fact,  there  is  no  diffi'ience ;  and  the  line  of  demar- 
cation which  I  have  drawn  as  to  common-law  offenses,  ought  to  be  the 
lixed  boundary  between  punishable  and  dispunishable  attempts  to  vio- 
late penal  statutes.  Without  repeating  the  class  of  cases  which  are 
indictable,  and  those  which  are  not,  I  refer  to  the  numerous  specifica- 


132 


ri!\ll)    AM)    lAL^K    riJKTKNSKS. 


tions  (if  those  ("isos  wliicli  I  linvc  set  out  in  inj'  consideration  of  tliein 
miller  tlie  c'liniiiinM  i:nv.  Tlie  iinlictinoiit  hefore  uh,  whs  for  ii  Iruuil  in 
uttfiniiliii},'  to  St  11  !i  fri'e  iieirio  ii<  a  slave,  eontrarv  to  ttio  jirovisions  cf 
the  jieiiitentiary  law.  Tlie  acirniiieiit  lir-t  started  on  tlie  liroad  groiuid. 
liiat  an  attempt  to  violate  any  |i«'iial  statute  was  an  iiulietalile  offense; 
this.  I  tiiink,  I  have  answered  siillicienli.v  :  siieh  a  broad  ussninptioii 
can  not  lie  .sustained. 

Seeondlv,  it  was  urj:ed  that  the  attempt  to  sell  a  free  man  for  a 
slave,  was  a  fraud  at  ediiimoii  law.  and  tlierefnre  indietalile  ;  but  the 
ninltitndo  of  eases,  nevir  yot  eoiitradicted,  that  a  nier."  ovorrcaoliin;;  or 
niisrepreseiitation,  in  a  private  sale,  is  not  an  offense  ut  common  law, 
Heeiiis  to  me  to  furnish  a  dear  refutation  of  this  ari,ninient.  It  was  tlu'a 
contended  in  the  case  in  (piestinn.  that  faho  tokens  were  used,  or  false 
protonses.  I  heard  of  none,  of  notliiii<j;  more  than  false  representations, 
or  assertions  that  the  ne>rio  was  free ;  it  was  precisely  like  all  those 
offenses,  which,  thoui,di  morally  wroni,',  wert;  left  entirely,  for  redress, 
to  civil  tribunals,  ami  were  not  indictable ;  such  as  false  warranty  of  a 
horse  which  |)roves  uiisoiiml ;  sellinu:  wine  of  iufi'rior  quality,  for  wine 
of  better  (piality;  assertiii<;  a  riLzlit  to  sidl  a  horse,  or  other  com- 
modity, which  turned  out  to  be  the  property  <if  another,  et  omne  id 
genns;  but  it  was  also  urged,  with  much  earnestness,  that  the  case  in 
question  was  one  of  great  moral  turpitude ;  this  goes  only  to  the  de- 
gree of  moral  guilt,  Imt  ilics  not  vary  the  case  from  others  just  enumer- 
ated, and  a'luded  to,  as  civil  injuries  only,  but  can  not  be  distinguished 
from  them,  as  to  its  legal  characteristics.  Hut  the  transaction  was  said 
to  be  gross  and  tlagranl  turpitude  and  injustice,  aiid  deserved  punish- 
ment;  so  it  does,  but  it  can  not  be  punished  here.  Our  sympathies 
were  appealed  to  in  behalf  of  the  poor  negro  ;  but  we  can  have  none  to 
bestow  ;  and  if  we  had.  perhaps  a  few  drops  might  have  fallen  to  the 
poor  ignorant  traverser  who  i)robably  did  not  know  his  danger,  and  who, 
if  the  oiiiuion  of  tiie  court  had  been  against  him,  would  have  been 
doomed  to  a  lot  worse  than  slavery.  Therefore  it  behooved  us  to  re- 
flect well  before  we  decided. 

It  seems  to  me  from  this,  and  some  other  cases  which  I  have  re- 
marked, during  this  court,  that  the  sword  of  criminal  justice  is  longer 
than  it  used  to  be  ;  it  sweeps  over  a  larger  space.  Offenders  have  either 
multiplied  astonishingly,  or  the  scale  of  offenses  is  unusually  extended  ; 
our  grand  juries  are  wielding  it  with  a  liberal  hand.  I  did  not  hear 
the  charge  of  the  chief  jud^'c  at  the  opening  of  the  court,  and  there- 
fore can  not  say  whether  they  are  acting  within  the  scope  of  his  instruc- 
tions or  not ;  but  I  must  say,  from  the  number  of  presentments,  and  the 
character  of  some  of  them,  that  there  is  scarcely  a  hole  or  a  corner  of 
the  countv,  where  offenders  might  skulk,  that  their  inquisitorial  eyes 


UNITKI)   8TATr.S   r.  IIKNMNO. 


i:;;^ 


ItTntion  of  tlioni 
s  fur  II  fruud  in 
,\iv.  jirovisions  if 
e  broad  gromul, 
liftaltli-  offense ; 
oud   ussuinption 

fri'o  man  for  a 
ietalih' ;  Imt  tlu' 
ovorrcacliiufi;  or 
lit  coininoii  law, 
lit.  It  was  tlun 
TO  used,  or  false 
representations, 
ly  like  all  tiiosi' 
ely,  for  redress, 
^e  warranty  of  a 
liialitv,  for  wine 
,  or  otlicr  coni- 
thcr,  et  omne  id 
tliat  the  case  in 

only  to  the  de- 
icrs  just  enumer- 
be  distinguished 
isaclion  was  said 
loserved  punish- 

Oiir  sympathies 
can  have  none  to 
live  fallen  to  the 
lander,  and  who, 
ivoidd  have  been 
;booved  us  to  re- 

rhich  I  have  re- 
justice  is  lonprer 
nders  have  cither 
sually  extended ; 
I  did  not  hear 
•ourt,  and  there- 
pe  of  his  instruc- 
ntmcnts,  and  the 
le  or  a  corner  of 
nquisitorial  eyes 


luve  not  inspected,  and  <lra-r!,n'<l  <>ut  the  offeu.leis  to  lij^ht.  This  is  :.s 
it  slioull  l>»',  i)roviiled  due  n-gard  be  liail,  not  to  involve  the  innocent 
(innocent,  1  nieiin.  in  the  eyes  of  the  law),  with  the  guilty,  which  I  c(  n- 
f,  ^s  it  is  nr)t  easy  for  gentlemen  not  skilled  in  the  law,  always  to  avoid, 
if  all,  or  any  large  proportion  of  presentments  and  indictments  m.'ide. 
and  which  probably  will  bo  made  during  this  court,  be  sustained,  tlicy 
display  a  woful  amount  and  increase  of  crime. 

Ibil  to  r»-lurn  to  my  subject.  1  am  willing  to  lay  down  this  rule,  and 
without  some  rule  we  are  afloat  in  an  ocean  of  uncertainty:  "That  all 
ill  tempts  to  commit  an  offense,  whi.'h,  if  carried  into  «'xecuti(m,  would 
iTo  to  corrupt  the  fountains  of  justi.'C,  of  h'gislatioii,  or  the  executive 
udministration  of  tlie  law;  or,  if  perpetrate.!,  wor:!d  involve  actual 
vinK'nce  or  breach  of  the  peace,  whether  statutory  or  connnon-law 
olieiises,  are  indictable,  otherwise  not." 

We  have  adjudged  that  to  incite  another  to  commit  an  assiUiU  and 
luittery,  is  indictable;  this  is  the  only  case  of  the  kind  that  I  am  aware 
if;  and  there  I  think  we  have  gcme  to  the  utmost  limit;  but  i  look 
iilM.n  the  inciting  another  to  commit  a  breacli  of  the  j  .  .e,  of  more 
:ijr<rravated  criminality  than  an  attempt  to  break  tlie  peace  of  one's  self, 
["hardly  know  lio\v  such  a  case  can  well  be  manifested;  a  man  u  glit, 
in  a  1  .  sion,  say  and  threaten,  that  he  would  beat  another,  but  is  held 
Inuk  by  friciuls  and  others  present;  or  he  might  approach  anollu  r  in  a 
Uireatening  manner,  and  that  other  might  ha\e  the  heels  of  him,  and 
vnn  away."  I  should  question  much  whether  cither  of  these  demonstra- 
tinns  of  "hostility  are  indictable.  We  have  not  gone  tho*,  far  yet,  and  I 
-hall  think  more  of  it  when  the  case  occurs. 

Finally,  the  penitentiary  law  has  provided  for  the  case  of  attempting 
\u  sell  a  free  man  for  a  slave,  and  declared  under  what  circumstances  it 
siiall  be  punishable  ;  here  we  have  all  that  is  wanted,  or  deemed  by  the 
^ove^eign  authority  to  be  wanted  ;  and  shall  we  legislate  too  on  tlie  same 
subject";  and  declare  that  an  act  or  acts,  not  comingup  to  the  statutory 
description  of  the  offense,  are  i.unishable?  I  can  not.  for  it  does  not 
f;dl  within  my  rule  as  I  have  before  laid  it  down ;  nor,  in  my  oi)iuion, 
vvitliin  the  sound  principles  of  law;  nay,  I  reserve  to  myself  the  privi- 
lege of  considering  even  this  rule  a  little  further,  and  when  a  case  oc 
curs  within  it,  shall  deem  myself  at  liberty  to  narrow  it,  if,  after  more 
retlection,  I  shall  think  it  right  to  do  so.  I  have  suggested  it  for  the 
present,  as  safe  to  steer  by,  so  far  as  it  touches  ♦be  case  before  us. 


Lit 


lIIAri)    .*NU    lAI.SIC    I'UKTENSKS. 


falsi;  rRi;Ti;NSKs- 


MATTKU    OK    OlMNIOX— L'NTIU'K    PUFFING   Ol 
QUALITY  OF  (iOODS. 

K.    r.   BUYAN. 


[Dears.  .<:  15.  '>>;:>.} 

In  tilt'  Eufilish  Court  for  Cron-n  dixes  Resorreil,  l>^-'>7. 

1.  It  is  not  a  False  Pretensti  to  nlitain  iiiiiiu;y  (i>i-  ii  thing  by  fiil.^^uly  puning  nnd  exagRei 

Iltlllg  Its  l|U.'llll\. 

■i.  Case  In  JudKraeni.  — Ii.  fitUcly  ii'i'resfntt'd  to  a  imwiibroker  lliat  oortnin  spoons  wen' 
(if  ilio  lic^l  iiuahiv  iiii'l  wfri'  o>iual  tn  Klkington's  A  hraml,  ami  tin'  |ia\viil)rc>ker  nilviiiioc  I 
money  on  tlioni  on  this  represt'ntation.    Held,  that  li.  was  not  trni'ty  of  a  fal.<e  preten-. 

Tlu'  fdllo'viiig  case  was  rosened  and  stated  for  tin;  consideration  ami 
ilei'i.-ioii  of  the  Court  of  Criminal  A|)i)i'al  liy  the  Hceorder  of  London. 

At  a  Session  t)f  (laoi  Delivery  liolden  for  tlie  jurisdietinn  of  tiie  Cen- 
tral Criminal  Court  on  tlie  lM  <h\\  of  February,  A.  1).  1«.')7,  Jolui 
Bryan  was  tried  before  me  for  olMainino;  money  iiy  false  jiretenses. 

There  were  several  false  pretenses  charged  in  the  different  counts  of 
the   indictment,  to  which,  as   he  was   not  found  fiuilty  of  them  by  i\w 
Jury,  it  is   not  necessary  to  ri'fer.     lint  the  following  pretenses  were 
among  others  charged:    That  certain  spoons  produced  liy  the  i)risoner 
were   of   the    Itest   quality,  that  they    were   ecjual  to    Klkington's  A. 
(meaning  spoons  and  forks  made  by  Messrs.  Elkington,  and  starapeil 
by  tliem  with  the   letter  A);  that  the  foundation  was  of  the  best  ma- 
terial, atid  that  they  had  as  much  silver  upon  them  as  Klkington's  A. 
The  prosecutors  were  pawnbrokers,  and  the  false  pretenses  were  made 
use  of  by  the  prisoner  for  the  purpose  of  i)rocuring  advances  of  money 
on  the  spoons  in  ipiestion,  offired  by  the  prisoner  by  way  of  jiledge, 
and  he  thereby  olttained  the   moneys  mentioned  in  the  indictment  by 
way  of  such   advances.     The   goods   were  of  inferior  quality   to  thai 
represented  by  the  prisoner,  and  the  prosecutors  said  that   had  they 
known  the  real  (lualiiy  tiny  would  not  have  advatx^ed  money  upon  tin' 
iToods  at  any  price.     They  moreover  ailmitted  that  it  was  the  declara- 
tion of  the  prisoner,  as  to  the  quality  of  the  goods,  and  nothing  else, 
which  induced  them  to  make  the  said  advances.     The  moneys  advanced 
exceeded  the  value  of  the  si>oons.     The  .jury  found  the  prisoner  guilty 
of  fraiululenlly  representing  that  the  goods  had  as  much  silver  on  tlu  ni 
as  Klkington's  A,  and  that  the  foundations  were  of  the  l)cst  material, 
knowing  that  to  be  untrue;  and  that  in  consequence  of  that  be  ob- 
tained the  moneys  mentioned  iii  the  indictment.     The  prisoner's  coun- 
sel daiuu'd  to  have  the  verdict  entered  as  a  verdict  of  not  guilty  which 
was   resisted    by  the    counsel    for   the  prosecution;    and  entertaining 
doubts  upon  the  question  I  directed  a  verdict  of  guilty  to  be  entered  ia 


F.S . 


NTUl'K    PUFFING   tH 


falsely  pulling  nnii  exaggci 

IT  lliat  cortnin  spoons  «ori' 
1(1  till'  pawnbroker  nilvaiioc  I 
ol  Kiiilty  of  a  fal.-e  prelen-. 

tilt;  foiisiilcratioii  ami 
HcrordiT  of  Loiulon. 
irisdiftioii  of  tlu-  Ccn- 
y,  A.  1).  1«.'>7,  Joliii 
liy  fiilsf  iircti'iisc's. 
llu'  (lifftToiit  counts  of 
jriiilty  of  tlicra  by  the 
lowing  pretenses  were 
liK'cd  liy  the  jJiisoiuT 
ml  to  Klkiiijrton's  A. 
kiiiiftoii,  ami  staiupcil 
n  was  of  the  best  uia- 
lem  as  KlUinjiloii's  A. 
i  pii'tcnses  were  iiiadf 
ng  advances  of  money 
mcr  by  way  of  idcdszc 
in  the  indictment  bv 
ifcrior  quality  to  thai 
IS  said  that  had  thcv 
iiH!cd  money  upon  tin' 
Kit  it  was  the  dcclara- 
)ods,  and  nothing  else. 
The  moneys  ndvanceii 
iiid  the  prisoner  guilty 
:is  nuK'li  silver  on  tin m 
•  of  the  best  material, 
luence  of  that  be  oli- 
Thc  prisomr's  couii- 
ict  of  not  guilty  wliicli 
ion;  and  entertainiui; 
guilty  to  be  entered  iu 


R.  V.  IIRYAN. 


135 


order  that  tl...  judLrment  of  the  court  for  the  consideration  of  (Town 
(•:,sesmi-ht  be 'taken  in  the  matter;  and  the  foregoing  is  the  case  on 
svhich  that  judgment  is  re.p.ested.  ^^^^^^^^  ^,^^^^^^ 

■n,i<  (••.se  was  argued,  on  "Jd  of  Mixy,  1.S57,  before  Cockhiun,  C.  J., 
,,,,,„„,„.  .1.,  Cu..w>.,:u,  .1..  W.u..:s,  J.,  and  HuAMwna.i     H. 

U.nlinr  (ii'J'n-d  ai-peared  for  the  Crown,  ami  B.  L  .  hobniso,,,  (/. 
///,('»•/.<  with  him),  I'or  tlie  prisoner.  _ 

'/;  ( '  nohi„.nn.  for  the  prisoner.  This  is  a  mere  rei>resentation  as  to 
,,,Uitv  If  a  man  frau.lulently  represents  a  thing  to  be  in  specie  what 
it  is  not,  it  is  a  false  pretense  :  but  if  the  misrei.resentation  is  merely 
,,f  the  riualitv  of  the  article,  it  is  not. 

■n,,  ,.ourt"here  intimated  that  the  case  had  better  be  argued  before 
,l,e  fifteen  jud-es  at  the  same  time  as  Rrniua  v.  .Sherwood.^      _ 

■n,e  ea.se  was  acconlinglv  argued  rm  the  llth  of  May,  is.u,  before 
I.,rd  CAMeuKLL,  C.  J.,  C'.M:Km  UN,  C.  J,  I'ou.o.K,  C.  H.,  (\,m....ui.ok.,  J., 
l.;,:,.,.,  J.,  (woMPToN,  .1.,  Cnowi.K.i,  J.,  Wn.i.Ks.  J..  Huvmwki.l,  B., 
W\T>oN.  H.,  and  CiiANM.i.i..  B. 
The  case  was  argued  immediately  after  lienina  v.  Skencood.- 
(}.  Fr<iwh  (with  him  Metralfe)  appeared  for  the  Crown;  and  B.  t. 
Ilnhhixon  (with  him  F.  11.  L^-win),  for  the  prisoner. 

n  V.  nohinson,  for  the  prisoner.  This  is  simply  a  misrepresentation 
„f  nualit  V  and  is  not  witl.in  the  statute.  A  representation  that  a  thing 
is  in  specie,  that  which  it  is  not,  has  been  held  to  be  within  the  statute, 
hut  there  is  no  authority  to  show  that  a  mere  misreiiresentation  of  the 
(lualily  of  an  article  is.  . ,  4u„t 

Lord  CvMiMUM.,  C.  J.  With  regard  to  (luality  it  has  been  said  that 
it  is  lawful  to  lie.  The  seller  exaggerat.-s,  and  tbc  buyer  depreciates 
the  .luality.     The  only  si-ecilic  fact  here  is  that  the  spoons  were  equal 

to  Klkington's  A.  ^ 

1^  C  liobinscm.  All  the  representations  are  mere  i-nthng  or  vaunt- 
in^  of  goods.  I  can  not  contend  that  the  prisoner  did  not  tell  a  willful 
li^-  no  doubt  he  did  ;  but  the  articU-shc  propose.!  to  ple.lgewere  plated 
spoons  ;  and  they  Nvere  plated  spoons  althouoh  of  an  inferior  .,uality  to 
that  which  he  represented  them  to  be.  In  /.'<;//.a  v.  Itoehnrk,^  the  chain 
was  represented  to  be  silver,  when  it  was  not  silver  but  base  metal,  in 
y.V,/.«  V.  vlWo/r,'  the  cheese  was  not  of  the  kiii.l  it  was  represente.  to 
he"  the  bulk  of  the  cheese  was  said,  to  be  the  same  as  the  taster,  when 
it  was  not.  To  make  this  case  anah.guMs  to  those,  the  representation 
must  have  been  that  the  spoons  were  actually  Klkington's  A.  and  not 
equal  to  Klkington's  A. 


1  Dears.  &  H.  C.  C.  2.-.I. 
•i  Dears.  4  II.  C.C.  Ml. 


'  Dears.  All.  <'.C.  24. 

*  1  Deu.  c.  an. 


13(5 


FRAUD    AM)    falsi:   PHKTKNsKS. 


Pollock,  C.  B.  Would  it  l)t'  indictable  to  say  that  a  cheese  came 
from  a  i.artiiular  dairy,  when  it  <lid  notV 

li  C  linhinson.  That  would  bo  a  much  stronger  case  than  this,  and 
would  resemble  lieqina  v.  Abbott;  but  if  this  conviction  is  good  a  man 
sellin<r  beer  a-  treble  X,  when  it  was  double  X.,  would  be  indictable, 
and  w"ho  is  to  decide  between  l)uyer  and  seller  in  such  eases? 

CoLEUiD(iK,  .1.  If  mere  imffing  by  the  seller  would  be  indictable, 
depreciation  by  the  buyer  would  be  equally  so.  "  It  is  nought,  it  is 
nought,  saith  the  buyer,  but  when  he  goeth  his  way  he  boast eth." 

B  C  liobinson.  If  the  representation  had  been  that  the  spoons 
were  in  fact  Elkington's,  this  case  would  have  resembled  liegina  v. 
Dund'W  where  a  8i)urious  blacking  was  sold  as  the  blacking  of 
Everett's  manufacture,  and  ne>,ina  v.  liali:^  in  which  articles  were 
represented  to  be  silver,  which  was  not  silver.  In  both  those  cases  the 
misrepesentation  was  as  to  the  species,  not  as  to  the  mere  quality  of  the 
article  If  such  representations  were  to  be  held  to  be  within  the  stat- 
nto  tr  vd(«  could  not  be  carried  on  with  safety.  The  jury  would  in  such 
case  be  made  the  judges  of  the   offense;  quality  being  inmost  cases 

a  matter  of  opinion  tmly. 

G.  Fmnris,  for  the  Crown.     This  is  in  fact  a  misrepresentation  of 
quantity  and  substantially  the  same  as  Ito^jhin  v.  Sheru-ood. 

Lord  CvMeBia-i.,  C*.  .1.     Of  the  quantity  of  the  silver? 

O  Franch.  Yes.  Elkiiigton's  A  is  an  article  of  ascertained  man- 
ufacture, and  by  representing  the  spoons  to  be  equal  to  Elkington's  A. 
the  prisoner  represented  that  they  w-.e  covered  with  the  same  quantity 
of  silver  as  Elkington's  spoons  would  bo  covered  with.  The  money 
was  therefore  obtained  bv  a  false  representation  that  there  was  a  greater 
wei.vht  of  silver  than  there  really  was,  and,  therefore,  there  was  a  false 
nrerense  of  an  existing  fact  within  the  statute.  Secondly,  if  the  repre- 
sentatiou  was  of  quality  merely  it  is  within  the  statute;  the  money 
was  obtained  by  the  represent.it ion,  an.l  the  jury  have  found  the  repre- 
sentation was  made  with  the  intent  to  defraud. 

B.  C.  Robinson,  in  reply.     The  articles  were  of  the  species  repre- 

scntcd.  • 

Po,.,.ocK,  C.  B.     Supposing  a  publican  represents  that  his  beer  is  not 

really  Guinness's beer,  but  equal  to  Guinness's? 

Lord  Cami-bkll,  C.  J.     The  goods  were  the  gocls  bargaineu  for,  but 

of  inferior  quality.  .      •      *„„ 

BuAMWKLi.,  B.     What  would  you  say  to  the  sale  of  a  paste  pin,  for 

a  diamond  pin?  ,    »  ;» 

B.  C.  Robinson.     There  the  species  would  not  be  the  same ;  but  it 


I  fl  Cox,  C   C.  MO. 


s  Car.  A  M.  M9. 


^t^m 


n.  V.  BRYAN. 


137 


t  ft  cheese   came 

30  than  this,  ami 

III  is  good  ft  mail 

lUl  be  inOictabli, 

cases? 

d  ]>e   indictable, 

t  is  nought,  it  i-^ 

I  boast cth." 

that  the  spoons 
nibled  liegina  v. 

the  blacking  of 
ch  articles  were 
h  those  cases  the 
lere  qualit j'  of  the 
le  within  the  stat- 
ury  would  in  sueh 
ing  in  most  cases 

sreprcsentation  of 

•IVOdd. 

rV 

ascertained  man- 
to  Elkington's  A. 
the  same  quantity 
vitli.  The  money 
liere  was  a  greater 
,  there  was  a  false 
ndly,  if  the  repre- 
;atule;  the  money 
,'e  found  the  repre- 

the  species  repre- 

that  his  beer  is  not 

bargained  for,  but 

of  a  paste  pin,  for 

?  the  same ;  but  it 


would  not   do  if  the  rejiresentation  was  that  the  diamond  was  "  of  the 
first  water,"  wlien  it  was  not. 

Lord  C.vMi'BEi.L,  C.  J.     I  am  of  opinion  that  this  conviction  can  not 
he  suiiported.     It  seeuH  to  me  to  proceed  upon  ft  mere  representation, 
duriiii,'  the  bariiaining  for  the  purchase  of  a  commodity,  of  the  quality 
of  that  commodity.     In  the  last  case  which  we  dispost'd  of,'  after  the 
luiiehase  had  been   completed,  there  was  a  distinct  averment    which 
w;'s  known  to  be  false  respecting  tlie  (piantity  of  the  goo.ls  delivered, 
and  in  respect  of  tiuit  misrepresentation  a  larger  sum  of  money  (the 
lunount  of  which  coul.l  lie  easily  calculated)  was  received  by  th.-  person 
^^\^n  soUl  them  than  he  was  entitled  to  ask   and,  therefore,  I  thought, 
:i.ii(l  I  think  now,  that  there  was  clearly  a  case  within  the  Act  of  Parlia- 
iiieiil ;  but  here,  if  you  look  at  what  is  stated  upon  the  face  of  the  case, 
it  resolves  itself  into  a  mere  reiiresentation  of  the  quality  of  the  arti- 
( Ic  ;  and  bearing  in  mind  that  the  article  w.is  of   the  species  that  it  was 
ivpresented  to  be  to  the  purciiaser,  because  they  wore  spoons  with  sil- 
ver upon  them,  though  not  of  the  same  quality  as   was  reiiresented, 
the  pawnbroker  received  these  spoons,  and  tiiey  were  valuable,  although 
the  quality  was  not  equal  to  what  had  been  reiiresented.     Now,  it  seems 
to  me  it  never  could  have  been  the  int»!ntion  of  the  Legislature  to  make 
it  an  indictable  offense  for  the  seller  to  exaggerate  the  quality  of  that 
whiili  he  was  selli    - .  any  more  than  it  would  be  an  in.lictable  offense 
for  the  imrchaser,  during  the  bargain,  to  depreciate  the  quality  of  tiie 
<:o.hIs,  and  to  say  that  they  were  not  ecpial  to  that  which  they  really 
were.     Such  an  extension  of  the  criminal  law  is  most  alarming,  for  not 
only  would  sellers  be   liable  to  be  indicted  for  exaggerating  the  good 
(lualities  of  the  goods,  but  purchasers  would  be  liable  to  be  indicted, 
if  they  depreciated  the  quality  of  the  goods,  and  induced  the  seller  by 
that  depreciation,  to  sell  the  goods  at  a  lower  price  than  would  have  been 
paid  for  them  had  it  not  been  for  that  rejiresentation.     As  yet  I  find  no 
case  in  which  a  mere  misrepresentation  at  the  time  of  sale  of  the  quality 
of  the  goods,  has  been  held  to  be  an  indictable  offense.     In  Rcjitid  v. 
Roebuck,^  the  article  delivcreil  was  not  of  the  sjiecies  bargaini'd  for  ;  there 
the  bargain  was  for  a  silver  chain,  and  the  chain  was  not  of  silver,  but 
was  of  some  base  metal,  and  was  of  no  value.     But  here   the  spoons 
wi  re  spoons  of  the  species  that  was  bargainee  for,  although  the  quality 
was  inferior.     It  seems  to  me,  therefore,  that  this  is  not  a  case  within 
the  act  of  Parliiunent,  and  that  the  conviction  can  not  be  supported. 

CocKBiuN,  C.  J.  I  am  of  the  same  opinion,  and  for  the  same  rea- 
sous  as  those  which  have  been  just  pronounced  by  my  Lord.  It  seems 
tc  me  to  make  all  the  difference  whether  the  man  who  is  selling  merely 


.M.  24'J. 


I  Ucg.  V.  Sherwood,  D.  A  B.  2S1. 


•  D.  A  B.  4. 


}^mam 


138 


KKAll*    AM)    KAI.SK    I'HKTKNSKS. 


rpprcscnts.  as  in  tliis  instance  it  appears  \\o  diil,  tiio  articles  to  he  better 
in  iioint  of  (piulity  tiian  tiiey  really  arc,  or  wliellier.  as  in  the  case  of 
Rcqinit  V.  Uni'hitrl:,  he  represents  them  to  bo  entirely  different  from 
what  they  really  are.  There  the  representation  was  that  the  thintr-* 
were  silver,  when  in  |)oii>t  of  fact  they  were  of  base  metal,  and  entirely 
different  from  wliat  they  were  repre-iented  to  be.  Here,  if  the  person 
had  represented  these  articles  as  being  of  Klkinjton's  mannfaeture. 
when  in  point  of  fact  they  were  not,  and  he  knew  it,  that,  wonld  be  an 
entirely  different  thin;j;-  bit  the  represe.italinn  here  made  was  only  a 
vavintinii  and  i'xa<i<:er:iting  of  the  vahie  of  the  article  in  which  he  was 
dealing.  Ity  representing  it  to  be  in  quality  e^nal  to  a  particnhvr  manu- 
facture. 1  think  that  m;ikes  an  essential  difference  between  this  ease 
and  the  eases  referred  to,  and  I  concur  with  my  Lord  in  opinion  that 
the  conviction  can  not  lie  supported. 

Pollock,  C.  H.     There  may  be  considerable  difficulty  in  laying  down 
any  general  rule  which  shall  be  ai)plicalile  to  e.ach  particular  case,  but  I 
continue  to  think  that  the  statute  was  not  meant  to  ajtply  to  the  ordi- 
nary commercial  dealings  between  buyer  and  seller;  still  I  am  not  pro- 
pared  to   law  dnwn  the  doctrine   in  an  aiistract  form,  because  I  am 
clearly  of  opinion  that  there  might  be  many  cases  of  buying  and  selling 
to  which  tlu!  statute  would  apply — cases  which  arc  not  substantially 
tli(!  ordinary  commercial  dealings  between  man  and  man.     I  think  if  a 
tradesman  or  a  merchant  were  to  eoncoci  an  article  of  merchandise  ex- 
pressly for  the  purpose  of  deceit,  and  were  to  sell  it  as  and  for  some- 
thing very  different  even  in  quality  from  what  it  was,  the  statute  would 
apply.     So,  if  a  mart  were  opened,  or  a  slio|>,  in  a  public  street,  with  a 
view  of  defrauding  the  public,  aM<l  putling  away  articles  calculated  to 
catch  the  eye,  but  which  really  posses>ed  uo  value,  there,  I  think,  the 
statute  would  apply;  but  I  think  the  statute  does  not  apply  to  the  or- 
dinary comuu-rcial  transactions  between  man  and  man,  and  certainly,  as 
has  been  observed  by  the  Lord  Cliief  Justice,  if  it  applies  to  the  seller 
it  cipially  applies  to  the  i)nrchast'r,  although  it  is  not  very  likely  that 
cases  of  that  sort  would  arise.     It  would  be  very  inconvenient  to  lay 
down  a  i)rineiple  that  wnuM  previMit  a  man  from  endeavoring  to  get  the 
article  clu'ap,  which  he  was  bargaining  for,  and  that  if  he  was  endeav- 
oring to  get  it  under  the  value  he  might  be  indicted  for  obtaining  it  for 
less  than  its  value  ;  and  there  is  this  to  be  oliserved.  that  if  the  success- 
fully obtaiuiug  your  object,,  cither  in  getting  goods  or  money,  is  an 
indicialile  offense,    any   offence   or   step  towards   it   is    an  indictable 
offense,  as  a  misdemeaiKir,   because  any  attcmi)t  or  any  progress  to- 
wards, the    completion   of   the   off  use    would    be    the    subject   of    an 
imlictmcnt,  and  then  it  would  follow  from  that,  that  a  man  could  not  go 
into  u  broker's  shop  and  cheai)en  an  article  but  he  would  subject  him- 


ik^ 


K.   /•.   nUYAN. 


i; 


s  to  be  better 
u  tlie  east'  of 
lifferent  from 
;it  the  thinL^< 
,  find  entirely 
if  the  person 
manufiieturc. 
1,  woiiUl  be  an 
;le  was  only  :i 
whicii  he  was 
tiouiar  inanu- 
veen  this  ease 
II  opinion  that 

1  laying  down 
lar  ease,  but  I 
ly  to  the  onli- 
I  am  n(jt  pro- 
becauso  I  am 
ng  and  selling 
I  substantially 
I  think  if  a 
irchandise  ex- 
and  for  some- 
statute  would 
street,  with  a 
i  caleulatcd  to 
e,  I  tiiink,  the 
>ply  to  the  or- 
d  certainl\',  as 
39  to  the  seller 
ery  likely  that 
ivonient  to  lay 
ring  to  get  the 
le  was  endeav- 
ibtaining  it  for 
if  the  success- 
money,  is  an 
au  indictable 
y  progress  to- 
nibject  of  an 
n  eould  not  go 
d  subject  him- 


self to  an  indictment  for  misdemeanor  in  endeavoring  to  get  the  article 
nn.ler  false  pretenses.  For  these  reasons,  I  think  it  may  be  fairly  lai<l 
,lownthat  any  cxtigsjeration  or  d.^iveiation  in  the  ordinary  course  of 
.leilin.rs  between  buver  and  seller  during  the  progress  of  a  bargain  is 
,H,i  the  subject  of  a  criminal  prosecution.  I  think  this  case  falls  within 
tlKii  proposition,  and  I.  therefore,  think  this  conviction  can  not  be  sup- 

jiiuti'd.  . 

(■,.i.Kini).;K,  J.     I  am  of  the  same  opinion,  and.  as  far  as  disposing  of 
thi.  particular  case,  I  should  like  to  do  it  very  much  upon  the  grounds 
<tMted  by  Lord  Camcbki.!.  and  the  Lord  Chief  Justice.      1  am  glad,  how- 
ever  to'have  the  opportunity  of  saying  also  that  I  agree  with  the  [.rop- 
o.ition  laid  d..wn  by  mv  Lord  Chief  lianm  in  tlie  latt.-r  part  of  his 
observations,  as  it  seems  to  me  that  it  would  be  a  dangerous  thing  to 
say  that  there  could  be  no  fraudulent  misrepresentation  within  the  stat- 
ute in  the  course  of  an  ordinary  transaction  of  buying  and  selling.     I 
think  it  may  as  often  occur  in  the  course  of  a  real  transaction  of  buying 
and  selling  as  in  any  other  way  ;  but  in  order  to  determine  whether  a 
fraudulent  misrepresentation  is  or  is  not  within  the  statute,  I  think  you 
must  look,  among  other  things,  to  the  extent  to  whicli  it  goes  and  the 
subject-matter  to  which  it  is  ai)plied.     It  seems  to  me  to  be  a  safe  rule 
to  say,  where  it  applies  simply  to  the  quality,  and  is  only  in  the  nature 
of  an  exaggerati.m  on  the  one  hand  or  a  depreciation  on  the  other, 
which  too°fre(iuentlv  takes  jilace  even  in  tolerably  honest  transactions 
iM-tween   parties,  this  is  not  the  subject  of  a  criminal  proceeding.     If 
y,,„  were  to  make  such  a  representation  the  sul^ject  of  a  criminal  prose- 
ention  under  the  statute  or  at  common  law,  you  would  l)e  not  only  mul- 
liphin-r  prosecutions  to  a  most  inconvenient  extent,  but  in  a  number  of 
ii,>tai.c'es  do  great  injustice,  and  wouhl  be  making  a  party  answer  crim- 
inally where  in  truth  he  had  no  criminal  intent  in  his  mind. 

(uKS-^WEix,  J.  I  agree  that  this  convicti(m  is  not  to  l)e  sustained, 
lam  afraid  that  the  law  upon  this  .-.ibject  of  false  pretenses  is  in  a 
Mite  which  is  well  calculated  to  embarrass  those  who  have  to  adminis- 
t.r  it.  This  case  is  distinguishable  from  ]{e>ii„a  v.  Abbott,'  and  Iteghui 
V.  nnrbnrkr  but  if  I  may  refer  to  what  I  said  on  a  former  occasion  I 
then  said  I  feel  bound  by  authority  an.l  I  a<-t  upon  it.  I  therefore 
think  tliose  cases  ought  to  i)e  binding,  unless  a  time  should  arrive  when 
they  are  overruled  by  an  unanimous  decision  of  the  whole  of  thcjudir.'s. 
In  this  instance  the  case  is  distinguishable,  and  we  are  not  bound  by 
them,  and  I  think  this  conviction  can  not  be  supported. 

Km  1-   J.     I  am  also  of  opinion  that  this  conviction  can  not  be  sus- 
taiiied.'not  on  the  ground  that  the  falsehood  took  place  in  tUe  course 


1  1  Den.  C,  C.273. 


Dear...  A  n.  C.  0.  -'4. 


140 


rUAUI)    AM)    FALISK    PKKTENSKS. 


of  n  toiitract  of  sale  or  puwninsj;,  hut  on  tlio  <iiound  that  tlic  falselioo'l 
is  not  of  that  descriptioii  wliidi  was  intended  liy  tlic  Legislature.  It  is 
a  niisit'iiresentation  of  wliat  is  more  a  matter  of  opinion  than  a  dePnitc 
matter  of  fact.  M'hetlur  tliese  spoons  in  their  manufacture,  and  in  tiic 
electrotype,  were  etpiai  to  Kikington's  A  or  not,  can  not  he  as  far  as  I 
iuiow,  decidedly  allirnied  or  denied  in  the  same  way  a.s  a  i)ast  fnci 
can  be  aHirmed  or  (lenie<l.  liut  it  is  in  tiie  nature  of  a  matter  of  opin- 
ion. I  fully  concur  in  what  lias  been  said,  that  the  statute  never  in- 
tended in  the  course  of  commercial  transactions,  to  allow  a  party  wlio 
is  dissatisfied  with  his  bargain  to  resort  to  a  complaint  of  any  exag- 
gerated jiraise  of  the  article  which  has  been  purchased,  and  call  the 
seller  lieforo  a  jury  to  be  indicted  for  that;  and  on  this  ground  I  am 
of  the  opinion  tiiat  the  present  case  is  not  within  the  statute :  but  as 
to  the  other  ground,  it  seems  to  me  not  only  are  contracts  f(.r  sale  nfit 
intended  to  be  excluded  by  the  statute,  but  on  the  contrary,  the  statute 
was  i)rt'cisely  intended  to  make  falsehoods  in  respect  of  contracts  of 
sale  indictable.  The  statute  recites  that  there  had  been  a  failure  of 
justice  by  reason  of  cheats  not  amounting  to  larceny,  and  it  therefore 
makes  the  obtaining  of  goods  by  false  pretenses  an  indictable  misde- 
meanor. Now  what  were  the  cheats  which  were  not  nmoun  ing  to  lar- 
ceny ill  respect  of  the  prosecution,  of  which  there  iiad  been  .4  failure  of 
justice?  I  think  that  those  cheats  were  the  cases  either  where  a  per- 
son intending  to  defraud  another  of  his  goods  by  a  false  pretense  in  pur- 
chase oi>taiiicd  from  liiin  a  transfer  of  the  projierty  in  the  goods,  h.' 
intending  not  to  give  the  v.-ilue  of  them,  or  where  by  a  false  i)retense 
in  sale,  a  man  put  off  upon  another  n  counterfeit  article,  which  he 
knew  was  not  truly  the  article  intended,  and  so  got  money  paid  for  the 
specific  thing  shown,  that  being  apparently  what  the  buyer  intended, 
but  being  in  reality  a  totally  different  thing;  the  property  was  under 
those  circumstances  held  to  liave  been  passed,  and  the  matter  was  held 
to  have  amounted  to  a  cheat;  at  the  same  time,  where  a  party  intendtd 
to  i)art  with  the  possession  only  and  a  fraudulent  person  obtained  Uie 
article  animo  fiintmli,  and  took  it  off,  although  the  possession  was  so 
passed  to  him,  still  it  was  held  to  be  no  transfer  of  the  property  in  law. 
but  the  property  remained  in  the  owner  notwithstanding,  as  in  t!  3  or- 
dinary case  of  a  man  coming  up  to  the  seller  of  a  horse  at  a  f:  .  ..;/; 
saying,  "  Allow  me  to  try  that  horse  ;"  if  he  rode  it  away  wr;  ^.-y  .  a, 
and  the  Mirv  was  of  opinion  that  he  got  this  possession  animo  ^  .idi 
it  was  a  larceny  ;  Imt  if  he  jirofessed  to  the  seller  of  the  horse,  "  i  boy 
your  horse."  and  paid  l>y  a  false  check,  or  deceived  by  a  false  pretense 
of  future. payment,  and  the  seller  said,  "  I  agree  to  that,"  although  the 
jury  found  that  he  did  thisaiiiwo  furKntli,  he  was  held  to  be  not  guilty 
of  larceny  liefore  the  statute,  which  seems  to  make  persons  responsible 


R.   V.   nUVAN. 


141 


it  tlic  falsehoo'l 
risluture.     It  is 

I  than  !i  dei^nilc 
ture,  and  in  tlic 
t  be  as  far  as  I 
as  a  past  faci 
iiiattLT  of  opin- 
tatute  lu'vcr  iii- 
uw  a  party  who 
it  of  any  t'xajj- 
(1,  and  rail  tlio 
lis  ground  I  am 
statute :  hut  as 
cts  f(,r  sale  not 
ary,  tiie  statute 
of  contracts  of 
i>en  a  failure  of 
[ind  it  therefore 
idictable  niisdc- 
Qouu  ing  to  lar- 
ccn  .»  failure  of 
ler  where  a  per- 
pretense  in  pur- 

II  the  goods,  111' 
a  false  jiretense 
•tide,  which  he 
ley  paid  for  the 
myer  intended, 
lerty  was  under 
[natter  was  held 

party  intendtd 
on  obtained  Uie 
issessiou  was  so 
property  in  law. 
ig,  as  i!!  t!  3  ;-,i- 
ie  at  a  f;  .  -..;.": 
vay  luyr..  s..ry  ,  ^^ 

animo  ^  .idi 
i  horse,  '•  i  buy 
ft  false  pretense 
,"  although  the 
to  be  not  guilty 
ions  responsible 


.riniinally.  wlicn  there  was  a  contract  of  sale  falling  within  the  same 
,atcj:(.ry  of  criminal  intention  as  tlie  cases  I  have  adverted  to,  where  the 
possession  only  had  been  obtained  unbno  fnrandi.     Now,  looking  at  all 
the  cases  that  have  been  decided  upon  the  statute,  those  that  have  been 
the  subject  of  the  greatest  eommeiil  appear  to  me  to  fall  within  the 
(.linciple    relating  to   initting  off   counterfeit  articles    in  sales  where 
tlu.   substance   of  the   contract  is  falsely  represented  and    by  reason 
tlirreof  the  money  is  obtained.     In  Re'jina  v.  Roebuck,^  the  thing  sold 
«;is  not  the  thing  which  it  was  sold  for  —  a  silver  diain.     Here,  silver, 
Ihou-xh  ill  form  of  an  adjective,  is  in  reality  the  substance  of  the  con- 
u-.ivL     The  silversmith  had  no  intention  of  buying  a  chain,  but  he  in- 
tciidcd  to  Iniv  silver,  and  what  was  represented  to  him  to  be  silver  was 
n,.t  silver.  tlKMigh  it  wa-i  a  chain  ;  the  proi.erty  in  the  chain  passed  and 
ti:e  money  was  paid,  still  clearly  there  was  a  false  pretense  as  to  the 
silver ;  and  so  in  the  case  of  ii'eghm  v.  Bull,-  so  also  in  the  case  of 
/>/!»(»  V.  Abbott;-^  the  substance  of  the  contract  was  not  a  mere  cheese, 
a  thing  in  the  shape  of  a  cheese,  of  any  quality,  but  the  substance  of  the 
till-  purchase  was  a  Chedder  cheese  (or  some  other  species  of  cheese), 
iiiul  tiie  taster  which  a  fraudulent  person  had  inserted  in  the  cheese  sold 
was  of  that  species,  and  it  was  sold  with  a  false  aflirniation  that  the  ar- 
ii,  le  was  Chedder  cheese,  which  would  be   a  totally  different  article 
fmm  the  Gloucester  ciieese  or  whatever  the  substance  was  said  to  be 
,.f  the  cheese  that  was   sold.     In  the   case   of   Everett's    blacking," 
ii  is  the  same  thing.     We  have  it  in  evidence,  in  that  case  that  a  new 
iMiicking,  salable  in  the    neighborhood  under  the  name  of    Everett's 
Mucking,  was  a  vendible  article;  the  prosecutor  purchased  it  for  the 
purpose  of  retailing  it,  and  unless  it  had  been  Everett's  blacking,  he 
^v(,uld    have  had  no   demand   for  it.     The  (luestion  whether  it    was 
Everett's  blacking  was  as  to  the  substance  of  the  artide  ;   it  was  not  a 
Mucking  he  wanted,  it  was  Everett's,  and  though  it  is  in  form  an  ad- 
j.Ltive,  it  is  in  reality  the  substance  of  the  bargain.     These  are  cases 
,.f  putting  off  counterfeit  artides.    As  to  the  case  of  Regina  v.  Kenrick;' 
ultl.ougirin  the  case  of  Rex  v.  Pyiceli:'  it  had  been  held  not  indictable 
to  praise   the  quality   of  a  horse,  knowing  him  not  to  be  worthy  of 
the  praise  put  upon  him,  yet  in  Regina  v.  Kenrick,  so  far  as  I  under 
stund  it,  and  I  was  counsel  for  the  man,  the  fact  which  brought  the 
case    within  the   definition   of  the  crime  was  the  fact   that  Kenrick 
averred  that  the  horses  had  been  the  property  of  a  lady  deceased,  were 
now  the  property  of  her  sister,  had  never  been  the  property  of  a  horse- 
dealer,  and  were  quiet  and  proper  for  a  lady  to  drive.     The  purchaser 


1  Dears.  AH.  C.  C:.  24. 

2  Car.  A  M.  549. 
«  I  Den.  C.  C.  278. 


«  Beg.  f.  Dundas,  «  Cox,  C  C  3S0. 
6  !,  g.  H.  *'J 
•  1  Miilk.  402. 


142 


rUAL'l      AM)    lAI.Si:    PKKTKXSKS. 


wnnU'tl  tlioso  horses  for  a  woiiuiii  of  his  fumily.  The  s^iilotauce  of  i  ^ 
cohtriitt  in  his  miml  was  that  IhiT  were  the  i)roi)t;rty  of  n  huly  \n!i 
had  drivt-n  the  iiorsL's,  and  il  was  u  false  assertion  of  a  definite  existini; 
fact  to  say,  " 'riny  are  tlie  properly  of  her  sister  now,"  wiien  tiny 
were  in  faet  the  property  of  a  lior.se-deaU'r,  and  liad  run  away  and  pr^ - 
dueed  a  fatal  aeeident.  'I'iie  case  of  Hvijinn  v.  h'rurick,  was  not  ll;. 
warranting  a  horse  sound,  as  in  tlie  ease  of  Hex  v.  J'>iu'tU,  but  it  waa  the 
alHrniinj:  a  false  faet  which  the  parly  knew  to  he  false,  andontiiat  jrroiMni 
the  conviction  proceeded.  It  Hceins  to  me  that  tliese  cases  wliidi 
have  ^'iven  rise  to  a  jjjreat  deal  of  observation,  fail  to  bear  out  tin'  prin- 
ciple eonli'uded  for  by  the  prosecution.  No  doid)t  it  is  ditlicullto  <lr:iw 
the  line  between  the  substance  of  the  contract  and  the  praise  of  an 
article  in  respect  of  a  matter  of  opinion  ;  still  it  must  be  done,  and  tlir 
jiresent  case  appears  to  me  not  to  sujiport  a  conviction,  upon  thr 
•ground  tliat  tlnre  is  no  atlirniation  of  a  detinite  triable  fact  in  sayiiiL' 
the  jxoods  were  equal  to  Klkin^ton's  A.  but  the  allirmation  is  of  wiiat 
is  mere  matter  of  opinion,  and  falls  within  the  catejxory  of  untnif 
l)raise  in  the  course  of  a  contract  of  sale;  wliere  the  vendee  has  in 
sulistance  the  article  contracted  for,  namely,  plated  spoons. 

CuoMi'ToN,  .1.  I  also  think  that  this  conviction  can  not  be  supported. 
I  think  that  tlie  statute  of  false  pretenses  oufjht  not  to  l)e  construed  to 
extend  to  trunsaetions  where,  in  the  course  of  a  barj^ain  for  a  specilic 
chattel,  the  suppose<l  niisrepre^i'ntation  consists  in  mere  praise  or  ex- 
agf^eraticjii  or  pulllnjjf  of  a  speeilie  article  to  be  si>ld,  where  the  pur- 
chaser <j;ets  some  value  for  his  money  ;  where  the  thing  sold  is  of  aa 
entirely  different  description  from  what  it  is  represented  to  be  and  of 
no  value  whatever,  as  where  a  man  passes  off  a  chiiinof  base  metal  for 
gold  or  silver,  and  the  buyer  really  gets  nothing  for  his  money,  the  case 
is  different.  This  was  the  ground  of  the  opinion  of  some  of  the  judges 
in  Qiteia  v.  lioehiiek.  So  where  money  is  ol)t;iine<l  fur  notes  of  the 
Bank  of  Kiegance  bv  the  pretense  that  they  are  notes  of  the  Bank  of 
Kngland,  the  cases  show  that  then-  is  false  pretense.  1  do  not  however 
think  that  the  statute  was  intended  tt)  upi'ly  to  every  ease  of  a  warranty 
where  theie  is  a  real  sale  and  wheri-,  in  the  coarse  of  bargaining  for  a 
spccitlc  chattel,  one  i)arty  praises  and  exaggerates,  or  the  other  party 
depreciates,  the  description  and  (piality  of  the  thing  to  be  sold  ami 
where  something  is  got  by  the  bargain  ;  in  such  casea  the  party  gets  a 
worse  bargain  for  his  money,  and  what  he  really  loses  is  the  difference 
bet  ween  the  good  ami  the  bail  thing.  No  specific  money  or  chattel  is 
obtained  by  the  false  pretense  or  lost  by  the  buyer,  Itut  the  real  loss  is 
for  damagi'  by  having  a  worse  bargain,  aiul  from  the  difference  in  valiio 
lu'tween  the  thing  sold  and  what  it  would  have  been  worth  if  the  repre- 
sentation were  true,  which  sounds  oidv  in  damages. 


K.  V.  UUYAN. 


ii;j 


sill)st:inre  of  tin 
ty  of  ft  hilly  wlur 
I  (U'tinite  cxistiii;; 
low,"  when  tiny 
111  away  ami  pru- 
rick,  wiis  not  tin 
p//,  but  it  was  til. 
lulontlctt  ^'I'oiiiiil 
ifse  cast'3  whicli 
)t'ur  out  tin*  i)riii- 
s  iliflicMiit  to  <lr:iw 
till'  praisi'  of  an 
he  (Imu',  and  tlir 
ictioii,  upon  till' 
hlo  fact  in  sayin^r 
nation  is  of  wliat 
Icjiory  of  untrur 
Liie  VfiuU't'  lian  in 
loons. 

not  lio  snpportod. 
I)  he  construe" I  to 
ain  for  a  sp*!cilit 
icrc  praise  or  cx- 
1,  where  tlie  piii- 
linji  sold  is  of  aa 
ited  to  be  and  of 
of  base  metal  for 
3  money,  the  case 
)nic  of  the  jndfjcs 
for  notes  of  tiic 
I'.s  of  tile  Rank  of 
1  do  not  howevi'i- 
a-se  of  a  warranty 
f  barjiainiiig  for  a 
>r  the  other  party 
^  to  be  sold  ami 
8  the  party  gets  a 
s  is  the  difference 
iiney  or  eiiattel  is 
ut  the  real  loss  is 
lifference  in  valiM' 
vorth  if  the  repre- 


I  think  that  it  would  be  dau.t;erous  to  construe  the  statute  as  exti-nd- 
iii.r  to  every  case  of  a  false  warranty,  and  1  think  that  the  conviction 
sboiilil  lie  quashed. 

(•iiowi)i.u,  .1.      I   am  of  opinion  that  the  conviction  is  bad.     I  tliink 
this  lase  <:oes  further  than  any  of  the  cases  that  have  yet  been  decided, 
uii  I  I  ain  clearly  of  opinion  that  they  have  <-oiie  quite  far  enonyli   and 
,ui-lit  not  to  be  extended.      I  think  the  distinction  that  has  been  taken 
111 'this  case  ouiiht  ta  exclude  it  from  tlie  category  of   .hose  decisions  ; 
ll.r  distinction  being  that  the   false   statement  is  with  respect  to  the 
.puiliiv  only  of  a  known  specilic    article,  viz.,  plated  spoons.     It  was 
true  liiat  they  were  plated  spoons,  but  it  was  false  that  the  plating  was 
(if  a  quality  equal    to    that  which  Avas  then   known  as  Klkingtoifs  A. 
Now  tiie  oases  that  have  already  been  decided  in  respect  to  contracts 
„f  sale  and  other  dealings  between  parties  liave  not  gone  beyond  this, 
tliat  where  the  subject-matter  about  which  the  parties  have  been  dealing 
is  of  a  specilic  denomination,  and  that  denomination  is  falsely  given,  it 
has  been  held  to  be  a  false  i^ctense ;  but  the  present  case  is  a  stej)  l)e- 
y  lu.l  that;  and,  as  I  am  very  doubtful  whether  the  statute  was  ever 
inuiided  to  go  the  length  to  which  the  decisions  have  carried  it,  I  am  of 
upiuion  it  ought  not  to  be  extended  further,  and  that  it  could  not  be  so 
(xteiuled  without confouiuling the  distinction  between  civil  and  criminal 
tus.'s.     I  have,  therefore,  come  to  the  conclusion  that  this  conviction 
can  not  Ite  supported. 

Wii.i.i-.s,  J,     My  opinion  is  of  little  value  after  those  which  have  been 
.xpri'ssed ;  but  such  as  my  opinion  is  I  am  bound  to  pronounce  it,  and 
I  do  so  with  the  less  ditHdence  because  it  was  the  considered  opinion  of 
the  late  Chief  Justice  Jervis,  than  wliom  no  man  who  ever  lived  was 
more  coini)etent  to  form  an  opinion  upon  the  subject.     I  am  of  opinion 
!iiat  tile  conviction  was  right  and  that  it  ought  to  be  atHrmcd.     It  ap- 
pears to  me  that  a  great  nuinl)er  of  observations  have  been  brought  to 
hear  upon  the  construction  of  the  statute  which  would  not  have  been 
attended  to  if  the  words  of  the  statute  had  been  looked  at,  and  I  can  not 
help  thinking  that  in  many  of  the  cases  to  which  reference  might  be 
ma  ie,  and  they  are  very  numerous  upon  this  subject,  the  judgments 
would  have  commanded  more  attention  in  after  times,  if  the  words  of 
ill.-  statute  bad  been  attended  to,  and  those  who  delivered  those  judg- 
meats  had  not   permitted   themselves  to  consider,  instead,  whether  a 
liarticular  view  would  or  would  not  be  convenient  to  trade,  cither  in  its 
present  state  or  in  the  state  to  which  it  might  be  reduced,  by  a  proper 
administration  of  the  law.     I  think  that  the  words  of  the  statute  should 
be  implicitly  followed,  and  the   Legislature  obeyed  according  to  the 
terms  in  which  it  has  expressed  its  will  in  the  ftfty-third  section  of  the  7 


U4 


FKAII)    AM)    I'AI.SK    I'HKTKNSES. 


finil  H  (jcnrp:p  IV.'     I  :im  lookintr  ti>  tlii'  wonlnof  tluit  soction,  and  I  am 
iiiiabU'  to   l>riii>i  iiiyHilf  to  think  that  the  Li'<:ishitiirc  was  at  all  dealiiiL' 
witli  aiiythitifj  in  tlie  iiuturc  of  a  diHiiiiction  bi'twecn  the  case  of  property 
friiudulotitly  ol)laliu'<l  hy  a  frnuilnlfiitly  obtained  contract  and  jjooiN 
obtained  without  any  contraet,  but  fraudulently  obtained.     1  ean  not 
help  thinking'  that  if  the  attention  of  tlie  franiors  of  the  statute  litel 
been  direeted  to  any  such  possible  operation  of  it,  tiiey  wouM,  in  the 
spirit  in  whi<  h  t!ie  section  is  fraine<l  have  enactecl,  in  terms  even  more 
clear  than  those  of  the  fifty-third  section,  that  that  which  is  obtained  iiy 
fraud  shall  not  benefit  the  fraudulent  person,  and  that  the  interposition 
of  a  contract  also  obtained  l>y  fraud  ouj^lit  not  to  make  any  difference 
in  favor  of  the  cheat.     Tlio  section  conunences  with  the  recital  that  '•  a 
failure  of  justice  fre(piently  arisi's  from  the  subtle  distinction  between 
larceny  and  fraud."     Tliat  is  the  recital,  ami  I  had  on  my  mind  an  Im- 
pression that  the  recital  of  a  statute  may  have  the  effect  of  enlargiiiE;, 
but  not  of  restraining  the  o()eration  of  the  subs  quent  enactment.     The 
enacting  part  of  the  section  is,  "  If  any  person  shall  by  any  false  pre- 
tense ol)tain  from  any  other  person   any  chattel,  money,  or  valuabk' 
security  with  intent  to  cheat  or  defraud  any  person  of  the  same,  every 
such  offender  shall  be  guilty  of  a  misdemeanor."     And  it  appears  to 
me  that  tlie  only  proper  test  to  apply  to  any  case  is,  whether  it  was  a 
false  pretense  by  which  the  property  was  obtained,  and  whether  it  was 
obtained  with  the  intention  to  cheat  and  defraud  the  i)crson  from  whom 
it  w  as  obtained. 

Now  in  this  case  it  should  seem  that  there  was  a  false  pretense,  there 
was  a  pretense  that  the  goods  had  as  much  silver  upon  tliem  as  Elk- 
ington's  A.  and  there  was  also  the  pretense  that  the  foundations  Ti^ere 
of  tlie  ln'st  material.  If  I  could  bring  myself  to  take  the  view  which 
my  brother  Eui.e  has  taken,  tlwit  this  was  mere  matter  of  opinion,  and 
not  matter  of  fact,  which  couhl  be  ascertained  by  inspection  or  calcula- 
tion, possibly  I  might  take  the  same  view  of  the  case ;  but  it  appeara 
to  me  that,  on  the  face  of  the  case,  it  should  seem  that  Elkington's  A, 
must  have  been,  for  practical  purposes,  a  fixed  quantity  ;  the  quantity 
of  silver  on  it  must  have  been  fixed,  and  the  proper  material,  the  best 
material,  for  the  foundations  of  such  plated  articles,  must  have  been  a 
well  known  quality  in  the  trade,  because  it  appears  that  the  prisoner 
made  a  statement  with  respect  to  the  quantity  of  the  silver,  and  the 
quality  of  the  foundation  with  the  inU'nt  to  defraud.  It  appears  that 
persons  who  made  the  advances  were  thereby  defrauded  and  thereby 
induced  t  >  make  the  advances,  and  the  jury  have  found  that  the  state- 
ments were  known  by  the  prisoner  to  be  untrue,  and  that  in  consequence 


1  cli.  iu. 


U.   »'.   UliVAN. 


11  r> 


lection,  and  I  am 
•as  at  all  (lealiu<; 
case  of  property 
Iract  and  poods 
nod.     1  can  not 

tlio  statiito  hill! 
ey  would,  iu  llic 
tcrnirt  even  nidri' 
L'li  is  obtained  liy 
the  interposition 
:c  any  differenee 
e  reeital  that  '  •  a 
ti  notion  between 

my  mind  an  ini- 
}et  of  enlarging, 
enactment.  Tin 
l»y  any  false  pre- 
ney,  or  valuabk 
f  the  same,  every 
Vnd  it  appears  lu 
whether  it  was  a 
id  whether  it  was 
jfson  from  whom 

*e  pretense,  there 
pon  them  as  Elk- 
foundations  were 
ce  the  view  whieh 
r  of  opinion,  and 
icction  or  caleula- 
! ;  but  it  nppearJ 
it  Elkington's  A, 
ity ;  the  quantity 
material,  the  best 
must  have  been  a 
that  the  prisoner 
he  silver,  and  the 
It  appears  that 
tided  and  thereby 
nd  that  the  state- 
at  in  consequence 


-if  tliose  statements  lie  olilaint-d  tlie  money  mentioneil  in  the  indietUK-nt. 
It  jippiurs  t..  me  that,  for  all  practical  purposes  tiiat  ou-rlit  to  be  taken 
t..  1.  ■  a  snilhi.nt  f:ict,  coining  within  the  region  of  assertion  and  calcu- 
l;ili,,n.  and  not  mere  opinion,  and  that  it  should  l>e  consi.lered  i-s  a  false 
|.rr|.nse.     Well,  lh>'U  the  statute  says,  "obtain   from  any  (.tlier  per- 
-mm  any  chattel,  money  or  valuable  sc.'urity."      It  is  found  in  this  case 
t|i:it  llie   money  was  obtaineil.     If  the  matter  was  a  simple  commenda- 
tion of  tlic  goods,  without  any  specilic  falscln.od  as  to  what  they  were  ; 
if  ii   was  eiilirely  a  case  of  one  person  dealing  with    anotiier  in  the 
,v;iv  of  business,  who   miglit  expect  to  pay  tlio  price  of  the  articles, 
Hindi  were  off.-red  for  the  purpose  of  pledge  c!  .sale,  and  knew  what 
til.  y  were,  [  appreheml  it   would  have  been  eisiiy  disposi-d  of  i»y  the 
iury.  who  were  to  pa>s  an  opinion  upon  the  si-lijecf.  acting  as  per.sons 
of  rommon  sense  and  knowledge  of    the   world,  and  abstaining  from 
.Mining  to  any  such  conclusion  as  that  pniise  of  that  kind  should  have 
the  effect  of   making    the    parly   resorting  to  it  guilty  of   obtaining 
money  on  a  false  pretense.      I  say  nothing,  on  the  effect  of  a  simple 
.xagLTc ration,  except  that  it  appears  to  me  it  woidil  be  a  (picstion  for 
the  jury  in  each  case  whether  the  matter  was  such  ordinary  prai.sn  of 
the  goods  {(lulus  buiius)  as  that  a  person  ought  not  to  be  taken  in  by  it, 
or  whether  it  was  a  misrepresentation  of  a  specilic  fact  material  to  the 
eentract  and  intended  to  defraud,  and   did  defrand.  and  by  which  the 
in..ney  in  cpiestion  wasobtaimul.     Well,  then,  there  is  the  latter  part  of 
the  secticm  — "with  intent  to    cheat  and  defraud  the  person   of  the 
>;im"."     It  must  be  with  the  intent  to  cheat  and  defraud  the;  person  of 
the  same.     I  am  unable  to  bring  my  mind  to  any  anxiety  to  protect 
(jcrsons  who  make  false  pretenses  "  with  intent  to  cheu,t  an<l  defraud." 
It  was  stated  in  the  evidence  by  the  prosecutor,  "  I  wouhl  have  ad- 
vanced nothing  but  for  the  misrepresentation."  and  it  was  found  by  the 
jury  that  the  money  was  obtained  by  the  misrepresentation.     But  it  is 
Slid  that  the  effect  of  establishing  such  a  rule  as  that  for  which  I  con- 
tend would  be  to  interfere  with  trade ;  no  doubt  it  would,  and  I  think 
ought  to,  prevent  trade  being  carried  on  in  the  way  in  which  it  is  said 
to  he  carried  on.     I  can  not  help  expressing  my   regret  if  trade  is  car- 
ried on,  and  1  do  not  believe   it  is  generally  carried  on,  by  persons 
making  false  pretense-^  with  the  intention  to  cheat  or  defraud  persons 
of  tln-ir  money.     I  am  far  from  wishing  to  interfere  with  tin;  rule  as  to 
siiii|,le  commendation  or  praise  of  the  articles  which  arc  sold  on  the  one 
luiii.i,  or  to  fair  cheapening  on  the  other ;  those  are  things  persons  may 
expect  to  meet  with  in  the  ordinary  and  usual  course  of  trade;  Init  I 
can  not  help  thinking  that  people  ought  to  be  protected  from  any  such 
aits  as  those  I  have  referred  to  being  ri'sorted  to,  for  the  i)urpose  and 
with  the  intent  to  cheat  or  defraud  purchasers  of  their  money  or  trades- 
.3  Defences.  10 


146 


FKAL'D    AND    lAl.sK    riSKTKNSKS. 


men  of  tlii'ir  Koods.  If  tlif  result  of  it  would  hr  to  multiply  prosocu- 
tioiis,  ihiit  iiuihI  l)c  liccaiisc  \\v  live  in  nn  a<;e  in  wliieli  fniud  is 
niultiplii'd  to  a  jjrcut  cxlint  mid,  !Uiioiij.'st  others,  in  this  form.  I  iij;ree  in 
what  the  late  Chief  Ju-iice  .Icrvis  said  as  peculiarly  appliealile  \o  sueli  ;i 
supposed  state,  thon-ih  I  hope  not  to  ordinary  trade,  that  if  there  he 
such  II  commerce  as  reniiires  to  be  protected,  by  the  statute  lieiiif;  lini 
itcd  ill  the  mode  f<u;_'j;ested,  it  oiij^ht  to  be  made  honest  and  conform  lu 
the  law.  and  not  the  law  bent  for  the  purpose  of  allowinj^  friiiidiilint 
commerce  to  ^'o  on.  I  can  not  help  thinking',  therefore,  upon  the  plain 
construction  of  the  tifty-third  section  of  the  7  and  H  (ieorge  IV.,'  that 
the  prisoner  in  this  case,  havinj,'  fraudulently  reprcHcnted  that  there  wa^* 
a  greater  amount  of  silver  in  the  articles  pled^'ed,  ntid  that  there  was  ;i 
superior  foundation  of  metal,  that  beiiif,'  untrue  to  his  knowledge,  for 
the  purpose  of  flefrauiliiif,'  the  prosecutors  of  their  money,  which  ho  ue- 
cordirigly  obtained,  he  was,  therefore,  indictable,  and  that  the  convic- 
tion ought  to  be  alflrined. 

HitAMWKi.i.,  H.     1  reirret  bi'ing  called  on  to  give  judgment  in  thin 
cane  without  an  opportunity  of  fiirtluT  considering  it;   but  the  inclina- 
tion of  my  opinion  is,  that  this  conviction  ought  to  he  sustained.     I  can 
understand  the  statute  in  two  ways,  one  that  it  only  applies  to  those 
cases  where  there  is  no  contract,  and  the  chattel  or  money  is  got  liy  false 
pretenses  either  with  or  independently  of  any  contract,  as  in  the  last 
case,''^  where,  though  had  there  been  no  fraud  in  the  making  of  the 
contract,  there  was  in  the  assertion  that  the  things  delivered  were  of  a 
certain  amount ;  the  other,  that  the  statute  was  intended  never  to  apply 
to  cases  where  the  fraud  was  not  the  immediate  cause,  or  sole  cause,  of 
obtaining  the  money  ;  but  the  contract  was  obtained  by  fraud,  and  the 
money  or  the  article  handed  over  to  the  per;ion  in  pursuance  of  that,  or 
of  that  and  something  given  by  the  fraudulent  person.     The  first  case 
is  clearly  within  the  statute,  and  the  inclination  of   my  opinion  is,  the 
statute  <loes  extend  to  cases   such  as  last  mentioned,  but  with  great 
doubt,  for  it  may  well  be  that  the  statute  does  not  apply  except  when 
the  money  or  chattel  is  obtained  inunediately  by  the  fraud,  and  does 
not  apply  where  the  chattel  or  money  is  obtained  by  a  contract,  which 
contract  is  obtained  by  fraud  ;  so,  also,  it  may  be  that  the  contract  does 
not  apply  to  cases  where  the  fraud  is  not  the  sole  cause  of  the  delivery 
or  giving  of  the  chattel  or  money,  or  wh(>re  .something  is  delivered  or 
given,  as  well  as  fraud  used  by  the  fraudulent  person,  as  it  may  be  said 
that  the  money  or  chattel  is  not  obtained  by  fraud,  which  means  fraud 
alone,  since,  but  for  the  delivery  or  giving  of  something  by  the  fraudu- 
lent person,  he  would  have  obtained  nothing.     I  can  understand  the 


1  ch.  39. 


2  Reg.  V.  SlicrwooU,  Dears.  &  B.  C.  C.i.M. 


nultiply  prosccu- 
wliii'li  fnmd  w 
form.  I  iijirt'i'  in 
)Ii('lllllo  to  8tU-tl  :i 
,  that  if  lliPio  lir 
tutiitf  lu'ii)};  liiu 
t  mill  foiiform  !■> 
:)win^  fraiidiiliiit 
•(',  ii|i(in  tilt'  plain 
[iforgc  IV.,'  tiiai 
0(1  lliat  tliorc  \va'< 
I  lliat  then'  wus  a 
is  knowli'dffi',  lor 
ricy,  wliiili  lio  lu- 
1  tliut  the  convic- 

jiidgmtMit  in  thin 
;  hut  the  int'liiia- 
siistaiiH'd.  I  cnii 
'  applifs  to  those 
icy  is  <^ot  by  f uInc 
ic't,  as  in  the  last 
»e  niakiiif^  of  the 
divercd  were  of  a 
led  never  to  apply 
,  or  sole  cauHe,  of 
by  fraud,  and  tlio 
siiance  of  that,  or 
n^  The  first  casi' 
my  opinion  is,  the 
d,  but  with  great 
ipply  exeept  when 
B  fraud,  and  docs 
a  contract,  which 
the  contract  does 
se  of  the  delivery 
ig  Is  delivered  or 
,  as  it  may  be  said 
vliich  means  fraud 
ing  by  the  f  raudu- 
in  understand  the 

i,  Dears.  &  B.C.  C.2S1. 


K.   r.   IlKYAN. 


17 


statute,  bciiiij  limited  to  the  llrst  olass  of  eases  or  extended  to  lioth; 
litil  1  declare  I  cannot  understand  the  ineilimn  course  su^'u'csted  lo-d  ,, 
iiainclv  that  the  statute  does  apply  to  some  tif  the  cases  in  the  second 
diss,  but  .lot's  not  apply  when  the  pcrsou  defrauded  gi'ts  in  specie  the 
tliiii,' contracted  for,  though  with  a  difference  in  the  (piality, 

I'akc  the  present  case.      I  do  not  know  that   I  am  intliu'necd  by  the 
fad.  lull  we  were  told  last  time  that  in  truth  tiicre  was   lut  silver  on 
lli.'-e  tliin,:.;s,  and  that  as  compared  with  Klkiii;j;toirs  they  were  valueless. 
Now,  it  seems  to  be  suppo>ed  tliat  the  inisrcprcsentations  wen   no  more 
than  ft  kind  of  praise,  e.vajfgeration  or  puHiiig.      I  confess   I   can  not 
coinprehend  that,  and  as  WfU  as  1  can  undrrstand  the  opinions  that  have 
liitMi    expressed,    this  result   would  follow,  that,  supjioso  Klkinij;ton's 
plated  articles  had  got  half  an  ounce  of  silver  on  them  and  the  prisoiuT's 
articles  had  got  none,  he  would  liav  been  indietalile  ;  but  if  Klkington's 
liad  got  oiu!  ounce  of  silver  and  the  prisoner's  only  a  ((iiaitcr  of  an 
ounce  he  would   not,  because    it    would  have    been  only  the   superior 
(lualily  that  was  exaggerated.      I  own  1  can  not  understand  tiiat.      I  can 
not  help  looking  at  the  statute  and  I  lind  nothing  about  exaggeration  of 
([iiality.      I  find  t!ie  statute  express  —  ••  if  any  person  shall  by  any  false 
pretense  obtain  from  any  other  person  any  chattel  or  valuable  secu- 
rity"—  that   means,   to  my   mind,   whether    he;  obtains  it    by  fraud 
directly  or   indirectly  and  wholly  by  fraud,  or  by  that   and  Hometiiing 
else.     Therefore  it  seems  to  me  the  only  true  exposition  of  the  statute 
is,  to  hold  it  either  to  apply  or  not  apply  to  all  contracts  and  eases  where 
the  fraudulent  person  gives  something  in  return,  either  to  say  that  when- 
ever there  is  a  contract  or  something  is  so  given,  it  is  not  within  the 
Htatute,  or  to  gay  it  is,  though  there  is  a  contract,  if  that  contract  was 
brought  about  by  fraud,  tlrjugh  something  may  have  been  delivered  to 
the  person  defrauded,  if,  but  fertile  fraud,  the  contract  would  not  have 
been  entered  into.     As  at  present  advi.sed,  I  think  that  the  true  meaning 
of  the  statute  is,  that  it  shall  extend  to  people  who  make  these  bargains 
hy  fraud,  and  so  by  the  fraud  get  possession  of  the  chattels  or  property 
of  others ;  and  I  incline  to  hold  the  conviction  right. 

W.vTsoN,  B.  I  am  of  opinion  that  the  conviction  is  wrong.  J  think 
that  the  cases  which  have  been  decided  upon  this  subject  have  gone 
(luite  far  enough,  and  I  believe  much  further  than  the  framers  of  the 
statute  ever  intended  it  should  go.  I  agree  with  my  brother  Ckowdku 
in  this  point,  that  this  case  does  not  fall  within  any  of  those  decisions 
referred  to  that  are  now  to  bo  considered  authorities.  In  my  oijiihon, 
the  conviction  is  wrong.  The  question  is  this,  whether  this  representa- 
tion, false  as  it  may  be,  merely  of  the  quality  of  the  article  which  is 
pawned  as  it  would  be  upon  a  sale,  is  a  false  pretense  within  the  mean- 
ing of  the  statute.     In  my  opinion  it  is  not.     All  that  is  represented 


iHH 


148 


FRAUD    AM)    KALSR   PRKTKNSES. 


here  is,  tliiit  it  was  of  the  first  quality,  equal  to  Klkinurton's  A,  and  tli-- 
fouiidaticm  of  IIk'  Iti'st  inalerial.  and  had  as  Ynnch silver  asElkington's  — 
in  ordinary  lan;>i"ip;e  niorol^'  pulling  the  article,  which  may  be  nntrui'. 
In  an  ordinary  ease  if  a  party  wishes  to  ])rote('t  himself,  he  ought  t' 
taUe  a  warranty  of  tiie  quality  of  the  ai  tiilc  offered  for  pawn  or  sale. 
The  result  of  holding  this  efrjviction  right  would  be.  that  on  every  sale, 
where  any  exaggeration  lias  taken  place,  the  tradesman  might  be  con- 
victed of  obtaining  money  on  false  pretenses.  For  these  reasons  I 
think  it  is  not  a  false  preAease  within  tlie  statute,  and  therefore  the 
conviction  was  wrong. 

CiiANNKi.i,,  B.      I  am  of  opinion  that  the  conviction  can  not  be  sus- 
tained.    Hut  for  the  doiil)fc  expressed  by  my  brother  Huamwkli.,  and 
the  more  decided  opinion  expressed  by  my  In-other  Wii.lks,  I  should 
have  contented  myself  with  saying  that  I  concurred  in  tiie  judgment  of 
the  other  memViers  of  the  court;   but  I  think  it  riglit,  under  the  circum- 
stances, to  state  the  grounds  of  my  opinion.     A  certain  number  of 
spoons  were  produced  to  the  pro-^eeutor;  those  spoons  were  represented 
not  as  silver  spoons,  but  as  having  silver  upon  them;  tiiere  was  then 
the  further  representation  tljat  they  had  as  much  silver  as  Klkiugton's 
A,  and  further,  that  the  foundations  were  of  the  best  material.     I  con- 
sider the  spoons  w^ere  the  same  in  sjiecies  as  they  were  reprosonted  to 
be.      It  is  not  as  if  the  purchaser  had  been  induced  by  the  representa- 
tions made  to  buy  them  for  silver,  and  then  had  found  that  the  spoons 
had  no  silver  iqion  tliein.     The  reiircsentation  is  that  the  quantity  of 
silver  on  them  was  eipial  to  the  quantity  on  Klkiugton's.     I  consider 
that  is,  in  substance,  the  same  as  if  lie  had  said  the  quality  of  the  silver 
upon  them  is  the  same  as  on  Klkiugton's,  and  that  the  statute  does  not 
apply  to  such  a  rei)resentation  made  in  language  which  the  jiroseeutor 
must  be  taken  to  know  is  mere  matter  of  opinion.     In  that  point  the 
case  is  distinguishable  from  Rerfina  v.  Roebuck,  the  ground  of  that  de- 
cision being  that  the  representation  was  that  a  certain  chain  was  a  silver 
chain  wiien  in  fact  it  was  not,  and  therefore  did  not  resemble  at  all  the 
article  intended.     In  tliis  case  the  spoons  did  correspond  to  that  ex- 
tent with  the  representation,  and  they  were  spoons  of  some  value,  sup- 
posing value  to  be  an  element  taken  into  consideration.     The  other  case 
of  Rcffina  v.  Abhntt  is  plainly  distinguishable  upon  the  ground  put  by 
Mr.  Robinson.     On  these  grounds  I  am  clearly  of  ojiinion  that  the  con- 
viction can  not  be  supported. 

CoHV ict ion  quashed. 


KK    SNYDER. 


Mi) 


tifiton's  A,  and  Ui>' 
'.r  as  Klkington's  — 
ch  may  be  untnu'. 
msclf,  be  ought  ti 

for  i)awn  or  sale, 
that  on  every  sale, 
man  uiiixlit  he  eon- 
i)r  these  reasons  I 

and  therefore  the 

on  ean  not  be  sus- 
er  liuAMWKLi-,  and 
V  "\Vii,Li:s,  I  should 
in  the  judgment  of 
,  under  the  circum- 
certaiu  numher  of 
IS  were  represented 
■ni ;  tliere  was  then 
Iver  as  Klkington's 
■it  material.  I  eon- 
were  lepiosonted  to 

by  the  reprcsenta- 
uid  that  till!  spoons 
iiat  the  quantity  of 
igton's.  I  consider 
rpiality  of  the  silver 
the  statute  does  not 
liieh  the  jiroseeiitor 
In  that  point  the 

ground  of  that  de- 
in  chain  was  a  silver 
;  reseinble  at  all  the 
respond  to  that  ex- 
of  some  value,  sup- 
:)n.  The  other  case 
\  the  ground  put  by 
tjiinion  that  the  con- 

jiiriction  qinnihed. 


KMSK  I'UKTKNSKS-DKLUSrVK  PROMISE- FALSE  IMIETENSE  TUUN- 
INd  OUT  TRUE-1'HOMISE  AS  TO  FUTURE  EVENT  -  HABEAS 
lORl'US. 

Re  Snyder. 

[17  Kiis.  54 L'.] 
In  the  Supreme  Court  <>/  Kanmis. 

'    A  Pretense  which  is  False  when  Made,  l.ui  true  by  tl.o  act  of  the  person  making  the 

(ciMiP,  wluM.  tlio   vro^.Tiilor  relu:^  theruon  and   parls  Willi  liis   im.pcrly.  is  not  a  false 

pvi'U'iisc  wiUiin  flic  staliUo. 
■   It  must  Appear  that  the  Pretenses   lelled  upon  relate  to  a  past  event  or  t»  some 

,,r..M'i,l  .'xi-niiK  fan,  an.:  iiol  l«  sonielhing  to  happen  in  tlie  future.    A  mere  promise  is 

not  HUtlicient. 

Original  proceeding  in  habe<ii<  corpus. 

IVtiiiun  tiled  in  this  court  on  the  2d  day  of  J.inuary.  l"^"?,  ou  behalf 
of  A.  J.  Snyder,  for  a  writ  or  habeas  corpus.  The  petitioner  sets  forth 
the  following  facts:  — 

"That  A.  J.  Snyder  was  illegally  restrained  of  his  liberty  in  the 
county  jail  at  Mound  City,  the  county  seat  of  Linn  County,  by  I).  R. 
Lamoretui,  as  sheriff  of  said  county;  thtit  said  D.  K.  Lainoreau  pre- 
tends to  restrain  sai  i  A.  .1.  Snyder  of  his  liberty  by  virtue  of  some 
pretended  proof,  the  precise  nature  of  which  is  unknown  to  your  peti- 
tioner, the  justice  before  whom  he  was  examined  not  having  reduced 
such  testimony  to  writing.     Your  petitioner  further  represents   unto 
your  honorable  court  that  such  illegal  restraint  consists  in  the  follow- 
ing: that  on  the  1st  day  of  December,  1S70,  said   A.  .1.  Snyder  was 
iirrested  upon  the  charge  of  obtaining  money  under  false  {irelenses, 
and  taken  before   one  A.  D.  Hyatt,  a  justice  of  the  peace  in  and  for 
Linn  County,  for  preliminary  examination;  that  upon  such  examination 
there  was  no  evidence  offered  which  showed  or  tended  to  show  in  :uiy 
manner  that  an  offense  had  be"  committed  against  or  under  the  laws 
of   the  State    of   Kansas,  nor  was  there  any   evidence  offered  which 
>liowed  or  in  any  manner  tended  to  sh.iw  that  there  was  any  probable 
.atise  for  believing  that  said  A.   .1.   Snyder  had  been  guilty  <.f  any 
offense  whatever  under  the  laws  of  the  State  of  Kansas.     Yet,  notwith- 
standing the  premises,  the  said  justice  of  the  peace  refused   to  dis- 
charge the  said  A.  J.  Snyder  or  to  admit  him  to  bail,  as  under  the  laws 
of  the  State  of  Kansas  he  was  rc(inii-e(l  to  do." 

The  petition  further  alleged  that  the  order  or  warrant  of  commitment 
under  which  Snyder  was  held  in  custody  was  illegal  and  insullicient  in 
law.  It  also  states  that  the  reason  the  application  was  not  made  to  the 
probate  judge  of  Linn  County,  was,  "  that  such  probate  judge  is  dis- 
.lualilied  from  hearing  the  same  by  reason  of  being  an  attorney  «)f 


1-.0 


FKAUD    AND    FALSE    I'KETKNSES, 


rcconi  in  a  civil  suit  involving  tlu'  stuno  transaction."  And  the  petition 
fiirtliiT  alif<fcs  "tliiit  an  application  was  made  to  tlu-  Hon.  W.  C. 
Stewart,  jiidi^c  of  tin;  Sixtii  Judicial  District,  in  which  Linn  County  is. 
for  ii  writ  of  /I'lhons  corpus,  and  that  said  application  w.is  refused." 
The  usual  prayer  for  the  i-isiiaiice  of  the  writ  was  also  annexed  thereto. 
Upon  such  petition  the  writ  of  hohcKit  corinis  was  issued  by  the  court, 
and  was  duly  served  upon  tiic  said  Lainoreau,  sheriff,  to  which  a  return 
was  made  by  said  sheriff,  in  effect  that  "he  had  the  body  of  said 
Snyder  before  the  court."  And  for  tiie  authority  and  cause  of  tlu' 
restraint  of  the  said  Snyder  in  his  custody  he  stated  that  — 

"On  December  Ix,  l^Tf,,  Joiin  Hood  made,  in  writing  and  upon 
oath,  a  complainant  before  A.  I).  Hyatt,  a,  justice  of  the  peace  of  Liim 
County,  against  the  said  A.  J.  Snyder,  ciiarging  him  with  having,  on 
November  2.")th,  IMTf..  proc  ured  SI. .")(»(>  in  money  and  a  check  drawn  by 
Snyder  &1C"<>.,  on  Hood  &  Kincaids.  in  favor  of  Snyder  &  Co.,  for  the 
sum  of  ?1.,'.()0.  upon  which  check  the  said  .Tolin  Hood  wrote  across  the 
face,  •  Tlie  Kiist  Nati()nal  Hank  of  K:uisas  City.  Missouri,  will  please 
pay,  —  Hood  it  Kincaids.'  from  the  linn  of  Hood  A;  Kincaids  by  false 
pretenses  and  with  intend  to  defnuid  Hood  &  Kincaids ;  that  on  said 
December  1st,  said  justice  of  the  jieace  issuecl  a  warrant,  reciting  fully 
the  alleged  offen.se  ;  tliat  Snyder  was  arrested  ;  that  upon  the  i)relimin- 
ary  examination  numerous  witnesses  (giving  their  names),  testified; 
that  the  evidence  taken  at  the  examinatinn  was  not  reduced  to  writing; 
that  upon  the  conclusion  of  the  examination  the  justice  decided  an 
offense  had  been  committed,  and  that  tlier*-  was  probable  cause  to 
believe  said  Snyder  guilty  as  charged  in  the  complaint  and  warrant,  and 
ordered  th.-it  he  give  liail  in  the  sum  of  $.'>.()n()  for  his  appearance  at  the 
District  Court  of  said  Linn  County,  at  the  next  term  thereof,  to  answer 
said  charge,  and  in  default  of  such  bail  to  be  committed  to  the  jail  of 
the  county  of  Linn  ;  that  no  bail  whatever  was  offered  ;  that  said  justice 
of  the  peace  then  made  out  a  written  order  of  con)niitment,and  gave  the 
same  t(-  the  respondent  to  execute  ;  that  saiil  respondent  was  and  is  the 
sheriff  of  said  Linn  County,  and  held  said  Snyder  in  his  custody  as  such 
.sheriff  by  virtue  of  said  order  of  commitment." 

Copies  of  the  complaint,  warrant,  and  decision  of  the  justice  are 
attached  to  the  return.  The  oriviin.nl  ordt'r  of  commifinent  was  also 
produced  by  tiie  sheriff  on  tiie  hearing.  A  iv[)\y  was  filed  to  the  return 
of  the  ofiicer,  staling  that  the  testimony  mentioned  in  the  return,  and 
the  evidence  given  by  the  witmsses  named,  were  not  sulllcient  to 
authorize  tiie  magistrate  to  find  Snyder  probably  guilty  of  the  offense 
charged.  Afterwards,  under  the  re(|uirements  of  the  court,  an  amended 
reply  was  tiled,  setting  forth  in  detail  the  evidence  of  the  prosecution 
before  the  justice. 


^m 


/ 


RK    SXYDKK. 


IT)  I 


nd  the  petition 
Hon.   W.  C. 

imi  County  is, 
was  rofused. " 
iioxed  thereto. 
I  l)v  the  court, 
whirii  II  return 
body  of  said 

I  cause  of  thi 

Llug  and  upon 
peace  of  Linn 
ith  having,  on 
iieck  drawn  by 
&  Co.,  for  tilt- 
rote  across  the 
uri,  will  please 
luaids  l)y  false 
i ;  that  on  said 
,  reeitinpf  fully 

II  the  i)reliniin- 
les),  testified; 
•ed  to  writing ; 
(*e  decided  an 
table  cause  to 
d  warrant,  and 
learancc  at  the 
reof,  to  answer 
\  to  the  jail  of 
liat  said  justice 
t,  and  gave  the 
was  and  is  the 

ustody  as  such 

he  justice  are 
t'iuent  was  also 
?d  to  the  return 
the  return,  and 
t  snllicient  to 
of  the  offense 
rt .  au  amended 
he  prosecution 


The  case  was  set  for  hearing,  and  was  heaid,  on  the  30th  of  January, 
l,s77.  On  the  hearing,  the  (juestion  as  to  l)ail  and  the  illegality  and 
in^iifliciency  of  tlie  warrant  of  coniniitnient  were  waived,  and  the  only 
.dl,-."iti.)i«  relied  on  bv  Snvder  was  the  one  contained  in  the  petition 
i,mcerning  the  "  all. ged  want  of  probable  cause."  The  counsel  for 
ihf  respondent  admitted  that  the  testimony  contained  in  the  rci)ly  set 
f..,tli  all  the  evidence  admitted  before  the  justice,  excepting  that  pur- 
puitin.'  to  have  been  giv.n  by  .lohn  Hood,  one  of  the  witnesses  for  the 
,,roseaiti(.n  and  a  member  of  the  firm  of  Hood  &  Kincai<ls.  The  court 
summoned  John  Hood  as  a  witness  and  received  his  evidence  orally. 

Ipon  an  investigation  of  the  criminal  charge  pr»-ferred  agauist 
Snyder  before  the  justice,  the  facts  of  the  case  were  found  to  be  sub- 
i-tantially  as  follows :  — 

Durin.'  the  fall  of  IHTC,  A.  J.  Snyder  was  engaged  in  buying  and 
shipping  stock  under  the  name  of  Sny.ler  &  Co.,  and  had  made  several 
^l,il.nlents  of  slock  from  points  along  the  Missouri  Kiver,  Fort  Scott  and 
t;ulf  Railroad,  to  I).  A.  Painter  &  Son,  who  were  live  stock  brokers  and 
e,.,nmission  merchants  at  Kansas  City,  Missouri.     One  J.  M.  Siiores  was 
,  .umected  with  Snyder  in  business.     Hood  &  Kincaids  were  brokers, 
having  a  banking  house  at  I'leasanton,  Linn  County,  Kansas,  of  which 
Mr.  Hood  was  cashier  and  general  manager.     The  firm  -if  U-  A.  I'ainter 
.V  Son  was  c  .mposed  of  I).  A.  I'ainter  and  Charles  I'aitW^r.     On  the 
•J-.M  day  of  Novend)er,  ISTC,  Snyder  went  to  Charles  I'ainti'r,  the  book- 
k.rper'of  I'ainter  &  Son,  for  a  letter  of  credit,  took  it  the  Martin  bank, 
li;„l  it  ind(.r>e  I  by  the  teller,  returned  to  his  ollice,  and  delivered  the 
\r\u-v  of  credit  to'snydcr.     Snyder  looked   it  over  and  remarked  that 
hr  tin. u^ht  there  would  be  bother  about  it  on  account  of  the  words  "  '.All 
,  f  lading  attached."     At  his  request.  Charles  Tainterwrote  out  another 
Iriter  of  credit,  of  which  the  following  is  a  copy.-  — 

"  Kansas  City,  Mo.,  Nov.  22,  1876. 
■•.\/.NsTS.  Hood  &  Ki)t,:ai(h,  Plea.miitnn,  Kansun:  — 

•■  Dkar  Sius:  We  will  honor  Messrs.  A.  J.  Snyder  &  Co.'s  draft  on 
us  to  tlie  amount  of  four  thousand  -lollars  ($4,000),  to  pay  on  livestock 

consigned  to  us. 

•'  Very  truly  yoiu-s, 

''  I).  A.  rAiNTF.u  &  Son." 

Snyder  took  this  letter  also,  remarking  that  if  he  couldn't  use  the  one 
1...  wunld  the  other.  Snyder  then  went  to  I'leasanton,  and  on  the  23d 
!,.•  called  at  the  banking  house  of  Hood  &  Kincaids,  and  presented  the 
al)ove  letter  of  credit  and  said  he  wanted  to  get  n.oney  to  buy  stock 
with.  Hood  asked  him  what  amount  of  currency  he  wanted  ;  he  an- 
>wered  about  $2,000.     Hood  toM  him  they  were  short  in  currency,  but 


\:)2 


FKAll)    .\XI>    l\l„sK    I'lJKTKNSKS. 


slioiilil  dciid  ii|i  to  K:iii>:is  City  iiiid  liave  soiiir  >lii[ii.c(l  down,  bu- 
tlial  tljiT  could  not  sec  to  tilt'  slii|iiiin<i;  of  stock.  In  this  coiivursatio!i 
Snvdcr  told  Hood  the  cattle  woiilil  he  sliipitcd  to  Painter  &  Son.  Siiv- 
dcr  tlii'ii  teli'graplifd  to  I'ainter  &  Son.  tluit  — 

"  Voiir  letter  of  credit  says,  on  stock  consi<riied  tows.  Hood  &  Kin- 
caids  can't  jjo  and  see  how  consi<inetl.  Telegraph  to  II.  &  K.  to  era  . 
that  part.      Wo  will  want  some  money  to-morrow. 

"  SSYPKl!  &(<)." 

On  the  same  day  Painter  i^  Son,  in  answer  to  the  said  dispatch,  tele- 
iriaped  to  Hood  i^ii  Kiiicaids:  "  We  will  honor  Snyder  iV:  Co. 's  drafts,  tn 
l>ay  on  stock,  to  the  amoiintof  four  thonsand  dollars."  On  the  2.'kl,  op 
the  2llh  (the  witness  Hood  fixes  the  2»tli  as  the  date),  Snyder  again 
called  at  the  hank  and  asked  Hood  what  was  the  matter  with  the  tele- 
gram—  and  then  stated  he  had  l)een  to  Fort  Scott  to  get  money  on 
his  draft  on  Painter  iV:  Son,  and  that  the  bank  tliere  had  telegraphed  to 
H.  &  K.,  and  H.  it  K.  had  answered  they  would  honor  the  draft  on  cer- 
tain contlitioiis,  that  he  had  bought  the  pick  of  .1  large  lot  of  cattle, 
and  wanted  money  to  pay  for  thorn.  Hood  thinks  lie  said  about  one  hun- 
dred head.  Snyder  then  stated  he  would  send  to  Painter  &  Son  and 
liave  the  le^^  of  credit  modified.  AfU>r  this  conversation,  Snyder  took 
the  cars  amf^ent  to  Fort  Scott.  On  the  2Uli.  late  in  the  afternoon,  li- 
drove  out  to  1).  (i.  ( ilasscock's.  in  \'ernon  County,  Mo.,  nine  mile- 
northeast  from  Fort  Scott  and  sixteen  miles  from  Prescott  (Prescott  i- 
on  the  railroad,  six  miles  south  of  Pleasanton).  ( )n  the  morning  of  the 
•-'.'•th  Snyder  ami  (ilasscock  went  out  and  looked  at  the  cattle  (Jlasscock 
was  fattening,  and  Snyder  made  a  bargain  for  the  cattle,  by  the  terms  of 
which  he  was  to  take  eighty  head  of  steers  at  three  and  one-fourth  cent> 
per  pound,  thirty-seven  or  thirty-eight  of  them  to  be  d:'livered  on  the 
ui'xt  Monday,  the  27tli,  and  the  balance  about  the  middle  of  February. 
Snyder  paid  (Jhisscock  SlT)  on  the  cattle  and  took  his  receipt  therefdr. 
(Uasscock  also  sold  him  his  hogs,  twelve  or  fifteen  in  number,  and 
agreed  to  try  and  get  up  a  car  load.  Snyder  then  retured  to  Pleasanton, 
and  on  the  same  d-ay  telegraphed  to  Painter  &  Sou:  — 

"  The  words,  to  j)ay  on  stock  in  the  way  Say  to  Hood  you  will,  (tr 
will  not  pay.     Answer  quick. 

''  Smtpek  &  Co." 

Painter  &  Son  telegraphed  back  to  Hood  &  Kincaids,  ••  Wi-  will 
honor  Snyder  &  Co.'s  drafts  to  the  amount  of  four  thousand  dollar>." 
This  telegram  was  received  by  Hood  before  Snyder  called  at  the  bank 
on  the  2.">th.  About  noon  on  the  2.')th  Snyder  went  to  the  bank  and 
asked  Hood  how  it  was  '•  in  regard  to  that  money  to-day."  Hood  toM 
liim  ho  thought  everything  was  riglit  now,  :tnd   asked   him  how  nimli 


rtMi 


KE    SNYDKU. 


lA.'i 


ijifd  down,  but 
lii>  <'i)iivL'rsnlin!i 
r  iV;  Son.      Siiv- 

Hood  &  Kiii- 
I.  «>c  K.  to  era  I 

;yi)KI!  &  (  <). " 

I  dis|,atc'li,  tolf. 

Co.'is  drafts,  tn 

Oiillif  2;Jd,or 
),  Snyder  again 
•r  with  the  teh  • 
>  uet  money  on 

telejjniphed  \i, 
liG  (h-aft  on  eer- 
e  lot  of  catth  , 

ahoiit  one  hnn- 
nter  &  Son  anil 
i)n,  Snyder  took 
e  afternoon,  li- 
io.,  nine  niil(~ 
)tt  (I'rescott  i- 

nioruinir  of  tli.> 
atth'  (Jhi.ssco(k 

bj'the  terms  of 
ne-fourth  eent> 
l:'livere(l  on  the 
ie  of  Febrnary. 
eeeipt  therefor, 
n  nnn)I)er.  and 

to  I'leasauton. 

)od  you  will,  (tr 

'DEli   &  Co." 

ds,  •■  We  will 
isand  dollar>." 
ed  at  the  bank 
I  the  bank  and 
•.'•  Hood  to!.! 
him  how  mu(  h 


i.^ 


money  he  wonid  need.      He  said  he  thought  that  S.'KHOO  would  <lo.     Sny- 
(hr  Iliad.'  draft  for  the  amount  on  I).  A.  Painter  &  Son.  and  Hood  paid 
liini  -SI. •'><•"  ill  lurrcncy,  and  a  eertified  eheck  on  the  First  National  Hank 
at  Kansas  City  for  SI. .")()(».     Hood  said  to  him  at  tiie  time  that  he  sup- 
posed the  eattle  woulyd  be  shipped  on  Monday  night.     Snytler  said  no, 
tlnii  ii  would  take  a/ couple  of  days  to  get  them  to  the  station,  that 
lli.y  were  about  nine  nules  northeast  of  Fort  Seott  and   sixteen  miles 
from   Treseott.      Hood  remarked  to  him  that  he  ought  to  get  them  to 
r,,il  Seott  in  less  time  than  that ;  Snyder  said  the  eattle  were  to  l)e  de- 
livered and  paid  for  at  Young's  scales,  that  Young's  seales  were  nearer 
,,11  the  roatl  to   I'rescott,  and  tliat  the  cattle  were  fat  and  woidd  Imve 
t,.  he  di.ven  slow.     This  conversation   l)etween  Hood  and  Snyder  oc- 
curred while  Hooil  was  certifying  to  the  check.     Snyder   tirst  drewa 
ilruft  for  8  ">.•"><',  but  its  tt-rms   being  unsatisfactory  to   Hood  in  not 
!„ing  payable  at  sight,  Hood  made  one  out,  inserting  tiierein.  "  Pay  to 
tlie  order,  at  sight,  of  Hoo.l  &  Kincaids,"  etc.,  and  Sny.ler  signed  liie 
tirin  name  of  '•  Snyder  &  Co.,"  thereto.      Hood  testilied  he  Itelieved  all 
the  representations  made  to  iiiiu  by  Snyder  to  be   true,  and  that  he 
\v;is  induced  to  deliver   to  Snyder  th*.   §l,.'i(tO,    in  currency,   and  the 
ortitied  check    of   8l..'>00,    on  Novendier  I'.Mh,   upon    Snyder's  state- 
iii.nt  that  he  had  enough  cattle  bought,  antl  that  he  would  ship  them  to 
l';untir&  Son,  and  believing  that  Painter  &  Son  would  pay  this  draft 
iihrii  tiie  cattle  were  disposed   of.  if  not  before;  and  furtiu-r,  that  he 
«,.iild  pay  H.  &  K.  twenty-five  cents  on  the  SHK*  for  exchange.     Hood 
iilsi)  testilied  tha:,  at  the  time  he  delivered  the  money  and  certified  check 
lo  Snyder,  he  did  not  know  the  ilnancial  condition  of  1).  A.  Pa  -iter  & 
Son.  and  that  he  did  not  have  at  liie  time  such  conlidence  in  Painter  & 
Son  as  to  have  advanced  the  money  obtained  on  tluir  credit  alone  ;   that 
lie  iiad  conlidence  in  their  integrity,  not  in  their  hnaiuial  ability,  aiul 
his  contidence  in  their  integrity  was  l)ased  upon  representations   that 
li;,a  iieen  m.ide  tj  him   by  different  j.arties  that  they  were  respectable 
l.Mlcrs.     Snyiler   returned    to    Fort   Scott.     On  Sunday,    Snyder  and 
Shufes  together  went  again  to  Glasscock's  house,  and  calh'd  him  out  to 
the  fence.     Shores  said,    "  3Ir.    fUasscock,  we've  come   to  see  if  we 
(oiildn't  get  you  to  liold  these  cattle  another  day.     Our  linaneial  mat- 
ters is  so  we  can't  pay  for  'em  to-morrow,  and  if  it  would  suit  you  aa 
w.il,  we'd   like  for  you  to  hold  'em  another  day."     Glasscock  rather 
ul.j.cted  to  this.     Then  Shores  said,  in  tlie  presence  of  Snyder,  "If 
v -u  would  rather  do  it.  we'll  have  to  gi't  you  to  ship  the  cattle  in  your 
nun  name."     Glasscock  then  consented  to  keep  the  cattle  another  day. 
Snyder  then  went  to  Fort  Scott  and  engaged  four  cars  of  Jliug,  the  agent 
nf  "the  Missouri  River,  Ft.  Scott  and  Gulf  Railroad,  to  be  used  Tuesday 
night  for  Glasscock's  cattle,  and  others.     On  Monday  he  went  to  J.  V. 


154 


1  KAii)  AM)  falsi:  puktkxsks. 


Morrison,  a  <attlo  shipixr  who  shipped  caltl.-  over  tlie  Missouri,  Kansas 
&  'IVxas  Railway.  UM  him  hi<  had  boiiijht  (ilas.sfoclc's  cattle,  and  nunW 
arranfiemenls  with  him  to  have  him  ship  the  cattle  in  his  own  name  to  St. 
Louis'":  told  him  to  order  the  ca.N  and  attend  to  the  shippino;  of  them,  and 
nUomade  arr:inj.'ements  with  him  to  <j;o  out  to  Glasscock's  with  him  tin- 
next  day.     On  Monday  ni-iht,  Snyder  and  Sliores  went  to  Classcock's 
house,  stayed  over  night,  and  Tuesday,  the  'iSth,  in  the  morning,  they  went 
to  "cut  tiie  cattle  out."     Si)y<ler  selected  thirty-eight  to  take,  and  then 
turned  the  rest  hack,     (llassi ock  examined  the  cattle  turned  hack,  and 
found  Snyder  had  turned  hack  many  of  the  cattle  he  had  agreed  to  take 
then,  and  in  their  place  had  selected  cattle  which  were  more  i)rofitai)le  to 
feed,     (ilasscock  tlu'U  insisted  if  he  took  the  cattle  he  had  selecleil.  lir 
sJiould  secure  him  that  he  woul.l  take  the  halance.     This  Snyder  would  not 
do,  saying  that  hi'  wasn't  prepared  to  leave  the  means.     Glasscock  still 
insisted  on  security,  and  finally  Snyder  said  :      "  If  you  can't  do  bettor 
than  what  yuii  proi)0scd,  I'll  have  to  let  the  trade    fall   back,"  and 
Snyder  and   Shores  then   drove  off.     The   cattle  .selected  would  weigh 
about     one    thousand     one    hundred    i)ounds,    and    the    thirty-eight 
head    .selected,     at    three    and    one-fourth    cents    would    amount    to 
Sl,;i.")8."»(l.     At  the  feed-gale  they   met  Morrison,  and  told  him  that 
the  trade  was  •'  busted  up  :  "  wanted  him  "  to  go  and  buy  the  cattle,  if 
he  could  — they  would  h.ive  n<!lhing  more  to  do  with  him."     At  Fort 
Scott  Snyder  saw  M;ng;   "  told  him  he  could  not  siiip  and  withdrew  his 
order  for  cars."     They  then  got  on  the  freight  train  of  which  Cliarles 
Sykeswas  conductor,  and  left  Fort  Scott  about  1  ::U)  p.  m.     Snyder 
paid  his  fare,  first  to  Prescott  and  then  from  Prescott  to  Pleasanton 
Tiip  train   stopped  at  Pleasanton   about  fifteen  minutes.     Snyder  and 
Shores  got  out  of  the  caboose.     Snyder  went  to  Hood  &  Kincaids'  bank, 
and  tohl  llooil  that  he  wanted  some  more  money  to  finish  paying  for  the 
stock  he  had  bought;  that  he  was  in  very  much  of  a  hurry;  that  tlun 
was  a  freight  train  at  the  depot   ready  to  pull  out,  and  that  he  wanted 
to    get    ba.'k    to    Prescott    on     it.     IJood    asked     how    much    more 
monev    he    wanted,     lie    said    SS.-.O,    and    gave    a  draft    on    I).   A. 
Painter  &  Son    for   the    8S.")().    in    form  similar   to    the  ?:5.0(tO  <lr;>ft. 
and  Hood  gave    Snyder    a   certilied    ciieck    for   the    amount.     Snyil«r 
then  tried  to  get  on  the  i)ay  car  going  north  (I'rescott  is  south  of  Pleas- 
anton) ;  could  not  get  on  it,  and  then  got  on  toSykes'  cal)oose  again, 
showed  Sykes  a  large  amount  of  money,  rode  with  him  to  Kansas  City. 
At  nine  o'clock  on  tin'  -".'th  he  got  the  8H."»0  check  caslied  at  Wyandott.', 
at  tiie  banking-house  of  Northrup  &  Son.     The  g.'i.OdO  draft  in  favor 
of  Hood  &  Kincaids  was  sent  to  Katisas  City,  ami  Painter  &  Son  bein^' 
unable  to  pay  the  same,  it  was  protested.     On  the 'itHh,  1).  A.  Painter 
went  to  Wvaudolte  to  see  Snytler  and  Shores,  and  asked  them  w  hat  luck 


RK   SNYDKK. 


155 


Missouri,  Kansas 
1  cuttle,  and  niudi' 
sown  name  to  St. 
ipiiigof  them,  and 
)ek'8  with  him  tlic 
nt  to  (Uasscock's 
noniiiig,tliey  went 
tto  tniie,  and  then 
turned  hack,  and 
lad  a;;reed  to  taki' 
more  profittible  to 
ic  l;ad  sek'eled.  he 
■*  Snyder  would  iii>t 
s.     (llasscock  still 
ou  ean't  do  better 
;    fall   hack,"  and 
i'cted  would  wci;,di 

the  thirty-eijiht 
vould  atnount  to 
au<l  told  hira  that 
1  buy  the  cattle,  if 
M  him."  At  Fort 
[)  and  withdrew  his 
I  of  which  Cliarles 
;30  p.  ni.  Snyder 
cott  to  rieasanton 
lutes.  Sn\'der  and 
I  &  Kineaids'  bank, 
uish  paying  for  the 
I  hurry  ;  that  tluTr 
and  that  he  wanted 

how  much  more 
a  draft    on    D.   A. 

the  ?:i.O(lO  dr;>ft. 
I  amount.  Siiyihr 
tt  i.s  south  of  ricas- 
kes'  caltoosc  again, 
lim  to  Kansas  City, 
siied  at  Wyandotte, 
.000  draft  in  favor 
•ainter  &  Son  beins; 
.MHh,  1).  A.  Painter 
ked  them  w  hat  luck 


'l!,.vlKid  buying  cattle.  They  .stalt-d  that  they  had  liargaiiu'd  for  (ilass- 
i.ik-  c:itllf  ;  that  (ilasscock  had  disagreed  with  them  about  the  selce- 
ti,,ii  (if  the  cattl.'.  and  would  not  h'l  them  have  the  cattle.     I'ainter  said  u 

c... )  (haflhad  come  on,  and  Ihcy  had  been  forced  to  lelitgo  to  protest. 

i'liiiter,  Snvder  and  Shores  then  went  to  a  saloon,  where  they  iuid  fur- 
tiir  talk  about  the  8'5, 000  draft.      I'ainter  insi.sted    that  if  they  hadn't 
Ik  iiirlit  any  stook  they  must  have  the  money  ;  that  the  money  ought  to 
^r,,  lo  piiy  tin-  draft.     Snyih  r  replied  that  they  were  not  going  to  com- 
mit thtin-*elvcs  ;   lh:il  tiic^- were  awaiting  (levelo|iments.     I'ainter  sug- 
-,>ie(l  that  if  they  were   keeping  the  money  for  what  his   lirm  were 
ewuig  them,  that  he  would  pay  them  on  Kriday  ;  they  reiilied  that  they 
\\;\v  not  going  to  commit  themselves.     After  Snyder  was  arrested  on 
iiiii-i  ehaige,  he  said  to  one  James  Ueynolds,  ■■that  tiu'y  had  put  altout 
,i  ,000  in  Painter's  hands  last  spring,  and  he  didn't  like  the  way  things 
\V(  re  iioing  lately  ;  Iw  said  he  hadn't  lost  anything,  oidy  STdO  or  ?H0O." 
i;  vn  lids  also    tcstilh'd:    "I  can't    say   wlu-ther   Snyder  said    that   he 
hid  (.'lit    even  with  him.   and  was   going  to  ke»"p  even  with  him.    or 
viiellier  he  had  taken  this  plan  to  get  even  with  him."     While  on  his 
jwiy  back  to  Pleasanton,  aftc  his  arrest,  Snyder  said  to  Mc(!lothlin,  the 
imtv  sheriff  wlio  had   him  in  ( harge,  that  Painter  &  Son   owed  him 
.,'10(1;  that  he  did  liiis  to  get  his  money,  or  that  it  was  the  only  way 
.■  IkuI  to  get  his  money,  out  of  Painter  A:  Son.     While  in  the  jail  at 
\1  iinnl  City,  he  made  a  similar  statement  to  Rol)ert  Fleming.     He  also 
1-iid  he  didn't  care  who   11.  &  K.    looked  to  for  their  money ;  that  he 
IS  >Midying  his  own  care.     Painter  &  Son  owed  Snyder  «&  Shores  at 
It.iis  time  from  g.'fOO  to  870t>,  ;ind  were  aide  to  pay  that,  itut  were  not  able 
;    ii:iy  the  8:i,«">0,  without  the  cattle.     They  were  persons  of  limited 
iniin-.     Neither  Snyder,   nor  A,  J.   Snyder  &  Co.,  had  any  money  on 
M  iio>ii  with  Hood  &  Kiiu-aids   at   the  time  of  these  transactions,  and 
Mi  ""1  iV  Kineaids  have  never  been  paid  any  i)art  of  §.'!,. H.')0. 

riu'  foregoing  statement  of  facts  was  prepared  by  the  chief  justice, 
h'liinscl  appearing  for  Snyder  in  this  court  were  ./.  I).  SninUbj,  A.  F. 
l/'i  ami  W.  ./.  Burliiiii.  Counsel  for  respondent  Lamoreaux,  were 
■  jihru  JI.  Alh'n  and  IP.  R.  BliUUe.  The  case  was  argiu'tl  orally  by 
JM.ssrs.  Snodihj  and  El;i  for  petitioner,  and  Messrs,  AUfn  and  Biddle 
I  fr  respondent.  An  order  for  the  release  of  the  i)etitioner  was  made 
hml  issued  ou  the  '.tth  of  February. 

Tlie  opinion  of  the  court  was  delivered  by  Ihutxos,  C.  J. 

rpon  the  hearing  of  the  case  on  the  merits,  the  i)etitionor  objected  to 

lie  witness  J<diu  Hood  testifying  that  he  was  induced  to  part  with  the 

jfl.'ioo,  aiij  tlie  certified  check,  ou  the  statements  and  representations 

f  Niiyder,  oa  the  ground  that  it  was  incompetent  and  was  calling  for 


irxi 


FRAUD    ANU    IM.Si:    I'UKTKNSKS. 


the  xccrcl  iiu'iilal  t'limiions  of  tlu'  witiifs-..     'I'lu-  ohjrcfKiu  was  imt  well 
taki'ii.     This  was  a  malcrial  fad  to  In-  tstal)lislif(l.      It  was  piopt  r  fnr 
this  court  to  know  what  iiilliuiice  the  rci)roscs.nlatioiis  of  Snvdcr  liail 
upon  tlif  witii.'ss.      If  they  had  iioiu'  at  all,  the  prosecution  must  have 
failinl.      ••  The  fad  w;is  m  )ii5,''it  ufler,  and  not  the  oi)inion  of  tlu- wit- 
lU'ss."'     Objections  w.ie  also  taken  to  llooil's  testimony  tliat  he  I>l- 
lieved  the  representations  made  to  him  liy  Snyder  on  the  2.'ld,  2  llh,  •-'•'ttli 
and  -Jsth  of  Novemlx-r.     The  ohjections  were  overruled,  and,  for  tlie 
reasons  above  stated   we    think  the  evidenet!  competent.     It  is  indis- 
pensable to  the  consmnmatiim  of  the  crime  of  obtaining  money  or  prop- 
erty under  false   pretenses,  that   the  person  who  has  been  induced  to 
part  with   his  money  or  property  thereby  must  believe  the  pretense  is 
true,  ami,  conlidiuj,'  in  its  truth,  must  by  reiwon  of  such  conndenee 
have  been  cheated  and  defrauded.     We  do  not  mean  by  this  ruling  thiit 
such  evidence  is  the  best,  nor  the  most  reliai>le  ;  nor  that  it  is  necessary 
for  the   prosecutt)r  to  state  he  believed  and  relied  upon  the  pretense. 
All  of  this  may  be  inferred.     We  simply  hold  the  evidence  admissible. 
The  material  (jnestion,  however,  in  this  case  is,  whether  on  the  evi- 
dence submitted  to  us  an  offense  is  made  out  against  Snyder  for  ftdse 
pretense,  within  the  statute,  in  his  obtaining  from  Hood  &  Kinciids.  on 
November  2;')th,  the  8 1..'.()0  in  currency  and  the  certiiletl  check  of  81  ,.'iO(l. 
The  counsel  for  the  petitioner  contended  that  there  was  no  evidonce  of 
the  procuring  of  the  money  or  cheek  by  any  fid-^i:  pretense.     First.  In- 
asmuch as  Hood,  at  the  time  he  let  Snyder  Iiave  the  mouoy  and  check 
on  the  •i.'ith  of  November,  had  an  absolute  ordiT  in  the  form  of  a  tele- 
gram from  Painter  &  Son  to  honor  Snyder  &  C'o.'s  drafts  for  four  thou- 
sand dollars,  and  had  previously  refused  to  pay  the  money  on  a  letter 
of  creilit,  which  he  construed  as  reipiiring  him  to  see  to  the  shipping  of 
the  slock  to  Painter  &  Son,  it  is  conclusively  shown  that  such  tele- 
graphic order  of  Painter  &  Son  was  the  sole  in<lncement  by  which  the 
money  and  check  were  parted  with  by  Hood.     Sirond.  That  the  repn- 
sentation  made   by    Snyder    to    Hood    that  he    liJid  l>ought   the   pick 
of  a    large    lot  of   catth",  about  one  hundred   head,  was  true  on  the 
2.')th,  when  the  money  and  clieck  were  oittained  ;  luul  that  the  statement 
that  the  cattle  would  be  shij.ped  to  Painter  &  Son  at  Kansas  City  was  a 
representation  or  assurance  in  relation  to  a  future  transaction,  and  di^i 
not  amount  to  a  statutory  false  pretense.     As  to  the  tirst  proposition  of 
counsel  of  the  petitioner  for  his  discharge,  we  answer  that  wc  are  not 
satisfied  that  Hood  parted  with  the  money  and  check  solely  on  the  tele- 
gram of  credit  of  the  2.'>th.     The  testimony  temls  to  show  that  he  was 
Induced  to  part  with  the  property  in  controversy  partly  on  that  telegram, 


I  Peoplo  V.  Herrlck,  i;i  Wcnd.sT;  I'cople 
V.    suUy,    !>    I'ark.   (N.    V.;   (  r.     lUp.    Ul, 


People  r.  Miiler.  -2   Park.   fN.  Y.)  Cr.  Ucp. 
r.iT  ;  Tlii>iutt>  1-.  I'uople,  .H  N.  Y.  ajl. 


^Mi 


RE    SNYDER. 


157 


jt'C'tioll  was  lint   well 

It  was  proper  fur 
ions  of  Sindcr  liml 
)sccuti(m  luiist  liavi' 
ojjiiiion  of  tin-  wit- 
'stimoiiy  tliat  he  I>l'- 
1  11i."2.'i(l,  21111.  •-'.Mh 
rruli'd,  ami,  for  tlie 
K'tcnt.  Il  is  iiidis- 
tiiiijj  inoiH-y  or  prop- 
las  lut'ii  induced  to 
ii'vi-  the  prctt'iisc  is 
of  such  contidciice 
m  1)J'  this  riding  that 
r  that  it  is  uccossarv 

I  upon  the  pretense, 
evidence  admissible, 
whetlier  on  the  cvi- 
ist  Snyder  for  fsiise 
Hood  &  Kinc.ids.  on 
iiied  check  of  81.."iOil. 
e  was  no  evidonce  of 
|)retense.  First.  In- 
hc  raouoy  and  check 

II  the  form  of  a  tole- 
drafts  for  four  tlioii- 
he  nioiie}'  on  a  letter 
ee  to  the  shipping  of 
lown  that  such  tele- 
ceinent  by  which  the 
(ind.  That  the  repre- 
lad  liought  the  pick 
■ati,  was  true  on  tlie 
id  that  the  statement 
at  Kansas  City  was  a 

transaction,  and  di'l 
lie  tirst  proposition  of 
swer  that  wc  are  not 
;ck  solely  on  the  tele- 
;  to  show  tliat  he  was 
rtly  on  that  telegram, 


partlvoii  the   representation  of  Snyder  that  he  hi,d  bou-iht  about  one 
limidie  1  head  of  cattle,  and  partly  on  the  statement  that  he  would  ship 
llie  cattle  to  I'aiiiter  &  Son.     In  an  examination  of  his  character,  wc 
are  not  to  pass  absolutely  on  the  guilt  or  innocence  of  the  prisoner ; 
if  wi'  shall  lind  an  offense  has  been  committed,  and  there  is  i^-obable 
cause  to  believe  the  prisoner  guilty  thereof,  the  prisoner  should  be  com- 
mitted f  )!•  trial.     As  different  motives  were  assigned  by  tlic  i)rosecMtor 
as  operative  in  producing  the  delivery   of  the   money  and   check  to 
Snyder,  the  examining  magistrate,  and  this  court,  are  only  to  ascertain 
that  tiiere  is  jirobable  cause  to  believe  that  the  jirctenses  proved  to  have 
been  false  and  fraudulent,  if  within  the  statute,  were  a  part  of   the 
moving  causes  which  induced  Hood  to  part  with  the  property,  and  that 
Snyder  would  not  have  obtained  the  same  if  the  false  pretenses  had  not 
he.ii  superadded  to  the  telegraphic  order  of  Painter  &  Son  of  November 
•.'.Mil,  to  authorize  tlie  holding  of  Snyder  for  trial.     It  is  not  necessary, 
10  constitute  the  offense  of  obtaining  goods  by  false  pretenses,  that  the 
owner  should  have  been  induced  to  i)art  with  his  property  solely  and 
entirely  by  pretenses  which  were  false  ;  nor  need  the  pretenses  be  the 
paramount  cause  of  the  delivery.     It  is  sufflcieiit  if  they  are  a  part  of 
the  moving  cause,  and  without  them   the  prosecutor  would  not  have 
parted  with  the  property.' 

This  leads  us  to  examine  the  second  proposition  upon  which  the  coun- 
sel for  the  petitioner  claims  his  release,  and  to  consider  the  representa- 
tions made  by  Snyder,  "  that  he  had  bought  the  pick  of  a  large  lot  of 
cattle,   about  one  hundred  head,"  and  that  "he  would  ship  them  to 
Painter  &  Son."     The  first  representation  was  substantially  true,  when 
the  money  and  check  were  obtained  on  the  2.')th  of  November.     At  that 
time  the  cattle  had  been  contracted  for  by  Snyder  with  Glasscock,  and 
a  part  of  the  consideration  paid.     This  representation,  when  made  on 
the  2;kl  or  24th  of  November,  was  false.     On  the  25th  it  had  become 
true.     Is  a  pretenso  which  was  false  when  made,  within  the  statute,  if 
true  when  the  property  is  parted  with?     We  think  not.     The  pretense 
employed  is  only  the  means  by  which  the  offense  is  perpetrated.     The 
Mihstance  of  the  offense  consists  in  the  obtaining  of  the  property,  and 
thereby  with  a  fraudulent  intent  depriving  the  lawful   owner  of  that 
which  properly  belongs  to  him.     If  a  party  by  his  own  acts  makes 
tlie  false  representations  good,  before  obtaining  the  property,  there  is 
no  consummation  of  the  crime,  and  there  is  no  criminal  attempt,  for  it 
follows  that,  when  there  is  a  change  of  purpose  on  the  part  of  a  person 
seeking  to  obtain  property  by  a  false  pretense,  before  any  other  wrong- 
ful act"  is  committed  than  the  making  of  the  false  pretense,  the  crime 


,  2   Pink.   (N.  Y.)  rr.  Hep. 
I't'ople,  M  N.  V.  3J1. 


1  I'eople  f.  Uaynes,  14  Wend.  647. 


158 


KUAII)    AM)    r.M>F.    I'KKTKNSES. 


Of  the  attempt  is  takon  awav.  The  fact  that,  in  this  case,  Sny.ler  novor 
al.'in.l..tu..l  thf  sclui.u-  t..  .h-fraiul  s-mo  oiif,  <loe8  not  militate  a}.ainst 
the  (•(.ncliisi..!.,  that  the  protons.'  must  l.o  falso  in  fact  when  tlic  pr.-i)- 
orty  is  paito(U-ith.  ll-.w  can  it  he  saiM  that  Ho..,!  roliod  upon  a  fal^. 
representation  as  to  tlu-  purchase  ..f  the  catth>  when  he  delivered  th. 
,n..neyau.leheci<,  if  at  that  time  tho  representation  had  hocnio  true' 
No  property  ^vas  parte.l  witli  hy  Hood  on  the  '.>:!d  .r  2  Ith.  The  repre- 
sontation  then  nui.le  by  Sny.h'r  as  to  huyin-  the  cattle,  was  true,  on  the 
'>r.th,  and  before  he  ..l.tain.'d  the  mon.y,  or  check:  and  if  he  is  to  u 
held  f..r  the  comniission  of  a  crime  hy  obtaining'  prop.rty  un.ler  false 
pretenses,  it  must  bo  upon  s..me  other  representati..n  than  the  ropre- 
se..tatio.»  .m  the  i'M  or  2  111.,  as  to  having  "  bought  the  pick  of  u  large 

lot  of  cattle." 

As  to  the  representation  of  Snyder.  "  that  he  would  sh,p  the  cattle  to 
rainter&   Son,  at  Kansas  City."  we  follow  authority  in  holding  such 
statement  is  not  a  statutory  false  pretense.     The  false  pretenses  rehe.l 
upon  to  constitute  an  offense  under  the  statute,  must  relate  to  a  paM 
event,  or  to  some  present  existing  fact,  and  not  t..  something  to  happen 
in  tho  future.     A  mere  promise  is   not  snlllcient.'     The  representation 
that  the  cattle  would  be  shipped   to  IMintiT  &  Son,  related  to  an  event 
which  was  thereafter  to  happen.     It  was  a  promise  or  assurance  of  a 
future  transaction.     Ipon  the  evidence  we  are.  therefore,  compelled  to 
say,  that  as  the  only  offense  charged  in  tlu-  complaint,  and  in  the  war- 
rant against  Snyder,  was  tho  obtaining  of  the  ?1,500  in  currency  am 
the  certitied  chock  of  $\jm  on  November  2r,lh,  as  therein  stated   and 
as  the  Older  of  commitment  was  issue.!  on  the  fin.ling  of  the  examining 
magistrate,  that  tluTC  was  probable  cause  to  believe  Snyder  "  guilty  ns 
char.red  in  the  complaint  and  warrant,"  there  is  n..  h-gak  authority  for 
hol.Ung  the  petitioner  in  custody,  and  he  n.ust  be  discharged.     It  is, 
perhaps,  unnecessary  to  add,  that  in  point  of  moral  turpitu.le,  Rny.lor 
is  as  guihy  in  obtaining  the  property  of  Hood  &  Kincaids  on  the  25th 
of  November  on  a  false  promise,  if  such  be  the  fact,  as  if  such  pre- 
tense was  within  the  statute.     The  criminal  law,  however,  can  not  reach 
the    perpetrator  of  every  fraud.     "The  statute  may  not  regard  mere 
naked  lies  as  falso  pretenses."      It  has  been  well  said:     "The  operation 
of  the  wisest  law  is  imperfect  and   precarious;  they  seldom  inspire 
virtue  ;  th.-y  can  not  always  restrain  vice  ;  their  nower  is  insufficient  to 
prohibit  all  that  they  con.lemn,  nor  can  they  always  punish  the  actions 
which  they  prohibit.  • '     Wo  have  intentionally  abstained  from  comment- 
ing  upon  "the  transactions  of  the  28th  of  November,  when  Snyder  is 

.  Uex.  ,-.  Yo„Mg.3  T.R.98;  Uex  r.  Lee.  Ungh.mr.  State.50hio  8';  J^^  »«7*;: 
L  *  C-.  3.« ;  Ootfun.,nwoaUh  v.  Drew.  19  State,  12  Ark.  6.5 ;  State  t-^.Magee.  U  Ind.  IM . 
BJch.  179;  State  v.  fiver..  49  Mo.  542 ;  Dll-      SUte  r.  Green.  7  W  >8. 676. 


KIATK    V,  LlHCir. 


ir.'.t 


msc,  Snyilcr  ncvor 
)t  militntc  ajiainst 
ct  wlu'ii  till'  proii- 
•fliod  ujioii  ii  falx' 

1  lie  (Ulivirod  tln' 
had  boronio  tnu-? 

2  I  til.  Tlu'  rc|'if- 
',  was  tnu',  on  tlii> 

and  if  lie  is  to  bt 
ojicrty  nndcr  false 
(111  iJiaii  llie  ropre- 
lic  picli  of  a  large 

(1  .sliii>  tlie  cattle  to 
:y  in  holding  sntli 
se  jirotenscs  relied 
list  relate  to  a  past 
imetliing  to  happen 
riie  representation 
related  to  an  event 

or  assurance  of  a 
'fore,  compelled  to 
lit.  and  in  the  war- 
00  in  cnrrcncy  and 
therein  stated,  and 
ig  of  the  examining 

Snyder  "guilty  ns 
)  ioga\  authority  for 
>  discharged.     It  is, 
d  turpitu<le,  Snyder 
;incaids  on  the  25th 
fact,  as  if  such  pre- 
vever,  can  not  reach 
ay  not  regard  mere 
d:     "  The  operation 
they  seldom  inspire 
wer  is  insufficient  to 
•8  punish  the  actions 
lined  from  commcnt- 
)er,  when  Snyder  is 

5  Ohio  St.  280;  Burrow  v. 
HatCf.  Magee,  U  InU.  IM, 
IV  is.  676. 


alleged  to  have  obtained  a  certilied  ciu'ck  of  g8,'>0,  liecansi'  tliere  is 
nothing  ill  the  proceedings  before  tin-  niagisliate,  or  in  this  cuiiit,  to 
|)re\<iitthc  petitioner  from  being  arrested,  if  any  coini)l:uiil  is  niadc. 
therefor.  Whether  a  crime  has  been  coiiiniilted  in  that  regard,  and 
whether  there  is  probable  cause  to  believe  the  petitioner  guilty  thereof, 
may  bo  a  matter  of  future  examination  and  judicial  deterniiiiution.  In 
this  investigation,  the  testimony  of  facts,  siiltseinu'iit  to  the  -'."itii,  was 
received  by  us  only  to  explain  the  transactions  of  the  2i)thof  >'ovem- 
lier,  and  to  shed  hght  u|ton  the  intent  of  Snyder. 

That  the  force  of  this  decision  may  not  be  misconstrued,  wo  may 
proj.erlysay,  that  the  evidence  shows  there  was  no  culliision  between  the 
lirm  of  Painter  &  Son  and  Snyder,  and  that  the  imrchase  of  the  catth- 
by  Syduer  of  (Wasscock  on  the  morning  of  the  2.'>lh  was  made  in  good 
faith.  It  is  evidenl,  however,  that  Snyder  jiever  intended  to  ship  any 
of  the  cattle  to  Paiiiler  &  Son,  and  all  his  stalemeiita  to  that  effect 
were  in  pursuance  of  his  scheme  to  successfully  carry  out  his  fraudu- 
lent purpose. 

Let  the  jietitioner  be  discharged,     .vli  the  justices  concurring. 


FALSE  PRETENSES— TRlJTil  OK  PRP:TKNSE  — EVIDENCE. 

State  v.  Lukcii. 

[r,  WcstC.  Rep.  110], 

In  the  Supreme  Court  of  California,  1S85. 

In  a  Criminal  Proaecution  for  Obtainlnfr  Money  under  false  preteneeB,  where  the 
alleged  laleo  prclenBO  consiKts  in  rfpresenling  as  gcnulno  a  note  which  had  bcfii 
forged  by  the  dofendaiit,  cvulenctMlint  llicdefciidmit  signed  the  iuiiucn  of  the  parties  tu 
the  note  with  their  consent  is  admissible.  If  the  note  was  so  signed  it  was  not  a  for- 
gery. 

Appeal  from  Lane  County.     Tlie  opinion  states  the  facts, 

W.  Ii.  Willies,  for  the  appellant. 

J.  W.  Hamilton,  District  Attorney,  and  Geo.  S.  Washburne,  for  the 
respondent. 

Lord,  J.  The  defendant  was  indicted,  tried  and  convicted  for  ob- 
taining goods  under  false  pretenses.  The  criminal  code  provides  that 
"  upon  a  trial  for  having,  by  any  false  pretense,  obtained  the  signature 
of  any  person  to  any  written  instrument,  or  obtained  from  any  person 
any  valuable  thing,  no  evidence  can  be  admitted  of  a  false  pretense 
expressed  orally  and  unaccompanied  by  a  false  token  or  writing,  but 


It)() 


ll;\l  n    AM)    KAI-Hi;    I'Ur.TKXSKS. 


H.icl.  nrcton'^c,  or  soinr  ....f  or  moinoran.Unn  thoroof.  must  l.o  in  writing, 
an.l  .itluT  siihscriluM  l.v,  or  in  tl.o  l.anilwrilin-  «f  thr  d.f.n.lant 

The  Hnl..tam.o  of  tl..  ull.-a.ion  i<.  U.at  the  dof.mlant,  mU.m  .nj;  (o 
cl.r.tt  an,J  drfraiul  I'lu.l.o  H.  Kin.ey  of  Irt  n.on.  y  au.l  property,  fals.lv 
an.l  feloniously  .r.l  prelen.l  an.l  represent  tliut  a  certain  instrnmeut  u. 
writing,  purpo^tin^'  to  he  a  promissory  note,  was  the  gennine  proinis- 
Hurv  m.tcof  l.ur.h  Bro..,  A.  11.  Spare,  an.l  Samuel  D.Ilard;  that     >.■ 
two  8i.'natnr..s  to  the  said  note  purporting  to  be  the  si-naturo.  of  the 
sai.l  Spare  an.l  DiUar.l,  were  the  true  an.l  genuine  si.rnatur..H  of  the  saM 
Spare  and  Dillar.l  ami  that  t'u-  sai.l  Spare  an.l  Dillar.l  ha.l  signed  th. 
sai.l  note  as  seeurity  f.-r  the  payment  of  the  same,  when  in  truth  an. 
fMet,  the  sai.l   m.te,  purporting  to  be  the  m.te  of  Lureh  Ur..s.     an.l 
si.rucd  bv  the  sai.l  Spare  an.l  Dillar.l,  was  n..t  the  genuine  note  of  th.' 
said  Spare  an.l  Dillar.l,  or  eith.-r  of  them,  nor  their  true  or  genuine 
si.rnatur.'s,  or  either  of  them,  but  were  forgeri.-s,  which  fact  the  Haul 
defendant  well  km.w,  etc.,     *     •     *     l,y  im>ans  of  which   saul  false 
nrctenso  ami  pretenses  the  sai.l  .lef.Mulant  di.l  then  «>»l.   '';7';-'^;- 
unlawfully,  knowingly  and  feloni.,usly  obtain  from  the  .sai.l  1  h.ebe  K 
Kins.'V,  liine  hun.be.l  .l..llara,  etc.,  with  the  intent  to  cheat  and  defrau.l 
the  sai.l  Ph.ebe  B.  Kinsey  of  her  goods  and  money. 
^    Bv  the  bill  of  exceptions,  it  appears  that  the  State,  to  maintain  the 
iss,.;  np..n  its  part,  called  as  a  witness,  Mrs.  I'h.ebc  B.  Kinsey,  who 
testiiie.1  that  on  December  15,   1S:'.:5,  Mr.  Washbnrne,  her  agent  ami 
attorney,  cam.-   to  her  house  will,  the  d.fendant,   and  saul  that  the 
defen.lant  wanted  to  borrow  nine  hundivd  dollars;  that  she  asked  Mr 
Washburne  what  security  the  defen.lant  oul.l  give,  and  he  saul  he  coul.l 
give  the  note  of  Lurch  Bros.,  with  Samuel  Dillard  and  A.  1  .  Spare  as 
security      The  W'ncss  was  th.Mi  aske.l  wh.^t  the  defendant  Lurch  sai. 
to  her  in  regar.l  to  getting  Dillar.l  and  Spare  to  sign  the  note,  an.l 
answ..re.l,  that  he  t..l.l  me  that  he  woul.l  take  the  note  to  Cottage  Urovc, 
and  have  it  signed  by  Dillard  an.l  Spare,  and  return  it  next  Monday. 
This  was  on  Saturday.     V/ i  hburne  being  calle.l,  testified  in  substance, 
that  the  def.-n.lant  came  u,  h  •,  ollice  an.l  wanted  to  borrow  seven  hun- 
died  .lollars  t.>  nine  hu...ln«.l;  that  he  tol.l  him  that  Mrs.  Kinsey  ha. 
some  m..ney  to  L.an.  ur.-i   .hat  tlu-y  went  to  see  her,  and  that  she  sai.l 
that  she  woul.l  let  the  def.-ndant  have  the  money,  if  I  approved  of  the 
securitv      I5cing  aske.l  what  security  the  defen.lant  said  he  could  give 
ihe  witness  answer.-.l  that  the  defendant  said  he  could  give  Spare  and 
Dillard      He  was  then  aske.l  wh.at  did  Lurch  say  at  the  time  in  regar. 
to  gettin-  Spare  and  Dillard  to  sign  the  n..te  themselves,  and  answered 
that  the  defendant  said  that  he  would  take  the  noto  to  Cottage  Grove 


1  Code.  sec.  173,  p.  362. 


STATK    r.  MUCH. 


Ifil 


must  1(0  in  writing, 
II'  (li-fiiiclant.' 
iidant,  iiiU'iidin^  (o 
11(1  [iropiTty,  fiilsilv 
■rtnin  instninioul  in 
lie  liciiuino  proinis- 
•l  Dilliird;  that  tlu' 
Hs  sij^iiiituiea  of  the 
LrnuturL'S  of  the  said 
Hard  liad  signed  tlif 
■,  wlii'ii  ill  trutli  and 
f  Liinli  UroH.,   und 

irOIlllilU!   notl-  of    till' 

I'ir  true  or  fronuim- 
which  fact  the  said 
of  whicli  said  false 
1011  and  thiTO,  etc., 
11  the  .said  rhu'be  B. 
,o  cheat  and  defraud 

tato,  to  maintain  the 
ii'hc  B.  Kinsey,  who 
urne,  her  agent  and 
;,   and  said  that  the 
;  that  she  asked  Mr. 
,  and  lie  said  he  could 
I  and  A.  H.  Spare  as 
lefendant  Lurch  said 
o  sign  the  note,  and 
ote  to  Cottage  Grove, 
turn  it  next  Monday. 
testified  in  substance, 
to  borrow  seven  hun- 
that  Mrs.  Kinsey  ha<i 
her,  and  that  she  said 

if  I  ajiprovcd  of  the 
lit  said  he  could  give, 

could  give  Spare  and 
'  at  the  time  in  regard 
aselves,  and  answered 
iioto  to  Cottage  Grove 


:ind  pet  Diilanl  and  Sparc  to  sign  it,  and  return  it  on  Monday.  "Up 
canii'  buck  Monday  with  the  note,  imd  also  with  sonio  notes  as  collat- 
irals.  1  took  tlu"  note  and  collaterals,  and  gave  him  the  money,  nine 
luiiidrcd  dollars." 

A.  H.  Spare,  being  called,  tostified  that  he  did  not  sign  the  note 
d.  sciibed  in  the  indictment.  ,uid  tlid  not  give  any  person  authority  to 
sijii  it.  Samuel  Diilanl,  being  called,  also  testitied  that  he  did  not  sign 
t!ic  note,  and  ucer  aulliorized  any  one  to  sign  the  note. 

.S(,ine  exceptions  were  taken  to  this  evidence,  and  other  evidence 
..ffrred  and  received,  but  the  purposes  of  this  case  do  not  require  ua  to 
lu.te  them. 

The  defense  then  offered  to  prove,  by  the  defendant,  that  the  signa- 
Hir.'s  of  \.  II.  Spare  and  Samuel  Dillard,  upon  the  note,  were  written 
l.y  the  defendant,  under  the  «lirection  and  authority  of  A.  II.  Spare 
und  Sjimiiel  Dillard.  Tliis  was  objected  to,  and  the  exception  taken 
involves  the  ground  of  error  upon  this  ajipeal.  The  evidence  shows 
tiiiit  the  defendant  represented  that  he  could  give  these  names  as  security 
for  the  payment  of  the  note,  and  it  waj  in  fact,  the  reliability  of  these 
iiiunes,  which  induced  Mrs.  Kinsey  to  purchase  tho  note.  It  was  the 
sccnrity  she  was  concerned  al)nut,  and  these  were  the  names  the  dcfeiid- 
;iiit  offered.  Sul)se(iueiitly,  when  the  note  was  presented  with  their  sig- 
natures, or  what  purportc<l  to  be  their  signatures,  the  note  was  accepted, 
iMid  the  money  thus  ol)taiiu'd.  Dillard  and  Spare  both  testified  that 
they  did  not  sign  the  note,  nor  give  any  authority  to  any  one  to  put  their 
-iiiZiialures  to  it. 

Ill  the  opening  of  the  case,  the  defendant  hr.d  admitted  that  he  had 
written  the  names  of  Spare  and  Dillard  upon  tlii;  note,  bi.t  by  the  direc- 
tion and  authority  of  each  of  them.  This,  however,  Mas  immaterial,  for 
the  record  discloses  a  ca.sc  had  been  made  against  the  defendant,  unless 
he  ould  obviate  the  effect  of  this  evidence.  Now,  it  seems  tons,  it 
nui-t  be  conceded  if  both  Sparc  and  Dillard  did  direct  and  authorize  the 
I'efemUint  to  put  their  names  or  signatures  to  tlie  note,  it  became  their 
hindiiig  obligation,  upon  which  they  were  liable,  and  Mrs.  Kinsey  got 
what  she  bought  or  c  'Utracted  for.  Although  the  manual  or  i>liysical 
a(  tof  writing  the  names  was  not  theirs,  it  became  so  by  tlieir  direction, 
(dusint  and  authority,  and  was  in  legal  effect,  their  signatures.  Their 
(lireclion  to  sign  their  names  was  a  sigi^ing  by  them,  and  in  such  case 
tlie  sitrnatures  would  not  be  forgeries,  nor  the  note  si)urioiis.  It  is  not 
a  f:dse  writing,  i>ut  a  genuine  note.  And,  if  this  be  true,  the  defend- 
ant gave  to  Mrs.  Kins.y  tl^e  s^-curity  which  he  represented  to  her  that 
he  could  procure,  and  upon  which  she  parted  with  her  money.  The 
."^tatc  had  deemed  it  material  to  prove  that  the  defendant  had  no  author- 
ity from  Spare  or  Dillard,  or  either  of  them,  to  sign  their  names,  and  if 
3  Dkkexcks.  11 


1,;2  rUAUD    AND    TALSK    I'KETKNSES. 

it  was.  wl.y  should  not  the  .Icfe.uUu.l  be  allowe<l  to  ne-ative  uu.l  cun- 
tnulict  tliat  evidence? 

The  object  of  the  defendant  by  the  evidence  offered,  was  to  show 
that  he  had  authority  from  each  of  them  to  put  their  si-natures  t..  ti.e 
note,  for  the  purpose  of  shuwing  that  the  note  was  genuine  and  t.uU 
their  signatures,  although  written  by  bin,,  were  authorized  by  them,  am 
not  for.'cries,  and  that  the  security  that  he  ha<l  represented  he  wou M 
eive,  hiul  been  furnished  an.l  thus  obviate  the  intent  of  comm.tt.ng  tlu 
crime  with  which  he  was  charge.l.  What  effect  this  evidence  m.ght  hav. 
had  upon  the  result  was  for  the  jury  to  determine,  and  with  which  w. 

have  nothing  to  do. 

We  think  the  evidence  wsus  admissible,  and  that  it  was  error  to  exclude 
it.     The  judgment  must  i)e  reversed,  and  a  new  trial  ordered. 


FALSE     PRETENSES -REQUISITES    OF     INDICTMENT  -  NO    INJUR 

DONE- FUTURE  EVENT. 

Kkller  V.  State. 


[51  Iiiil.  Ill-] 


In  the  Supreme  Court  of  Indiana. 


Lre  unknown,  is  l.ad  on  a  motion  to  ..uash  »«  being  too  vuKertn.n  and  IndcOmte. 

tha    to    0       'Slate  was  not  worth  $;i.r,0«  i«  insunicient.    The  indictmont  nhon  ,1 
tha  t  t  P   ioriv  was  not  of  «umc>cnt  value  an.ply  to  secure  the  sum  of  $..no.    I     u 

mort"a».o,  .1  .s  immaterial  that  the  respondent  represen.e.l  the  real  estate 
much  more  valuable  than  .t  aetually  wa-'. 

il.  ib.l  to,.-or.r,,  »..  .ub)..l  lo  ,„...r  ll»..l.u,  which  d...  ...  «.  •!..">  ••" 

describe  them,  is  insufBcient.  ,  ,..  . 

4.  Bepre.eatatioa.  of  Future  EvenU  are  not  false  preten.e..  which  mu.t  be 

existing  fai'ts. 

BvsKiuK,  J.     The   appellant   was   indicted   in  the   court  below 
obtaining  propertv  by  false  pretenses.     The  indictment  cmta.ns  ^ 
counts,    which,  as   to  the   false  pretenses  charge.l,  arc   nearly  ide 
cal.     The  ap,>ellaut  moved  to  <iuash  ..acli  count,  but  this  motion  ' 


KNSES. 

)\vo(l  to  nejiativo  iiutl  con- 

3noe  offered,  was  to  slmw 
[jUlUH'ir  siijnaturos  to  tlic 
lote  was  genuine  and  t'.iut 
■(>  autliorizftl  hy  them,  and 
had  represented  he  woull 
>  intent  of  connnittin<i  t!u 
ct  this  evidence  niifrlit  liav." 
jrmine,  and  with  which  we 

tliat  it  was  error  to  exclude 
lew  trial  ordered. 


KKl.LI-.K    r.   STATK. 


](;;5 


JDICTMENT  — NO    INJURY 
INT. 


Indiana. 

mortgag*.  which  aHegeB  that  th« 
tl  pHtaie  coveroJ  by  the  mortgage, 
lioh  dues  not  g've  the  name  uf  the 
ig  lliat  Buch  niimo  and  dcBcriptioii 
>o  unoertiiiii  and  IndcOnite. 
otal.'iliO  mortgage,  whore  the  pre 
gage  was  worth  Jii.WH),  iin  allegation 
lent.  The  indictment  shoiiia  fh"" 
o  secure  the  sum  of  I-VIO.  It  ieoiu. 
le  of  a  mortgage,  if  the  real  e.-.tat.' 
nply  to  secure  the  8um  due  on  Hie 
resen'.ed  the  real  estate  to  be  very 

le  of  a  mortgage,  where  the  pretense 
Rubject  to  any  prior  liens,  an  allc)t.i 
l)ut  which  does  not  set  them  out  or 

ne  preten»e».  which  must  be  »»  to 


ted  in  tlie  court  below  for 
The  indictment  contains  two 
t  charged,  are  nearly  identi- 
1  count,  but  this  motion  was 


oviiTuled,  and  he  excepted,  lie  pleaded  not  jiuilty,  and  was  tiic(l  by 
:i  jiii  V  and  was  found  miiity.  Tiie  cnmt  nvcrriilcd  tiic  niolioiis  in  aric^t 
nf  iu(l>:nit'iit  and  fi»r  a  iic.v  trial,  to  whicli  exceptions  were  taken,  -hidg- 
iiu'ut  was  rendered  on  tlie  verdict. 

The  ai-.i'.f'.'.r.iit  has  a'siy:in'il  fur  error,  tiie  overrulin<f  of  his  motions  to 
i|uash  tiie  indictnieiil,  iii  arrest  of  judgment,  and  for  a  new  trial. 

Tlie  first  (piestion  for  tlie  consideration  of  the  court  relates  to  the 
sulticiency  o."  the  imlictment. 

Tlie  first  count,  omittin«?  the  formal  parts,  is  as  follows:  '-Thr  irrand 
jurors  of  Tiiiton  Coiiiity,  in  the  State  ()f  Indiana,  o;ood  and  lawful  men, 
(Inly  and  le<fall3-  Impaneled,  sworn  and  charj^ed  in  the  Tipton  Ciieuit 
Court  of  said  State,  at  the  si)rin<i  term  for  tlie  year  IsT.'i.  to  iii«iiiire 
into  felonies  and  certain  misdemeanors  in  ami  for  the  body  of  tiie  said 
(•'  iiiity   of  Tipton,  in   the   name   and  by  the   authority  of  the  State  of 
Indiana,  on  their  oath  do  present  that  one  Robert  II.  Keller,  late  of  said 
coimty,  on  the    l-'ith  day  uf  October,  in  the  year   bSTI,  at  and  in  the 
(•  luiity  of  Tipton,  and  State  of  Indiana,  diil  then  and  there  unlawfully, 
feloniously,  dcsijjrnedly    and   with  inteiil   to  deframl    one    George    W, 
r.oyer,  faiscly  preteml  to  the  said  ( ieorire  W.  Hoyer,  that  he,  the  said 
Ilohert   11.  iveller,  ha.l  lieen  the  owner,  and  had  recently  sold  to  a  cer- 
tain i>art3'  a  certain   i)iece  of  re:il  estate,  to  wit,  a  house  and  lot  of 
"rround,  situated  in  the  city  of  liidianapoii.i,  in  tlie  county  of  Marion, 
ill  the  State  of   Indiana,  for  a  larj^e  sum,  to  wit,  the  siim  of  thirty-five 
liuiulred  dollars;  that  said  real  estate   was  of  great  value,  ami  fully 
wnrth  the  said   sum   of  tiiirly-live  hundred  <h)llar-*,  and  th.at  there  was 
Mill  due  the  sai>i   Robert  II.  Keller,  uiion  the  purchase-money  of  said 
Imuse  and  lot  of  ground  so  sold  as  aforesaid,  the  sum  of  live  hundred 
(InlJars,  and  th.at  there  was  no  lieu  or  incumbrance  on  said  house  or  lot 
(if  !,'rounil  except  the  said  lien  of  five  hundred  dollars,  f.)r  the  purchase- 
money  thereof,  due  the  said  Rol)ert  II.  Keller,  as  afmesaid,  ami  that  if 
tlie  said  (leorge  \V.  Boyer  would  sell  and  deliver  to  the  said  Robert  II. 
Ivllor,  goods,  chattels  and  property  to  the  amount   of   live   hundied 
'iolhirs,  he,  the  said  Robert  II.  Keller,  would  pay  the  said  George  W. 
Hoyer  therefor,  in  and  with  a  promissory  note  given  and  being  for  the  said 
■-inn  of  five   hundred  tlollars,  the  purchase-money  due  the  said  Roliert 
II.  Iveller,  upon  the  said  house  and  lot  of  ground  as  aforesaid,  and  ti) 
111'  made  payable  to  the  said  George  W.  Boyer,  on  the  1st  day  of  March, 
ill  the  year  1H7.J,  and   secured  by  a  mortgage  upon  said  hoii-e  and  lot 
of  gnniud,    and   that   the  said  lien  of   five   hundred   dollars,  fur  the 
imrchase-inoney  for  the  said  honse  and   lot  of  ground,  an<l   the  sai  1 
mortgage  se  niring  the  same,  was  all  and  the  only  lien  whatever   upon 
tlie  said  house  .     \  lot  of  grouml,  and  lliat  the  said   house  and  lot  of 
irrunnd  were  of  the  full  value  of  thirty-live  hundred  dtdlars.  and  ample 


1()4 


IliAl  1)    AND   FAI.sk   VUKTEXSES. 


an.l  sufnciiM.t  surety  for  the  payment  of  the  said  purchase-money  a. 
aforosuid,  and  that  the  nut..  ..xeeuti'd  as  aforesai.l  to  the  said  Georcj. 
^V.  Boyer  would  be  of  tlie  full  value  of  and  worth  the  sum  of  five  hun- 
dred dollars.  ,    ^    M 

-  Hv  nn-ans  of  which  said  faUo  pretenses  tlien  and  there  made  to  the 
Slid  (■;eor-e  W.  lioycr,  bv  tlie  said  Robert  11.  Keller,  as  aforesaid,  he, 
the  Slid  Uol)ert  II.  Keller,  did  then  and  there,  with  intent  to  cheat  ainl 
def rau.l  him,  the  sai,l  ( ;eor-e  W.  Boyer,  unlawfully  and  feloniously  ol- 
tainand  receive  from  the  sai.l  (;eorge  W.  Uoyer,  the  following  <roods. 
chattels  and  property,  to  wit:  one  spring  wagon,  of  the  value  of  two 
hundred  and  twent  v-fi  ve  dollars  :  one  two-h...  se  wagon  of  the  value  of  one 
hun<lred  and  liflv'.loHars ;  one  l-.g  wagon  of  the  value  of  one  hundred 
and  twontv-live  dollars;  all  of  the  sai.l  goo.ls,  chattels  and  property, 
l,ein.r  of  tin-  ag-regate  value  of  five  hundred  dollars  ;  and  for  the  goods, 
chattels  and  property  of  the  said  George  W.  Hoyer,  and  in  paytnenl  for 
tiu.  said  -oods.  <-hnttels  and   properly  so  obtained  an.l  received  by  the 
said   Robert  II.  Keller,  fron,  the  said  George  W.  Rover,  as  aforesau., 
he    the  sai<l  (ieor-M-  W.  Rover,  did  recive  the  said  live  hundred  dollar 
noie.  fully  relvin-  npon  an.l  b.-lievingsai.l  false  and  fraudulent  pretense 
an.l  representati.'.ns  n...le  to  Imn  by  Hu-  .aid  Robert  11.  Keller,  as  afore- 
s..id  and  beli.ving  th.'mto  be  true  :  whereas,  in  truth  nn-l  in  fact,  thesaul 
Robert  II.  Keller  had  n..t  then  recently  sol.l  t..  a  .'crtain  party  a  certani 
piece  of  real  estate,  to  « it:   a  house  and  lot  of  gr.Min.l  situate  in  the  city  of 
Indianapolis,  in  the  .•..untv..f  Marion,  in  the  State  of  Indiana,  f..r  a  large 
sum  to  wit :  for  the  sum  of  thirty-liv.-  hundred  dollars,  as  aforesaid  ;  and 
that  said  house  and  lot  ..f  gr..und  were  not  then  of  the  value  or  worth 
thirtv-tive  hun.lred  d<.lla.  s  as  af..ivsaid  ;  and  Unit  the  said  lien  and  niort- 
,.  .,,r.M.f  live  hundred  dollars  on  the  said  house  and  lot  of  ground  for  the  pur- 
deise-n.onev  thereof  as  aforesaid,  was  not  the  only  lien  and  incumbrance 
then  upon  sai.l  house  and  l..t  of  gn.und,  but  there  were  various  an.l  numer- 
ous other  liens  thereon,  ol.ler  and  prior  to  the  said  lien  of  live  hundred 
dollars,  amounting  inthe  airgregate  to  two  thousan.l  .lollars,  an.*  gi'eatly 
oxceedin.'  the  value  of   said  h..use  an.l  lot  of  groun-l ;  and  that  said 
house  and  lot  of  <jround  were  not  then  <.f  sulHcient  value  to  amply  and 
sullieientlv  s.cnre  the  payment  <.f  the  said  live  hundred  d..llar  note,  as 
afonsaid";  and  that  sai.l  note,  executed  to  the  said  r-;orge  W.  Royer, 
as  aforesaid,  was  not  w..ith  .-r  of  the  value  of  five  hundre.l  dollars,  but 
was  in   fact  entinly  worthless,  an.l  of  no  value  whabn'cr,  contrary  to 
the  form  of  the  statute  in  such  case  mad.-  :in.l  pr,.vided,  and  against 
the  peace   and  dignity  of  the  State  of  Indiana."' 

We  pr.H-eed  to  the  examination  .>f  the  first  error  assign.-d.  The  Hrst 
count  in  the  indictment  has  been  set  out,  and  as  it  is  quite  lengthy,  we 
will  summari/e  its  averments  and  negations. 


^m 


KKLLEIl    V.  STATE. 


\\\:* 


\  purchase-money  :is 
^\  to  the  said  Geor<;.' 
,  the  sum  of  five  hun- 

md  there  made  to  the 
'ller.  us  aforesaid,  he, 
th  intent  to  cheat  ami 
lly  and  feh^niously  ol)- 
,  tlie  foHowing  <roods. 
,  of  the  value  of  two 
iron  of  the  value  of  one 
value  of  one  hnndicd 
cliattels  and  property, 
rs  ;  and  for  the  iiooiIn 
IT,  and  in  payment  for 
d  and  received  hy  tin' 
'.  IJover,  as  aforesaid, 
lid  live  hundred  dollar 
nd  fraudulent  pretense 
ert  11.  Keller,  as  afore- 
uth  and  in  fact,  the  said 

«ertain  party  a  certain 
ind  situate  in  the  city  of 
'  of  Indiana,  for  a  larize 
liars,  as  aforesaid  ;  and 
II  of  the  value  or  worth 
t  the  said  lien  an(i  niort- 
ot  of  ground  for  the  pur- 
ly  lien  and  in(  nnihrance 
were  various  and  nnmer- 
aid  lien  of  live  hundred 
!ui<l  ilollars,  and  <n-eatly 

ground  ;  and  that  said 
lent  value  to  amply  and 

hundred  dollar  note,  as 

said  r-.orge  W.  Boyer, 
ive  hundred  dollars,  but 
10  whatever,  contrary  to 
I  provided,  and  against 

•  » 

•ror  assigneil.  The  first 
is  it  is  quite  lengtliy,  we 


1.  It  is  averred  that  Robert  II.  Keller  falsely  pretended  that  he  had 
heen  the  owner,  and  had  recently  sold  to  a  certain  party,  whose  name 
is  not  given,  nor  is  it  averred  that  this  name  was  unknown  to  the  jurors, 
!i  certain  piece  of  real  estate,  to  wit :  a  house  and  lot  of  ground  situate 
in  the  ci;y  of  Indianapolis,  county  of  Marion,  and  State  of  Indiana, 
for  a  large  sum  of  money,  to  wit:  for  the  sum  of  thirty-live  hundred 
dollars.  Tiiere  is  no  further  description  of  such  real  estate  or  any  av»i-- 
iiient  that  it  was  unknown  to  the  jurors. 

2.  That  said  real  estate  was  of  the  value  of  thirtv-five  hundred  dol- 
lars. 

;i.  That  there  was  .still  due  the  said  Robert  II.  Keller,  iqnm  the  pur- 
cliase-nioney  of  said  house  and  lot  the  sum  of  five;  hundred  dollars. 

1.  That  tiiere  were  no  liens  or  incuinhrances  u;ion  the  saiil  house  and 
li»t  excej)t  said  sum  of  five  hundred  dollars  for  the  unpaid  purchase- 
money,  and  the  mortgage  securing  the  same. 

5.  That  the  said  house  and  lot  of  ground  were  of  the  full  value  of 
tliirly-(ive  hundred  dollars,  and  ample  and  sutHcient  security  for  t!ie  said 
(sum  of  five  hundred  dollars. 

6.  That  the  note  which  was  executed  by  the  purchaser  of  said  real 
estate  to  George  W.  Boyer,  to  whom  said  re{)re.sentation8  were  made, 
iiiid  in  reliance  upon  which  he  had  sold  to  said  Keller  certain  personal 
property,  would  he  of  full  value,  and  worth  the  said  sum  of  five  hun- 
ilnd  dollars. 

The  first  averment  is  very  vague  and  indefinite.  There  is  no  siiflfi- 
li.Mit  description  of  the  real  estate  alleged  to  have  been  owned  and  sold 
liy  the  ai)pellant.  Nor  is  the  name  of  the  purchaser  given.  Criminal 
iharges  must  be  preferred  with  reasonal)le  certainty,  so  that  the  court 
nnd  jury  may  know  what  they  are  to  try,  of  what  they  are  to  acquit  or 
iDiivict  th«  defendant,  and  so  that  the  defendant  may  know  what  he  is 
to  answer,  and  that  the  record  may  show,  as  far  as  may  be,  of  what 
be  has  been  put  in  jeopardy.  The  averments  should  be  so  clear  and 
ilistinct  that  there  could  be  no  dilHcnlfy  in  determining  what  evidence 
w!is  admissible  under  them.  It  fully  appears  from  the  evidence  in  the 
record  that  the  appellant  hail  owne<l  and  trausfei-ed  lot  No.  IT.,  in 
Yaiides*  sululivision  of  outlot  No.  12!»,  in  the  city  of  Indianapolis, 
tounty  of  Marion,  and  State  of  Indiana.  This  evidence  was  admitted 
over  the  objection  and  exception  of  appellant.  Its  admission  w:i9 
objected  to  on  the  ground  that  the  averments  of  the  indictment  were 
iiiitlier  specific  nor  broad  enough  to  render  such  evidenwi  admissible. 
If  the  appellant,  in  his  representations  to  Boyer,  did  not  describe  the 
property  which  he  had  owned  and  sold,  the  description  of  the  property 
could  not  have  been  introduced  in  that  portion  of  the  indictment :  tuit 
the  first  averment  as  above  set  out  might  have  been  preceded  or  fol- 


ICC) 


FRAIO    AM>    I'AI.SK    PUKTKNSKS. 


lowed  l)v  a  stiiU'inent  thai  tlic  apiull.'uit  had  owno(l  and  recently  sold 
lot  -Jr,  in  Yundes'  sulidivision  of  oullot  No.  I2H,  in  tiie  eity,  county  and 
State  aforesaid,  and  that  the  representations  relied  upon  were  made  in 
refereiiee  to  such  property.      If  the  name  of  the  purchaser  of  such  lot 
was   known    to   the  grand   jury,   it   slituld   have  been  stated,   but  if 
unknown,  that  fact  should  have  been  averred. 
Tlio  negation  to  the  first  averment  is  as  follows:  — 
'•  Whereas,  in  truth  and  in  fact,  the  said  Robert  H.  Keller  \\nd  not 
then  recently  sold  to  a  certain  party  a  certain  piece  of  real  estate,  to 
wit,  a  hi>use  and  lot  of  {rnnind  situate  in  the  city  of  Indianapolis,  in 
the  county  of  Marion,  and  Stale  of  Indiana,  for  a  large  sum  of  money, 
to  wit,  for  the  sum  of  thirty-five  hundred  dollars  as  aforesaid,  and  thai 
said  liouse  and  lot  of  ground  wore  not  then  of  the  value  of,  or  worth 
thirty-five  hundred  dollars." 

By  the  above  averment  and  negation,  the  guilt  of  the  appellant  is  made 
to  de|)end  upon  the  question  whether  the  house  and  lot  of  ground  had 
been  sold  to  a  certain  party  for  the  exact  sum  of  thirty-five  hundred 
dollars,  and  whether  they  were  worth  that  exact  sum,  when  it  should 
have  been  nuide  to  depend  ujion  whether  the  appellant  had  sold  said 
house  and  lot  of  ground  to  any  i)erson  for  said  smn,  and  whether  the 
property  was  of  sucii  v.alue  as  to  amply  secure  said  sura  of  five  hundred 
dollars  alleged  to  be  due. 

The  sec  Mid  averment  is,  that  appellant  represented  that  said  real 
estate  was  of  the  value  of  thirty-five  humlred  dollars.  It  is  contt  nded 
by  counsel  for  appellant  that  a  statement  of  the  value  of  property  is  a 
mere  expression  of  opinion  or  judgment,  about  which  men  may  hon- 
estly differ,  and  if  there  is  no  fixed  market  value,  an  estimate  that  is 
too  liiixh  will  not  constiute  a  criminal  false  pretense. 

The  question  discussed  by  counsel  does  not  squarely  arise  upon  the 
averment  in  tlie  indictment,  and  hence  we  do  not  consider  or  decide  the 
question,  preferring  to  wait  until  it  arises  on  the  evidence  or  instruc- 
ti<m  of  the  court  based  upon  the  evidence. 

There  is  no  neg.ation  of  the  tliird  averment,  hence,  it  is  admitted  to 
be  true,  and  no  evidence  would  be  admissible  to  prove  it  to  be  untrue. 
The  fourth  averment  and  its  nog.ation  are  insufflcicnt.  The  negation 
to  the  ft)urth  averment  does  not  set  out  or  describe  the  liens  that  con- 
stituted the  prior  incumbrances.  How  was  it  possilile  for  the  appellant 
to  prepare  for  trial  under  such  an  averment  and  negation?  How  could 
he  show,  on  trial,  that  the  liens  proved  by  tlie  Slate  had  no  valid  exist- 
ence, or  had  be-n  paid  off?  He  would  have  no  notice  of  the  lieni 
relied  upon  until  tlie  eviilence  was  offered  by  the  Stale.  It  would  be 
contrary  to  well  ostablishe  1  principle  to  allow  evidence  to  be  given  upon 
a  material  issue,  tending  to  fasten  fraud  and  falsehood  upon  the  party. 


^^m 


KELLKK   r.  STATE. 


107 


recpiitly  sold 
,',  county  and 
were  made  in 
•r  of  such  lot 
tated,   but  if 


Ccllor  liad  not 
■eal  estate,  to 
dianapolis,  in 
iin  of  money, 
said,  and  that 
(  of,  or  wortii 

ellant  is  made 
f  ground  had 
r-five  hundred 
vlien  it  should 
had  sold  said 
d  whether  the 
f  live  hundred 

tliat  said  real 
t  is  contt  nded 
I  property  is  a 
men  may  hon- 
stimatc  that  is 

arise  upon  tlie 
r  or  decide  the 
ace  or  instrnc- 

is  admitted  to 
t  to  be  untrue. 

Tlie  negation 

liens  that  con- 
r  tiic  appellant 
1?     How  could 

no  valid  exist- 

'c  of  the  lieni 

[t  would  be 

>  be  given  upon 

ipon  the  party. 


without  any  averment  or  notice  in  llie  indictment  of  the  fact  sought  to 
lie  proved.' 
The  llfth  averment  and  its  negation  are  sufficient. 
The  sixth  relates  to  a  future  event,  and  can  not  constitute  a  criminal 
false  preti'use.     Hishop,  in  section  1-20  of  his  Criminal  Law,- says:  — 
'•  And  l)olh  in  the  nature  of  things,  and  in  actual  adjudication,  the 
doctrine   is,   tluil  no  rt'presentalion  of  a  future  event,  wiiether  in  the 
form  of  a  promise  or  not,  can  be  a  pretense,  within  tlie  statute,  for  the 
pretense  nuisl  relate  either  tj  the  past  or  to  tiie  present."  •' 

Although  some  of  the  averments  are  sufficient,  yet.  standing  alone 
and  disconnectt'd  willi  other  averments,  they  are  not  sufficient  to  con- 
stitute a  good  indictment. 

There  is  a  direct  re|)ugnancy  in  the  averments  of  tiie  indictment, 
wiiich  renders  it  fatally  defective.  It  is  alleged  *'  that  if  the  said  (ieorge 
AV.  Boyer  would  sell  and  deliver  to  the  said  Robert  11.  Keller,  goods, 
eiiattels  and  property  to  the  amount  of  live  hiindnd  dollars,  he,  the 
s:iid  Robert  H.  Keller,  would  pay  the  said  (Jeorge  W.  IJoyer  therefor, 
ill  a  promissory  note,  given  and  being  for  the  said  sum  of  five  hundred 
dollars,  the  purchase-money  due  the  said  Robert  II.  Keller  upon  the 
said  house  and  lot  of  ground,  ns  aforesaid,  and  to  be  maile  i)ayable  to 
tiie  said  George  W.  Boyer  on  tiie  first  day  of  March,  in  the  year  1876, 
ami  secured  l>y  mortgage  upon  said  house  and  lot  of  ground,"  etc. 

It  is  alleged  that  Keller  was  to  pay  Boyer  in  a  note  given  and  being 
for  the  saiii  piirdiase-money,  and  it  is  tlien  averred  tiiat  said  note  is 
to  l>e  made  payable  to  tiie  said  Boyer,  and  secured  by  a  mortgage  upon 
said  ri'al  estate.  In  State  v.  Lorke,'*  the  indictment  was  hv.UX  bad  be- 
cause it  chaigcd  that  the  i)retcnse  was  made  to  induce  Kiser  to  become 
llie  security  of  Locke,  on  a  si\  hundred  dollar  note,  but  that,  instead  of 
going  security,  he  became  a  principal,  and  made  a  note  for  six  hundred 
dollars  payable  to  Locke,  The  indictment  was  held  ambiguous  and 
uncertain,  and  an  indictment  must  be  direct  and  certain,  as  it  regards 
the  party  and  the  offense  charged."' 

It  is  a  settled  rule  of  criminal  pleading,  that  the  offense  charged 
must  be  proved  in  substaiue  as  charged.  This  can  not  be  done  in  the 
averment  under  examination.  The  two  averments  are  directly  rei>iig- 
iiant.  Both  can  not  be  true.  The  facts  of  the  case  are  not  directly 
stated.  It  is  averred  that  the  note  for  five  hundred  dollars  had  been 
given  to  Keller,  ami  was  secun'd  by  mortgage.  It  was  shown  upon 
the  trial  that,  at  the  lime  the  representations  were  ma.le.  Keller  had 


1  People  V.  Miller,  !  Park.  O.  C.  197. 
8  vol.  2,  p.  2.10. 

3  See   Jones  v.    Statu,  50   Ind.   473,  and 
authoritcH  there  cited. 
<  35  ind.  41?. 


'  Whitney  r.  State,  10  Ind.  4W ;  Walker ». 
Stale,  211 /'/.  fil ;  Hii'kneirs  Cr.  Pr.  80,  93, 'J4 ; 
Stiito  f.  I^cke,  lujira;  Com.  v.  Magowan,  I 
Mete.  (Ky.)  3<H;  People  •.Gates,  IS  Wend. 
311. 


^mmm 


108 


FRAUD   AND    FALSE   riJKTKXSKS. 


agiL-id  upon  a  sale  of  his  house  ami  lot  of  ground,  in  the  city  of  Indian- 
apolis, l.iit  the  aeod  had  not  been  inadc,  nor  had  the  notes  an.l  nioi  t- 
ga-res  Ini'ii  given,  and  tliat  these  fiicts  were  known  to  IJoyer,  and  it 
wa^s  tiien  agreed  that  a  note  for  five  hundred  doUars  shouM  be  made 
payalde  diT-eetly  to  Boyer,  an<l  secured  by  mortgage ;  and  it  also  ap- 
pears tiiat  thi:.  was  done.  Such  i)roof  could  not  sustain  the  averments 
of  the  indictment. 

We  are  very  clearly  of  the  opinion  that  the  indictment  can  not  be 
sustained.  It  is  aml)iguous,  uncertain,  reinignant,  and  tlefectivc  in  its 
averments  and  negations. 

The  judgment  is  reversed,  with  costs ;  and  the  cause  is  remanded, 
with  directions  to  the  court  b(>l<)W  to  sustain  the  motion  to  <iuash.  The 
clerk  will  give  the  proper  order  for  the  return  of  the  prisoner. 


FALSK    r^FTENSFS-RKQUISITES    OF    INDICTMENT  -  PITBLIC    AND 
PUIV,^TK    .   ■  Ml  DECEITS  -  INJURY  -  INDICTMENT  -  LIMITA. 

TIONS-DEAUKl.FH      U.VVE  TO  WITHDRAW. 

United  States  r.  Watkins. 

[SCrauch,  C.  C.  441] 
In  (he  United  States  Ciraiit  Court,  Distrkt  of  PennsyUania,  182!). 

1.  Private  Fraud,  are  not  Indictable  at  common  law;  but  fraudB  affecting  the  public 

at  largu  or  llio  pulilic  revenue  are. 
2   In  the  Ca«e  of  Private  Fraud.,  the  act  to  be  inrtlclablc  muBt  be  committed  by  false 

^rIm!  o^forgery  or  conspiracy.    Th.s  rule,  however,  docs  not  apply  to  d.rect  fraud. 

upon  the  public. 

3.  An  Indictment  mu.t  be  certain  to  a  certain  intent  in  general. 

4.  An  Indictment  Charging  Fraud  must  aver  the  mean,  by  which  the  fraud  wa« 
etfected.  w  .  .k» 

8.  An  Indictment  for  Obtaining  Money  by  Fal.e  Preten.e.  must  .how  what  the 
pretense  was.  that  .1  was  false,  and  in  what  particular  it  was  false. 

6  An  Indictment  CharBed  that  the  Defendant  ostensibly  for  the  public  service,  but 
Itrselfaml  wttl, out  authority  caused  and  procured  to  bo  issued  from  the  navy-yard  of 
thelnlted  States,  a  certain  requisition.  IMd,  that  this  did  not  susta.n  a  charge  of 
forgery. 

7.  An  Indictment  which  Charge,  the  obtaining  money  by  false  pretenses  by  erasure  of 
ccrtiuu  public  securities  docs  not  support  a  charge  of  forgery. 

8   An  Indictment  Charging  Fraud  must  aver  the  fact,  that  constitute  the  fraud. 

9.  Deceit  i.  an  E..ential  Element  of  Fraud;  and  the  deceitful  practices  charged 
must  in  an  indictment  for  fraud  be  set  out. 

la  An  Indictment  for  forgery  i.  not  Oood  at  common  law.  unless  it  use  the  term. 

"  forgo  or  counlorfoit." 
U.  Th.  Defendant  ha.  the  Right  upon  Demurrer  to  avail  himself  of  the  statute  ol 

hmiutions. 


^iM 


UNITED    STATES    V.  WATKIN8. 


1()9 


ity  of  Iiulian- 
tcs  and  luoi  t- 
IJiiyLT,  aiul  it 
iiiltl  be  inudo 
111  it  also  ap- 
the  averments 

nt  tan  not  l)e 
Icfective  in  its 

is  remanded, 
3  quasli.  The 
ner. 


-  PUBLIC   AND 
NT—  LIMITA. 


ranirt,  182f). 

iffecting  the  public 

committed  by  false 
)ly  to  direct  fraud* 

hich  the  fraud  wa» 

lust  show  what  the 

I  public  serrice,  but 
im  llie  nBvy-yard  of 
BUBtain  a  charge  of 

tcnseg  by  erasure  of 

ate  the  fraud. 

I  practices  charged 

>»H  it  use  the  temu 

elf  of  lilt'  slat  ale  ol 


u  A  Demurrer  to  an  Indictment  may  1)0  withdrawn  by  the  defendant,  by  pcrmlBsion  of 
»..■  .-...nt,  after  the  court  has  intimated  an  opinion  that  .t  ought  to  be  overruU-d.  but 
before  Judgment. 

Tiie  defendant  in  tliis  case  was  arrested  on  tlie  1st  of  May,  18'2'.>,  in 
riiiladeli)hi!i,  by  a  warinnt  IssulmI  at  the  instanee  of  the  TTnitid  States, 
upon  an  allidiiVit  ma.le  bef:  le  a  justice  of  the  peaco  in  Washington, 
I).  C,  by  Mr.  Amos  Kendall,  wlio,  on  the  2M\  of  Mareii,  lH-_".),  was 
:ippoiiiti<l  to  the  olllee  of  Koiuth  Auditor  \n  the  phiee  of  the  defendant, 
who  was  sent  for  trial  to  ^Va^hiugton,  by  a  warrant  issued  by  Judge 
Uopkinson,  under  the  thirty-third  section  of  the  Judiciary  Act  of  1781). 
In  tiie  progress  of  the  cause,  a  number  of  indictments  were  suc- 
cessively found  by  the  grand  jury,  and  were,  in  some  instances,  so 
l.hnded"  in  argument  that  the  whole  may  be  considered  as  one  cause 
iuul  one  prosecution. 

It  came  before  the  court  first  upon  demurrer  to  two  indictments. 
The  first  count  in  the  first  indictment  stated,  -  That  Tobias  Wtitki us, 
late  of  Washington  County,  gentleman,  on  the  oth  of  July,  1827,  at 
Washington  County,  being  then  and  there  the  Fourth  Auditor  of  the 
Treasury  of  the  United  States,  and  being  an  evil  disposed  person,  and 
devising  and  intending  fraudulently  and  unjustly  to  obtain  and  actiuirc 
for  himself  and  for  his  own  private  use  divers  sums  of  money  of  the 
United  States,  with  force  and  arms,  at,  etc.,  on,  etc.,  falsely  and  fraudu- 
iiMtly  wrote  and  addressed,  and  caused  to  be  suit  to  a  certain  J.  K. 
I'aulding,  then  a  navy  agent  of  the  United  States,  at  the  city  of  New 
York,  a  letter  in  words  and  figures  following,  to  wit:  — 

"Treasury  Department,  4th  Auditor's  Olfice,  July  5,  1827. —Siit: 
You  will  receive  by  the  mail  of  to-morrow,  or  next  day,  the  Treas- 
urer's draft  for  $51)0,  five  hundred  dollars,  under  the  appropriation  for 
'arrearages,'  in  order  to  meet  my  draft  on  you  of  this  <late  for  that 
sum.  That  time  might  be  given  for  the  remittance  of  the  draft,  my 
<.rder  is  made  payable  at  three  days'  sight,  and  will  be  charged,  when 
paid,  to  '  arrearages.'  It  is  in  favor  of  S.  and  M.  Allen  &  Co.  I  am, 
sir,  very  respectfully,  your  ob'dt.  servant,  T.  Watkins.  J.  K.  Paul- 
ding, Esq.,  Navy  Agent,  New  York." 

"  That  on  the  same  day  the  said  T.  W.  made  and  executed  a  draft  on 
the  said  J.  K.  Paulding,  navy  agent  as  aforesaid,  according  to  the 
advice  of  the  aforesaid  letter  in  favor  of  S.  &  M.  Allen  &  Co.,  for 
$.500,  at  three  days'  sight,  and  sold  it  to  C.  S.  Fowler,  and  received 
of  him  therefor  $500,  which  he  kept  and  <lisposed  of  for  his  own  use." 
That  the  said  T.  W.  did,  on  the  6th  of  July,  1827,  "  ostensibly  for 
the  public  service,  but  falsely  and  without  authority,  cause  and  procure 
to  be  issued  from  the  Navy  Department  of  the  United  States  a  certain 
requisition  to  the  Secretary  of  the  Treasury  of  the  United  States,  for 


170 


FRAll)    AM>    KAI.SK    I'RETF.NSES. 


the  iMirpnso  aiKl  intt-nt  of  pluciiif;  in  tlie  liands  of  tlio  aiiid  J.  K. 
raui.linjt,  navy  aLT.-nt  as  af(Mvsai.l.  ll.c  sum  of  gl.OOOof  the  mont-ys 
of  the  riiitni  Stalls,  which  n(iuisitu.n  is  in  the  wonls  and  li<?uns 
followin'r.  to  wit,"  vU:  {Wnxfr  i,,  sul.stanoo  a  rotiii.'sl  hy  Mr.  Southar-i, 
the  Senvtary  of  the  Na^y.  to  tho  Socretary  of  tlie  Treasury  to  issu. 
a  warrant  to  J.  K.  1'.,  navy  apont  nt  New  York,  for  $\.mo,  to  U 
eluirged  to  liini,  and  to  be  eliarjjed  to  the  appropriation  for  "  arrearages 
prior  to  1H-J7."  dated  July  C,  1h27). 

"  By  means  of  whieli  reciuisitioii  the  said  snm  of  81,000  of  the  money-, 
of  the  United  States  was  plaeed  in  tlie  hands  of  the  said  J.  K.  Paulding. 
"  That  the  said  T.  W.,  on  the  0th  of  July,  1H27,  wrote  and  addressed, 
and  eauscd  to  he  sent  to  the  said  J.  K.  Paulding,  a  lett.  r  in  the  words 
and   figures  following,  namely  (in  substance,  that  instead  of  «r>00  h.' 
wouUrreeeive   Sl.dOO   under   the   appropriation   for   the  payment  of 
'  ar-enraues-),  and  on  the  2Mi  of  July,  lH-.>7,  drew  again  nu  J.  K.  P. 
for  S.^oo"  and  sold  the  draft  to  T-owler  for  $oOO,  which  he  (T.  W.) 
kept   and   disposed  of  for  his  own  use,  and  wrote  another  letter  of 
adviee  of   that  date  to  S.  K.  T.,  and  directed   him   to   charge   it  to 
'  arrearages.' 

"That  the  said  letters  and  drafts  so  as  aforesaid  written  and  sent, 
and  drawn  and  sold  as  aforcMiid,  and  th.e  said  reiiuisilion  caused  and 
procured  to  be  issued  as  aforesaid,  were,  and  each  of  them  was  so 
written,  drawn  an.l  sold,  and  caused  and  procured  to  be  issued  without 
any  authority  therefor,  ami  not  for  or  on  account  of  the  public  service, 
t)ut  for  the  private  gain  and  benefit  cf  the  said  Tobias  Watkins,  and 
with  intent  to  defraud  the  said  United  States,  and  as  false  pretenses  to 
i-nable  him  to  obtain  to  his  own  use  and  benefit  the  said  two  sums 
of  $'>00  each  ;  and  that  by  means  of  the  said  several  false  pretenses, 
the  said  Tol)iaa  Watkins  did,  at  the  time  and  times  aforesaid,  defraud 
the  said  United  States  of  the  said  two  sums  of  8.")00  each,  and  dispose 
of  tlu>  same  to  his  own  use  and  benefit,  to  the  great  damage  of  the 
United  States,  and  against  the  peace  and  government  thereof." 

The  second  count  in  the  same  indictment  charges  a  similar  transaction 
to  the  amount  of  87.-.0  in  January,  1H-J«,  and  contains  an  additional 
averment  that  the  draft  on  J.  K.  P..  in  this  count  mentioned,  was  paid 
»)y  him;  and  tliat   the  recpiisitipn   was   procured   by  the  said  T.W 
"ostensibly  for  the  public  service,  but  falsely  and  witiiont  authority" 
for  81'-',*^H<).12,  exceeding  the  sum  for  which  J.  K.  P.  had   asked  a 
re(iuisition  by  the  sum  of  $7r)0,  "  which  sum  of  $-;>()  was  by  the  false 
suggi'stion  and  procurement  of  the  said  Tobias  Watkins.  acWed  to  tli.- 
aniinint  rcquirc<l   by  the  said  Paulding,  for  tho  purpose  and  intent 
of  placing  in  the  hands  of  said  J.  K.  Paulding,  navy  agent  as  afore- 
said, the  said  sum  of  87r)()  of  the  moneys  of  the  United  States,  to  meet 


UNITED    STATES    V.  AVATKINS. 


171 


■  tlio  suid  J.  K. 

0  t)f  the  moneys 
ntls  and  ti<?uns 
)>'  Mr.  Southard, 
'rousury  to  issiii 
or  $!.l»(»(),  to  l)> 

1  for  "  arrearages 

)0n  of  the  money-- 
a  J.  K.  rauhling. 
te  and  addreisaed, 
I'tli  r  in  tlie  words 
istead  of  8;'>00  Iw 

■  the  payment  of 
again  on  J.  K.  1*. 
Yhich  he(T.  W.) 

another  letter  of 
I   to   eiiarge   it  to 

I  written  and  sent, 
lisition  caused  and 
h  of  tliem  was  so 
I  be  issued  without 
the  puhUc  service, 
)l)ias  AVatkins,  and 
i  false  pretenses  to 
the  said  two  sums 
al  false  pretenses, 
aforesaid,  defraud 
)  each,  and  dispose 
reat  damage  of  the 
it  thereof." 
I  similar  transaction 
tains  an  additional 
lentioned,  was  paid 
by  tlie  said  T.  W. 
witiiout  autliority" 
K.  1'.  had   asked  a 
■50  was  hy  tlie  falsi' 
itkins,  added  to  tlx' 
purpose  and  intent 
avy  agent  as  afore- 
lited  States,  to  meet 


the  payment  of  tlie  ssiid  draft  so  made  and  sold  as  aforesaid  to  the  said 
(".  S.  Kowlcr,  which  recjuisition  is  in  the  words  and  figures  following, 
to  wit,"  etc. 

The  averment  of  false  pretences  is  exactly  like  that  in  the  former 
count. 

Tlie  second  indictment  charged  a  similar  transaction  with  Mr.  Harris, 
;i  navy  agent  in  Hoston,  to  the  amount  of  82,0(»(),  with  similar  aver- 
ments, and  tl'.at  the  drafts  were  paid  by  Mr.  Harris.  'J'wo  of  the  drafts 
were  in  favor  of  Tlumias  I'ottinger,  and  there  is  an  averment  that  the 
indorsements  of  the  name  of  I'ottinger  were  cither  genuine,  for  the 
aieonimodation  of  the  said  Tobias  Watkius,  or  were  falsely  made  by 
the  said  Watkins. 

There  is  also  an  averment  that  Mr.  Harris  sent  his  regular  quarterly 
a!)stiact  of  expenditures  (containing  three  charges  of  three  drafts  of 
Wiitkins)  to  tlie  said  T.  AV.  as  Fourth  Auditor,  "  who  was  the  proper 
()t!k('r  to  receive  the  same ;  and  that  the  said  Watkins,  having  received 
the  same,  the  said  Watkins,  in  pursuance  of  his  said  fraudulent  intent 
to  deceive  and  defraud  the  United  States,  and  to  consummate  his  said 
fraud,  and  to  cover  and  conceal  the  same,  that  he  might  thereby  be 
.iial.ied  to  keep  to  his  own  use  the  moneys  he  had  obtained  by  means 
of  the  said  drafts,  and  thereby  to  defraud  the  United  States,  did  after- 
wards, to  wit,"  etc.,  "  falsely  and  fraudulently  alter  the  said  abstract 
l.y  .rasing  therefrom  the  words,  '  T.  Watkins,'  '  Draft,'  '  Do.  of  $500,' 
•  Do.,  Do.,'  opposite  to  the  dates  September  1st,  lOth,  and  20th,  pre- 
fix.d  to  the  aforesaid  three  items  in  the  said  abstract,  under  the  head 
nf  •  arrearages  prior  to  1827,'  hereinbefore  set  out  with  intent  to  defraud 
liie  United  States." 

"And  the  said  letters  and  drafts,  so  as  aforesaid  written  and  sent 
and  drawn  and  sold  and  paiil  as  aforesaid,  and  the  said  requisition 
caused  and  procured  to  be  issued  as  aforesaid,  were,  and  each  of  them 
was  so  written,  sent,  drawn  and  sold,  and  caused  and  procured  to  be 
issued  as  aforesaid,  witiiout  any  authority  therefor,  and  not  for  or  on 
account  of  the  public  service,  but  for  the  private  gain  and  benefit 
of  the  said  T.  W.,  and  that  the  same  were  made  and  done  and  pro- 
cured, and  also  the  erasure  of  tlie  said  abstract  made  and  done,  with 
intent  to  defraud  the  said  United  States,  and  as  false  pretenses,  to 
eiiahle  him  to  obtain  and  keep  to  his  own  use  and  benefit,"  etc.,  as  at 
the  conclusion  of  the  first  indictment. 

Ui!\N(  II,  C.  J.  The  substance  of  the  first  indictment  is.  that  Tobias 
Watkins,  being  Fourth  Auditor  of  the  Treasury  of  the  United  States, 
iirid  intending  fraudulently  to  obtain,  for  his  own  use,  money  of  the 
I'nitcd  States,  falsely  and  faudulently,  wrote  a  letter  to  J.  K.  Pauld- 
ing, a  navy  agent  of  the  United  States,  advising  him  of  liis  (T.  W.'s) 


■■■iM 


1 


FKAll*    AM)    FAI.SK    I'llKTKNSKS. 


(Irnft  on  liim  for  $.">n(i,  to  tit-  clmrpod  to  '■  urrt'tiragcs,"  niul  tlmt  lie 
would  roifivc  ii  tnasiiry  tlra'ft  for  the  siuiu'.  to  meet  it.     That  T.  W 
drew  Biich  a  draft  and  sold  it  to  ('.  W.  Fowler  for,  aii<l  r.-coiv.-d  of  him. 
the  Buiiu'  nmouiit  and  applied  it  to  his  own  use.     That  tlio  saidT.  W. 
did  ostensibly  for  the  public  service,  but  falsely  and  without  authority, 
procure  to  lie  issued  from  the  Navy  Deprrtment  a  certain  rc(iui-iti..n 
to  the  Secretary  of  the  Treasury,  for  the  purpose  of  placinfr  in  the  hands 
of  the  sahl  J.  k.  P.,  navy  njient,  the  sum  of  $1.0(»(.;  which  requisition 
is  set  out  ill  vrrhiH  to  be  ehar},n-d  to  "  arrearages  prior  to  18"27 ;"  by 
means  of  which  requisition  the  said  sum  of  $1,000  was  phued  in  the 
hands  of  the  said  navy  a-ent.     That  the  said  T.  W.  afterwards  wrote 
another  letter  to  the  said  navy  ajront.  informinj,'  him  that  the  remittance 
under  the  appropriation  for  "  arreara-cs"  would  be  $1,000  instead  of 
$;.00  as  before  advised,  and  aft.rwards  drew  another  draft  on  him  for 
8500,  which  sum  he  received  for  it  of  C.  S.  Fowler,  and  ai.plied  to  his 
own  use  ;  of  which  draft  he  also  informed  the  said  navy  agent  l)y  letter. 
"  That  the  said  letters  and  drafts  so  as  aforesaid  written,  and  sent  and 
drawn,  and  sold  as  aforesaid,  and  the  said  requisition  caused  and  pro- 
cured  to  be   issue.l  as  aforesaid,  were,    and  each  of   them   was,    so 
written,  sent,  drawn,  and  sohl,  and   caused  and  procured  to  be  issued 
as  aforesaid,   without   any  authority   therefor,  and  not  for  or  on   ac- 
account  of   the  public  service,   but  for  the   i)rivate  gain   and    benefit 
of  the  said  T.  W.,  and  with  intent  to  defraud  the  said  United  States, 
and   as  false  pretenses  tc  enal)le  him  to  obtain  to  his  own  use    and 
benefit  the  said  two  sums  of    $500 ;  and  that  by  means  of  the  said 
false  pretenses,  the  said  T.  W.  did,  at  the  time  and  times  aforesaid, 
defraud  the  said  United  States  of  the  said  two  sums  of  $500  each,  and 
dispose  of  the  same  to  his  own  use  and  benefit,  to  the  great  damage  of 
the  United  States,  and  against  the  peace  and  government  thereof." 

There  is  another  similar  count,  upon  another  similar  transaction,  for 
$750,  with  the  like  averments. 

To  this  indictment  there  is  a  general  demurrer  and  joinder. 
By  the  demurrer  the  facts  are  admitted,  if  they  amount  to  an  indict- 
able offense  at  common  law,  and  are  well  set  forth. 

The  tlrst  ground  of  demurrer  relied  on  is,  that  the  United  States,  as 
a  nation,  has  no  common  law  in  relation  to  crimes  and  offenses ;  and, 
consequently,  that  there  can  be  no  common-law  offenses  against  the 
United  States,  in  its  national  character;  that  this  offense,  if  it  bo  an 
offense,  is  against  the  United  States  in  that  character,  and  not  as  the 
local  sovereign  of  this  district;  and,  therefore,  it  is  not  an  indictable 

offense.  ,  ^^  j      i 

It  is  said  that  this  court  can  only  exercise  the  jurisdiction  of  Federal 

courts  and  of  the  State  courts.     That  the  Federal  courts  could  not  hold 


IMTKI)   STATK.H    V.  WATKIXS. 


173 


"  niul   that  li.' 
.     'Ihnt  v.  W 
■coivt'd  of  him. 
Llio  snidT.  ^V. 
liout  authority, 
ain  rciiui-^ition 
ii«i;  in  thchinuls 
lich  requisition 
r  to  1827 ;"  by 
IS  |)liu  td  in  tho 
tcrwards  wrot«' 
,  the  rtMiiittaiK-i' 
,000  instead  of 
lr:\ft  on  him  for 
d  applied  to  liis 
agent  l)y  letter, 
n,  and  sent  and 
ciuised  and  pro- 

them  was,  so 
•cd  to  be  issued 
,  for  or  on  ac- 
in  and  benefit 
I  United  States, 
3  own  use  and 
ans  of  the  said 
times  aforesaid, 

$;>()Oeach,  and 
great  damage  of 
it  thereof." 
transaction,  for 

oindcr. 

unt  to  an  indict- 

Jnited  States,  as 
I  offenses ;  and, 
uses  against  the 
tense,  if  it  bo  an 
r,  and  not  as  the 
lot  an  indictable 

iction  of  Federal 
•ts  could  not  hold 


iiirisdiotinn  of  this  cause,  because  it  is  not  a  eriminjil  offense  against 
Ihc  I'nited  States,  wiio  iiave  no  criminal  common  law.  And  tliat  tlie 
St:ite  c  lurts  couUl  not  hold  jurisdiction  of  it,  because,  if  it  be  au 
offense  at  all,  it  is  exclusively  an  offense  against  the  I'liited  Stales. 

'I'his  argument  is  certainly,  at  first  view,  <inite  plausible;  b\it  to  our 
iiii:ids  not"eiilirely  satisfactory.  It  is  clear  that  this  offense  is  of  sui'h 
;ui  cKclusive  character  that  it  could  be  prosecuted  only  in  a  court  of  the 
liiiled  States? 

If  it  had  been  couunitted  in  one  of  the  States,  say  in  M:iryland,  is  It 
iltur  that  it  would  not  have  been  .  :  offense  against  that  State?  The 
..ffcnse  charged,  we  will  say,  for  the  sake  of  argument,  is  in  substance 
:i  cheat;  that  is,  an  act  of  fraud,  done  to  the  injury  of  the  United 
Slates. 

Tlie  State  court  has  jurisdiction  of  cheats  and  frauds.     Docs  that 
jurisdiction  depend  upon  tiie  (juestion.  to  whose  injury  the  cheat  or 
fraud  w:is  committed?     Whether  it  be   t<>  the  injury  of   a  citizen  of 
Maryland,  or  of  a  foreigner,  or  of  another  State,  or  of  a  foreign  sovcr- 
( i-n,  or  of  the  United  States.      If  a  fraud  to  the  injury  of  the  State  of 
IVnusylvania  should  be  co..imitted  in  Maryland,  it  could  not  be  tried  in 
I'liui'-ylvania ;  and  siiall  it  be  said  tliat  it  is  no  crime  in  :M:uylun(l  to  do 
ail  unlawful  act  to  the  injury  of  Pennsylvania?     Wliat  is  there  in  tl'c 
ciicumstances  of  the  transaction  to  make  it  a  c:\se  of  exclusive  Feikral 
j  irisdiction?     Is  it  because  the  defendant  is  stated  to  have  been  Fourth 
Auditur  of  the  Treasury  of  the  United  States?     lie  is  not  charged  with 
liaviiig  done  any  act  in  tliat  character,  or  by  color  of  that  olTlcu  ;  nor  is 
lie  ehiirged  with  the  violation  of  any  official  duty,  nor  with  having  made 
ii-e  of  his  olllce,  or  olUcial  character,  to  perpetrate  the  fraud.     Is  it 
1m  cause  the  person  upon  whom  the  drafts  were,  drawn  was  an  otllcer  of 
the  United  States?     That  circumstance  is  i)erfectly  immaterial,  and  can 
II  't  change  the  nature  of  the  transaction.     The  fouiulatiou  and  sub- 
stince  of  the  offense  is  fraud,  —  moral  framl,  — crimen  fuixi ;  the  tur- 
IMtude  of  which  is  neither  incri'ased  nor  diminished  by  the  circumstances 
that  the  draft  was  drawn   by  one  officer  of  the  United  States,  and 
iuiepted  by  another,  neither  of  them  acting  in  his  ofFicial  character,  nor 
hy  virtue  of  his  otfice.     Is  it  because  the  fraud  was  committed  by  means 
of  a  requisition  from  the  Navy  Department  upon  the  Treasury  of  the 
liiited  States?    That  circumstance  iloes  not  alter  the   nature  of  the 
cffense ;  it  is  still  a  simple  cheat  or  fraud.     Is  it  because  the  United 
Slates  is  the  sufferer  by  the  fraud  ?     The  same  answer  may  be  given  — 
the  nature  of  the  offense  is  not  thereby  altered. 

We  are,  therefore,  of  opinion  that  there  is  nothing  in  the  character 
cf  the  parties,  or  in  the  circumstances  of  the  transaction,  which  would 
make  it  a  case  of  exclusive  Federal  jurisdiction  ;  but  that  if  it  be,  in  its 


174 


niAUU    AM>    KALSE   rUETENSKS. 


nutiiif.  a  commoii-lHW  offi-iisc,  and   liaiJ   lucii  lominitt.-tl   in  ft  State,  it 
niiglil  liavf  lu.n  tii.  «1  in  a  Slati-  court,  us  an  (ifft-nse  iigain-.t  tluit  Statf. 
\\\'  thiniv,  llKTi'fori',  tlial  if   it  hf  a  cnnnion-law  offfiiso,  i-onimiltnl  in 
thin  .iiuiity.  it  is  witliin  tlif  juiisdi.tiuii  of  this  t-onrt,  wli.)s«  coinmon- 
la»v  jiiiiN«lirti..n  is  dorivi'il  from  tlif  common  law  of  Maryland,  wliifii 
was,  by  tlie  ft-ssion  of  Maryland  and  tin-  a(Mc|.tani'f  of  ConjiU'ss.  un('  - 
the  i)rovi>ion  in  the  (Oiistitiition  of  tlic  I'nitcd  .States,  transffrri'd  fr 
Maryland  to  the  I'nit.d  States,  with  that  remnant  of  State  sovereif^nty. 
which,  after  the  adoption  of  the  Fedend  Constitntion,  was  left  to  Mary- 
lund.     All  tlie  Slate   i.rero>.'ativc  wiiiih  Maryland  enjoyed,  under  the 
common  law.  whieli  she  adopted,  so  far  ns  eoneerned  the  ceded  terri- 
tory, passed  to  the  liiited  Stalis.     All  the  ju.wer  which  Maryland  had. 
l.y  virtue  of  that  commou-Iaw  prerogative,  to  punish,  l>y  indielment, 
offeu.lers  a.L'iiinst  her  sovereignty,  and  to  protect  that  sovereignty,  Im- 
came   vested    in    the    Uiiiied    States;  and    authorized  them  to  punish 
offenders  against  their  sovereignty,  and  to  protect  that  sovereignty  i)y 
the  same  means,  so  far  as  regarded  tin-  territory  ceded. 

We  tlicrcfore  think  that,  in  regard  to  offt-nses  conimitte;!  within  this 
pait  of  the  district,  the  liiited  States  have  a  criminal  common  law,  and 
that  this  court  has  a  criminal  common-law  jurisdiction. 

The  next  ground  of  demuner  is,  that  fraud  is  not  an  indicta'  '> 
off.nse  at  common  law.  unless  it  he  effected  l.y  means  of  some 
puldic  token,  such  as  false  weights,  or  measures,  or  marks;  <• 
means  which  effect  tiie  public  generally,  unless  it  l)e  fraud  against  the 
king  and  the  public  at  large  ;  and,  even  then,  it  is  not  sutHcient  that  the 
king,  or  the  public  at  large,  is  the  party  injured,  but  the  fraud  must  be 
effc^eted  by  means  which  arc  likely  to  affect  the  public  at  large,  —  means 
wliich  are  generally  mischievous,  such  as  adulterating  provisions,  etc. 
Rut  to  tliis  it  was  answered,  that  frauds  affecting  the  public  at  large, 
or  the  public  revenue,  constitute  a  distinct  class  of  cases,  punishable  by 
indictment,  although  the  fraud  be  not  effected  by  means  of  false  public 
tokens,  or  by  forgery,  or  by  conspiracy,  nr  by  any  particular  sort  of 
means;  and  this  i>osition  seems  to  be  supi)orted  by  i)rinciple  and  by 
precedcMits. 

1.  ny  principle.  Why  are  any  acts  made  punishable  by  public  pros- 
ecution? Because  they  are  acts  which,  in  their  nature,  are  injurious 
to  the  public  interests.'  The  interests  to  be  protected  by  the  govern- 
ment are,  the  public  peace,  the  public  morals,  the  pul)lic  property,  and 
tnc  public  justice.  Why  is  theft  or  robbery  an  offense  against  the 
State?  Because  they  lead  to  a  breach  of  the  peace,  to  violence  and 
bloodshed,  in  the  protection  or  the  recovery  of  the  property  stolen. 
Why  are  public  lewdness  and  disorderly  houses  indictable  offenses? 
Because  they  tend  to  injure  the  public  moral*,  tliey  are  mischievous  to 
many  — to  an  indefinite  number  — to  the  public  at  large. 


UNITKI)    STATKS    '•.   \VATKIN8. 


175 


I'll   ii)  II  State,  it 
;iiin->t  tliiit  State. 
<«',  c'oininiltt'il  in 
,  whoso  cotr.nion- 
Miuyliinil,  wliii'li 
'  Conjirt'sH,  u»('  - 
tnuisffiri'd  fr 
itiite  sovi'ivijinty. 
wnH  U'ft  to  Mur>- 
joyi'd,  uikUt  tilt' 
I  tlie  cciU'il  ti-rri- 
•h  Maryland  liiul, 
ti,  by  indictirn'iit, 
t  sovcroigiity,  Im- 
l  Mictn  to  punish 
at  Kovi'ii'ignty  ])y 
[I. 

initt«>;l  williin  this 
comraon  law,  and 
). 

not  an  indictn'  '" 
'ans  of  some 
or  niari\s ;  c 
fraud  against  tiie 
,  sullleient  tliat  tiu- 
tlie  fraud  must  be 
at  large,  —  means 
ig  provisions,  etc. 
lie  public  at  large, 
ses,  punishable  by 
ans  of  false  public 
particular  sort  of 
■  principle  and  by 

blc  by  public  pros- 
Lure,  are  injurious 
ti'd  by  the  govern- 
blic  i)roperty,  and 
iffense  against  the 
e,  to  violence  and 
e  property  stolen, 
idictable  offenses? 
are  mischievous  to 


Why  are  violations  of  the  public  property  offenses  against  the  Stntt^  ? 
Hciiause  they  immediately  afftct.  the  public  interest  the  interest  of  an 
iiidtlhiite  number,  who  can  not  individually  complain  -  -  whose  separate 
interest  is  not  injured,  but  who,  colleetiv»'ly  only,  are  sufferer-*;  ai\d 
wlio,  collectively  only,  have  the  right  to  seek  redress.  Why  art^  acts 
which  tend  to  obstruct  t)i«  due  administration  of  justice  indiclalile 
(iffiuses?  Because  they  are,  in  their  nature,  injurious  to  the  public  at 
Ifirge;  for  the  due  adnunist ration  of  justice  is  necessary  to  the  protec- 
lion  of  all  the  other  great  interests  of  Hocl"ty.  To  such  cases  the  rule 
nijiUiHtihns  nnn  (lonnientibns  jiii'd  svbritihnif,  can  notajjply.  The  pub- 
lic can  not,  like  an  individual,  be  always  v  s,  •  watch  If  they  employ 
iiginta,  those  agents  may  sleej),  or,  wli:it  nny  be  worse,  they  may 
wink;  and  how  can  the  public  watch  the  winker?  The  public  is  <:on- 
tiiMially  exposed  to  imposition ;  and  if  they  trust,  it  is  because  they  are 
oliliu'ed  to  trust.  Their  conlidcnce  is  not  voluntary,  like  that  of  an  in- 
dividual, who  may  transact  his  own  business.  The  public  can  act  only 
liy  agents,  and  can  not,  therefore,  be  subjectetl  to  the  rule  of  watch- 
fulness. 

The  principle,  therefore,  which,  in  transactions  between  individuals, 
reciuires,  iu  order  to  make  the  fraud  indictable  as  a  pulili'  offense,  that 
it  sliDuld  be  committed  Ity  means  of  tokens,  or  false  pretenses,  or  for- 
^'iiy,  or  conspiracy,  docs  not  apply  to  direct  frauds  upon  the  public. 

2.  This  distinction  in  principle  is  illustrated  by  many  precedents, 
wiiiili  are  collected  by  the  elementar3'  writers  upon  this  subject. 

Kast  iu  his  Pleas  of  the  Crown,' prefaces  his  collectiou  of  them  by 
tliis  observation :  "So  all  frauds  affecting  tue  Crown,  and  the  pul)lie  at 
!aige,  are  indictable,  though  arising  out  of  a  particular  transaction,  or 
(imtiact  with  the  party.  This  was  admitted  by  the  very  terms  of  the 
"lijeetion  in  the  following  case."  He  then  jjroceeds  to  give  the  sub- 
stance of  the  indictment  in  Treoes'  Case,  from  the  manuscript  notes  of 
-bulge  Duller,  and  the  otheV  judges.  It  was  for  knowingly,  willfully, 
deceitfully,  and  maliciously  furnishing  certain  French  prisoners,  whose 
uiiines  were  unknown,  then  being  under  tlie  king's  protection  in  Kast- 
Wdod  IIosi>ita'i,  five  hundred  jjounds  of  unwholesome  bread,  wherebj' 
they  became  injured  in  their  health,  to  the  great  damage  of  the  piis- 
"iiers,  the  discredit  of  the  king,  the  evil  example,  etc.,  and  against  the 
[leace.  The  objection  was,  that  it  did  not  appear  that  what  was  done 
was  in  ^(reach  of  any  contract  with  the  public,  or  of  any  moral  or  civil 
duty.  This  objection  was  overruled,  but  it  did  not  appear  upon  w  iiat 
ground;  nor  is  it  material,  because  the  case  is  cited  for  the  principle 


1  V-  8-21. 


r<:e. 


J7(i  FRAUD    AM)    1-ALSK    TKETENSKS.  j 

aclrnittod  in  tl.o  objection;  whici.  principle  i.:,  that  if  it  had  been  in 
Jn        of  a  contract  .itb  the  pui>lic,  tl.c  indictment  woul.     have  be  « 
g  ol.     It  may  have  been  supported  upon  the  prinople  winch  we    a  . 
Ifore  assumed,  that  a  fraud,  which  is  to  the    njury  «f  ^^ ^^^ 
n„,nber  of  persons,  who  have  no  -M>-ute   ncuvulual  c.m^  of  ^^m-M  U 
is  indictable  at  con.nu.n  law.     Such  was  the  case  ,n  2  Ch.ttj      t    m.n.l 
Law,'  acrainst  a  baker,  for  delivering  bread  short  n,  wc^ht    under  a 
contract  with   the  guardians  of  the  poor  of  ^'onvich,  ''  to      .    grea^ 
,huna<re  and  pn.judi.c  of  the  said  poor  persons,  of  and  belonging  to  t  e 
sai,l  dty  of  Norwich  and  the  liberties  thereof,  for  whose  use    su      - 
nance,  and  support  the   said  heaves  of  bread  were  so  made  and  deh  - 
ored    as  aforesaid."     Here  the  immediate  injury  was  done  to  a  so.t  o 
pubhc-  a  ,nusi  public -the  poor  of  the  city  ;  an  inde  nute  n-un  ber  o 
pe  sons,  wl'>.  ind  vidually,  could  not  prosecute,  unless  for  separate  an<l 
S   al  injurv  actuall.;  received,  as  in  the  case  of  a  pubhe  nu.sance 
Chittv,  in  hi    note  to  this  ease,  says:  "This  indictment    for  non-dehv 

of  bread  of  su.hcient  we.ght,  was  settled  on  the  deeded  opunon 
a'v.rv  experienced  barrister,  that  the  offense  was  mdut-.ble    on  the 
:::::,  :Z  m  2  Kast-s  neas  of  the  Crown,^  that  all  fra..ds,  af^^ctu^ 
The  public  at  large,  are  indictable,  tliough  arising  out  of  a  part.cula. 

transaction  or  contract."  , 

Tho  case  of  Di.rou.^^  was  for  furnishing  unwholesome  biead  for  the 
children  at  the  Koyal  Military  As.hun  at  Chelsea.     '»'";;---!;; 
dictmcnt  at  connnon  law.  an.l  had  thic  ingred.ents,  e.thc    of  M 
;:::  lutllcient  to  support  it.  nam<.,y  :   (O  H-  it  -s  a  fra.   ^>on  t 
government,  the  asylum  being  u  myal  n,s„tut>on;  (>)  that  it     as  to 
f  he  injurv  of  an  indetinite  nan.ber  of  children,  who  were  supported  at 
vlun  •  and  (r.)  that  the  means  used,  namely,  selling  o    unwho.- 
some  biead   were  such  as  were  likely  to  injure  the  public  at  large,     ^o 
question  was  made  whether  it  was  not  an  offense  at  c-unnon  hvvv. 
^  In   Pou-cll's  C.se-^  the  principle  is  more  clearly  recogn.zed  by  th 
Supreme  Court  of  Pennsylvania.     It  was  an  indictnjen    at  --mo       w 
a^linst  a  baker  employed  by  the  army  of  the  Unded  Sta  es,  fo,  a  d  <^U 
rnbakin.  two  hundred  and  nineteen  barrels  of  bread,  and  "-^mg  h  m 
.,s  wei.dun.^  eightv-eight  pounds  each,  whereas  they  weighed  on  >■  mM>- 
;   d     is      It  was  objected  that  such  fraud  was  not  indictable  at 
^oinr  ;:w.-    1..  ^>  the  ;.ourt  said  that  this  was  ^^^^^^  ^^^^ 
the  public  ;  and  the  fraud  the  more  easily  perpetrated    since  it  was  tl. 
j^Tstom    o  take  the  barrels  of  bread   at  the  marked  we.ght,  w.tho  t 
weighing  them  ugaiu.     The  public,  indeed,  could  not,  by  common  pru- 


1  pp.  K<9,  BfiO. 
i  i>. '281  (fJl). 


;<nM.*s.n. 

•  I  n»U»8,  47. 


I 


KS. 

;mt  if  it  had  been  in 
cnt  would  have  bccu 
•inciple  which  we  have 
njiiry  of  »"  indofinite 
mil  c'liuse  of  complaint, 

in  2  Chitty's  Criminal 
)rt  in  woifiht,  nndcr  a 
)rwich,  "  to  the  great 
of  and  belonging  to  tli*' 

for  whose  use,  sustc- 
■ere  so  made  and  dcliv- 
■  was  done  to  a  sort  of 
an  indefinite  n-imber  of 

unless  forseiiarateand 
n)  of  a  public  nuisance, 
lictraent,  for  non-dcliv- 

tlie  decided  opinion  of 

was  indict.-«l;le.  on  tlic 
:liiit  all  frauds,  affecting 
ing  out  of  a  particular 

fholesome  bread  for  the 
elsea.  This  was  an  iii- 
redients,  either  of  which 

it  was  a  fraud  upon  tlic 
tion;  (--0  tliat  it  was  to 
1,  who  were  supported  at 
nely,  selling  of  unwhoie- 

Iho  jiuhlic  at  large.     No 
ise  at  connnon  law. 
Uarly  recognized  by  the 
idictnienl  at  common  law 
I'nited  Stales,  for  a  cheat 

bread,  and  mark  ing  them 
s  they  weighed  only  sixty- 
and  was  not  indictable  at 
»  was  clearly  an  injury  to 
•petrated,  since  it  was  the 
I  marked  weight,  without 
juld  not,  by  common  pru- 

s.n. 

las,  47. 


UNITED    STATK.S    V.  W ATKINS. 


177 


(lence,  prevent  the  fraud;  as  tiie  defendant  himself  was  the  officer  of 
the  i)ut)lic,  ])ri)  hac  vice.  The\-  were,  therefore,  of  opinion  that  the  of- 
fense was  indictahle."  Here  it  is  evident,  that  the  ground  upon  wiiich 
the  indirtmcnt  wivs  obtained  was  tiie  injury  to  the  i)ublie. 

So  in  the  case  of  Rex  v.  Bemhridje  and  Po'cell,^  *'  who  were  indicted 
for  onnbling  persons  to  pass  their  accounts,  at  the  pay-olllce,  in  such  a 
wiiv  as  to  enable  them  to  defraud  the  government;  it  was  objected, 
ih:it  ift  was  only  a  i)rivate  matter  of  account,  and  not  indictable  ;  but  the 
court  held  otlierwise,  as  it  related  to  the  public  revenue." 

In  lirown'n  Caxe,'^  the  indictment  was  against  an  overseer  of  the  poor 
nf  the  |)arisli  of  Twickenham,  for  fraudulently  applying  to  his  own  use 
inuney  received  by  lilm  for  the  parishioners,  and  rendering  false  ac- 
counts, to  conceal  tiie  fraud,  "  to  the  damage  and  impoverishment  of  the 
siiid  parishioners."  This  was  a  fraud  upon  an  indefinite  number  of 
persons,  who  could  not  individually  obtain  redress.-' 

h'ohhisnn's  Citse,'^  was  an  indictment  against  a  surveyor  of  highways, 
fnf  a  fraud  uno'i  tlie  parishioners,  by  appropriating  gravel,  labor,  etc., 
to  his  own  t..n/niment. 

So  in  the  case  of  The  Minister  of  .S7.  Botolpli,-'  tlic  rendering  of  :i 
false  account  of  moneys  collected  for  the  relief  of  certain  sufferers  by 
fire  was  said  to  be  an  indictable  offense.  This  could  only  be  because  it 
was  a  fraud  upon  an  indefinite  uumlier  of  jiersons,  who  had  no  individ- 
ual means  of  redress. 

So  11,  fraud  upon  a  parish  by  procuring  the  marriage  ot  a  pauper,  so 
as  to  eliarge  the  parish,  is  indictable,  upon  the  same  principle." 

So  also  a  fraud  by  an  apprentice  in  olitaiiiing  the  public  money,  by 
falsely  enlisting  himself  as  a  freeman,  is  indictable  at  common  law,  be- 
cause it  concerna  the  public  revenue." 

Tiiesc  cases  seem  to  establish  the  broad  principle  stated  by  Kast,  in 
liii  IMens  of  the  Crown,**  "  That  all  frauds  affecting  the  Crown  and  the 
IHihlic  at  large,"  or  effected  "by  any  deceitful  and  illegal  practice  or 
token  (short  of  felony),  which  affects,  or  may  affect  the  iniblic,  are  in- 
dirtahle  offenses  at  common  law;  and  that  under  the  terms  'public,' 
ami  "public  at  large,'  are  included  indefinite  numbers  of  persons  who 
have  suffered  a  common  or  joint  damage  by  reason  of  the  fraud,  and 
wiiu  have  not  individually  a  right  to  prosecute  the  offender." 


<  (  ]ted  in  6  East,  136. 

-  iciutty,  lOl. 
scf,  also,  Martin's  Case,  3  Chit.  Cr.  L. 
"'7  oitier  cases  of  indiclmoiits  for  frauds 
upuii  tli(>  parish,  mny  be  found  In  Comb  287; 
5  Mod.  179;  2  Camp,  269;  1  Bott.  Ui, 
5  Nulan's  I'oor  taws,  v!48,  371. 

.'5  Dekkxcks. 


*  3  Chit.  Hf;<i. 

t'  1  \v.  m.  4«. 

«  Tarrant's  Case,  4  Ilurr.  2106. 
'  Jonos'  Case,  1  Leach,  208. 

»  pp.  818,821. 


Vi 


j^y  FHAUl)    AM)    I  A1>K    I'KKTKXSKS. 

rl    l.aw.-v.M-    t.)  tlu"  nrosiM.l  in.lictiuout,  il  is  not  iu-<oss!iry  V< 

.j:,:i: ,;:;.;: !«: <'« > u,c„„..ic.  .,.„.,„„.  .„„.,,.,„, 

,„.,;„,„, ;.  W  ■■  o.rU,i„  to  a  «rl„i„  M,t..„t  ,„  gc"-"  •■      -''      ■"'■" 

li,..  inil.-,i„l  shall  lie  lalo'l,  l).v  lntonil„l>'nl. 

'„, r     L  „f  7V,.  A-...,/  ..»."■».-'  ".«  "■''<""•""""  «.'  ■''■"»"  ''Z''' 
,  I,    r,    •„■.■  ■■  (V,tah,lv,  to  a  ra,!ai„  Inlcnt  .„  gc.ral  „„■;,„- 

;';:;;;, ,',:;L.i:a,i,L,,,.,,iuatio,,.a,.,n --"•,':,;■;::.;;:!:„:; 

.H(  us-ilK.n    una  in  ivtnrns  t..  writs  of  vmndmnm.  1  It  chaise 

acms.itiun,  an  ,         ■  j^.,  that  without  intending  any- 

,  1,  .ir  v,T.li.-l   n,«l  ll,0">„rl  i"  ll,«  j"'lp™"'  ""'.v  »'■'=  <>'  S'".'  , 

,,  .T„.  o„„iv«oal  ll,OV  «l,all  l»'  '»><.■■,  „,o»t  »i™»g1.V  «!-'»,■>*  tUo  ,,a,l> 
",  ,  .,  r  f„r  t  il  t,.  I.e  i"U-„>l.,l  ll.at  ovcy  p.'.-".  s.atos  l,„  ,.a« 
i"™  '':"," :  1  ,      1    aM,o,.n,lo  ,  ..u.  II-  la.,g"a4e  of  t„c  „l«a,U„g  i- 

::  [ra::a.,„a„i..  .„u.„., „t ....  --■!;;:;;;,!",::::;„::  :m 


1' 

Sll 


1       ,     rni    a  Sfui^s  to  the  neeount  of  Mr.  PuuhUng,  who  is  respons.ble 

1  ,.r.n  ciiffpr    no  loss;  and.  tneieiori,  u  'I'lj 
a„,loa,»uffo,,  „».o  „„,,  „„t  „,,o„  the  r„it,-a  Stales. 

"'"  ;••„,'  ,:  r  Sr  t"  ,.a"    it  r:' ..,  e„a,.e„ t., M.  V.^^,: 


12Ha,vk.r.r..<-l,.2.sKef.  .U.;I»«}anlr. 
Mali-oiH.2  '•-'"''•  *•'• 

3U«r.Horne.Cowp.C.:.l  Clut.  «n  I  1. 
337. 


4  V.  vnt  .'.  Alanil,  1  !«nlk.  K.'.;  King  r 
sioi.bei.b  nn.l  olhorH,.'.Ku^t.ift7;  AmlitM>i 
r.  SUInm'r,  12  KaM,  270,  antl  Woolrotll  .. 
Meadti«  f,  i  Eatt,  41^. 


UMTKI)    STATKS    '•.   W.M'KINS. 


171> 


ot  lu'fcssary  t" 
lilu'  siitlk'iciit 


iilly  si't  forth  :i 


)untry,  every  in- 
;  "  and  "  uotli- 

ym>i  liegif,'  M"-      . 
n  uentTiil  incun^ 
J  railed  fcituiii. 
r;  ami  is  what  i- 

in  the  charge  or 
'I'he  charge  m\\>\ 
It  intending  any- 

he  is  to  answer, 
iiry  may  be  war- 
icy  are  to  give."  ' 
crything  shall  lie 
rather,  that  if  the 
against  the  i)arty 
on  states  his  ca.'-e 
of  the  pleading  \> 
ind  where  an  ex- 
3  taken  which  will 
vonld  defeat  it.'"  ' 
any  fraud  is  sutli- 
the  public. 
loney  was  charged 
who  is  responsible 
lited  States,  which 
t,  as  Mr.  Taulding 
Ihey  have  suffered. 

was  committed,  ii 
lited  States, 
ired,  that  it  is  not 
hUoMf.  rauldiug: 

"  as  navy  agent;  ' 


,ii,  1  Salt.  K'l;  King  i- 
.TH,."!  Kui-t, -JST;  Amiieif! 
It,  J70,   ami    Woolrotb  '■ 


;md  there  is   nothing  stated  in  the   indictment  to  show  that  it  ceased  to 
f  public  money  in  his  hands. 

r.y  t'le  fourth  section  of  the    Act  of  Congress  of  tlie  ;id  of  .March, 
isn;i.'  the  navy  age'its  are  directed,  "whenever  practicable,  to  keen  the 
iiMic  moneys  in  their  hands  in  some  incorporated  bank,  to  be  desigualetl 
fur  the  purpose  by  the  President  of  the  I'nUed  States." 

Tills  clearly  shows  that  the  umlerstanding  of  the  Legislature  wa.s. 
;li;il  the  money,  when  it  came  into  the  hands  of  the  agent,  did  not  ceiise 
!i)  he  public  money  ;  and  that  if  it  should  be  lost  without  any  negligence 
or  fault  of  tiie  agent,  it  would  not  be  h\<  loss,  but  that  nf  the  I'liited 
Sillies;  and  if  the  money  should  have  been  charged  t)  him  in  account, 
we  must  suppose  that  under  such  circumstances  the  United  States  would 
credit  him  for  the  loss. 

It  has  tieeii  suggested,  on  the  part  of  the  accused,  that  he  is  only 
iiiil'le  to  the  Tnited  States  in  a  civil  action  for  the  money  which  he  re- 
ceived. But  if  he  is  so  liable,  it  must  1)e  upon  the  ground  that  the 
money  which  he  received  was  the  money  of  the  United  States.  If  Mr. 
I'rmldiug  was  induced  to  pay  these  drafts  by  such  artful  contrivance, 
or  false  pretenses  or  tokens  as  could  not  be  guarded  against  by  ordinary 
care  and  iiriidence,  the  United  States  might ,  very  justly,  allow  him  credit 
f>'r  the  loss  ;  and  as  the  loss  in  that  case  wo-.ild  fall  on  the  United  States, 
it  would  be  a  fraud  on  the  i>.ihlic ;  and  how  would  it  he  less  a  fraud 
ui"in  the  public  if  Mr.  J'aulding  was  not  so  deceived  and  imposed  upon, 
!iut  jtaiil  the  drafts,  knowingthat  the  accused  hfld  no  right  to  draw?  It 
ciHild  not  have  been  less  a  fraud  upon  the  United  States  if  others  had 
participated  in  it. 

For  these  reasons  we  think  that  the  money  drawn  by  the  accused,  out 
of  the  hands  of  Mr.  Paulding,  was  the  money  of  the  United  States; 
iuid.  tlierefore.  that  the  fraud,  if  any,  was  a  fraud  upon  the  public. 

The  next  fjuestion  is,  whether  the  fraud  be  sulHciently  set  forth  in  the 
indictment. 

An  indictment  must  be  at  least  as  certain  and  precise  as  a  special 
verdict,  in  which  no  material  fact  can  be  inferred. 

This  indictment  is  undoubtedly  intended  to  be  for  a  fraud,  and  ought 
to  aver  the  means  by  which  the  fraud  was  effected.  This  is  admitted 
liy  the  terms  of  the  indictment;  for  it  avers  "that  by  means  of  the 
.-aid  several  false  pretenses,  the  said  Tobias  Watkins  diil,  at  tlie  time 
and  times  aforesaid,  defraud  the  said  United  States  of  the  said  two 
>uins  of  five  hundred  dollars  each,  and  dispose  of  the  same  to  his  own 
ii>e  and  benefit,  to  the  great  damage  of  the  United  States,  and  against 
the  (leuce  and  government  thereof." 

1  estate,  at  LarKe.SS."). 


1^,,  KKAUI)    AM>    1-ALSK.   PUKTKNSKS. 

The  Offense,  therefore,  which  the  accused  is  called  "P^"^';  --"- 

is  a  f.au<l  upon  the  United  States,  perpetrated  hy  means  of  the  f a  se    u 

rete nses  p  eviouslv  set  fortl>  in  the  i.uUetment;  yet  there  ,s  not.  n    bo 

r   l^t'Jf  theindiefnent.  any -iirect  ^^"^^^^ ^^^X:^;::^^ 

true  or  f -dse.     U  is  true  that  t  here  is  a  preceding  averment     that  tl  e  sn, 

tte  s  an^  iratts.  so  as  aforesaid  written  and  sent  and  drawn  and  sold 

,;r::::!l  an.  procured  to  he  iss 1  as  l^^-^J;;;:- J  ^  rl 

i;;:  ::i!.s^aise  pretenses  to  ena.>le  hin.  to  ohtain  to  h.  own  use  and 
,H.„efit  the  said  two  sun.s  of  five  humlred  dollars  each 

But  it  do..s  not  state  what  the  pretense  was.     It  does  not    tat.  t. 

,„„,ts  .,.,■..  ..ra.n  "I  -'      '<  !       ;,,„  t»  Ccahu,'  .vHbo„t  .uU.-r- 

':"  "  or'     •>.       ;e  t  t      orc'n,,.  ....no  f...  ...  ...cunt  of  ,l.e  H.li. 

'    •        1  „      ;^/     e  p.iv.Te  gain  »i"l  '"■'"■«'  »'  '"«  "■"'"■■''•  "'"'  '"" 

ir'a  :;'.::.'„;;:/.;;  r:o.t «... ... .-»..  --^-'j'y  «»;^-j- 

le    ct,  or  to  .lra«  l..o  .Irat.s.  o.-  to  oWain  .no  re.|...»it.on,  or  t.,.t  Ihcj 

.^Jt  n    yVfo    tl-  1>'1>1'^'  service,  hut  falsely  and  without  authont> , 

;irr,;,nt'  to  «"  ^'lo...  t„at  ..  -.,.., .ro....,  or  .«r.o.  « 
tbo  Soorolarv  of  ll,o  Navy,  or  ...  a..,v  .....or  o."f«  »'  ""^  t*"?  ""' 

^orc  drawn  and  sold,  and  the  requisiUon  was  ohtained,  as  P 

'"nTe  word  ''as"  means  like -not   the   thin,  itself,  but  somcth.np 
*      f  J   t       Ua  if    t  were  to  be  construed  as  an  averment  that  the  lette.s 

;rif":i:a  l  requisition  ;^^--n-:;tr=:: 

such  false  pretenses,  the  accused  ^^'*'-^"^^^^\!^*^.^'^  '''        r^,,^  ;^,rmcnt 


UNITED    STATES   ?,'.  WATKINS. 


181 


upon  to  answer, 
of  the  false  piv- 
ori'  is  not.  intbo 
■  pretense,  eitliiT 
lit  "that  the  said 
drawn  and  sold, 
rorc  and  ouch  of 
I'd  and  prooured 
•for,  and  not  for 
I  gain  and  benefit 
raud  the   United 
)  his  own  use  and 

Iocs  not  state  thut 
ly.  If  there  was 
tzc  this  averment, 

•llten  without  au- 
ty.     3d.  Thattlu- 
cy  were  sold  with- 
L'd  without  author- 
jount  of  the  public 
accused,  and  witli 
verred  that  the  ac- 
)rity  to  write  those 
sition,  or  that  they 
his  own  use. 
ctmcnt,  that  he  did 
without  authority, 
rtnicut  a  certain  re- 
public service"  do 
•nded  or  affirmed  to 
f  the  Navy  Depart- 

sent,  and  the  draft^ 
incd,  as  "  false  pre- 

tself,  but  something 
nent  that  the  lette.s, 
cs,  and  by  means  of 
nited  States,  such  an 
tain.  The  averment 
pretended  was  false ; 


and  wherein  and  in  what  particular  it  was  false.  The  gist  of  the  crime 
is  the  falsehood  of  the  pretense;  and  it  is  therefore  necessury  tliat  it 
^llould  be  made  apparent  upon  the  face  of  tiie  indictment  by  positive 
:ind  precise  averments. 

This  rule  is  supported  by  many  authorities.  One  only  will  be  cited. 
It  is  in  the  case  of  Rex  v.  I'vrroH.^  It  is  true,  that  this  wsis  an  indict- 
ment upon  the  statute  of  ;5()  (George  II;-  but  the  statute  does  not 
i.(liiire  that  the  pretenses  sliould  bo  particidariy  set  out,  nor  specifl- 
oaliy  negatived,  the  words  of  the  statute  being  merely  these:  "That 
all  persons  who  knowingly  or  designedly,  by  false  pretense  or  pre- 
tenses, shall  obtain  from  any  person  or  i)ersons,  mimey,  goods,  wares, 
or  merchandises,  with  intent  to  cheat  or  defraud  any  person  or  i)erson3 
of  the  same,"'  "  shall  be  deemed  offenders  against  the  law  and  tlie  i.ub- 
lie  peace,"  and  shall  be  punished  by  tine,  imprisonment,  pillory,  whip- 
jiiu^.  or  transoortalion,  etc. 

Hut  the  juogment  of  the  court  was  only  an  application  of  a  general 
rule  in  regard  to  all  indiitments,  whether  upon  a  statute  or  the  com- 
mon law. 

Tlie  indictment  aveiTed  that  the  «lefendant,  intending  "  to  cheat  and 
defraud  one  Bullen  of  his  moneys,"  etc.,  "  unlawfully,  wickedly,  know- 
in^'ly,  and  designedly,  did  falsely  pretend  to  the  said  Bullen,  that  he, 
tlie  defendant,  could  olitain  a  protection  for  Bulkn  l)y  favor  of  the 
Lords  of  the  Admiralty,  by  feeing  tlie  clerks,  as  he  had  an  uncle  a 
Lord  of   the  Admiralty,  and  that  it  would  be  no  great  expense,  as  he 
could  get  it  done  through  favor,"  etc.,  "  by  means  of  which  said  sev- 
eral false   pretenses,"  the  defendant  obtained  the  money,   etc.    The 
cause  was  brought  up  from  the  assizes  to  the  King's  Bench  by  writ  of 
error;  and  the  error  assigned  was,  that  there  was  no  averment  to  fals- 
ify the  matters  of  the  several  pretenses  set  forth  in  the  indictment,  by 
wliieh  it  could  appear  to  the  court,  upon  the  face  of  the  indictment, 
thit  any  or  either  of  the  pretenses  alleged  was  false  and  untrue.     Lord 
Kli.nborough,  la   delivering    his    opinion,   said:    "  Every  indictment 
(lujrht  to  be  80  framed  as  to  convey  to  the  party  charged  a  certain 
knowledge  of  the  crime  inii)Uted  to  him."     "  To  state  merely  the  whole 
of  the  false  pretense,  is  to  state  a  matter  generally  combined  iA  some 
triiih  as   well  as  falsehood.     It  hardly  ever  happens  that  it  is  unac. 
companied  by  some  truth.     Suppose  the  offense,  instead  of  being  com- 
lirisid  within  five  or  six  separate   matters  of  pretense,  as  here,  had 
lirauc!u'<l  out  into  twenty  or  thirty,  of  which  some  might  Ite  true,  and 
used  only  as  a  vi'hicle  of  the  falsity ;  are  we  to  understand  from  tiiis 
form  of  charge,  that  it  indicates  the  whole  to  be  false,  and  that  the  de- 


>  i  Mau.  &  8el.  370. 


i  ch.  24. 


\H2 


fi;ai  I)  AM>  1  •M>i''  rKiyrKNsi>. 


f.M,.lunt  is  to  propure  to  acfei.l  himself  i^uinst  tl.c  whole:  ll.ut 
«ouhl  !..•  .■ontnu-v  to  tlu<  phvin  sons,  of  ll>c  pn.oo.di..^,  which  re.pMn  s 
th-a  th..  fahric.-.tina  should  U.  api.li.'<l  lo  the  parti...hir  tlung  to  be  fal.- 
i,k-a  and  not  to  the  whnle.  Aiwl  the  c<.nvenieuce  also  of  mauknui 
.hmaiuls,  au.l  iu  furtheranee  of  that  ennv.Mie.u-e,  it  is  part  of  the  duly 
„f   those   who  a.lnuuisler  justiee  to  require,  tiiat  the  eharso  shouUlhe 

i(K..  in  onhr  to  fzive  notiee  to  the  party  of  what  he  is  to  come  pre- 

,::u-e,l  to  defend,  and  to  prevent  h.is  bein^r  di^raeted  auudst  the  eonfu- 
«ion  of  a  mMhilarious  and  eonn>lic:U..l  transaction,  parts  of  which  only 
are  ,neant  to  he  in.p.-aohed    ..f  falsehood.       It   has    been    argued    that 
perhaps  everv  one  of  these  ehar,'es  may  be  false  ;  but  the  ruhs  as  ,t  has 
been  derived  from  cases  of  a  n>ixed  nature,  where  part  .s  true  and  pa, 
false,has  introduced  a  course  of  separating,  by  speciho  aver.nents,  all 
that  which  is  intended  to  be  relied  upon  as  false.      The   analogy  of   the 
crime  of  perjury  is  so  strict,  and  justice  also  suggests  the  same   and  I 
think  it  should  be  speeilieally  announced  to  the  party,  by  distinct  ave  - 
„K.n-,s.  what  the  precise  charge  is.     It  has  always  l)een  done  in  .nd.et- 
nuM.ts  for  ohtaining  money  by  false    pretenses:  and  whenever  a  more 
..nerd  form  of  indictment  has  come  under   consideration   it  has  nut 
Tnet  with  countenance;  but  the  eourt  as  in /?...•  v.  3/.. .so.,  have  repro- 
bated it.     If  it  were  good,  every  man  might  be  l,rought  into  court  w  th- 
<,„t  tu.v  possibility  of  knowing  how  to  defend  him.-  »  >\''"«  "'^ 

1  e  lihuic,  in  tl>e  "same  case  said:    -The  argument  Is,  Inat  alleging  th:a 
the  defendant  did  falsely  pretend,  etc..  etc.,  generally,  and  in  a  lump 
is  e.,uivalent  to  averment  that  each  of  tlu.se  pretenses  was  false.     But  a 
.nimher  of  pretenses  m:iy  consist  of  some  facts  which  are  true  and  .omc 
false  •   and  it  is  a  neeessary  rule  in  framing  indictments,  not  only  that 
the  offense  should  be  truly  described,  but  that  it  should  be  described  m 
such  u  manner  as  to  give  the  party  indic:Ued,  notice  of  the  charge. 
Therefore,  when  a  party  is  charged  with  obtaining  money  under  false 
pretenses,  the  indictment  ought  to  st:ite   iu  what  par.icuhir  such  pre- 
tenses are  fabe.     lb-re  it  is  eharged  in  the  first  c  un.t,  that  the  defend. 
a,U   did  falsely  preteml  "that   he  could  obtain  a  protection  from  the 
Lor.ls  .  f  the  Admir:dty.  by  feeing  the  clerk,  as  he  had  an  uncle,  a  onl. 
„ul  that  .t  wouUl  be  no  great  expense."     "  Now,  that  -  M)-  ense 
consisting   of  several  facts,  part  of  which  may  be  true,  -'M-     ^ ^  >  • 
It  nK.y  b:  true,  that  he  h:ul  an  uncle,  a  Lonl  of  the  Admiralty  ;  but  if  h. 
had,  it  does  not  follow  that  the  rest  m:,y  not  he  true;  therefore  the  iii- 
dietment  sliould  have  charged  what  part  was  false, 

This  case  shows  that,  aecording  to  the  general  rule  of  certainty  appli- 
cable to  indictments,  the  particular  pretenses  must  be  set  forth,  and  .t 
must  l)e  averred  in  what  particulars  they  were  false. 


rXlTKI)    STATKS    V.  WATKINS. 


183 


whole?     Tliiil 

wliifli  reqiiiri'H 
tiling  to  be  faU- 
Iso  of  nmukiiui 
);\rt  of  llio  duly 
■l\ai'j;e  should  ho 
;  is  to  coiuo  inv- 
inidst  the  eonfti- 
ts  of  wliieh  only 
■on  argued,  thiil 
lie  ruli',  its  it  has 

is  true  and  pari 
io  avernnnls,  all 
'  analogy  of  the 
s  the  same,  and  I 

by  distinct  uver- 
.•n  done  in  iudiit- 
whenevcr  a  more 
ration,  it  has  nut 
>(.so»),  have  repro- 
it  inf'»  court  wilh- 
Mr.  Justiie 

liiat  alleging  thai 
y.  and  in  a  lump 
was  false.     But  a 
ire  true,  and  .-.onic 
•nts,  not  only  that 
lid  be  described  in 
i-e  of  the  charge, 
noney  under  false 
.rtioular  such  prc- 
t,  that  the  defend, 
irotection  from  tho 
d  an  uncle,  a  lord. 

that  is  a  pretense 
rue,  and  part  false, 
clmiralty  ;  but  if  he 
; ;  therefore  the  in- 

■  of  certainty  appli- 
be  set  forth,  and  it 


\Vc  are.  therefore,  of  opinion  that  this  can  not  be  sustained  as  an  in- 
■  lirtiiient  for  a  fraud  or  cheat  by  false  jjretfnses. 

Hut  ii  has  been  contended  that  it  is  a  good  indictment  for  a  forgery 
■a'-  common  hnv. 

riic  forgery,  it  is  said,  consists  in  having  "  ostensibly  for  the  public 
..rvice.  but  falsely,  ami  without  authority,  caused  and  procured  to  be 
i,Mi.d  from  the  Navy  D.partment  of  the  United  States,"  the  recpiisition 
>,  1  forth  in  the  indictment. 

II  is  a  .sulllrient  answer  t..  this  idea  to  say  that  the  indictment  itself 
nlniitsitto  be  a  true  re(|ui.-iti()ii.  and  contains  no  allegatu)n  that  the 
(i,  Icmlant  forired  and  counterfeited  it. 

riie  second  count  does  not  vary,  substantially,  in  point  of  law,  from 

till'  first, 
rpon  the  wliole,  the  Judgment  of  the  court  upon  this  demurrer,  must 

li.'  for  the  defendant. 

The  indictment  upon  the  transaction  with  Mr.  Harris  differs,  in  mat- 
ter of  law,  from  that  upon  the  transaction  with  Mr.  Paulding,  in  tlie 
!  ,,■  following  particulars  only,  namely  :  — 

1st.  That  it  avers  that  two  of  the  drafts  drawn  by  the  defendant 
i;  Mill  Mr.  Harris  were  drawn  in  favor  of  a  certain  Thomas  IJ.  I'ottinger, 
:,  ,1  sold  by  the  defendant  with  the  indorsements  thereon  of  the  said 
IMtinger,  to  C.  S.  Fowler,  and  "  that  the  indorsements  of  the  said 
I'.ttinrrer'on  the  said  drafts,  were  cither  the  genuine  indorsements  of 
tie  said  Tottinger,  made  thereon  by  him  for  the  accommodation,  and  at 
t  le  request  of  "the  said  Watkins,  and  without  any  interest  of  the  said 
I'.Uinger  therein  ;  or  were  falsely  made  thereon  by  the  said  Watkins." 

ill.  That  it  avers  that  Mr.  Harris,  being  navy  agent,  on  the  :?Othof 
^Hiteinber.  1.H27,  at  Boston,  "made  out  his  abstract  of  expenditures 
:..  such  ntivy  agent,  as  recpiired  by  the  rules  and  orders  of  the  Navy 
!.,|.artmentof  the  United  States,  for  the  third  quarter  of  that  year, 
.Miling  on  the  said  :5i)tli  of  Septemlier ;  which  abstract  contained,  among 
ni:m-/other  charges  of  expenditures  as  aforesaid,  the  foUowing  three 
i:,!ns  and  charges,  uniler  the  head  of  arrearages  prior  to  1827:  — 


li'iT.  Sept.  1, 
ir.M.  "  10, 
If.'.i.       "  22, 


Watkins 
do 
do 


draft 

do   of  8500 
do 


$.")00 
491»..'j0 

r>oo 


81,299.50 

uhieh   abstract  is  set  forth  in  words  and  figures;  and   it  is  further 
:.M  rrcd  that  the  drafts  referred  to  in  the  said  three  items  were  the  drafts 
.  tnic  charged  to  have  been  drawn  in  favor  of  C.  S.  Fowler. 

file  indiamcnt  then  proceeds  thus:   "And  the  said  Harris,  having 
•:  iiisraiticd  tho  sai'd  abstract  to  the  said  Watkins,  as  Fourth  Auditor  of 


184 


KUAII)  AND  VALSK  VKKTKNSKS. 


the  Troasurv  of  tlu-  Inite.l  Slatos.  who  was  tl.o  proper  olli-.r  to  rocnv. 
„K-  Hu,.u.,  llu.  sai.l  Watkins,  in  purs..am-.  of  his  sai.l  fra.uh.hM.t  .nt.-,. 
to  docoiv..  an.l  .U-fra..<l  the  sai.l  mito.l  Statvs,  an.l  to  co..s,nnma  c  1,,. 
sai.l  frau.l.  an.l  to  .-..v.-r  an.l  .■....•...!  th.  sam.>,  that  he  nn^rht  thereby  h.- 
.nat>l..a  to  ke..p  to  his  o.n  us..,  the  m..Meys  he  ha.l  ohta.Me.l  >v  uu-aus 
of  the  sai.l  drafts,  and  tlu-nl-y  to  defraud  the  Vnite-l  States,  .hd,  after- 
wards, to  wit,  on  the  .lay  an.l  year  af..resaid.  at  the  eonnty  aforesa,.!. 
falsely  an.l  frandnh-utiy  alter  the  said  abstract,  hy  eras.ng  therefrom 

the  words :  — 

■\\  Watkius         .Iraft 

Jo  .lo  of   f.'jUO. 

do  «1" 

opposite  to  the  said  .lates  ..f  September  1st,  Dth,  an.l  22.1,  prefixcl  to 
the  af.>resai.l  three  ite.ns  an.l  ehar^es  in  the  sa.d  abstraet  nn.ler  1  e 
head  of  arr..arafjes  prior  to  1827,  hereinbefore  set  ont.  w>th  .ntent  t., 
defraud  the  United  States." 

An.l  there  i.  a  sv.bsequent  averment,  that  the  letters,  .Irafts  an. 
requisition,  "  and  also  the  erast.re  ..f  the  said  abstract  were  made  an.l 
dol.e  with  intent  to  defrat^d  the  TniUMl  States,  an<l  as  false  pretenses  to 
enable  him  to  obtain  and  keep  to  his  own  use  and  b.-neht,  the  saul  sev- 
eral sums  of  money  therein  mentioned  ;  a«.l  that  by  means  .,f  the  sau 
several  false  pretenses,  the  sai.l  T..bi:,s  Watkins  .lid,  at  the  tune  an. 
times  aforesaid,  defraud  the  sai-l  United  States  of  the  «-^l  -J'- 
sums,  a.nountins  to  the  sun>  ..f  82.000,  and  d.spose  of  tin-  same  oh 
own  use  and  benetlt.  to  the  great  damage  of  the  United  States,  and 
against  the  peace  and  government  thereof." 

The  averment  respecting  the  indorsement  of  Mr.  Pottmger,  seems  to 
be  wholly  immaterial  to  the  charge  contained  in  this  indictment  which, 
like  that  in  the  ..thcr  in.lictment,  is  f..r  obtaining  money  by  false  pre- 
tenses, an.l  there  is  no  fal.se  pretense  allege.l  in  regard  to  that  nulorse. 
ment.  Bnt  if  it  were  material,  its  alternative  form  would  render  it 
nerfectly  nu-atory.  It  is  an  averment  that  it  was  made  either  by  Mr. 
Pottinger,  or"  Mr.  Watkins,  without  fixing  it  u,.on  either  This  aver- 
mcHt  has  no  connection  with  the  charge,  and  may  be  considered  as  mere 

'"SeTrlisure  of  part  of  the  abstract  is  charged  to  have  been  done  by 
the  defendant  as  a  false  pretense  for  obtaining  the  money  for  his  own 
use.  The  i.idietment  Itself  shows  this  to  be  impossible,  b.^-ause  U 
shows  that  the  money  was  obtaine.l  before  the  erasure  was  made.  Bn 
Tulso  averred,  Uiat  it  was  done  by  the  defendant  to  enable  him  . 
keep  the  money  to  his  own  use.  But  the  offense  charged  .8  not  the 
keeping  the  money,  but  the  obtaining  it  by  false  pretenses. 

The  erasure,  however,  is  also  averro*!  to  have  been  made  with  intent 


UNITKI)   STVTKS    {'.   WATKINrt. 


IH^ 


olli<'«r  to  roocivf 
fr:iiuliil«Mit  intent 
)  iMnissinnmatc  liii 
iiii;ilit  lliori'by  lit- 
(luiiiod  by  meiin^ 
Ntatfs,  (U<1,  aftfi- 
(■oiiiity  aforcsiiiil. 
rusinj;  tlicrofroiu 


\  22il,  pii'fixcd  to 
ibstrait  iiiulor  tlic 
out.  with  intent  tu 

Iters,  «lrafts,  and 
ft,  wore  made  and 
i  false  pretenses  to 
nefit,  tlie  said  sov- 
nieans  of  the  said 
d,  at  the  time  and 
f  the  said  several 
of  the  same  to  his 
United  States,  and 

Pottinger,  seems  to 
indictment,  which, 
noney  by  false  prc- 
,rd  to  that  indorse- 
rm  wonld  render  it 
made  either  by  Mr. 
either.  This  aver- 
e  considered  as  mere 

>  have  been  done  by 
!  money  for  his  own 
[possible,  because  it 
ure  was  made.  But 
lit  to  enable  him  to 
charged  is  not  the 
e  tenses, 
en  made  with  intent 


to  consummate  his  said  fraud,  that  is,  the  fraud  in  obtaining  money  by 
fiiUo  pretenses.  But  the  indictment  shows  that  that  fraud,  if  com- 
mitted at  all,  had  been  lonsuiuuialed  before  tlie  erasure  was  made. 

It  is  also  averred,  thai  the  erasure  was  made  with  intent  to  cover  and 
ivviccal  his  said  frautl ;  but  the  charge  in  the  indictment  is  for  perpe- 
tniling,  not  for  covering  auil  concealing  the  fraud.  'I'liis  averment, 
therefore,  so  far  as  it  regards  the  cliarge  in  the  indictment  of  obtaining 
nmney  by  false  pretenses,  is  wholly  immaterial  and  irrelevant,  and 
ilurefore  may,  in  that  respect,  lie  considered  as  mere  surplusage. 

Mill  it  is  said  that  the  averment  concerning  tiiis  erasure  conslilutes  a 
Miii>laiitive  and  sullicient  cliarge  of  another  offense,  namely,  a  churgu 
.if  forgery  at  common  law  ;  and  that  whether  the  indictment  be  good  or 
l.:i(l  iis  an  indictment  for  obtaining  money  by  false  pretenses,  it  is  good 
as  all  i  ilictment  for  forgery. 

It  can  not  escape  our  notice,  tiiat  the  only  injury  to  the  United  States 
complained  of  in  this  indictment  is  by  the  fraud  committed  by  false 
pretenses;  and  that  this  forgery,  if  it  be  one,  is  only  alleged  incident- 
:iily  as  one  of  those  pretenses.  The  defendant  was  not  informed  by 
this  indictment  that  he  was  to  come  prepared  to  answer  to  the  crime  of 
forgery.  It  contains  but  one  count,  and  that  is  for  obtaining  money 
by  false  pretenses;  and  if  that  same  count  contains  also  a  specific 
charge  of  fcjrgery,  it  is  bad  for  duplicity.  No  man  is  bound  to  answer 
to  two  or  more  criminal  offenses  in  one  count;  ami  even  if  they  are 
contained  in  several  counts,  and  be  not  of  the  same  nature  or  class, 
tlie  court  will  compel  the  prosecutor  to  elect  that  upon  which  he  intends 
to  i»ut  the  accused  upon  his  trial,'  but  in  no  case  is  he  permitted  to  join 
several  offenses  in  one  count. 

In  civil  actions,  advantage  can  be  taken  of  duplicity  only  by  special 
cieiiiiirrer ;  but  in  criminal  cases  it  is  fatal  on  general  demurrer.'' 

Tiie  present  count  undoubtedly  contains  a  clear  and  distinct,  although 
not  a  sufficient,  charge  of  fraud  by  false  pretenses.  If  it  contains  also 
a  charge  of  forgery,  it  is  bad  for  duplicity.  It  does  not,  however, 
Bcem  to  us  to  contain  a  cliarge  of  forgery  as  a  separate  offense.  What 
is  said  of  the  erasure  is  merely  surplusage. 

If  this  indictment  can  not  be  supported  as  an  indictment  for  forgery, 
(and  we  think  it  can  not),  it  is  bad  as   nn  indictment  for  obtaining 
money  by  false  pretenses,  for  the  reasons  stated  respecting  the  preced- 
ing indictment. 
Tlie  judgment  upon  this  demurrer,  also,  must  therefore  be  for  the 

defendant. 


1  Young  V.  King,  3  T.  It.  106. 


a  Arch.  Crim.  PI.  25;  Cora.  ti.  SimoniU,  2 
Mass.  KB;  United  States  v.  Sharpe,  1  Pet. 
131 ;  Slate  v.  Montague,  2  McCord,  287. 


18« 


FU.M  l>    AM>    lAI.SK    I'UKTKNSKS. 


Tnru.ToN,  J.,  .r.s..MU..a  an-l  sui.l  tlwvt,  -.n  tl.e  .lay  .l.al  U.e  ur,M,.nenl 

i„  U   s  1  was  .,,H.m..l,  h.  l.aa  n„l  sat  iu  ..url.  a..!  tl.e  sla  c  of  tl.. 

I'Zi  his  i!!-l>oilth,ana  llu,  clisUUK-c  of  i.is  n.si.l.u.o    n.,n  the  cour. 

;  1  ad  put  it  out  of  his  ,...wcr  to  exa,ni„e  th.  -t  'o.-..u.  on  . 
uhioct  as  cloH.lv  as  he  coull  hav.  wislu-1 ;  hut  he  helu-voa  I  e  h..i 
.;    d    h..  main  part  of  the  ar.uu.ont,  and  had  paid  very  close  allot  .., 

'    t ;  and  h.  h:ul  hro..,ht  his  .nind  to  the  c  ...lusion  Ihat    u-  .Wn^n. 

<>„..l  t  to  he  overruled,  and  that  the  indic-t.n.M.t  was  sulUcu  .t.     Inn. 
o    U.e  views  of  his  brethren  he  had  concurred  ;  hut  as  to  the  u.snli  .e,a 
averlnent  in  the  iudicfuent  of  a  fraud  at  c<,mmou  law,  he  d.ffered  fr.>„, 

''•nu-re  was  not  a  single  charge  in  it  of  an  act  done,  that  was  not  sH 
«,,t  m<.st  specincally  to  have  I.een  done  with  a  fraud.dent  '^-'l^"-        '' 
aid  not  know,  he  said,  what  the  precise  duties  of  ^  -  ^"-  "  ^ud. 
.re      He  did  not  doubt  that  the  Fourth  Auditor  m.jjht  have  had  a  n,ht 
;.,  demand  of  the  Secretary  of  the  Navy  a  requisition,  and  that  the  .ssu- 
/..r  the  requisition  n.i.ht,  if  properly  done,  have  been  a  le,nt.,nat.. 
L  which  could  not  be  questioned  here.     But  the  des.,n  w.th  whu  , 
the  requisition  was  procured  to  be  issued  must  be  looked  at.     S  Is  ■ 
nneut  vets,  said  he,  show  the  design  to  have  been  fraudulent ;  and  t    . 
s    nciently  set  out  in  the  indi-t.nent  that  all  the  acts  enumerated  .n  tl, 
i     were  fraudulent,  and  were,  therefore,  false  pretenses.     He  dul  .u 
„oncurwith  his  bretluen  in  Uu-ir  disquisition  us  to  the  s.gn.t.eat.on  o 
the  wonl  "as,"  which,  he  said,  dhl  not  merely  mean  s.md.tude   but 
properlv  fornu..l  part  of  the  sentence  eontainins  the  allesatioa  of  f a  s. 
ol-nses.     I  think,  said  he.  that  the  in.lict.nent  is  sullKMent,  and  that  n 
gi     sfull  notice  to  the  party  of  the  charges  against  ^'i--     "^j'^^- 
express   his   opini.m   m  .re   precisely,  for  the  reasons  winch   he   hud 
stated  ;  ^'hieh  was  of  less  importance  in  this  case,  as  his  brother  h>u 
pronounced  a  contrary  opinion.     If  this  indictment  was  no    a  su  hc.en 
one   he  concluded  bv  saying  he  thought  it  was  hardly  poss.be  to  fra.n 
o.u 'that  wo..ld  s..stain  a  prosecution  for  a  fraud  at  eommon  law  agai..st 

^'' ^Vcl^!1al^?unc■  :^d.     A  third  indictmc-nt  was  this  day  presented  to 
the  cou.t,  .»  which,  also,  there  was  a  general  demu.Ter. 

Tbis  indictment  charged  that  the  defc.dant,  beh.g  Fourth  Aud.tor  o 
the  Treasu.-y  of  the  Unite<l  States,  and  -  inten.ling  fraudulently  a.ul 
„„i,.4lv  to  obtain  an.l  acquire  for  himself  and  for  his  own  private  use. 
•!  ,..oney  of  the  V ..ited  States."  "  falsely  a.ul  fraudulently  "  wrote  a 
U-tter  to'Mr.  Paulding,  navy  agent  at  New  York,  inform.ng  h.m  that 
he  had  draw.,  o.i  hi.a  for  $:500,  to  be  charged   to  arrea.ges  pr.or  to 

,  The  stenographer  wl.o  reported  th.H  argument  o(  the  3u..«e  has  ocrta.n.y  not  ..ou. 
hiiH  justice. 


l-NITKI)   HTATKS    r.  WATKINS. 


is: 


It  tlic  iirfrumeiii 
llie  state  of  tin 
0  fmm  the  court 
uthoritifs  on  ttiv 
iH'lit'Vi'd  he  IkicI 
y  close  iittention 
hut  the  (U'lmiriir 
Icifiit.     In  ni:iiiy 
to  thi-  iiisnl!k'U!iil 
,  111'  (Ufferctl  fr Jiu 

,  that  was  not  set 
lU'nt  (It'sii^n.     Ho 
e  Fourth  Auditor 
L  have  had  ii  rijjht 
and  that  the  issii- 
boon  a  le<^itiinatf 
losi<iu  with  whicli 
ooked  at.     Sult>-c- 
ludulcnt ;  and  it  is 
enumerati'd  in  tlic 
uses.     Hi"  did  not 
,he  signitication  of 
•an  similitude,  i)Ul 
allogalioa  of  false 
iHcient,  and  that  it 
him.     He  did  not 
ana  which   l»e   hml 
%s  his  l)iothcr  hstd 
was  not  a  sutlicienl 
y  possible  to  fraiiu' 
:ommon  law  against 

tis  day  presented  to 
rrer. 

T  Fourth  Auditor  of 
j^  fraudulently  and 
his  own  private  use, 
udulently  "  wrote  a 
informing  him  that 
)  arreargis  prior  to 

;e  has  ccrtniiily  not  ilono 


IS-.'T.  uiKhr  wliich  head  a  irmittancf  woidd  he  made  to  him.  immedi- 
:,u"lv  ..11  til.-  Srcretary's  return  to  tlie  city;  i  .  rr.iuestin.-j;  Mr.  I'aiild- 
„,',  in  tiie  meantime,  to  pay  tlie  draft  out  of  any  unexpended  halanee 
in  liis  liamls.  to  be  rephiee.l  on  receipt  of  the  treasurer's  remittaixe. 
Tl,:,t  the  def.ii.lant  drew  the  draft,  sold  it  to  Mr.  Fowler,  received  from 
hin,  the  money,  and  disposed  of  it  for  his  own  use  ;  and  that  the  draft 
«;is  afterwards  paid  by  Mr.  I'nulding. 

■y\<:d  tiie  ilefendant.  "  ostensibly  for  the  publi(!  service,  but  falsely. 
fniiHiiilentlv.  and  witiiout  authority,  caused  to  be  procured  and  issued 
fp.,„  the  Navv  Department  of  the  United  States  a  certain  r.M|ui>iti..n  tn 
,|„.  Secreti.rv  of  the  Treasury  of  tin-  Tnited  States,  for  tiie  purpose 
and  intent  of  placing  in  the  han.ls  of  the  stud  .1.   K.  I'auiding.  navy 

nt.as  aforesaid,  the  sum  of  8:\iKt  of  the  moneys  of    the  Tnited 

Str.es  (whirh    reiiuisitinn  is  set  out  rn-h„lim).  by  which  the   money 
«;,>phuedinthehandsof   Mr.  I'auiding ;  and  the  indictment  charges 
ihia  the  said  letter  and  draft,  so  as  aforesaid  written   sind  sent,  and 
,ii:ovu  and  sohl  as  aforesaid,  and  the  said  nMpiisition  caused  and  pro- 
nuv  1  to  be  issue.l  as  aforesaid,  were,  and  eadi  of  them  was,  so  written 
„nd  sent,  drawn  ami   sold,  and  <'aus,'(l  and  procured  to   be  i.ssued  as 
aforesaid,  without  any  authority  therefor,  and  not  for  or  on  account  of 
tl„.  public  service,  but  for  the  private  gain  and  luM.elit  of  the  said  To- 
bias Watkins,  and  with  intent  to  defiaud  the  said  Tniled  States,  and  as 
fals..  pretenses,  to  enable  him  to  obtai..  -  <d  keep  to  his  own  use  and 
h,,u(it  the  said  sum  of  $-Wi)-  an.l  that,  by  means  thereof,  the  said  To- 
l.ia<  Watkins  did.  at  the  time  and   times  aforesaid,  defraud   the  saul 
rniti'd  States  of  the  said  sum  of  $;'.no,  and  dispose  of  the  same  to  his 
own  use  and  benetit,  to  the  great  damage  of  the  United  States,  and 
airainst  the  peace  and  govt  rnment  thereof." 

(■i!\N(  II,  V.  J.,  delivered  the  opinion  of  the  court.  This  is  a  third 
indictment  at  common  law,  against  the  late  Fourth  Auditor  of  the 
in  usury  of  the  United  States,  for  a  fraud  upon  the  public,  in  obtain- 
in-  )he  money  of  the  United  States  by  means  of  false  i)retense,. 

It  is  said  to  be.  in  pnint  of  law.  exactly  like  the  former  indictment, 
fmn.led  upon  the  transaction  with  Mr.  Paulding,  except  that,  instead 
of  averriu",  at  the  conclusion  of  the  charge  in  the  indictment,  that  the 
fraud  was  I'ffected  by  means  of  the  said  several  -false  pivtenses,"  it 
av.TS  that  it  was  effected  -  by  means  thereof,"  that  is,  of  all  the  acts 
.vKirh,  in  tlie  preceding  part  of  the  in.lictment,  had  been  set  forth  and 
averred  to  have  been  done  by  the  defendant,  -  as  false  pretenses." 

The  demurrer  upon  this  indictment  not  having  been  subnutted  to  the 
<o„rt,  with  that  in  the  former  case,  has  afforded  the  counsel  of  the 
luit.  (1  States  an  oecasion  to  question  the  correctness  of  the  principles, 
and  uf  the  conclusions  which  are  stated  in  the  opinion  of  the  court  in 


ls«< 


FIJAll)    AM)    lAI.SK    l-rtKTKNSES. 


that  ca.-if.  and  lias  fiiviii  tin-  ((MiiI  itii  ti|)|K)rtiiiiity,  of  wliicli  it  Ii:h 
iivaiUMi  itself,  to  I'fvii '^v  its  u|iinii>n,  iitidiT  tlif  additional  li.u;lit  uffocdi  I 
l)ytlu!  al>U!  ai;;iitiu'nt  of  tlic  Itanii'd  t'oiiiistl,  dirnctcd  exac-tly  at  tin 
opinion  itsrlf.  \\  <•  liavo  bi't-n  tlu'  ii'.oiv  wiliin;;  to  do  this,  booausc,  ii> 
tiuTC  Ih  no  appeal  in  tlii'so  cusi-a,  a  lu'nvicr  responsibility  is  thrown 
U|Min  this  conit.  Wo  shall  pio'.tful,  therefore,  to  a  consiih-ration  of  the 
piiints  in  whidi  the  corroi'tni'ss  of  onr  fornuT  opinion  has  bci-n  (jius- 
lioncd,  with  ii  hope  and  a  eonlidenee  that,  if  in  this  examination  wc  shall 
find  that  we  have  eonimitted  an  error,  wc  shall  not  bo  prevented,  l>y 
any  pride  of  oi>ini()n,  from  ackuowehlgiiig  it  with  candor,  and  correct- 
iny;  it  with  pleasure.  We  have  taken  time  to  examine  the  authorities 
to  whieh  we  have  been  referred,  with  a  de<;ree  of  attention,  as  we  hope, 
in  some  defrree  commensurate  with  the  iniportanec  of  this  cause  in  tlip 
«>stimation  of  the  public,  and  with  its  real  importance  in  the  point  of 
law. 

The  objection  taken,  by  the  counsel  of  the  United  States,  to  the  ile- 
cision  of  the  court  in  the  former  case  is,  in  substance,  that  the  couit 
drew  a  false  conchision  from  the  i)remi8iH  which  they  had  e3tablishe<l. 
The  ttr<i;ument  on  the  part  of  the  Tnited  States  is,  in  substance,  this; 
According  to  tho  opinion  of  the  court,  every  indictment  which  snlli- 
ciently  sets  forth  a  fraud  on  the  public,  effected  by  means  other  than 
false  jiretenaes,  is  a  good  imlictment  at  common  law.  This  indictment 
does  swiliciently  set  fortli  a  fraud  upon  the  public,  effected  by  means 
other  than  false  pretenses.  This  is,  therefore,  a  good  indictment  nt 
common  law.     The  conclusion  is  just  if  the  j)remi8es  are  true. 

The  major  pro])08ition  maj-,  for  the  sake  of  argument,  be  admitted 
to  ite  true.  Bui  the  minor  proposition,  namely,  "  that  this  indictment 
does  sufficiently  set  forth  a  fraud  ui)on  the  public,  effected  by  means 
other  than  false  pretenses,"  is  now,  as  it  was  in  effect  before,  denied 
by  the  court.  It  was,  therefore,  incumbent  upon  the  counsel  of  the 
United  States  to  prove  it  before  they  could  arrive  at  their  conclusion. 
Have  they  done  so?  and  liow? 

They  take  it  for  granted  that  they  have  proved  the  proposition  when 
they  show,  that  it  is  alleged  in  the  indictment  that  "  the  accused,  de- 
vising and  intending  to  defraud  the  United  States,  wrote  and  s'-nt  tl 
letter  of  advice  set  out  in  the  indictment  —  made  the  d  ft  id  pro- 
cured the  requisition  to  be  issued  "-- (and  we  wi.'  >liat  thoy 
omitted,  sold  the  draft,  received  the  money,  and  app  a  to  his  own 
use),  "  and  that  it  is  distinctly  averred  that  by  these  ts  he  did  de- 
fraud the  United  States  of  the  money  mentioned  in  these  indicti  >'nts. " 
And  the  counsel  for  the  United  States  contend  that  "  all  that  can  be 
necessary  to  set  out  in  the  indictment  is,  that  the  party  accused  intended 
to  defraud  the  United  States  ;  that  in  pursuance  of  that  intent  he  com- 


dMi 


UNITKI)    ^iTATKS    r.  WATKINS. 


1«1> 


,  of  wliioh  it  li.H 
iinl  liL!;lit  iiffonli'il 
cd  cxac-tly  iit  tlii 
)  this,  booaiisc,  ii^ 
isibility  is  tbrown 
insidcmtion  of  the 

>n    llilS    llClMI  (jlll'H- 

iininatioii  wc  aiiiiil 
bt!  prevented,  l>y 
idor,  and  concct- 
iie  tlie  uutlioritii'H 
Dtion,  as  we  hope, 
'  tluH  cause  in  tjie 
?e  in  tlie  point  of 

States,  to  the  lie- 
cc,  that  tile  coiiit 
y  had  eatablishi  <i. 
n  substance,  tliis; 
tment  which  snlli- 

menns  other  tiiun 
Tiiis  indictment 
effected  l>y  means 
3od  indictment  nt 
1  are  true, 
ment,  be  admitted 
at  tliis  indictment 
effected  by  means 
ect  before,  denied 
lie  counsel  of  tlie 
t  their  conclusion. 

c  proposition  when 
"  tlie  accused,  di- 
rote  and  sent  l! 
he  (1     ft        (1  pi(i- 
ir  liut  thoy 

pt  it  to  his  own 
>8i  its  he  did  de- 
hese  imlicti  'nis." 
it  "all  that  tan  In- 
y  accused  intended 
that  intent  he  coin- 


iiiitted  certain  specitlc  acts ;  and  that  by  those  acts  the  Inited  States 
were  defnuideil." 

liv  tlie  exiiresHion  "  set  out  "  the  court  understood  the  counsel  of  th»! 
1  lilted  States  as  meaninj;  no  more  than  "  aver  "  or  "  allepje;  "  and  the 
(diirt,  therefore,  understood  them,  in  effect,  to  say,  that  it  is  only  neces- 
>;\rv,  in  an  indictment  at  common  law,  for  u  fraud  upon  the  I'liitiMl 
Miitis,  to  aver  that  the  defendant  did  certain  acts  with  intent  to  difraiid 
the  United  States,  ami  that  by  those  acts  the  United  States  was  de- 
frauded; altlioiigii  the  same  acts,  without  the  ivermnut  of  a  criminal 
iiitiiit,  should  apjiear  to  be  innocent. 

The  proposition  to  be  proved  is,  "that  this  indictment  docs  suffl- 
,  iniily  set  forth  a  fraud  upon  the  public,  effected  by  means  other  than 
fiil'i'  pretenses." 

it  must  sutliciently  set  forth  a  fraud.  Fraud  is  an  inference  of  law 
from  certain  facts.  A  fraud,  therefore,  is  not  siilllciently  set  forth  in 
.m  indictment,  unless  all  the  facts  are  avcind  which  in  law  constitute 
ihc  fraud.  Whether  an  act  be  done  fraiiduItMitly  or  not  is  a  (I'.iestion 
of  law,  so  far  as  the  moral  character  of  the  act  is  involved.  To  aver 
I  hat  tin  act  is  fraudulently  done,  is,  therefore,  so  far  as  the  puilt  or 
iminceiice  of  the  act  is  concerned,  to  aver  a  matter  of  law,  and  not  a 
iiuitter  of  fact.  An  averment  that  the  act  was  done  with  intent  to 
(oiiiinit  a  fraud,  is  equivalent  to  an  averment  that  the  act  was  done 
fraudulently.  No  epithv'ts,  no  averment  of  fraudulent  intent,  can  supply 
the  place  of  an  averment  of  the  fact  or  facts  from  which  the  Icfjal 
inference  of  fraud  is  to  be  drawn.  Starkie,  in  his  late  treatise  on 
eriniinal  pleadiuji,  in  p.  ICS,  says:  "Whether  particular  circumstances 
funstitute  an  indictable  fraud,  is  a  question  of  law;  and,  therefore, 
aiKirding  to  a  fundamental  rule  of  description  in  iiidiclments,  such 
cireumstances  must  be  set  out,  in  order  to  sliow  that  the  facts  amount 
to  an  indictable  offense." 

The  case  of  King  v.  Knight,^  was  an  information  against  a  recciver- 
gvneral  for  falsely  indorsing  certain  exchequer  bills,  and  paying  them 
into  the  cxcheciuer  "as  if  they  had  been  received  for  customs,  and 
as  if  they  had  been  truly  indorsed ;  to  the  deceit  and  fraud  of  the 
King." 

Tlie  statute  of  8  and  9  William  III.,^  required  him  "  to  put  his  name 
to  the  bill."  The  information  only  charged  that  he  indorsed  it.  Lord 
Thief  Justice  Holt,  in  delivering  the  opinion  of  the  court,  said:  "The 
word  indorse  is  not  sufficient ;  for  indormvit  imports  a  writing  on  the 
back  of  a  thing,  but  not  putting  his  name  upon  it.  But  it  was  urged 
ly  the   king's   counsel  that  it   might  plainly  be  understood    by  the 


ulk.  375. 


2  ch.  20,  sec.  6S. 


UIO 


KHALU    AND    lAI-SK    1'UI:TKNsKS. 


words  (iinisi  rrc<'i>tce  cssent  jiro  rustomiin.  1  aiiswiT  this  liy  :ir<j:nm(nt 
oiilv;  and  inforniiitions  uro  iiaui:liL  fur  llial  very  cau^c ;  fm-  all 
fliariri'S  ou;j;lit  oiTtainly  to  bo  sot  out  in  pleading.  But  f urtli.  i 
it  was  urixi'd  that,  it  is  said,  falsa  indorsarit  in  deceptionem  dumini 
ref/is,  uiul  so  found  by  the  jury  ;  and  tiioujxli  a  fact  that  appears  inno- 
cent can  not  i)e  made  a  ciiine  liy  adverl)s  of  aj:<;mvati()n,  as  /«(/,v<, 
/,i(udHli-htn\  etc.,  yet  wlierc  a  fact  stands  indifferent,  as  writing,  wirnh 
may  he  true  or  I'ulse,  and  is  charged  to  be./'u^^(/,  and  the  jury  find  it  t;o, 
all  are  then  estoppi'd  to  say  the  contrary.  On  Hie  otln'r  sicU'  it  wa^^  saM, 
-■-t  derc;)^'o«('7n,  is  only  matter  of  conclusion.  Liul  here  is  no  chargr ; 
it  is  not  enough  to  say  the  k'.ng  is  cheated  ;  lie  must  appear  to  i)e  so." 
Again,  in  the  same  case,  as  reported  in  '.'>  .Saikeid,' it  is  said:  "To 
say /(//.so  indorsitrit  (jitasi  ri'cephv  e,s,s(>)/^  is  no  di.ect  charge  of  any 
thing  that  is  criminal.  'Tis  true  it  is  said  in  deceptionem  domini  rcfr-: 
hut  this  is  only  matter  of  inference  and  conclusion;  whereas  the 
charges  contained  in  every  indictment  ought  to  be  so  certain  that  the 
defeiuLant  may  know  what  aiHwer  to  make,  and  that  the  court  may  .s<i 
the  tine  in  proportion  to  the  offense  ;  ami  'ikewise,  that  if  the  defendaut 
should  lie  indicted  again  for  the  same  'uci,  ho  may  plead  autrefois  co^- 
rict  (that  is,  that  he  has  been  before  convicted).  'Tis  true  that  V.x 
jury  have  found  that  the  def  'u\Anc  Jal.so  indorsmit ;  but  that  will  not 
lix  the  guilt;  for  they  are  only  to  find  the  contents  of  the  indietmeut, 
and  if  that  will  not  amount  to  a  crime,  th's  adverb /a/.so  will  not  make 
it  so." 

So,  also.  Lord  Mansfield,  in  Rex  v.  iroof(/((^?, -' says :  "That  all  thu 
epitiiets  in  the  information  were  formal  iufercm  s  of  law  from  the 
printing  and  pulilishing,"  and  "'.hat  the  verdict  finds  only  what  tin 
law  infers  from  the  fact."  Again,  in  page  2(;tV.»,  he  says:  "If  th-'v 
(the  jury)  meant  to  say  that  they  did  not  find  it  a  libel,  or  did  not  find 
the  c|)illiets,  <  1  did  not  find  any  malii  ions  intent,  it  would  not  affect 
the  verdict,  i)ecause  none  of  these  things  were  to  be  proved  or  found 
either  way." 

The  language  of  Starkie.  also,-  is  this:  '•  It  has  been  said  that  wheri. 
the  fact  laid  in  the  indictment  appears  to  be  mlawful,  it  is  unnecessary 
to  allege  it  to  have  been  unlawfully  done.  In  truth,  the  averment  is  in 
no  case  essential,  ui\less  it  oe  part  of  the  description  of  the  offense  as 
defined  in  some  statute;  for  if  the  fact,  as  stated,  be  illegal,  it  would 
be  supcrtluous  to  allege  it  to  be  riiilawful ;  if  the  fact  stated  be  legal. 
the  word  illirite  can  not  render  it  indictal)le ;  and  the  same  observation 
is  applical>le  to  the  terms  wrongfully,  unjustly,  wickedly,  willfully, 
corruptly,  to  the  evil  example,  maliciously,  and  such  like;  which  an 


I  p.  ISO. 


"  5  lUirr.  iWiC. 


ii  Cr.  ri,  fcS. 


&«Bi 


i;s . 


LNnr-I)    STATKS    V.  WATKINS. 


lit] 


WW  this  liy  :ir<:nm(nt 
very  canst';  fur  all 
leading.  Bnt  fnrtlirr 
'n  deceptionem  domini 
'act  that  appears  innn- 
ajii^ravation,  as  y((/.^", 
rent,  as  writing,  wliieli 
iiul  the  jury  fiiul  it  .so, 
■  otluT  siile  it  wa^^  sa.'i, 
It  here  is  no  chari:<' ; 
lur.t  appear  to  1)0  so." 
kelil,'  it  is  said  :  '*  To 
I  di/ect  charge  of  any 
cptionem  domini  »•«/'>,■ 
iclusioM  ;  whereas  liie 
be  SI)  certain  that  the 
tliat  llie  con  it  may  .sit 
e,  that  if  tlie  dofendaut 
ay  plead  luitrefois  co' - 
1).  'Tis  true  that  i'.x' 
tacit ;  but  that  will  not 
nits  of  the  indictment , 
erb/u/.so  will  not  make 

-says:  "That  all  the 
.IK.  8  of  law  from  the 
■t  finds  only  what  tiie 
;;»,  he  says:  "If  th.'v 
a  libel,  or  did  not  find 
ent,  it  would  not  affeet 
to  be  proved  or  found 

IS  been  said  that  wher^ 
iwful,  it  is  unnecessary 
uth,  the  averment  is  in 
ption  of  the  offense  jh 
ted,  be  illegal,  it  would 
he  fact  stated  be  le.L'al. 
d  the  same  observatinn 
ly,  wickedly,  willfully. 
1  such  like ;  which  an 


unnecessary  if  they  are   not  to  be  found  in  the  very  definition  of  tlie 
.iffriise,  either  at  common  law,  or  in  the  purview  of  the  statute." 

So,  also,  Archbold,  in  hi.-*  treatise  on  criminal  pleadings.'  says; 
•■\n  indictmeat  for  an  offense  against  the  statute  must,  with  certainty 
.md  precision,  charge  t'.ic  defendant  to  have  committed  the  acts,  under 
IJH' circumstances,  and  with  the  intent  mentioned  in  the  statute;  and 
if  any  one  of  tl'.ese  ingredients  in  the  offense  be  omitted,  the  defendant 
may  dei  <nr,  move  in  arrest  of  judgment,  or  bring  in  a  writ  of  error. 
I'lie  defect  will  not  he  aided  by  verdict,  nor  will  the  eonclusion,  contra, 
fortiian  statuli  cure  it." 

One  of  the  necessary  and  essential  ingredients  of  fraud  is  deceit. 
Without  deceit  there  can  be  no  fraud,  in  the  legal  sense  of  the  word. 
No  fraud  can  be  committed  but  by  deceitful  practices ;  practices  calcu- 
ialed  to  deceive.  There  may  be  injuries  to  the  public  without  deceit, 
au<l  they  may  be  indiclal)le  at  coi,  inon  law,  but  they  can  not  be  frauds. 
The  particular  deceitful  practices,  by  means  of  which  the  fraud  is 
alleged  to  have  been  committed,  must  be  specially  set  forth  ;  so  that  the 
deceit  may  appear  upon  the  face  of  the  indictment,  in  order  that  the 
conrt  may  judge  whether  the  fraud  which  constitutes  the  crime  can  be 
inferred  from  the  facts  Mtaled  in  tlie  indictment.  Whether  the  deceit- 
ful practices  con^st  of  false  tokens,  ..r  fabricated  letters,  or  forged 
notes,  or  false  pretenses,  expressed  either  l»y  words  or  signs  or  acts, 
th.y  must  be  set  forth  with  proper  averments,  siiowing  and  falsifying 
the  pretended  faets  which  were  the  means  of  the  deceit. 

If,  then,  the  law  is,  as  we  have  stated  it  to  be,  that  fraud  is  an  infer- 
ence of  law  from  certain  facts,  that  every  indictment  for  fraud  is  bad 
whieh  does  not  i)ositively  aver  all  tin;  facts  ni'cessary  to  raise  that  infer- 
.nee  of  law;  tliat  the  expressions  "fraudulently  and  witij  intent  to 
defraud  the  United  States."  and  "that  the  United  States  were  de- 
frauded," are  not  averments  of  nuitters  of  fact,  but  of  inferences  of 
law,  there  will  be  nothing  left,  according  to  the  idea  of  the  eounsel  of 
the  United  States,  as  to  what  is  ncccs.  ary  in  an  indictment  for  fraud 
upon  the  United  States,  but  the  avermei  t  that  certain  apparently  iuno- 
eent  acta  were  done  by  the  defendant. 

Let  us,  then  according  to  the  terms  of  the  proposition,  exclude  from 
this  indictment  all  the  averments  respecting  false  pretenses  ;  and  let  us 
exclude  those  allegations  which  are  not  averments  of  matters  of  fact, 
but  of  inferences  of  law;  and  the  following  averments  of  facts  will  be 
all  ♦hat  are  left,  namely:  That  Tobias  Watkins,  on  the  8th  of  October, 
18-27,  being  then  Fourth  Auditor,  etc.,  at  Washington  County  aforesaid, 
with  force  and  arms,  wrote  and  addressed  and  caused  to  be  scut  to  J. 


•i  Cr.  ri.  85. 


1  p.  23. 


■B 


192 


FRAl'l)    AM)    FAU^r    VUKTENSES. 


K.  Pi.uldiug,  then  a  navy  agent  of  the  United  States  at  the  city  of  Now 
York,  the  letter  of  that  date  set  forth  ':.  the  indictment;  and  on  tlio 
Bamo  day  drew  a  draft  on  tlie  s.:-1  V  11.  rauldin<r,  navy  agent,  for  g.Uto. 
and  sohl  and  deliverc<l  it  to  C.  S.  Fowler,  and  received  from  him  8:'.'io 
therefor,  and  ke|.t  and  disposed  of  the  same  for  his  own  use;  which 
draft  was  afterwards  paid  l.v  the  said  ,1.  K.  Paulding.     That  the  said 
T.  Watkins  did  afterwards,  on  Hie  f.th  of  N<.venil)er,  lK-27.  at  A>  aslini<r- 
ton  Count v  aforesaid,  cause  and  procure  to  be  issued  from  the  Navy 
Department  of  the  United  States,  the  recpiisition  set  forth  in  the  indiot- 
ment,  for  tlie  purpose  of  placing  in  the  hands  of  J.  K.  Paulding,  navy 
a-Ti.nt  as  aforesaid,  the  sum  of  $WQ  of  the  moneys  of  the  United  States, 
wliich  was  hv  that  means  done.     And  that  these  things  were  so  done 
by  the  said  'i'ul.iaH  Wntkins,  not  for  or  on  account  of  the  public  service, 
but  for  the  private  gain  and  benefit  of  tlie  said  Tobias  Watkins,  and  to 
niable  him  to  obtain  and  keep,  to  his  own  use  and  benefit,  the  s^vid  sum 
of  three  liun.lred  dollars;  and  tiiat,  by  means  thereof,  the  said  Tobias 
Watkins  did,  at  the  time  and  times  aforesaid,  dispose  of  the  same  to  his 
own  usi-  and  henelit. 

These  are  all  the  facts  remaining  in  the  indictment,  upon  which  the 
court  is  called  upon  to  dccid.'  whether  the  indictment  is  good  as  an  in- 
dictment at  eomniou  law,  for  a  fraud  upon  the  United  States. 

We  look  in  vain  among  these  facts  for  sucli  as  show  that  deceit  which 
is  an  essential  in<ircdient  in  fraud. 

There  is  no  fact  averred  in  relation  to  the  letter,  or  the  draft,  or  the 
requisition,  which  shows  any  deceitful  pr.actice,  any  attempt  to  deceive 
anybody,  or  to  impose  upon  any  agent  of  the  government.  Upon  that 
most  essential  point  the  facts  give  us  no  information.  Fraud,  even  in 
civil  cases,  is  never  t  .  be  presumed  ;  and  in  criminal  cases  the  accused 
is  always  presumed  to  be  innocent  until  the  contrary  appears. 

But  it  has  been  suggested  that  the  letter,  the  draft,  the  requisition, 
an.l  tlu>  receipt  an.l  application  of  the  money  to  his  own  use  by  the  de- 
fendant, he  then  being  Fourth  Auditor  of  the  Treasury  Department  of 
the  United  States,  do,  of  themselves,  show  a  fraud. 

They  niiizht,  indeed,  be  evidence  contributing  t )  establish  a  charge  of 
frau<l,  upon  the  trial  before  the  jury  ;  but  the  court  is  not  now  to  in- 
quire what  might  be  the  evidence  of  fraud.  The  question  is,  what  are 
the  allegations,  not  what  is  the  proof;  for,  however  strong  the  l^roof 
might  l)e,  the  court  could  not  give  judgment  against  the  accused,  if  the 
offense  should  not  be  sulliciently  alleged.  The  simple  averment  that 
the  defendant  wrote  the  letter  is  not  the  averment  of  any  fact  which 
might  be  inferred  from  the  fact  of  his  writing  the  letter.  So  in  regard 
to  the  averments  respecting  the  draft  and  the  requisition,  and  the  receipt 
and  misapplication  of  the  money  ;  they  do  not  amount  to  an  averment 


UNITKI)    MATF-S    V.  WATKIN8. 


Tj;i 


t  the  city  of  Now 
nent ;  and  on  tlio 
\'  agont.  for  S-">'"K 
(I  from  him  S:''>'i 
I  own  use  ;  wliicli 
<r.     Tiiat  the  said 
IK-27,  at  Wasliinir- 
mI  from  tiie  Navy 
orth  in  tlie  indict- 
V.  rankling,  navy 
the  United  States, 
nsrs  were  so  done 
the  public  service, 
,3  Watkius,  an'l  to 
nefit,  the  said  sum 
if,  the  said  Tobias 
of  the  same  to  liis 

it,  upon  which  the 
t  is  good  as  an  in- 
d  States. 
,v  that  deceit  which 

or  the  draft,  or  the 
attempt  to  deceive 
nmcnt.  Upon  tlial 
a.  Fraud,  even  in 
il  cases  tlie  accused 
■  appears, 
aft,  tlie  requisition, 
own  use  by  the  dc- 
sury  Department  of 

stablish  a  charge  of 
art  is  not  now  to  in- 
iiestion  is,  what  are 
or  strong  tiie  proof 
t  the  accused,  if  the 
imple  averment  that 
it  of  any  fact  which 
utter.  So  in  regard 
ition,  and  the  receipt 
lount  to  an  averment 


(if  any  inference  which  might  be  drawn  from  either  of  those  acts,  or 
fi  (111  the  combination  of  the  whole.  Whatever  material  inferences  ci 
f;u  t  miglit  in  the  opinion  of  the  counsel  for  the  United  States,  be  drawn 
from  those  facts,  ouglit  to  havf  been  averred  as  facts;  and  without 
.-tich  an  averment  those  infercices  can  not  lie  taken  into  consideration 
by  the  court  in  deciding  upon  the  validity  of  the  indictment,  for  the 
sinie  reason  wliich  would  exclude  them  in  the  case  of  a  special  verdict. 
iCxcluding,  therefore,  those  averments  of  false  pretenses,  which  by 
t!a'  tL'rms  of  the  proposition,  are  to  l)e  excluded,  and  those  averments 
whicii  are  only  averments  of  inferences  of  law,  and  there  remains  no 
avirraent  of  fact  showing  that  most  important  of  all  ingredients  of 
fraud,  the  deceitful  practice  by  which  the  fraud  was  or  could  be  ef- 
fiitcd.  The  counsel  for  the  United  States,  therefore,  having  failed  to 
-  iplHjrt  the  minor  proposition  of  the  syllogism  upon  which  their  ar- 
gument is  founded,  must,  of  course,  fail  in  their  conclusion. 

A  great  part  of  the  argument  of  the  counsel  for  the  United  States,  in 
till'  present  case,  was  founded  upon  a  misapprehension  of  the  opinion  of 
tlie  court  upon  the  former  case.  They,  in  effect,  assumed,  as  one  of  the 
grounds  of  their  argument,  this  proposition  :  that  the  court  decided  the 
lornier  indictments  to  be  bad,  because  they  were  insufficient  as  indict- 
iiuiits  for  fraud  by  false  i)retenses,  although  they  contained  sufficient 
uMriaents  to  make  them  good  as  indictments  for  fraud  uiion  the  United 
Slates  without  false  pretenses.  But  no  such  proposition  was  stated  by 
:lic  court  in  its  opinion.  No  opinion  upon  that  point  was  given  by  the 
'  iiiirt.  On  the  contrary,  the  court  said :  "It  can  not  escape  our  notice, 
■hat  the  only  injury  to  the  United  States,  complained  of  in  this  indict- 
iiHiit,  is  by  fraud  committed  by  false  pretenses."     And  again,  "The 

I  ffeuso,  therefore,  which  the  accused  is  called  u|)on  to  answer,  is  a  fraud 
ui)i>n  the  United  States,  peri)etrated  by  means  of  the  false  pretenses 
inviously  set  forth  in  the  indictment." 

If,  indeed,  the  court  had   seen,  that,  independent  of  the  averments 

II  -pocting  false  pretenses,  there  were,  in  the  indictments,  other  suffi- 
cient averments  of  facts  showing  other  i^'ceitful  practices  by  which  the 
fraud  was  committed,  the  question  migiit  have  occurred  which  is  now 
liiailc,  to  wit,  whether  the  indictment  might  not  be  good  notwithstand- 
iii;  the  allegation  that  the  fraud  was  committed  by  means  of  certain 
f:dse  pretenses  imperfectly  set  out.     The  court,  however,  did  not  see,  in 

U'  indictments,  any  allegations  of  other  facts  showing  other  deceitful 
1  r:ii  tices  by  means  of  which  the  fraud  (in  the  language  of  Starkie,  in 
the  passage  cited  by  the  counsel  for  the  United  States  in  p.  10:i,  101), 
"  t'luM  have  been  effected."  That  passage  was  cited  to  show  that  it 
i' not  necessary  to  be  very  particular  in  setting  forth  the  means  by 
"huh  the  fraud  was  committed. 

;>  Dl'.FrXCKS.  1:! 


194 


FRAUD  AND  FALSE  FKETENSKS. 


After  saying,  as   before   noticed,  that,    whether  particular  circum- 
stances constitute  an  indictable  fraud,  is  a  question  of  law,  and.  tlifi.  - 
fore,  must  bo  set  out,  in  order  to  show  that  the  facts  amount  to  an 
indictable  offense.  Mr.  Starkie  observes,  in  regard  to  the  question,  how 
far  it  may  be  necessary  to  particularize  in  describing   tiie  mmuis  df 
effecliufi  the  fraud,  "  that  if  some  means  be  specified,  and  by  those  tUr 
fraud  could  have  l)eca  effected,  uo  objection  can   be  taken   ou   tlu- 
ground  that  the  descrii)tion  is  not  sulHciently  circumstantial.     The  cii-*- 
from  which  alone  he  seems  to  have  drawn  this  conclusion,  was  that  of 
Young  v.    King.^    The   fraud  in    that   case   was   effected   by   mean^ 
(if  a  false  pretense,  respecting  a  certain  bet  which  the  defendant  lial 
matle  "  witii  a  colosjcl  in  the  array,  then  in  Bath."     Upon  a  writ  of 
error,  one  of  the  errors  alleged  was,  that  the  name  of  the  colonel  wus 
not  stated  in  the  indictment.     But  the  ol-jection  was  overruled  by  th. 
court,  who  said,  that  "  perhaps  his  name  was  not  mentioned,  so  that  li. 
could  not  have  been   described    in   the  indictment   with    greater   ac- 
curacy." 

The  general  principle  thus  extracted  by  Mr.  Starkie  from  the  k;in 
case  of  Young  et  al.  v.  King,  is  cited  to  justify  the  court  in  saying. 
that  it  is  only  necessary,  in  an  indictment  at  common  law  for  fraud 
against  the  United  States,  to  state  that  the  defendant  did  certain  ads 
(whether  fraudulent  in  their  nature  or  not)  with  an  intent  to  defraud 
tlie  United  States,  and  they  were  defrauded  thereby. 

It  is  evident,  however,  that  Mr.  Starkie  intended  to  say,  in  effect, 
that  the  means  specified  nuist  be  means  by  which  it  might  be  ai)parent 
to  the  court  that  a  fraud  could  be  committed  ;  that  is,  deceptive  means, 
deceitful  practices ;  for  without  deceit,  or  the  use  of  deceptive  practices, 
fraud  can  not  be  committed. 

Tiie  court,  therefore,  not  having  perceived  in  the  former  indictments 
any  facta  alleged  (excei)t  the  false  pretenses,  which  are  now  admitted 
to  have  been  imperfectly  set  out),  which  showed  any  deceptive  meaii^ 
or  deceitful  practices  by  which  a  fraud  upon  the  United  States  could  be 
effected,  had  no  occasion  to  advance  the  doctrine  which  the  counsil  fi-r 
tlie  United  States  have  supposed  was  advanced  by  the  court,  nor  to 
ileny  the  principle  contended  for  on  the  part  of  the  prosecution,  thai 
"  utile  per  inuUle  non  vitiatnr." 

Whenever  the  circumstances  of  a  case  shall  raise  the  question, 
whether  an  indictment  for  fraud  allege.l  to  have  been  committed  l)y 
false  pretenses  imperfectly  set  out,  can  be  supported  by  evidence  of 
other  deceitful  practices  which  may  happen  to  have  been  set  out  in  tbr 
indictment,  but  not  averred  to  be  the  means  by  which  the  alleged  fraud 

1  3  T.  R.  98. 


ilM 


UNITED    STATES    V.  WATKINS. 


195 


irticular  circMui- 
law,  and.  tlifn  - 
t3  amount  to  an 
be  question,  bnw 
\s  tlie  moiuis  (if 
and  by  those  the 
>e  taken   on    tin 
anlial.     Tlie  c'u>i' 
ision,  was  tbat  of 
'ected   by   nieau^ 
le  defendant  lia  1 
Upon  a  writ  (if 
f  the  colonel  was 
1  overruled  by  tin 
tioned,  so  that  In 
with    greater   ut- 
ile from  the  kan 
;  court  in  saying, 
ion  law  for  fraud 
lit  did  certain  ai  ts 
intent  to  defraud 

to  say,  in  effect, 
might  be  ai)parent 

deceptive  means, 
eceptive  practices. 

ormer  indictments 
are  now  admitted 
y  deceptive  mean-' 
ed  States  could  be 
ich  the  counsel  for 
the  court,  nor  to 
;  prosecution,  thai 

lise  the  question, 
»een  committed  by 
I'd  b}"^  evidence  of 
been  set  out  in  tbi' 
ti  the  alleged  fraud 


was  eommitted,  it  will  be  proper  to  decide  it;  and  the  cases  cited  by  the 
oiiuiisel  will  deserve  great  consideration;  but  as  we  think  that  that 
question  is  not  raised  by  circumstances  of  the  present  case,  it  is  not 
ueeessary  to  decide  it  now. 

It  lias  been  stated  in  argument,  by  the  counsel  for  the  prosecution, 
that  it  has  been  .settled  by  the  opinion  of  this  court  upon  the  foriu>--r  in- 
lii  Inionts,  '  that  defrauding  the  United  .States  was  indictable  at  com- 
mon law  without  the  use  of  false  pretenses." 

The  proposition  thus  extracted,  and  drawn  away  from  the  ideas  by 
wliieli  it  was  accompanied  in  the  opinion  which  was  given,  and  presented 
t.i  the  view  thus  badly,  apitears  to  have  misled  the  counsel  for  the 
United  States,  and  may  tend  to  mislead  others.  If  the  expression, 
•false  pretenses,"  be  taken  in  its  most  extensive  sense,  it  might,  at 
fust  view,  be  doubted  whether  a  fraud  could  be  committed  without  a 
f:dse  pretense,  for  falsehood  and  deceit  are  the  essence  of  fraud.  But 
ihe  phrase,  "false  pretenses,"  has  become  familiar  to  the  lawyer's 
rar;  and  ever  since  the  statute  of  30  George  II., '  which  made  certain 
frauds  upon  individuals  indictable  which  wore  not  i-^dictable  by  the 
ciiniMioii  law,  the  phrase  has  acquired  a  technical  character,  and  has 
^'euenilly  been  understood  as  descriptive  of  such  false  pretenses  as 
were  punishable  by  the  statute,  and  as  woidd  make  those  frauds  Indict- 
alile  which  were  not  so  before. 

It  is  evident,  by  the  manner  in  which  it  was  sued  by  this  court  in  its 
former  opinion,  that  it  was  so  understood  by  the  court,  and  was  used  as 
;i  description  of  a  particular  class  of  deceitful  practices. 

It  is  evident,  also,  that  the  court  was  considering  the  question, 
whether,  in  an  Indictment  for  direct  fraud  ui)0ii  the  public,  it  was  neces- 
-ui y  tiiat  the  fraud  should  appear  to  have  been  committed  by  the  same 
-nrtof  means  which  would  be  required  to  support  an  indictment  atcom- 
!ii  II  law  for  a  fraud  upon  an  individual.  Thus,  after  stating  one  of 
tlie  grounds  of  the  demurrer,  namely,  that  fraud  is  not  indictable  at 
'I'inmon  law  unless  effected  by  means  of  some  false  token,  such  as  f-ilse 
•veigbts  or  measures  or  mar!<s,  etc.,  the  court  said  :  "  But  to  this  it  was 
answered,  that  frauds  affecting  the  public  at  large,  or  the  nublic 
revenue,  constitute  a  distinct  cla.ss  of  cases  punishalde  by  indictment, 
although  the  fraud  be  not  effected  by  means  of  false  public  tokens, 
r  ty  forgery,  or  by  canspiracy,  or  by  any  particular  sort  of 
means ;  and  this  position  seems  to  be  supported  by  prirjciplo  and  by 
irecidtnt."  Again,  the  court  said :  "  The  principle,  therefore,  which, 
II  transactions  between  Individuals,  requires,  in  order  to  make  the  fraud 
ludietable  as  a  public  offense,  that  it  should  be  committed  by  means  of 


1  ch.24. 


um; 


FRAl  I)    AM)    FAI.SK    IMtETKNSKS. 


tokens,  or  of  false  protoiiscs,  or  forgery,  or  conspiracj',  does  not  apply 
to  tlircet  frftiid  upon  the  public."  The  court  then  proceeded  to  illus- 
trate the  distinction  in  principle  between  public  and  private  frauds,  by 
many  cases  of  indictable  frauds,  in  wl.ich  the  deceitful  practices  by 
which  the  frauds  upon  the  public  were  effected  did  not  consist  of  false 
tokens,  or  false  pretenses,  or  forgery,  or  conspiracy ;  and  then  observed, 
that  "  these  case's  seem  to  establish  the  broad  principle  stated  by  E:ust,i 
that  all  frauds  afiecling  the  Crown  and  the  public  at  large,  or  effected 
by  any  deceitful  or  illegal  practice  or  token  (short  of  felony),  wliicli 
affects,  or  may  affect  the  public,  are  indictable  offenses  at  common 

law." 

These  citations  from  the  former  opinion  of  the  court  seem  to  us  to 
show,  conclusively,  that  the  court  ought  not  to  be  understood  as  say- 
ing, that  an  indictment  at  common  law  for  a  fraud  upan  the  United 
States,  can  be  s»ipportcd  without  the  averment  of  facts  which  show  that 
the  fraud  was  committed  by  deceitful  practices  of  some  sort  or  other; 
although  the  court  did,  in  effect,  say  that  it  was  unnecessary  to  show 
that  tiie  fraud  was  effected  by  means  of  tokens,  or  of  false  pretences,  or 
forgeiy.  or  conspiracy ;  because  there  may  be  deceitful  practices  not 
included  in  either  of  those  classes. 

The  counsel  for  the  United  States  also  misunderstood  the  opinion  of 
the  court,  in  supposing  the  court  to  have  said,  that  an  indictment  which 
sulllciently  sets  forth  a  fraud  upon  the  public,  unaccorai)anied  by  false 
pretenses,  and  which  would  be  a  good  indictment  without  any  averment 
of  false  pretenses,  would  l)e  wholly  vitiated  by  undertaking  to  set  out 
such  pretenses,  and  setting  them  forth  insufficiently.  Whatever  the 
opiiiiou  of  the  court  might  bo  in  such  case,  it  certainly  was  not  ex- 
pressed. 

Again,  it  was  stated  by  the  counsel  for  the  United  States,  that,  accord- 
ing to  the  opinion  of  this  court,  the  introduction  of  unnecessary  matter 
into  an  indictment  vitiates  the  whole  indictment.  In  this  respect,  also, 
the  opinion  of  the  court  was  misunderstood.     The  court  gave  no  such 

oi)inion. 

It  was  contended  on  the  part  of  the  United  States,  that  the  indict- 
ment  is  sutBcient,  because  "  the  intent  to  defraud  is  plainly  charged; 
the  actual  perpetration  of  the  fraud  is  jilainly,  and  the  acta  by  which 
the  fraud  was  committed,  are  set  forth,  the  letter,  the  draft,  the  requisi- 
tion ;  "  and  it  was  asked,  are  these  acts  such  as  could  not  defraud  the 
United  States?" 

It  has  been  before  obsei-ved,  that  the  averment  of  an  intent  to  de- 
fraud, will  not  8ui>i)ly  ♦he  want  of  the  averment  of  facts  showing  the 

1  1'.  C.  HIS,  821. 


mm 


INITKD    STATKW    V.   WATKIX8. 


197 


does  not  apply 
coedcd  to  ilhis- 
vate  frauds,  liy 
il  practices  by 
consifet  of  false 

then  observed, 
itated  by  Etust,! 
rge,  or  effected 

felony),  wliicli 
ses  at  common 

•t  seem  to  us  to 
lerstood  as  say- 
ipan  the  United 
which  show  that 
le  sort  or  other; 
icessary  to  show 
Ise  pretences,  or 
al  practices  not 

d  the  opinion  of 
ndictraent  which 
npanied  by  false 
ut  any  averment 
akia'j^  to  set  out 
Whatever  the 
nly  waa  not  ex- 

tes,  that,  accord- 
necessary  matter 
his  respect,  also, 
urt  gave  no  such 

,  that  the  indict- 
plainly  charged; 
;he  acta  by  which 
Iraft,  the  reqiiisi- 
I  not  defraud  the 

an  intent  to  de- 
facts  showing  the 


diccitful  practice  wliicii  constitutes  the  essence  of  tiic  fraud.  It  is  not 
tlit^  injury  alone,  but  tlie  injury  by  means  of  the  deceit,  wrhich  consti- 
tutes tlie  crime. 

Hut  it  is  said,  that  tlie  actual  perpetration  of  the  fraud  is  plainly 
iivrri'cd. 

Tlie  simple  averment  of  fraud,  or  that  the  United  States  were  de- 
friiiidcd,  is  oiily  the  averment  of  a  matter  of  law  ;  a  legal  inference  from 
fiicis;  wliieh  facts  must,  themselves,  appear  to  justify  it. 

Tiic  acts,  by  which  the  fraud  was  committed,  it  is  said,  are  also  set 
forth,  luunely,  the  letter,  the  draft,  and  the  recpiisition.  These  may  be 
lunong  the  acts  by  which  the  injury  was  done  to  the  United  Stntes,  but 
they  are  not  such  acts  as  show  the  deceitful  ])ractiecs  by  which  the 
fi:iud  was  effected.  The  only  facts  averred  respecting  those  papers 
are,  that  the  letter  was  written  and  sent;  the  draft  was  drawn  and 
i-old  and  paid,  and  the  requisition  was  procured.  These  facts,  alone, 
do  niit  show  the  fraud. 

A^'ain:  it  is  contended  oa  the  part  of  the  United  States,  that, 
"  whether  these  acts  did  defraud  the  Unite<l  States  as  charged  in  the 
indictment,  is  matter  of  proof —  is  exclusively  for  the  jury,  and  not  for 
the  court." 

Whether  the  acts  were  done,  is  certainly  a  question  for  the  jury.  But 
whether  those  acts  did  defraud  the  United  States,  namely,  whether  they 
amount  to  fraud,  is  unquestionably  a  matter  of  law.  It  is  true,  that  in 
finding  a  general  verdict,  upon  the  general  issue,  in  a  criminal  case, 
the  jury  must  incidentally  decide  upon  the  law  as  well  as  the  fact,  be- 
cause the  question  of  guilt  depends  upon  both  law  and  fact,  which  can 
u<t  be  separated  in  a  generr'  "erdict ;  yet  whenever  by  the  pleadings, 
ur  liy  a  special  verdict,  whicn  the  jury  have  always  aright  to  find,  if 
tlicy  will,  the  law  is  separated  from  the  fact ;  the  law  is  to  be  decided 
by  the  court  alone. 

As  the  court  said  so  much  in  its  former  opinion,  respecting  the  degree 
of  certainty  required  by  the  rules  of  the  common  law  in  indictments,  it 
foiliears  to  add  anything  upon  that  point. 

Rut  the  propriety  of  adhering  to  the  rule  has  been  questioned,  and 
the  passage  from  Hale's  History  of  the  Pleas  of  the  Crown,'  so  often 
quoted  in  support  of  the  defective  indictments,  has  been  again  cited 
u[Hin  us.  But  his  complaint  of  the  over-nicety  of  the  practice  under 
the  rule,  is  the  strongest  evidence  of  the  existence  of  the  rule  itself. 
And  the  same  venerated  judge,  in  another  part  of  his  book,  in  speaking 
of  the  presumptive  evidence,  says,'^  "  it  is  better  that  five  guilty  persons 
should  escape  unpunished,  than  one  innocent  person  should  die  ;  "   and 


1  vol.  2,  p.  193. 


■'  pp.  28»,  2«0. 


j,,^  VRAUI)    AND    FAL^^K   PKKTENSKS. 

t'  w    h  ^u.rn  r.-soh.tio,  .  Uje^  AnqlUr  nolumus  muUm.     Sucl,  of 
'^"^"'^••"\"^;'\.:,;  .driven  or  aliun-a  to  this  country,  oluinuM 

our  ancestor,  as  -      .       ^  .  ^„,j  „,  ,„  ^s  provi.ionH,  they  du,.. 

r  r:;::;;:.:^^  r:^pon  whi..  the  .curity  of  th^r  per... 

Hl>orty  ^l«P^"'»;'^;-  ^j  ,1,,  ,,„„on  law  that  our  revohUion 

It  wa.  upon    h     P     en        Of  ^^^^^_^.^^  ^^^^^^^^  ^^^^  ^.^^,^^  ,,^ 

N«t  ;;;  i^porLce  to  certainty  in  the  law,  i.  certainty  .n  the  accus. 

'"Mr   Sfukie   in  his  treatise  on  Criminal  Pleadings,^  says:   ''The  gen- 

,  -Mo  t  s   on     iKH-n  estaMished  that  no  person  can  be  nuheted,  l»u 
eralnilelms  loiifl  iHtn  I  ^r  nnni^h(>ll   unless  such  act  or  •mis- 

„„.„t,  11.,.  onmn..!  •""»"'=';,  ^,.„  t„„  ,,„,Ucular  f.ct»  » 
or  acquittal  nia>  taun,  I  m  «  therefore,  shouUUx 

I  i>.  73. 


^Mi 


UNITKI)    STATKS   %) .  W ATKINS. 


lit'.) 


ht  that  his  patriot- 
tier  that  ton  pniltv 
0  of  those  ruh's  of 
ion  of  the  personal 
iild  be   ahrogiitiMl. 
upon  the  peoph'  I'v 
)ntaneously  ir.  tin 
times.     Tliey  were 
spirit  of  our  slunh 
uem  of  those  ri^litv 
^ismuhiri.     Sucli  of 
lis  country,  ohiinu'l 
ovisions,  they  c-luiii: 
ity  of  their  personai 

that  our  revohition 
jsumcd  tl\e  riglii  cf 
sly  declared  that  tlu 
ction  of  tlie  common 
diould  give  them  u].. 
•tainty  in  the  accussi- 

;s,>  says:  "The  gen- 
can  be  indicted,  bm 
less  such  act  or  •mis- 
•ocision  and  certainty 
part  of  the  subjert  b 
roper  briefly  to  notii  e 
•  law  exacts  a  certaii. 
it  is  evident,  supvU 
ticular  charge  is  to  1h 
tlie  face  of  the  indif > 
ffensc,  which  are  con- 
!  particular  facts  ami 
of  that  offense,     l^t- 
jury  should  find  a  Wl! 
L  his  trial  in  chief,  for 
defendant's  conviction  I 
ion  should  he  be  agaia 
,  therefore,  should  h: 
se,  enable  him  to  ple8>i 


,  previous  conviction  or  acipiittal  of  the  same  offense,     ndly.  To  war- 
rmt  the   court  in  granting  or   refusing  any  particular  right  or  indul- 
„..„(.,.  which  the  tlefendant  claims  as  incident  to  the  nature  of  his  case. 
4thiy.  To  enal.le  the  defendant  to  prepare  for  his  defence  in  particular 
oaM^s,  and  to  plead  in  all ;  or  if  he  prefer  it,  to  submit  to  the  curt  by 
a.inurrer,  whether  the  facts  alleged  (sui)posing  them  to  l)c  true),  so 
.upport  the  conclusion  in  law,  as  to  remlcr  it  necessary  for  him  to  make 
uiv  answer  tp  the  charire.     r.tl.ly,  and  tinally,  and  chiefly.     To  enable 
•,he  court  looking  at  the  recor.l,  after  .^onviclion.  to  decide  whether  the 
f uts  char<Te(l  are  sutlicient  to  support  a  conviction  of  the  particular 
ninii',  and  to  warrant  their  Judgment;  and  also  in  some  instances,  to 
,uiae  them  in  the  infliction  of  a  proportionate  measure  of  punishment 
uiDii  the  offender." 

Such  being  the  rule  of  the  common  law,  such  its  foundation,  and 
Mul.  its  reasons,  this  court  thinks  itself,  not  only  warranted,  but  obliged, 
to  adiierc  to  it,  whenever  its  bencflt  is  claimed. 

Ipon  the  whole,  the  court,  after  a  very  deliberate  and  anxious  re- 
vj.iun  of  its  former  opinion,  has  seen  no  cause  to  modify  it  in  any  re- 
spect ;  and  perceiving  no  material  difference,  in  point  of  law,  between 
liu'  present  ami  the  former  indictment,  we  are  of  opinion  that  the  judg- 
nuiit,  upon  this  demurrer  also,  should  be  rendered  in  favor  of  the  de- 

friulant. 

lin'KSToN,  J.,  dissented. 

riie  third  indictment  having  been  found  like  the  first  two  bad  on  de- 
murrer a  fourth  was  presented  which  charged  the  defendant  with  having 
fiilscly  and  framlulently  altered  a  certain  abstract  of  account  rendere.l 
Uv  M"r.  Harris,  ntivy  agent  at  Boston,  to  defendant  as  Fourth  Auditor, 
..;,..  by  obliberaling  the  words  "  T.  Watkin's  draff    and  "do  do" 

imlixeil  to  three  items,  etc. 

Various  objections  have  been  made  to  the  suinciency  of  the  indict- 
ment in  this  case. 

It  will  not  be  necessary,  however,  to  notice  any  other  than  the  first, 
wlmh  is,  that  the  crime  of  forgery  is  not  charged  with  suificient  tech- 
nical precision. 

It  has  been  contended,  by  the  counsel  for  the  United  States,  that  in 
iHine  of  the  enumerated  instances  stated  in  the  books,  in  which  certain 
technical  words  are  necessary  to  be  used  in  the  indictment,  in  the 
.1.  scriplion  of  the  particular  crime,  is  forgery  to  be  found  as  one  ;  and 
luiice  the  inference  has  been  drawn  that  in  an  indictment  for  forgery, 
it  is  not  necessiiryto  state  that  the  instrument  wsis  forged  or  counter- 
feited. The  principal  case  relied  on  to  strengthen  this  position  is 
H'.c  V.  Daivson.^     But  upon  a  careful  examination  of  that  case  it  will 


1 1  strange. 


200 


FRAUD   AM)    KAL8K    PUKTENSES. 


be  found  that  the  only  qiiesliou  wns,  on  the  spechil  (indinjj  of  tlio  jiiiy. 
wht'tlur  tht!  fads  so  foniul  amoiinlfd  to  forj^ory ;  and  thoiofoiv  wi 
tliihk  it  not  npplifahlc  to  tlio  ((in'sli  )n  in  the  picsent  case.  We  li;ivr 
felt  VI  ry  sincerely  disposed  «hily  to  weij^li  and  appreeiate  the  al)lo  aii;ii- 
nients  wliiih  liave  been  ur^ed  in  support  of  the  indietnienf.  Upon  u 
careful  exuiniualion,  liowever,  of  all  tlie  precedents  of  indietraonts  fm 
for^rery  at  conunon  law,  wliieli  we  hiive  been  ahlc  to  lay  our  hands  on, 
not  one  is  to  be  found  where  the  term  "  fori^ed  "  or  ''  eounterfeited  ' 
has  not  been  used,  except  in  the  jiresent  instance  ;  and  there  is  a  cir- 
cunistaiice.  even  in  this  instance,  very  wortlw  of  notice;  which  is,  tliat 
(he  learned  counsel  for  the  I'liiled  States,  in  framing  their  indictnuni 
ill  a  former  recent  case  against  this  def«!ndant  for  the  same  erasures 
or  alterations  of  the  abstract  attaclied  to  the  jtresent  indictment,  and 
which,  after  having  been  acted  on  b}'  the  grand  jury,  was  returneil, 
"  vjnoramunj"  sec  nied  to  think  it  necessary  to  use  the  term,  "  forged," 
in  addition  to  all  the  other  terms  used  in  this  indictment.  This  opinion 
is  certainly  entitled  to  respect,  and  may  be  well  added  to  the  number  of 
precedents  before  alluded  to.  In  the  absence,  then,  of  any  adjudged 
case  to  the  contrary,  we  think  there  is  much  reason  to  say  that  wl.eri' 
such  luis  been  the  long,  universal,  and  uninterrupted  usage,  such  usage 
may  be  considered  as  having  grown  into  law. 

In  further  supjjort  of  the  necessity  of  using  the  technical  term, 
"  forged,"  or  counterfeited,  is  the  case  in  the  JIassachusetts  Reports.' 
That  was  an  indictment  for  altering  a  writ,  after  service,  and  before 
the  return  day  ;  and  the  terms  used  in  the  indictment,  after  stating  the 
introductory  part,  were,  "  That  he  "  (the  accused)  "  before  the  time 
of  trial,  did  unlawfully  erase  in  and  from  the  said  writ  the  word 
'  Essex,'  and  did  falsely  an<l  unlawfully  insert  in  the  room  and  place 
thereof,  the  word  '  Worcester,'  thereby  falsely  and  unlawfully  chang- 
ing the  same  writ  directed  to  the  sheriff  of  the  county  of  Essex,  or 
either  of  his  deputies,  or  the  constable  of  Harvard  within  the  said 
county,  to  a  writ  directed  to  the  sheriff  of  the  county  of  Worcester,  or 
either  of  his  deputies,  or  the  constable  of  Harvard  within  the  said 
county,  with  an  intent  to  injure,  oppress,  wrong,  and  defraud  the  said 
J.  R.,  against  the  peace,"  etc. 

On  a  motion,  in  arrest  of  judgment,  on  the  ground  that  these  terms 
contain  no  technical  description  of  forgery,  the  court  say:  "If  tiie 
facts  stated  in  the  indictment  constitute  any  crime  at  common  law,  it  is 
forgery,  but  there  is  not  the  necessary  technical  precision  in  the  indiet- 
ment,  to  support  a  conviction  of  forgery,  and  judgment  must  be 
arrested." 

Now,  what  was  the  term,  in  that  case,  which   was  required  to  give 

'  Com.  f.  Myciill. 


^Mi 


UNITKH    HTATKS    V.   WATKINH. 


•JOl 


tiding  of  tlu<  jmy. 

and  tlioiofoie  \vi 
it  cast'.  Wo  liiivi 
iate  till'  al)lc  iiii;n- 
lic'lint'iit.  Upon  !i 
of  iiulictraonts  fur 

lay  our  hands  on. 

"  fountorfeiti'il ' 

nnd  Hare  is  a  cir- 
ici' ;  wliich  is,  that 
ig  llic'ir  iiidiclniiiit 

tlie  same  orasuris 
lit  indii-lincnt,  and 
iry,  was  rotiimed, 
c  tomi,  "forged," 
t'nt.  Tliisopiiiidii 
d  to  the  number  of 
,  of  any  adjudged 

to  say  tliat  wlieri' 

usage,  such  usage 

e  technical  term, 
ichusetts  Keportfi.' 
lorvice,  and  before 
t,  after  stating  tlie 
I  "  before  the  time 
id  writ  the  word 
lie  room  and  place 
unlawfully  chang- 
)unty  of  Essex,  or 
d  within  the  said 
\'  of  Worcester,  or 
d  within  the  said 
d  defraud  the  said 

id  that  these  terms 
mrt  say:  "  If  tlie 
i  common  law,  it  is 
ision  in  the  indict- 
iidgment  must  be 

is  required  to  give 


tlmt  indictment  legal  precision?  It  seems  to  us,  none  oilur  tlum  the 
wiird  "  fonjcd."  Are  not  the  terms  uxd  in  tlie  iiidictmeiit.  in  tlial 
(!i»  ,  as  amply  descriptive  of  the  crinii'  of  forgery  as  those  used  in  this 
(•ill-?    We  tliink  they  are. 

Tliese  considerations  are  strongly  corroborated  by  the  observations 
(if  tlie  able  editor  of  the  late  American  edition  of  C'oniyn's  Digest.' 

We  are,  therefore,  brought  to  tiiis  conclusion ;  that  there  is  u  want 
of  technical  precision  in  the  indictiiu'iit,  in  the  case  before  us,  nnd  as  it 
is  admitted  tiiat  it  can  not  bo  sustained  as  an  indictment  of  fraud  at 
eoniinon  law,  the  majority  of  the  court  are  of  opinion  that  tiie  judgment 
on  tlie  demurrer  must  be  for  the  defendant.*' 

Ckancii,  C.  J.,  dissented. 

Tlic  fourth  indictment,  being  disposeil  of  the  prosocntion  presented  a 
fifth  identical  with  the  fourth  except  that  the  woid  "  forged  "  is  used 
ill  it  as  dcscrijitive  of  tli'!  offense,  a. id  prayeil  the  court  to  send  for  the 
gnuid  jury  and  instruct  them  tiiat  the  facts  and  intents  therein  stated 


1  Vol.  4,  title,  "  Indictment."  G.  n,  p.  iw, 
nnto  y.  Speaking  of  toi'linical  ternia,  or 
wfirdsol"  nrt,  ho  aiiys:  "  Tlioiigli  lor  iiiiiny  of 
lliiisi!  tornifi,  milUcient  ru.ason  can  bo  given, 
I'lhiTc.lliero  arv.,  wliich  may  not  bo  so  renl- 
ily  tr.'.iiil  to  thc'r  original,  unless  wo  con- 
mlcr  llicm  as  invcnterl  by  the  lawyers  of  old, 
111  ciinflno  tho  conduct  of  a  canse  to  thoni- 
H'lvos;  or  as  tho  offspring  of  chance,  raado 
nicrtMl  by  time  and  habit;  or  aKcribo  them 
Id  a  zeal  fur  that  pyt-tcm  and  method  which 
t'tinolile  ovon  tho  meanest  art,  and  give  the 
air  n(  HOicnco  and  wisdom.  But  from  what- 
»vc-r  snurco  they  spring,  it  seeme  proper  to 
liri'scrvo  them,  to  avoid,  as  well  thn  possi- 
bility (if  error,  as  tho  dispules  that  may  arise 
iin  every  itinovation.  And  however  unten- 
iible  upon  principles  of  reason,  it  is  sulH- 
nerit  ihat  they  are  warranted  by  precedent; 
("r  it  was  observed,  long  ago,  by  Mr.  .lusticu 
siaiifiird,  upon  the  cjueslion  whether  any 
avcrmunt  by  the  term  licet,  was  sutllcient 
"  if  It  was  the  usual  form  to  allege  it  by  licet, 
then  I  would  hold  with  it."  And  after 
iistancing  certain  cases  in  which  tho  omnip- 
i>icii(  e  of  custom  over  reason  was  conipic- 
nous,  he  concludes:  "  Wherefore,  wo  ought 
to  adhere  to  tho  usual  form ;  but  in  this  case 
It  wuA  not  the  usual  form  to  allege  tho  elec- 
tion uniler  the  word  licet,  as  you  may  see  in 
till!  buiik  of  entries;  wherefore,  since  the 
prii«eciitor  was  not  tied  down  to  any  usual 
furni.  iiiit  was  at  liberty  to  take  such  words 
as  were  proper  for  tho  matter,  nnd  hna  not 
iliino  so,  we  ought  not  to  hold  with  tho 
words  more  than  will  wanant."  And  again, 
upon  another  occasion,  though  at  the  first, 
an  avuwry  wag  held  bad  for  want  of  being 


averred,  yet  afterwards,  says  tho  reporter, 
the  protlionntaries  searched  their  prece- 
dents, and  told  tho  jiistieeN  that  the  common 
ucago  was  tomakellus  avowry  wlthoutover- 
ment ;  with  which  the  justices  were  satislled. 
Mr.  Starkio,  in  his  Criminal  I'leadlng,  pp. 
fi'.t,  TO,  h.is  tho  following  Jnillcious  observa- 
tiiiiis:  "The  law  distrilmtes  crime  into  tlireo 
great  classes;  treason,  felonies,  and  iiiis- 
dcmeanors  inferior  to  lelony.  Kach  of  these 
is  attended  with  peculiar  incidents,  both 
before  andafterconvictlon.  It  is,  therefore, 
ono  important  ofllce  of  an  indictment  to 
specify,  in  technical  language,  tho  particular 
genus  of  crime  imputed  to  the  defendant, 
that  he  may  avail  himself  of  those  advan- 
tages which  tho  law  allows  him ;  that  he 
may  bo  excluded  from  those  which  tho  law 
withholds;  and  that  tho  eciurt  may  bo  auth- 
orized, aftarconviction,  to  Intlict  tho  appro- 
priate punishment."  A  strict  adherence 
to  such  language  may,  in  some  cases,  appear 
too  nice  and  critical,  to  serve  the  ends  of 
justice ;  yet  it  seems  founded  upon  strong 
and  substantial  reasons.  For  instance,  by 
sucecsHive  decisions,  the  legal  value  and 
weight  of  a  term  or  iihrasc,  of  art,  Ik  ascer- 
tained, and  should  a  doubt  arise  as  to  its 
meaning,  reference,  for  the  purposo  of 
removing  it,  may  be  had  to  former  authori- 
ties, whilst  every  new  expression  would 
introduce  fresh  uncertainty,  and  the  benefit 
to  be  derived  from  precedent,  would  be 
wholly  lost." 

3  See,  also,  in  support  of  the  opinion  of 
the  court,  llurridgc's  Case,  3  1'.  Wins.,  481, 
and  Margaret  Cooper's  Case,  •!  str.  U46. 


202 


FHAll)    AND    I'AKSK    I'HKTKNSKS. 


constilnic  tin-  ciinit'  f)f  forfri'iy,  and  if  thry  tliid  tliosc  farts  and  intent- 
that  tluy  aru  bound  to  call  the  uffunue  I)}'  its  li'gal  uaiui',  and  aftn 
argnnuMit. 

Cham  II.  C.  .1.     The  counsel  for  tlio  United  States  Imve  moved  tin 
court  to  iiistnict  tiio  grand  jury,  "  tliat  tiit-  fai't.s  and  intents,  found  In 
thiin  in  tiie  indictment,  wliicli  was  dctidfd  ])y  tiie  court  to  l»o  inMUlli- 
cient  l)e(anse  it  diil  not  use  tho  word  'forjicd'  or   '  connterfritcd. 
constitute  ill   law,  tiie  offriiso  of  fortjeiv  at  common  law;  and  tliat  if 
tliey  liiid,  in  a  iiill  of  indictment,  all  tlie  facts  and  intents  necessary  1' 
constitute  a  leiral  offense,  they  arc  hound  to  call  tho  offense,  in  tho  in- 
dictment, liy  its  le<ial  and  technical  nfime." 

Tiie  circiimstanccs  wliicli  liave  led  to  tliis  motion  are  these.  In  the 
early  pait  of  tliis  term  an  indictment  was  found  against  liie  present  di'- 
fendant.  for  a  fraud  npon  tho  United  States,  by  means  of  false  lue- 
teiises,  in  a  transaction  will)  ^Ir.  Harris,  a  navy  ni^cnt  at  Boston.  Th;it 
indictment  was,  upon  demurrer,  adjudged  insulHcient,  for  want  of 
jiroper  averments  in  regard  to  tho  pretenses  used.  Among  these  pre- 
tenses was  an  allegation  of  the  same  facts,  relative  to  the  alter.ition  of 
the  abstract  B.,  wliidi,  with  tho  addition  of  tlie  words  "forge  and." 
before  tlio  word  ''  alter,"  constituted  another  bill,  which  was  after- 
wards sent  up  to  tlio  grand  jury,  and  returned '•  A/xo/vohk^."  This 
bill  being  thus  returned,  and  filed  in  tho  court,  tho  counsel  for  the 
United  States  sent  up  to  tho  grand  jury  another  bill  exactly  like  it.  I)tu 
leaving  out  the  word  "  forge  and,"  before  the  word  "  alter,"  wliich  tlie 
grand  jury  returned  "a  true  bill:"  the  only  difference  between  the 
two  bills  being,  that  the  former  chargi'il  that  the  defendant  did  "  falsely 
and  fiauduleiitly  forge  and  alter"  the  .abstract;  and  the  latter,  thiit 
till'  defendant  did  ••  falsely  and  fraudulently  alter  "  the  alistract.  Both 
averred  the  intent  to  defraud  the  United  States.  This  latter  indictment 
the  court  adjudged  to  be  insutlicient,  because  it  did  not  use  the  word 
"  forge,"  or  the  word  "  counterfeit." 

It  is  stated  in  argument,  by  tho  counsel  for  the  United  States,  that 
when  tlu'  bill,  which  used  the  word  '•  forge,"  was  :  t  up  to  the  grand 
jury,  the  indictment  for  defrauding  the  United  States  by  false  pre- 
tenses, which  tlie  court  had,  upon  demurrer,  adjudged  to  be  insutlicient, 
was  also  sent  nji,  in  order  to  show  tho  grand  jury  that  they  had  already 
found  all  the  facts  stated  in  the  indictment  for  forgery,  although  they 
had  not  used  the  word  "forge."  The  grand  jury  after  consult.atioii, 
informed  the  attorney  of  the  United  States  that  they  could  not  find  the 
bill  with  the  word  "forge"  in  it,  and  wished  to  know  whether  they 
might  strike  it  out;  to  wlrleU  he  replied  that  they  could  not  alter  the 
bill,  but  must  find  or  reject  it  as  it  was.  That,  in  his  opinion,  the  facts 
stated  in  the  indictment  amounted  to  forgery  at  common  law,  and  would 


IMTKI»   M'ATK"*    ''■   WMKIN"*' 


203 


fill  ts  and  iiiti'iit> 
Uiiiui',  uiul  iiftn 

Imvc  moved  tin 
iiitoiits,  found  1') 
iirt  to  bo  insulli 

'  couiiterfritril. 
law  ;  and  tliat  if 
cuts  iifc'i'ssary  1" 
offensi',  in  the  iii- 

IV  tlicsc.  In  the 
st  till'  prcsonl  (le- 
ans of  false  iirc- 
at  Uostnii.  TliMt 
Mit,  for  want  of 
Ainonir  these  pre- 
I  the  alteration  of 
•(Is  "  foi'jie  and." 
which  was  nfter- 
moramu:^."  This 
3  counsel  for  the 
xactly  like  it,  Ittit 
alter,"  which  tin- 
ence  iielwcen  the 
dant  did  "  falsely 
id  the  latter,  thsit 
e  alistraot.  Both 
1  latter  indictment 
not  u»e  the  word 

'nited  States,  that 
t  up  to  the  grand 
ites  by  false  pre- 
to  be  inMUlHcicnt, 
they  had  already 
^ry,  althoujxh  they 
ifter  consultation, 
could  not  find  the 
now  whether  they 
luld  not  alter  the 
opinion,  the  facts 
)n  law,  and  would 


i,.,,ifv  them  in  Ih.din;,  the  bill  as  it  was  sent  to  them     and.  t^.at  .      lu  > 

,    i  ot  .H:Uisru..l  with  thi.  opinio...  they  had  better  ask  the  advu  •  of  the 

/,.t      Thevsaid  they  were  wiUi..^'  to  Ib.d  the  bill  without  the  wonl 

::       ;..      T:wi;ieh  L  .Utomey  repUed,  that  If  they  did  not  u.ree  to 

,, ll  th.-  bill  ns  it  was,  he  would  send  them  another  like  U,  but  om.,tn.« 

1  vord,  and  the  cou.t  wo..ld  decide  whether  the  f"Hs  an.oun  ed  b 
„,.,,V.     The  orand  jury,  without  n.Uinjrthe  adv.co  of  the  cou.t    u- 
un.ed  the  bilCco.Uaini..,'  the  word  -  fo.'j^e,"  ignoramus;  upon  wh.ch 

L.  bill,  .  hichon,.tted  that  wonl,  was  sent  up,  and  the  grand  ,u,y 
un    d  it  "  .V  true  bill."     Ipon  Ion,  argun.ent  and  great  de  .beraUon 
court,  upon  deuu.rrer,  decide.l  that  it  did  not  cha.ge  the  o  (e...e 
h  sum  lent  legal  p.ecision,  bcausc  it  did  not  aver.  In  express  term 
the  defend:nt  "  forged,"  or  '•  counterfeited  "  the  abstrac       B 
„.,  court  did  not  give  any  opinion  ..pon  the  .p-est^on,  f^'^^-f^^^^ 
stated  in  the   indictment  did,  in  law,  c..nsft..te  the  o  tense  of  fo  ge  J 
,,  ,,„,„,,„  n.w.     yVhereupon  the  counsel  of  the  rn.ted  States  ma.^  U  o 
motion  to  instruct  the  grand  jury,  whi.h  is  ,.ow  he  «"  '.--t;'     ^  ^^^ 
„ion,  and  whhh,  at  there.,uest  of  the  court,  they  reduced  to  vsr.t.ng. 

'"  [^i:::  t:'^.;;;:;:.;;::  rei^Tthe  motion  m  ^.e  words  before  .atea, 

'"  U  wThf  p^^.ived  that  this  is.  b.  elTect,  a  motion  to  the  court  to   ' 
..„d  ba.k  to  the  g.and  jury  an  indictment,  which  the  same  gn.nd  jury 
1..HI   some  days  befo.v,  at  tho  same  term,  retu.ned  "  njnommus      w.th 
::  i'nst'uction  that,  if  U.ey  should  find  the  facts  stated  in  it  to  be  true, 
thev  shoidd  return  it  a  true  bill. 

Suchan.otiou  is  certainly  unprecedente.l  in  t    -ou,t   and   noca^ 
Ins  been  f<.und  even  i>»  the  acts  of  the  most  arbitrary  of  the  l-.ngh.h 

:;l;:  m  the  worst  of  times,  which  culd  justify  the  court  in  giving 
„u.  instruction  asked,  in  the  particular  circumstances  of  t'-  --•  «" 
the  contrary,  in  n  Ilar.rave's  State  Trials  'it  ^'^'^J^l't^ 
Serog.rs,  Ch   J.  North,  Mr.  Justice  Jones,  and  Mr.  Baron  >\  -stoi.,  wcic 

,  Z'    ed   bv  the    House  of   ComuK.ns,   in  »•>  Car.     I.     and  one  of 

2  charges  against  them  was,  that  they  ha.l  dh^harge  the  gnm,U..ty 
iH.fore  they  had  finished  their  business,  because  they  had  asked  the  cou  t 
,.,  present  their  petition  to  the  king,  praying  him  to  call  a  parnuneni 
Ye  the  counsel  for  the  United  States  contend,  that  .f  this  c..urt  should 
1.0  of  opinion  that  the  g.and  jury  refused  to  fin.l  that  bdl,  from  an  un- 
.viUingness  to  convict  the  accused  of  the  crime  of  forgery,  he  court 
omlht  to  discharge  this  grand  jury,  and  and  hold  the  pany  bound  to 
unswer  to  another,  which  should  be  immediately  sunnnoned. 

1  p.  IM. 


204 


FRAUD    AND   I'ALSK    rKKTENSES. 


The  opinion  of  the  Cliief  Justice  of  llic  Supreme  Court  of  llie  United 
States,  in  the  case  of  Colonel  Burr,  has  been  cited  in  support  of  this 
motion.  But  the  motion  in  tliis  case  is  fur  more  extensive  than  the 
motion  in  that ;  and  the  instruction  now  asked  goes  far  beyond  that 
which  was  actually  given  by  the  Ch.^f  Justice. 

There,  the  instructions  prayed  were  conlined  to  the  admissibility  and 
competence  of  evidence  in  crcueral.  Here,  they  extend  to  all  the  par- 
ticular facts  charged  in  the  bill,  as  constituting  an  offense. 

To  give  this  instruction,  therefore,  is  t.  prejudge  the  whole  question, 
whi-h  would  arise  upon  a  demurrer  to  the  indictment. 

There,  the  opinion  actually  given,  extended  only  to  papers  of  a  cer- 
tain description,  which  might,  possibly,  be  offered  as  evidence  to  the 
grand  jury.i  Here  it  is  not  confined  to  the  admissibility  or  competency 
of  the  evidence,  but  takes  in  the  whole  merits  of  the  case,  upon  the  par- 
ticular facts  alleged  in  the  bill. 

There,  the  motion  was  originally  made  immediately  after  the  Chief 
Justice  had  delivered  his  general  charge  to  the  grand  jury,  at  the  open- 
ing  of  the  court,  and  beforo  any  bill  had  been  sent  up ;  and  the  instruc- 
tion was  given  while  the  bills  were  pending  before  the  grand  jury. 
Here,  the  instruction  is  prayed  after  tiie  grand  jury  have  acted  upon  the 
case,  and  i-eturned  the  bill  igyioramus. 

There  is,  therefore,  no  similarity  whatever  in  the  circumstances  of  the 
two  cases,  except  that  the  prayer  for  instruction  did  not,  in  either  case, 
come  from  the  grand  jury  themselves. 

There  is  no  doubt  that  this  court  may,  in  its  discretion,  give  an  addi- 
tional charge  to  the  grand  jury,  although  they  should  not  ask  it ;  and, 
when  they  do  ask  if  the  court,  perhaps,  may  bo  bound  to  give  it,  if  it 
be  such  an  instruction  as  can  be  given  without  committing  the  court 
upon  points  which  might  come  before  them  on  the  trial  in  chief.  This 
is  the  utmost  extent  of  the  dictum  of  the  Chief  Justice,  in  the  trial  of 
Colonel  Burr;  for  he  there  said  — "That  it  was  usual,  and  the  best 
course,  for  tae  court  to  charge  the  jury  generally,  at  the  commence- 
ment of  the  term,  and  to  give  their  opinion  upon  incidental  points  as 
they  arose,  when  the  grand  jniy  should  apply  to  them  for  information; 
that  it  was  manifestly  improper  to  commit  the  opinion  of  the  court  on 
points  which  might  come  before  them,  to  be  decided  on  the  trial  m 
chief ;  that  he  l.ad  generally  confined  his  charges  to  n  few  genetal 
points,  without  launching  into  many  detail  .  One  reason  was,  that 
some  of  the  detailed  points  might  never  arise  during  the  session  of  the 
grand  jury,  and  any  'nstructions  on  them  would,  of  course,  be  unneces- 
sary;  another  was,  that  some  of  the:    points  might  be  extremely  diffl- 

1  Rob  i-tson'B  Rpt.  of  Burr's  Trial,  vol.  1,  p.  201. 


le  Court  of  the  United 
ited  in  support  of  this 
[)ic  extensive  than  tin- 
goes  far  beyond  that 

)  tlie  admissibility  and 
extcn<l  to  all  the  par- 
n  offense. 

ge  the  whole  question, 
iient. 

uly  to  papers  of  a  cer- 
red  as  evidence  to  tlic 
jsibility  or  competency 
the  case,  upon  the  par- 

diately  after  the  Chief 
rand  jury,  at  the  open- 
nt  up ;  and  the  instruc- 
before  the  grand  jury, 
iry  have  acted  upon  the 

he  circumstances  of  the 
did  not,  in  either  case, 

liscretion,  give  an  addi- 
should  not  ask  it ;  and, 
)o  bound  to  give  it,  if  it 
ut  committing  the  court 
the  trial  in  chief.  This 
f  Justice,  in  the  trial  of 
iivas  usual,  and  the  best 
(rally,  at  the  commence- 
ipon  incidental  points  as 

0  them  for  information ; 
!  opinion  of  the  court  on 

1  decided  on  the  trial  m 
irges  to  '\  few  geneial 

One  reason  was,  that 
luring  the  session  of  the 
1,  of  course,  be  unneces- 
inight  be  extremely  diflS- 

l,p.201. 


UNITED   STATES    V.  WATRINS. 


205 


,„U  to  be  decided,  and  would  require  an  argument  of  counsel,  beau  e 
•e  was  no  ju.lge  or  man  who  would  not  often  find  the  sohtary  medi- 
oJof     is  closet  very  much  assisted  by  the  discussions  of  others 

tCt "rwould  have  no  difHculty,  however,  in  expanding  h,s  Cargcs  if 
liTbeen  particularly  requested  to  do  it,  if  he  could  have  ant.c.pated 

1  neeessi  V  for  it ;  and  tLat  he  would  have  no  difficulty  in  g.vu.g  lus 
^      nTT"  his  linie  on  certain  points  on  which  he  could  obtain  a  d.s- 

::;:;::;;  c^;::s;n:::ided  he  did  not  thereby  commit  ms  opinion  on 

'  mr:nt[raaion  to  agrand  jury  is  asked,  ei..er  by  the  accused 
ov^e  pr-ocutor,  it  is  a  matter  of  discretion  with  the  eourto  give  the 
s  Xn  or  not;  and,  in  exercising  that  discretion,they  will  take  u.to 
eliratio:  ad  the  circumstances  under  which  the  instruction  is 
i.ravcd,  and  the  extent  of  tlie  prayer. 

The  counsel  for  the  United  States,  however,  have  contended,  that 
whe  evcrTe  court  shall  perceive  that  the  grand  jury  have  -redni  ma  - 
n  r  of  law  by  rejecting  a  bill  which  they  ought  t,»  have  found  and  t  .s 
rcsum  r  hit  heir  doctrine  includes  also  the  finding  o  a  bill  winch 
Z^ZXt  to  .■  rejected,  the  court  ought  to  instruct  them  as  o  he 
tl  If  asked  so  to  do  by  either  party.  But  to  what  purpose  should  the 
' .  !trl et  them  after  thev  have  acted  upon  the  case,  and  found  or 
:•  r r  bi^^l'ra  new  ^  should  be  sent  for  - -^- 

;:;te  l^Z  L  a  new  bill,  exactly  like  that  which  they  have 

'' ™f  is  in  effect,  to  retu.n  them  the  same  bill.     But  this  is  contraiy 
to  t  e  weirestabli shed  immemorial  usage  of  courts  in  Kngland  and  .o 

ir^olntry.     The   usage   is  stated  by  ^iy  W   Black.onc ;  w^^^ 
,i...t  .vhen  the  bill  is  returned  "  ignoramm,"  or     not  found,     the  paiiy 
;;i-  r::;  without  ..t^er  answer .  ..a  fres^biU  may  a^wanls 
,..  .eferred  to  a  subseqent  grand  jury.-     It  s  also  s*^  ««^  '  >  _ 

,,v  Chittv,^   and  by  other  elementary   wn  ers;    and    after  a^Uhg  nt 
search,  we  have  found  no  case,  ror  djc.um  to  ^;^;^-;^J'^:^^ 
fJ.^.\    'inv  case   in  which  it  had  been  decidea  by   .  court,  tun  .r  in 

leZy  imd  found  or  .-ciecttd  »  Lill,  co.tmry  to  tUe  .n.tn.ct,on  of 
cause  mty   "»"  *„„  ihat  rPiHon  summoned  to  attend 

support  the  trial  by  jury ;  for  of  what  value  would  the  tml  by  jury  be, 


1  Uurr'8  Trial,  vol.  1,  p.  1"*- 

2  vol.  4,  pp.  306, 308. 


3  Cr.  Pl  3*. 

4  »«#•.  I-  a-i'i. 


206 


FRAUO  AND  FALSE  PUETENSES. 


as  tbe  "  palladium  "  of  personal  liberty,  unless  the  jury  should  be  inde- 
pendent, and  could  give  their  verdict,  especially  in  criminal  cases, 
freely  and  according  to  the  dictates  of  their  conscience  Vr  Sir  William 
Blackstone  says,  that  the  trial  by  jury  is  the  grand  bulwark  of  an  En- 
glishman's liberties. 

"  The  antiquity  and  excellence  of  this  trial,  for  settling  of  civil  prop- 
erty," he  says,    "  has  been  bciore  explained  at  large  ;  and  it  will  hold 
much  stronger  in  criminal  cases,  since,  in  time-)  of  difficulty  and  dan- 
ger,  more  is  to  be  apprehended  from  the  violence  and  partiality  of 
judges  appointed  by  the  Crown,  in  suits  between  the  king  and  the  sub- 
ject, than  in  disputes  between  one  individual  and  another,  to  settle  the 
metes  and  boundaries  of  private  property.     Our  law  has,   tlierefore, 
wisely  placed  this  strong  and  twofold  barrier,  ot  a  presentment  and  :i 
trial  by  jury,  between  the  libertici  of  the  people  and  the  prerogative 
of  the  Crown,"     "The  founders  of  the  English  law  have,  with  excel- 
lent forecast,  contrived  that  no  man  shall  be  called  to  answer  to  the 
king  for  any  capital  crime,  unless  upon  the  preparatory  accusation  of 
twelve  or  more  of  his  fellow-subjects,  the  grand  jury ;  and  that  the 
truth  of  every  accusation,  whether  preferred  in  the  shape  of  indictment, 
information,  or  appeal,  should  be  afterwards  confirmed  by  the  unani- 
mous suffrage  of  twelve  of  his  equals  and  neighbors,  indifferently  chosen, 
and  superior  to  all  suspicion.     So  that  the  liberties  of  England  can  not 
but  subsist,  so  long  as  this  palladium  remains  sacred  and  inviolate,  not 
only  from  all  open  attacks  (which  none  will  be  so  hardy  as  to  make), 
but  also  from  all  secret  machinations  which  may  sap  and  undermine  it, 
by  introducing  new  and  arbitrary  methods  of  trial,  by  justices  of  the 
peace,  commissioners  of  the  revenue,  an  1  courts  of  conscience.     And 
however  convenient  these  may  appear  at  first  (as  doubtless  all  arbitrary 
powers,  well  executed,  are  the   most  convenient),  yet,  let  it  be  again 
rememben-d,  that  delays  and  little  inconveniences,  in  the  forms   of 
justice,  are  the  i)rice  that  all  free  nations  must  pay  for  their  liberty  in 
more  substantial  matters;  t hut  these  inroads  upon  this  sacred  bulwark 
of  the  nation  are  fundamentally  opposite  to  the  spirit  of  our  constitu- 
tion ;  and  that,  though  begun  in  trifles,  the  precedent  may  graudally 
increase  and  spread,  to  ihc  utter  disuse  of  juries  in  questions  of  the 
mose  mnmeu'ous  conr«  nri 

And  Sir  Matthew  llale,i  says:  "  But,  in  my  opinion,  fines  set  upon 
grand  juries  by  justices  of  the  peace,  oyer  and  terminer,  or  jail  deliv- 
ery, for  concealments  or  non- presentments,  in  any  other  maimer  "  than 
by  anotlMT  iaquest,  under  the  statute  of  ;5  Henry  VII., 2  -  are  not  war- 
rantable l)y  law ;  and  although  tbe  late  practice  liath  been  for  justices 


2U.  r.  1'.  C.  160. 


:cU.  1. 


UNITED    STATES    V.  WATKINS. 


207 


hould  be  inde- 
riminal  cases, 
r  Sir  William 
axk  of  an  En- 

r  of  civil  prop- 
11(1  it  will  hold 
ciilty  and  dan- 
d  partiality  of 
ig  and  the  siib- 
ir,  to  settle  the 
las,  tliereforc, 
entment  and  a 
he  prerogative 
i,ve,  with  excel- 

answer  to  the 
y  accusation  of 
r ;  and  that  the 
5  of  indictment, 

by  the  unani- 
ferently  chosen, 
England  can  not 
id  inviolate,  not 
ly  as  to  make), 
d  undermine  it, 

justices  of  the 
nscience.  And 
less  all  a'-bitrary 
,  let  it  be  again 
n  the  forms  of 
r  their  liberty  in 

sacred  bulwark 
of  our  constitu- 
,t  may  graudally 
questions  of  the 

1,  fines  set  upon 
ler,  or  jail  deliv- 
■r  manner"  than 
,2  '•  are  not  war- 
)eeu  for  justices 


to  set  fines  arbitrarily,  yea  not  only  upon  grand  nuiuosts.  but  dso  upon 
e  petit  jury,   in  crim-.nal  cases,  if  they  find  n-.t  accrdu,,  U    tl^  r 
lin.  tlons,  it  weighs  not  much  with  me,   for  these   reasons:      1.  B  - 
se  I   have   seen   arbitrary  pradi.  o   still   going  from  one  thing  to 
Another.     The  fines  set  upon  grand  inqu-  ^i.  began,  then  thoy  set  hues 
pon  the  pe.it  juries,  for  not  finding  according  to  the  ^.-c  ions  of  the 
,  uif  then,  afterwards  the  judges  of  ,nV,.  i)nH,s  proceeded  to  fine  the 
uries  in  civil  causes,  if  they  gave  not  their  verdict  according  to  direc- 
ion     even   in  points   of  fact.     2.  My  second  reason   is,  becaus     the 
.t,,;,te  of  3  Ilenrv  Vll.,^   prescribes   a  way  for   their  fining,   wluch 
would   ':oc   liavcbeen  if  tliey  had  been  arbitrarily  subjected  to  a  fine 
befove  *   3.  It  is  of   very   ill   consequence;    for   the   privilege  of  an 
Kiv  lishman  is,  that  his  lifo  shall   not  be  drawn  in  danger,  without  due 
;,.;.oiitment  or  indictment;  and  this  would  be  but  a  slender  screen  or 
lafe<ruard,  if  every  justice  of  the  peace,  or  commissioner  of  oyer  and 
terminer,   or  jail-delivery,   may  make  the  gran,l  jury  present  what  he 
pleases,  01  therwise  fine  them." 

The  nrincipal  value  of  u  grand  jury,  as  a  protection  to  the  personal 
libcrtv  of  the  citizen  or  subject,  consists  in  the  independence  of  the 
iurors  That  independence,  in  order  to  be  valuable  at  all,  must  be  such 
as  to  prompt  and  enable  them  to  oppose  or  to  disregard  what  they  may 
^  v/the  arbitrary  and  illegal  instructions  of  the  court;  and  to  render 
'U'  independence  available,  the  right  of  a  grand  jury  to  find  or  reject 
a  1k;1,  without  assigning  any  reason  therefor,  and  thereby,  to  take  upon 
thoraselves  the  decision  of  both  law  and  fact,  must  be  maintained  mvio- 
bte,  however  true  it  may  be,  in  theory,  that  ad  questionem  juris  non 

respondent  jumtores.  ^    ^u     •  u*  „# 

And  the  same  principle  is  applicable,  with  equal  force,  to  the  right  of 
the  petit  jury  to  find  a  general  verdict  in  criminal  cases. 

So  stron-ly  has  this  principle  been  adhered  to  by  the  people  of  En- 
chnd  that°not  a  case,  it  is  believed,  can  be  :ound  among  the  decisions 
of  the  most  arbitrary  judges,  in  the  most  turbulent  times,  in  which  a 
new  trial  has  been  granted  in  a  criminal  cause,  because  the  verdict  of 
aciuittalwas  against  the  plainest  evidence,  and  :he  most  positive  in- 
struction  of  the  court  in  matter  of  law. 

Hawkins  says :»  "  It  hath  been  adjudged  that  if  a  jury  acquit  a  pris- 
oner of  an  indictment  of  felony,  against  manifest  evidence,  the  court 
nvvv  before  the  verdict  is  recorded,  but  not  after,  order  them  to  go  out 
a.rain  and  reconsider  the  matter;  but  this  is,  by  many,  thought  hard, 
ami  seems  not,  of  late  years,  to  have  been  so  frequently  practiced  as 
formerlv  "     However,  it  is  settled,  that  the  court  can  not  set  aside  a 


1  oil.  1. 


2  bk.  2,  cl\.  47,  sees.  11, 12. 


■^■^^■MliH^HHiMi 


208 


ntAUD    AND   FALSK   PRETENSES. 


virilict.  which  acquits  a  defendant  of  a  prosecution  properly  criminal, 
(as  it  seems  tlicy  may  a  verdict  that  convicts  Lim),  for  having  been 
given  contrary  to  evidence,  and  the  directions  of  the  judge." 

If  a  verdict  of  acquittal,  found  upon  consideration  of  the  evidcncp 
on  both  sides,  is  thus  peremptory  and  Mitangible  a  fortiori,  should  tl'p 
return  of  "  ignoramus,"  by  a  grand  jury,  upon  consideration  of  tlie 
evidence  on  the  part  of  the  prosecution  alone,  be  e(;ually  sacred ;  nt 
least  during  tliat  term. 

This  rule,  wliicli  we  think  as  well  settled  as  that  in  respect  to  the  ver- 
dict of  the  petit  jury,  seems  to  us  to  render  it  ii  iproper  that  we  siiouki 
now  give  the  instruction  which  is  asked  by  the  counsel  for  the  United 
States. 

But  there  are  other  reasons  why  we  should  not  ,^lve  it,  some  of  which 
have  been  before  intimated.  One  is,  that  the  instruction  extends  to  the 
wiiole  case  as  stated  in  tiie  bill,  and  is,  in  effect,  an  instruction  that  the 
bill,  if  found,  will  be  a  sufficient  indictment,  in  law,  to  charge  the  de- 
fendant with  the  crime  of  forgery  at  common  law  ;  thereby  forestalling 
the  opinion  of  the  cor  rt  upon  all  questions  of  law  which  might  arise  on 
demurrer.  Such  a  commitment  of  the  opinion  of  the  court,  upon  points 
which  may  arise  in  a  subsequent  stage  of  the  prosecution,  we  consider 
(to  use  the  language  of  the  Chief  Justice  uf  the  Uuited  States),  to  be 
"  manifestly  improper." 

Ui)on  this  subject  Lord  Coke,  in  his  .3d  Institute,^  has  the  following 
observations:  "And  to  the  end  that  the  trial  may  be  more  indifferent, 
seeing  tliat  the  safety  of  the  prisoner  consisteth  in  the  indifferency  of 
the  court,  the  judges  ought  not  to  deliver  their  opinion  beforehand,  of 
any  criminal  case  that  may  come  before  them  judicially."  "And  there- 
fore the  judges  ought  not  to  deliver  their  opinions  beforehand  upon  a 
case  put  and  proofs  urged  on  one  side,  in  the  absence  of  the  party  ac- 
cused." "For  how  can  they  be  indifferent,  who  have. delivered  their 
opinions  beforehand  without  hearing  of  the  party,  when  a  small  addi- 
tion or  substraction  may  alter  the  case?  And  how  doth  it  stand  with 
their  oath  who  are  sworn  that  they  should  well  and  lawfully  serve  our 
lord  the  king  and  his  people,  in  the  office  of  a  justice,  and  that  they 
should  do  equal  law  .and  execution  of  right  to  ali  his  subjects."  And 
again,  in  the  next  page  he  says:  "The  king's  learned  counsel  should 
m  ♦^.,  in  the  absence  of  the  party  accused,  upon  any  case  put,  or  matter 
sh>wed  by  tliem,  privately  preoccupute  the  opinion  ot  the  judges.* 

But  upon  a  point  so  clearly  supported  by  the  principles  of  natural 
justice,  it  is  needless  to  state  authorities.  Another  reason  why  the 
court  should  not  give  the  instruction,  is,   that  it  is   a  very  debatable 


»  p.  29. 


UNITED   STATES   V.  WATKINS . 


20S> 


I  properly  criminal, 
),  for  having  been 
I  judge." 

on  of  the  evidcncp 

fortiori,  should  ll>p 

onsideration  of  tlie 

ecjually  sacred ;  nt 

1  respect  to  the  vcr- 
oper  that  we  siioukl 
usel  fur  the  United 

ve  it,  some  of  which 
ction  extends  to  the 
instruction  that  the 
V,  to  charge  the  dc- 
thereby  forestalling 
vhich  might  arise  on 
B  court,  upon  points 
jcution,  we  consider 
iited  States),  to  be 

1,1  has  the  following 
be  more  indifferent, 
I  the  indifferency  of 
inion  beforehand,  of 
illy."  "And  there- 
i  beforehand  upon  a 
nee  of  the  party  ac- 
have.  delivered  their 
,  when  a  small  addi- 
V  doth  it  stand  with 
d  lawfully  serve  our 
stice,  and  that  they 
his  subjects."  And 
irned  counsel  should 
f  case  put,  or  matter 
of  the  judges.  * 
principles  of  naiurnl 
her  reason  why  the 
is   a  very  debatable 


.nestion  whether  the  facts  stated  in  the  bill  wh.ch  is  now  propo        t, 
l  Mt  u,>  or  r.thor  .ent  back,  t.,the  grand  jury,  do  .n  law,  co.st.tu.o 
^^n  o  o    f orgerv.  at  common  law.     Much  n,ay  be  sa,.  ,  and  nmoh 
1       Huia,  on  boih  sides.     The  court  did  not  find  itself  obbged  to 
eh      question  upon  the  fonuer  argument,  and  therefore  decbned 
the  same  reason  il  declines  now.     These  reasons  for  not  gn.ng  tl 

:ru;:i::itwiii  i.  perceived,  ^^^^f^y^'^-i^j^^t 

i„rv  did  or  did  not,  act  under  a  n.istake  of  the  law.  1  hat  quest  on,  tue 
;.2t  does  n.'t  undertake  to  decide  iu  this  stage  of  the  prosecution,  for 

'V::Z^:Z:i:^e  court  deems  it  to  be  itsduty  torefuse  to  in- 
JZ  tl;:  iZa  jury  ..  prayed  by  the  counsel  for  the  Umtcd  States.^ 
Judges  not  to  give  their  opinion  permaturely. 

TmusTON  J.,  dissenting. 

W  le  this  que..lon  of  instructing  the  grand  jury  was  pending,  t^ia 

Wly  found  three  other  indictments  against  ^^^^^f^^;;^  ^  ^ 
tnuiactM.n  with  Paulding  as  before  stated,  one  for  ^-'  ^  ;;^^^  *^^^;"^; 
partv  and  one  for  $2,0U.»  with  llambletou,  a  purser  in  the  navy  at  1  e 
1     To  each  of  these  indictments  there  was  a  general  demuiTC  .    The 
indic'n  1    averred  that  the  defendant,  T.  W.,  was  Fourth  Auditor 
ft  r^^^^^  of  the  United  States,  and  as  such  required  by  law  to 

ce^   aUac^Liuts  accruing   in  the  Navy  Department    or   relative 
tkreto-  to  keep  all  accounts  of  the  receipts  and  expenditures  of  the 
!         n^oney:.  or  the  United  States  in  regard  to  that  department   and 
debts  due  to  the  United  States,  or  moneys  advanced  relative  to 
L  Lfdieiuirtment,    to   receive  from  the  Second   Con^^rJ. 
ucounts   relative    to    the    said    department,    which  had  been  final  y 
:    :S,  and  to  prepare  such  accounts  with  thdr  vo-^- -;^-;^  ' 
.L  and  to  record  all  warrants  drawn  by  the  Secretary  of  the  ^a^^ , 
e;  mination  of  the  accounts  of  which  is  by  law  assigned  to   he    ad 
1  our'h Auditor ;  ana  to  make  such  reports  on  the  busmcss  of  the  said 
h  iu    to  'as  the  secretary  of  the  Navy  shouKl  deem  necessary  aiid 
L  ;;^  for  the  services  of   that  department.     ^^  f^JJ^her  -^  «^t 
Samuel  L.  Southard  was  Secretary  of  the  Navy  of  the  Untccl  State  , 
Z  a.  such  had  authority  to  issue  requisitions  to  the  Secrc^tary  of  the 
T    a    rv  of  tl  e  United  States,  countersigned  by  the  Second  Comi^i-o  ler 
I  reltered  by  the  Fourth  Auditor,  for  moneys  appropriated  by  law 
t^^T^f  Uie  Navy  Department;  ^v^ereupon  the  Secn.a.y  o  J^ 
Treasury  was  authorized  by  law  to  grant  his  --"^^^^  ^^  '"  ^;^7  j  ^ 
of  the  United  S.  ates  for  the  amounts,  and  according  to  the  sums  of 

tl^rK  Guiding  was  a  navy  agent,  residing  in  the  city  of  New 


3  Defences. 


1  See  1  Chit.  Cr.L. 
14 


210 


FRAUD  AND  FALSK  PKKTENSES. 


York,  and  was  required  by  law  tc.  render  his  accounts  to  the  Fourth 

"^TluvT'on  the  2d  of  March,  1827,  an  act  of  Congress,^  was  passci, 
mai<i..g  appropriations  for  the  support  of  tlie  navy  of  the  Ln.ted  State,, 
in  winch  tl.e  sun.  of  $20,000  was  appropriated  "for  arrearages  pnor  to 
thefirstday  of  January,  1H27."  .  ■,    „„,i  Ko!n„ 

That  tl>c  d<.fendant,  so  being  Fourth  Auditor  as  af oresau  ,  aM  be.  g 
an  evil  disposed  person,  and  devising  and  intenduig  fraudulently  and 
:ni:X  to  obtai.'  and  acquire  for  himself  and  for  his  -M^XrfVr 
the  money  of  the  United  States,  with  force  and  anns,  on  the  16th  of  Ja  - 
ua,y    1828,  at  Washington  County,  in  the  Distr.ct  of  Columbia  fal.ly 
vnd'fraudileutly  wrote  and  addressed,  and  caused  to  be  sent  to  tl.e 
n^^   T   K  Pauldin-  navy  agent  as  aforesaid,  in  the  city  and  State  of 
N  t  Yo^^a  tior'i:  the  Lds  and  figures  following  to  wit  (here 
waTinserted  the  letter  of  the  IGth  of  January,  1828,  w  nch  was  inserted 
iu  the  first  indictment  wlueh  was  quashed  o.ylemu.Ter) 

It  then  avers  that  the  defendant  drew  the  draft  on  J.  K.  P.,  navy 
agent  in  New  York,  for  $750,  in  favor  of  C.  S.  Fow  er,  at  one  day  s 
sfght,  and  sold  it  to  Mr.  Fowler,  and  received  therefor  he  --  oU  «; 
and  kept  and  disposed  of  the  same  for  his  own  use.  That  on  he  16th 
orjanLry,  1828,  Mr.  Paulding,  as  navy  agent,  wrote  and  sent  to  Mr. 
Southard,  the  following  letter:  — 

"Navt  Agent's  Office,  New  York,  16th  January,  1828. 
..  Sib  •  Be  pleased  to  direct  a  warrant  to  issue  in  my  favor  for  the  sum 
of  «12  139. 12,  to  be  charged  to  the  following  appropriations,  viz. :  - 
Pay  Aft.                               $1'942 
"     Shore  Stations              1,058.25 
"     Civil  Establishment         64.3.32 
"     Repairs 
"     Medicines 
"     Increase 
"     Sloops  of  War  ^ $12,139.12 


2,488.54 
1,000 
2,904.90 
2,102.11 


required  for  the  purposes  expressed  in  the  list  herewith  inclosed.    I 
have  the  honor  to  be,  very  respectfully,  your  ^^^tl^^;™^;^^  . 

-Hon.    Samuel  L.   Southard,  Secretary  of  the.  Navy  Department. 

"^Whfchttter  was  received  by  Mr.  Southard,  at  Washington,  on  the 
19th  of  January,  1828. 


1  i  Stat,  at  Large  206. 


■i  ante,  p.  44l<. 


I'NITKD    STATKS    v.  WATKINS. 


211 


j  to  the  Fourth 

s,*  was  passed, 
e  United  StatL:;, 
earages  prior  to 

isaid,  and  being 
raudulently  and 
own  \)rivatc  use 
the  16th  of  Jan- 
!olurabia,  fals^:ly 
)  be  sent  to  the 
jity  and  State  of 
iig,  to  wit  (hero 
lich  was  inserted 

Q  J.  K.  P.,  navy 
Icr,  at  one  day's 
the  sum  of  $750, 
That  on  the  ICth 
}  and  sent  to  Mr. 

lanuary,  1828. 
favor  for  the  sum 
ations,  viz. :  — 


$12,139.12 

•ewith  inclosed.    I 
it  servant, 
K.  Paulding," 

Navy  Department, 
Vashington,  on  the 


That  the  said  T.  W.,  "being  then  and  there  Fourth  Auditor  of  the 
Treasury  Department  of  the  United  States  as  aforesaid,  and  being  an  ill- 
disposed  person,  and  devising  and  intending  fraudulently  and  unjustly 
to  acciuire  for  hinisi  If,  and  for  his  own  private  use,  tlie  money  of  the 
I'luted  States,  and  well  knowing  the  premises,  with  force  and  arms,  on 
the  said  nineteenth  day  of  January,  which  was  in  the  year  of  our  Lord 
one  thousand   eight  hundred  and  twenty-eight,    as   aforesaid,  at  the 
eoiinty  of  Washington  aforesaid,  did  falsely,  fraudulently,  deceitfully, 
k.K.wingly,  and  designedly,  apply  to  the  said  Samuel  L.  Southard,  then 
being  sl'cretary  of  the  Navy  of  the  United  States  t.s  aforesaid,  to  add  to 
the  Taid  sum  of  twelve  thousand  one  hundred  -and  thirty-nine  dollars 
:uk1  twelve  cents,  for  which  the  said  J.  K,  Paulding  had  re(piested  a 
warrant  to  be  issued  as  aforesaid,  the  sum  of  seven  hundred  and  fifty 
dollars,  and  did  then  and  there  pretend  to  the  said  Samuel  L.  Southard, 
Secretary  of  the  Navy  of  the  United  States  as  aforesaid,  that  the  said 
sum  of  seven  hundred  and  fifty  dollars,  was  required  for  the  use  and 
service  of  the  navy  of  the  United  States,  for  the  payment  of  claims 
settled  and  adjusted  under  tlie  appropriation  for  arrearages  due  by  the 
Na.y  Department  prior  to  tlie  first  day  of  January,  which  was  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  twenty-seven,  and  to 
"cause  the  same  to  be  placed  in  the  hands  of  the  said  J.  K.  Paulding, 
navy  agent   as   aforesaid,  for  the    purpose    aforesaid,    at   the  same 
time,     and    together    with   the    said   sum   of    twelve    tliousand     and 
one  hundred  and  thirty-nine  dollars  and  twelve  cents,  for  which  tlie 
said  J.  K.  Paulding  had  required  a  warrant  to  be  issued  as  aforesaid  ; 
and  he,  the  said  Tobias  Watkins,  did  thea  and  there  unlawfully,  fraud- 
ulently, deceitfully,  knowingly,  and  designedly,  cause  and  procure  to 
l,c  issued  by  the  said  Samuel  L.  Southard,  then  being  Secretary  of  the 
Navy  of  the  United  States  as  aforesaid,  a  requisition  to  the  Treasurer 
of  the  United  States  for  the  additional  sum  of  seven  hundred  and  fifty 
dollars,  and  did  cause  and  procure  the  said  sum  of  seven  hundred  and 
fifty  dollars  to  be  added  to  the  said  requisition  of  twelve  thousand  one 
hundred  and  thirty-nine   dollars  and  twelve  cents,  which  he,  the  said 
J.  K.  Paulding  had  requested  to  be  issued  as  aforesaid,  and  thereby 
caused  the  sum  of  twelve  thousand  eight  hundred  and  eighty-nine  dol- 
lars and  twelve  cents  to  be  included  in  the  said  requisition,  instead  of 
the  said  sum  of  twelve  thousand  one  hundred  and  thirty-nine  dollars 
and  twelve  cents,  so  required  to  be  so  issued  by  the  said  J.  K.  Paulding 
as  aforesaid ;  which  said  requisition   so   caused  and   procured  to  be 
issued  as  aforesaid,  is  in  the  words  and  figures  following"  (here  was  in- 
serted the  requisition  verbatim,  including  the  sura  of  $750,  under  the 
head  of  "  Arrearages  prior  to  1827,")  which  said  sum  of  twelve  thou- 
sand eight  hundred  and  eiglity-niue  dollars  and  twelve  cents,  in  the  said 


212  rilAUl)   AM)    FALSE   rUKTKNSES. 

.,li„6tcci  .mdcr  the  .pproprlation  for  "i-^^g""""*  1'.    '  „,  j2,,.,r)-, 

nicns  thereof,  in  manner  «^f«-^«^^^'  f  ^^  ;\„^i  ,,rvice  of  the  navy  of 
Unitoa  States,  should  be  apphed  ^«  ^I^J  "^^^^^^^^^  ^^^er  the  appro- 

the  united  States,  ^^ ^^^^t^^:!  ,rlor  to  the  first 

priation  for  ^^^^^^^^^ ^,^^ ,^\^^l^^^^^^^  thousand  eight  hundred  and 
day  of  January,  v.    eh  .      m  t^e    ea  ^^^  ^^  ,^^  ^^^^  ^^^^^^  ^^  ^^^^ 

'^TjTv^Z^^^--^^'^^  ''-  purposes  afo.e. 
'         bu^tLn  and"  here  intended  fraudulently  to  defraud  the  Umte 
Sa  es  o    tt  sant  and  to  convert  the  said  sum  of  seven  hundred  an 

J;  rP:Sng  for  .000,  an.  >,a.  .»o  ecu..     TUe^^^^^^^^^^^^ 
to  himself  from  J.  K-  Paulding,  navy  agent  at  New  \ork. 


UNITED    STATES   V.  WATKINS. 


213 


ly   warrant  from 
lie  United  StuU-. 
ands   of  the  said 
1  of  twelve  thtni- 
e  cents,  then  ana 
intent  to  defvniid 
•(>d  and  fifty  tiol- 
aa  aforesaid,  and 
\f  of  the  Treasuiy 
e  Treasury  of  tlip 
said  Tobais  "NVat- 
(vell  knew  that  the 
said  requisition  in- 
)f  tlic  navy  of  tlio 
tlie  same  from  tlie 
claims  settled  and 
by  the  Navy  Do- 
day   of   January, 
and  twenty-seven, 
K.  Paulding,  navy 
d  whereas,  in  trutli 
time  of  making  tlic 
lat  the  said  sum  of 
n  included,  and,  h\ 
he  Treasury  of  the 
vice  of  the  navy  of 
ed  under  the  appro- 
snt  prior  to  the  first 
i  eight  hundred  and 
in  the  hands  of  tlie 
the  purposes  afoie- 
)  defraud  the  United 
C  seven  hundred  and 
cby  defraud  the  said 
id  fifty  dollars  to  the 
nple  of  all  others  in 
i  government  of  the 

as  upon  a  transaction 
The  first  count  states 
',  being  Fourth  Audi- 
to  obtain  and  acquire 
^ew  York,  the  sum  of 


.'.00  of  the  moneys  of  the  United  States  in  tlie  hands  of  the  said  J.  K 
.     dig     "uulJvfally,    fraudulently,    ami    'deceitfully '    wrote   -l 
sed  to  be  sent  to  the  said  J.  K.  Paulding,  navy  agent  at  New  \mk 
;,rfollowing  letter,  purporting  to  be  dated  and  ^vritten  from  the  office 
of  the  Fourth  Auditor  tee,.  : —  „  ,   <^  .  ,        ico? 

1  Treasury  Department,  Fourth  Auditor's  Office  8th  O^tobe^'  B^'^; 
Sir-  I  have  this  day  drawn  on  you  in  favor  of  Charle  S  ^-^^^'l^' 
U  r  e  hundred  dolll,  which  you  will  please  to  charge  to    Arrearage 

♦«   i«.?7.  '   nn.lor  which  head  a  remittance  will  be  made  to  jou 
ITctJ.;  ,;  J  slrX-'  rot.™  «  *«  cay      lu  «,«  ,„ean  t|,„o  |. 

to  be  replaced  on  receipt  of  the  ireasurcr  s  i^^^^ 

respectfully  your  obedient  servant,  , ,  ^  Watkins.  ' ' 

It  then  avers  that  the  defendant  drev.  the  draft  sold  it  to  C   S. 
Fowler,  receive<l  the  sum  of  S3()0  and  converted  it  to  h.s  own  use  ;  an 
ZZ  draft  was  afterwards  paid  by  J.  K.  Paulding  out  of  the  moneys 
of  the  United  States  in  his  hands.  ^„  finrl  that 

"  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  find  that 
tlie  said  letter  thus  written  and  dated,  and  addressed  and  sent  from 
t    sa  d  Tr  asury  Depart^nent  and  the  office  of  the  Fourth  Auditor 
r  0    purported  to  be  and  was  fraudulently  intended  by  said  Wat- 
i  sto  appT^r  as  an  official  letter  of  said  Watkins,  and  was  so  wntten 
"ed  addressed,  and  sent  to  deceive  the  said  Paulding  by  such  appear- 
n;:!'and  to  induce  him  to  pay  the  draft  a^-said  out  of^  t^^^^  ~ys 
of  the  United  States  in  his  hands;   and  the  said  Paulding  w.is  so 
lelerand  did,  in  consequence  of  such  deceit,  so  pay  the  same  out 
of  the  said  moneys  of  the  United  States  in  his  hands. 

"And  the  jurors  aforesaid,  upon  their  oath  aforesaid   do  find  that 
the  ittter  aforesaid,  so  written,  dated,  addressed   and  -^  as^fo.-esa.^ 
nurnorted  to  be,  and  was  fraudulently  intended  by  said  Watkins  to 
:X^lTm  'appear,  as  an  official  letter  of  the  -id  W-ki^^^^^^^^  as 
r  oresenting  that  the  said  sura  of  money,  therein  mentioned  j  as  to  be 
;rfor  the  public  service  of  the  United  States,  and  that  the  draft 
Crein  mentioned,  was  drawn  on  aeeount  of  the  pubhc  «^^^^^^^^^^ 
United  States,  and  to  deceive  the  said  Paulding  ^y  «  «^ /PP;^;*'^^^^ 
and  to  induce  him  to  pay  the  same  o.vt  of  «- -on  ^^  of  the  U«;^;^ 
States  in  his  bands;  and  the  said  Paulduig  -^^^^11^  ed  StX^^ 
and  did  pay  the  same  out  of  the  said  moneys  of  the  Umted  States  m 

''^ri^'the  jurors  aforesaid,  upon  their  oath  afon^aul   do^d   t^ 
at  the  time  of  writing,  addressing,  and  sendmg  said  l^^  «:  -^^^^^^^ 
ing  said  draft,  the  public  service  of  tlie  Umted  States  did  not  lec.uue 


214 


FllAUl)   AND   FAL8K    I'UKTENSES. 


thf  payment  of  the  said  snin  of  money  in  tlic  said  letter  and  draft  men- 
tioned,  and  the  said  Watkina  well  knt-w  tlio  same  not  to  bo  so  roqniicd, 
i»nd  tliat  said  Watkins  had  no  authority  to  draw  for  tlio  said  sum  c.f 
money,  or  to  write  the  said  letter  of  advice  on  account  of  the  pnl.lic 
service  of  the  United  States,  as  an  ofHcial  letter  of  him,  the  said  Wi.t- 
kins,  Fourth  Auditor  as  aforesaid,  and  well  knew  ho  had  no  svicli 
juilhority ;  and  that  said  Watkins  wrote  and  dated,  and  addressed  and 
sent  the  said  letter,  and  made  the  said  draft,  ostensibly  for  the  public 
service  as  aforesaid,  but  falsely  and  fraiidulei)Uy  for  his  own  use  and 
benefit,  and  to  deceive  the  said  Paulding  as  aforesaid,  and  to  defraud 
the  United  States ;  and  that  by  means  of  the  said  letter  and  draft,  so 
written,  dated,  addressed,  and  sent  as  aforesaid,  he,  the  said  Watkins, 
did  unlawfully,  fraudulently,  and  deceitfully,  obtain  to  and  for  his  own 
use  and  benefit,  the  said  sum  of  three  hundred  dollars  of  the  moneys 
of  tiie  United  States,  from,  and  out  of,  tlie  hands  of  the  said  Paulding, 
navy  agent  as  aforesaid,  to  the  great  deceit,  fraud,  and  damage  of  tlie 
United  States,  and  against  the  peace  and  government  of  the  United 

States." 

The  second  count  stated,  that  the  defendant,  then  Fourth  Auditor, 
etc.,  intcniling  to  deceive  and  defraud  the  United  States  of  the  sum  of 
$300  of  the  moneys  of  the  United  States,  on  the  8lh  of  October,  18-27, 
having  informed  J.  K.  Paulding,  navy  agent  at  New  York,  by  letter  of 
that  date,  and  dated  "  Treasury  Department,  Fourth  Auditor's  Office," 
that  he  had  drawn  on  him  in  favor  of  C.  S.  Fowler  for  8300,  to  be 
charged  to  "arrearages  prior  to  1827,"  and  that,  under  that  head  a 
a  remittance  would  be  made  to  him  immediately  on  the  return  of  tlie 
Secretary  of  the  Navy  to  the  city,  and  desiring  the  said  J.  K.  Paulding 
to  pay  the  draft  out  of  any  unexpended  balance  in  his  hands,  to  be 
replaced  on  his  receipt  of  the  Treasurer's  remittance,  made  the  said 
draft  and  sold  it  to  C.  S.  Fowler,  and  received  from  him  therefor,  tlic 
sum  of  §300,  and  applied  the  same  to  his  own  use ;  which  draft  was 
afterwards  paid  by  the  said  J.  K.  Paulding  out  of  the  moneys  of  the 
United  States  in  his  hands. 

"And  the  jurors  aforesaid,  on  their  oath  aforesaid,  present  that  the 
said  letter  was  written,  and  addressed,  and  sent,  as  aforesaid,  fraudu- 
lently, and  with  the  intent  to  impose  on  the  said  Paulding  the  belief  that 
the  said  draft  was  made  on  account  of,  and  intended  to  be  applied  to, 
the  public  service  of  the  United  States  and  to  induce  him  to  pay  the  same 
and  with  intent  to  defraud  the  United  States.  And  that  the  said  draft  was 
fraudulently  made  and  sold  as  aforesaid,  with  the  intent  that  the  same 
should  be  paid  by  said  Paulding,  under  such  belief  and  inducement  as 
aforesaid,  out  of  the  moneys  of  the  United  States  in  his  hands  as  afore- 
saitl  and  with  the  intent  to  thus  obtain  and  apply  to  his  own  use  the  said 


UNITED    STATES    V.  WATKINS. 


21:) 


2r  and  drnft  nien- 
,0  be  so  roquirctl, 
r  tlio  saiil  sum  (if 
lut  of  the  pulilic 
im,  the  siiid  AViit- 
ho  had  no  svicli 
nd  addressed  ami 
l)ly  for  the  public 
r  his  own  use  and 
d,  and  to  defraud 
tier  and  draft,  so 
the  said  Watkiiis, 
;o  and  for  his  own 
irs  of  the  moneys 
ho  said  Paulding, 
nd  damage  of  the 
ent  of  the  United 

II  Fourth  Auditor, 
atcs  of  the  sum  of 
of  October,  1827, 
Yorlt,  by  letter  of 
Auditor's  Offlce," 
!r  for  8300,  to  be 
under  that  head  a 
1  the  return  of  the 
aid  J.  K.  Pauldiug 
in  bis  hands,  to  be 
nee,  made  the  said 
n  him  therefor,  the 
;  which  draft  was 
the  moneys  of  the 

id,  present  that  the 
aforesaid,  fraudii- 
ding  the  belief  that 
d  to  be  applied  to, 
lim  to  pay  the  same 
It  the  said  draft  was 
ntent  that  the  same 
and  inducement  as 
his  hands  as  afore- 
lis  own  use  the  said 


sniii  of  three  hundred  dollars  of  the  moneys  of  th«  United  Stales,  and 
with  intent  to  defraud  the  United  States. 

"And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  present,  that 
by  means  of  the  said  letter  so  written,  addressed,  and  sent,  the  Haiti 
raiilding  was  impos  d  on  to  believe  that  the  said  draft  was  made  on 
aicount  of,  and  intended  to  be  applied  1o,  the  public  service  of  the 
United  States,  and  was  thereby  induced  to  pay  the  same  out  of  the 
iiK/iieys  of  the  United  States  in  his  hands,  and  did,  under  such  belief 
and  inducement,  pay  the  same  out  of  the  said  moneys  of  tlic  United 
Slates  in  his  liands.  And  the  said  Walkins  did,  by  said  imposition  and 
(liceit,  thus  used  and  practiced  upon  the  said  Paulding,  and  by  the  said 
litter  so  written,  addressed,  and  sent  as  aforesaid,  defraud  the  United 
StiitcH  of  the  said  sum  of  three  hundred  dollars,  to  the  great  wrong  of 
till"  United  States,  and  against  the  peace  and  government  thereof, 
Tlmmas  Swann,  Attorney,  U.  S." 

;i.  The  third  of  the  said  three  indictments  was  upon  a  transaction  of 
$•.'.000  with  Sir.  Ilambleton,  a  purser  in  the  navy  of  the  United  States 
at  tiie  navy-yard  in  Pensacola. 

This  indictment  states  that  the  defendant  was  Fourth  Auditor  of  the 
Tnasury  of  the  United  States,  and  recites  his  duties  ;  that  Samuel  L. 
Southard  was  Secretary  of  the  Navy,  and  had  authority  to  issue  requi- 
sitions to  the  Secretary  of  the  Treasury  for  moneys  appropriated  for 
tliL  service  of  the  navy  of  the  United  States,  whereupon  (ho  Secretary 
(if  the  Treasury  had  authority  to  grant  his  warrants  on  the  Treasury  of 
the  United  States,  for  the  amount  of  such  requisitions.  That  Samuel 
Ihunbleton  was  a  piu-sor  in  the  navy  of  the  United  States,  residing  at 
tlie  navy-yard  of  the  United  States,  at  Pensacola.  That  the  defendant 
licing  Fourth  Auditor,  etc.,  "  and  intending  fraudulently  and  unjustly 
to  acquire  for  himself,  and  for  his  own  private  use,  the  money  of  the 
liiited  States,  and  well  knowing  the  i*romises,  with  force  and  arms,  on 
the  C.th  of  March,  1827,  at  the  County  of  Washington,  aforesaid,  did 
faUely,  fraudulently,  deceitfully,  knowingly,  and  designedly  write, 
address,  and  cause  to  be  delivered  to  the  said  Samuel  L.  Southard, 
Secretary  of  the  Navy,  as  aforesaid,  a  letter,  in  the  words  following 
to  wit :  — 

"  Fourth  Auditor's  Offlce,  fith  March,  1827.  Sir  —  I  will  thank  you 
to  cause  a  requisition  to  be  issued  in  favor  of  Purser  S.  Ilambleton,  for 
§2,000,  under  the  head  of  '  Pay  Afloat,'  made  payable  to  my  order,  at 
tlie  lequest  of  Mr.  Harableton,  for  the  purpose  of  paying  his  drafts  on 
me  to  that  amount.  I  am,  sir,  respectfully,  your  obedient  servant,  T. 
Watkins.     The  Secretary  of  the  Navy. ' ' 

It  is  then  averred  that,  confiding  in  the  said  letter,  and  believing  that 
the  said  purser  had  requested  such  a  requisition  to  be  issued  for  $2,000, 


21  <5 


FUAII)    \M>   KAI.SK    VUKTKVSKS. 


and  tlmt  that  Hum  was  required  for  the  use  and  sorvico  of  the  Unilcilj 
States,  Mr.  Soutlmrd,  as  Ser-retary  of  the  Navy,  issued  tlie  requisition, 
ns  re(iuestcd.     Tliat  llic  said  sum  of  S-',0(H),  in  conformity  with  the  Huiill 
reciiiisitioii,  was,  by  wurrimt  from  tlie  Secretary  of  the  Tniasury,  driiwn 
out  of  the  Treasury  of  the  United  Slates,  and  jihieed  in  tlio  hands  of  the 
defendant;  "  Wliereas,  in  trutii  and  in  fact,  the  said  T.  Watliins,  at  llicl 
time  lie  wrote  liis  letter  aforesaid  to  the  «aid  Samuel  L.  Southard,  Secrc. 
tary  of  the  Nav>  ,  as  aforesaid,"  "had  not  been  reciuestod  by  the  snial 
S.  Ilamhleton,  Jturser,  ns  aforesaid,  to  cause  any  reciuisition  to  be  isMinl] 
in  favor  of  him,"  "  payable  to  the  order  of  him,  tiic  said  T.  Watiiiiis,' 
as  aforesaid,  for  the  said  sum  of  $2,000  ;  nor  had  tiie  said  S.  llambleKiiil 
drawn  any  drafts  upon  him,  t!ie  said  T.  Watidns,  for  tlie  said  $2,000; 
and  whereas,  in  fact  and  in  Iriitli,  tiie  said  Tobias  AVatiiins,  at  the  tiini> 
he  wrote  his  letter,  as  aforesaid,  did  not  intend  that  tiic  said  sum  of 
$2,000  should  bo  applied  to  the  use  of  him,  the  said   S.  Ilamblctoii, ! 
purser,  as  aforesaid,  or  to  tlie  use  or  service  of  the  navy  of  the  Unittd 
States,  or  to  the  payment  of  any  such  drafts,  as  aforesaid,  but  then  and 
there  intended  to  defraud  the  United  States  of  the  same,  and  to  convert 
the  said  sum  of  money  to  his  own  proper  use  and  benefit ;  and  did,  by 
means  of  the  pretenses  aforesaid,  defraud  the  said  United  States  of  the 
said  sum  of  $2,000,  and  did  thereby  then  and  there  convert  and  appro- 
priate tiie  said  sura  to  his  own  proper  use  and  benefit,  to  the  great 
damage  of  the  United  States,  to  tlie  evil  examiile  of  all  others  in  liivc 
cases'off ending,  and  against  the  peace  and  government  of  the  United  | 

States." 

There  was  a  second  count  in  this  indictment,  containing  the  same 
preliminary  allegations  as  in  the  first  count,  and  averring  that  the  de- 
fendant, "  intending  fraudulently  and  unjustly  to  acquire  for  himself, 
and  for  his  own  private  use,  the  money  of  the  United  States,  and  well 
knowing  the  piemises,  with  forcQ,  and  arras,  on  the  said  sixth  day  of 
March,  1827,  aforesaid,  at  the  county  aforesaid,  did  falsely,  fraudu-| 
lently,  deceitfully,  knowingly,  and  designedly  apply  to  the  said  Samuel 
L.  Southard,  then  being  Secretary  of  the  Navy  of  the  United  States,  as  j 
aforesaid,  to  cause  a  requisition  to  be  issued  on  account  of  the  said  S. 
Hambleton,  purser,  as  aforesaid,  for  the  sum  of  $2,000,  under  the  head 
of  '  Pay  Afloat,'  to  be  paid  to  him,  the  said  Watkins ;  and  did  then  and 
there  pretend  to  the  said  Samuel  L.  Southard,  Secretary  of  the  Navy  of 
the  United  States,  as  aforesaid,  that  the  said  sum  was  required  for 
the  use  and  service  of  the  United  States,    and  did  then  and  there  I 
pretend    that    the    said    S.   Hambleton,   purser,    as    aforesaid,    had 
drawn  drafts  upon  him,  the  said  Tobias  Watkins,  to  the  amount  of 
the  said  $2,000,  and  that  he,  the  said  S.  Hambleton,  had  requested  the 
said  requisition  to  be  isr      1,  for  the  purpose  of  meeting  and  paying 


^>. 


&rv. 


'V* 


^V%> 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


1.0 


I.I 


1.25 


•  50      *^ 

:!  m 

*^        140 


—    6" 


2.5 
2.2 

zo 
1.8 


U    IIIIII.6 


^^ 


'/ 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N...  14580 

(716)  872-4503 


%■ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


C^ 


UNITKO    STATF.s    ".  WATKINS. 


117 


"•;""'..    :^rveitl.U,ion  so  ,n:ule  to  hin.  .,  .!..•  sai.l  Tobias  U  at- 
;'■  .f      <     Kan.!   ln.li..vin.  tho  sai.l  su,n  of  S:^.:  "^  .=  .  n..,mn..l 

,W  tlu.  use  a..a  servu.-  of  U.-  I  n      I  M  U  ^^^  ^^^^_ 

hlo.on  bad  .Irawu  drafts  "1-n   l.n  u  t   .  ..        1  „^^„„,.,,„,  „,i 

:uu,.u„t  of  the  said  ^2..)..o,  u.ul  t  at    .,  .  ^^^  ^^^^  ^^_ .,_ 

,„,uosted  a  ,vM..isition  to  be  >ssu..d,    .•^^'-/^    '.,,   „^.^,,,,,,,  ^f  u,. 

„„.  ,.,„.  said  WatUins  to  ^^^^^^1^^;^^^^^^^  ia.vh  .,  1^27, 
N.vvM.tc.,  which  letter  Cna.v.b-tl--^  en  R  ^^__^^^^  ^^^^  ^  .^^ 

,,t  fnrth  in  the  first  count).  Ay..  ^""'^";  "'^  •'  ..^,..  „f  ^,,,  T.ea>.n  v 
,„,„isiUon  to  be  issued,  ete.  ;  ^^^^''^^^^'''  '^^^^i"^^  ^,,n.,,  i. 
„i,a  „is  .arrant  to  the  T-asure,s  etc.       u      e  .nd  ^     .^  .     ^^^  ^^^^ 

^-'  "^  ^rt;::t;tr;r  u:;ia:d::^^^     thedefend. 

;;r^^':':y  ,  '^t  n.u!td  m  fJet,  the  said  sun>  of  n,oney.  in  the 

>;inl.  loi   any  sum       i  ..„e.,i,i    .ir^iwu  <lraf1s  upon  hini,  the 

-.ids.  Ilambleton,  purser,  as   =^^""'^'"''' '''''7"  , ',.  ,  ,  • ',  .,.i,„Moton 

■  t  ^e  «•)  iwin  •  nor  had   tlie  saiu   ii.iniou  ton 

:;';:  i:\Sn       te  .».  he  made  his  said  application  for  t  e  renu.s- 

,.,,,„„.   but  then  and  there  intendcl  to  defraud  theln.tid  Stat.snt 

;       "n       nd  to  convert  the  said  sum  of  money  to  his  own  proper  ..se 

,:      :fit;  and  did  by  means  of  tl- ^^1- -d  deee.tfu   means  a  o    - 

I     1  f,..M  d  the  snid  rniti'd  States  of  the  said  sum  of  S-'.OOd,  and  .U<l 

::;::;;r:;:t:t::::t.,..-ap,.o.H.,..|,^;.^.;-.»M 

„„l  benefit ;  to  the  preafc  damage  of  the  I  mted  Mates. 

,„..„,  .K.,nur,cr.  ^^  _^  _^^  ^^^^  ^^.  _^,,^,  ,„  ,„^  „ 

r„,|,;;::    Thr;.;„..>v  h,di<.....«»  l-o  1«...  fu,„„n,y.„.  .n,„„  ,u,y, 


L'lS 


I'ltAI   l>    AM)    lAI.Si:    IMM'.TF.NSKS. 


til  whic'li  tlio  (lifiMitlanl  li;is  (It'innrrcd.  Tlic  first  ground  nf  doimirrcr  h 
coinmoii  to  tlir  llircc  iii(]ictiiiciits,  and  if  avuil!it)li>  at  :dl,  is  a  har  to  any 
prosciMilion  wlialcvcr.  for  the  matters  thi-roin  cliar<j:i'd.  It  supposes 
tiie  cliarf^c  in  oacli  casi-  to  lie  intTcly  of  ollii-ial  niiscoiiduct  of  tlio  dc- 
fi'nd.'iiit,  :is  Fniirtli  Auditor  of  tiic  Treasury  Dcpartniciit  of  the  Unitid 
States,  ill  wliicli  case  it  is  contended  ]>y  the  counsel  of  tlio  defendant,  that 
it  is  an  offense  exclusivelv  against  the  I'nited  Stales  in  their  national  char- 
acter, in  wliich  character  they  have  no  common  law  ;  and,  therefore,  there 
(•an  1)C  no  offense  afrainstihe  I'nited  States  ( in  that  character),  which  has 
not  lieen  delircil,  and  its  jiunishniciit  |)rescrn)ed  hy  statute.  And,  that 
as  there  is  no  statute  applicable  to  the  matters  charged  in  these  indict- 
nieifts.  tliose  matters  are  not  indictable  or  cognizable  l)y  any  court  of 
the  I'niteil  Slates  as  such.  That  .as  the  creation  of  ollices  and  ollicers, 
and  their  duties,  are  jnatters  of  exclusive  Federal  legislation,  and  as 
tile  judicial  iiowor  of  tne  I'nited  State."  is  co-extensive  with  its  legislative 
})ower.  no  State  court  can  take  cognizance  of  the  malveisations  in  ofliee 
of  any  Federal  ollicer.  That  this  court  can  not,  b\'  virtue  of  an}-  trans- 
fer  ()f  jurisdiction  by  Maryland  to  the  I'liited  Stati's,  exercise  any  Juris- 
diction, which  a  State  court  in  Maryland  could  not  havi;  exercised  <in 
the  27tli  of  Fel)ruary.  IMOl,  or  on  tiie  first  Monday  of  I)ecenil)er,  18(li). 
when  this  district  became,  by  law,  the  seat  of  the  government  of  the 
I'liited  States;  and  as  no  court  in  Maryland  could,  at  that  time,  have 
had  cogui/ance  of  the  matters  charged  in  these  indictments,  it  follows 
that  this  court  has  no  cognizaiu'c  of  tliein  by  viitui;  of  any  authority  de- 
rived by  the  Fnitecl  St:ites.  from  .Maryland,  by  virtue  of  the  session  of 
tiiis  part  of  the  District  of  C"oluml>ia. 

This  doctrine  may  or  may  not  be  correct;  l)ut,  if  correct,  it  does  not 
apply  to  the  present  cases,  if  tiie  charges  in  these  indit'tments  be  not 
for  olliiial  misconduct  of  tin,'  defendant,  as   an  otlieer  of  the  national 

grivrnillient. 

Ill  idiisidering  the  demurrer  to  the  former  indictments  against  thi'* 
<leti  iidaiit,  the  court  was  satis'ietl  tiiat  tiie  cliai'ges,  in  those  cases,  were 
i<'V  ollieial  miseondiiet,  but  for  frauds  at  common  law  ;  and.  in  that  re- 
speit  we  see  no  material  diffi'rence  between  those  indictments  and 
tliese. 

It  is  true  that  the  first,  of  these  indictments  avers  that  tlie  defendant 
was  Fourth  Auditor,  etc..  at  tlie  time  whi'ii  he  did  the  act  coinplaiiied 
of,  and  sets  forth  so  niueii  of  his  duty  as  sueji  Fourth  Auditor,  and  so 
miieii  of  the  duty  of  tlie  inivy  aixent.  as  w.is  supposed  necessarv  or 
pr<iper  to  show  tiie  defendant's  letliT  and  draft,  on  the  Idth  of  Jan- 
uary. 1-<L*S,  might  deceive  or  ini|)o«e  njxin  tlie  n:i%-y  agent,  so  as  to  in- 
duce him  to  j)ay  tli(>  ilraft ;  and  liow  Ins  pr-'tense,  that  the  sum  of  $7.')0 
was  reipiired  for  the  use  and  service  of  the  navy  of  the  I'nited  States, 


IMTKI)    SIATKS    V.   WATKINS. 


LM'.i 


>f  (loiiHirrcr  i-s 
>  !i  lt:ir  to  any 
It  supposes 
ict  of  the  (Ic- 
of  the  TTniti  .1 
I'fc'iidiint,  that 
iiMtionalchar- 
uTi'fori',  there 
lt),  which  hiis 
e.  And,  thiit 
1  thcsi'  iiulict- 
■  any  conrt  of 
s  and  olliceis, 
latioii,  and  as 
I  its  legishitivc 
lions  in  oflitv 
of  any  trans- 
.'iso  any  jiiris- 
:  cxcreiscd  <in 
M"nil)i'r,  1800. 
rnnu'nt  of  the 
mt  time,  have 
nts,  it  follows 
antliority  de- 
;hc  session  of 

•t,  it  does  not 
tiuents  he  not 
f  the  national 

:s  apjainst  this 
<c  cases,  were 
:id.  in  tiiat  re- 
ictments   and 

tiic  dofondan' 
;'t  complained 
iditor,  and  so 
neo'ssarv  or 
Wdh  of  Jan- 
t,  so  as  to  iir 
'  Slim  of  $7">o 
'nited  Stales, 


f,,r  pivinen!  of  urrearafres,  mi-ht  deceive  or  impose  ni.on  the  Secretary 
,,f  the  N-.vv.  to  in.lnee  h=m  to  increase  tlie  requisition  in  favor  of  Mr. 
,.,„l,li„,.  :.nd  to  show  whv  those  ofllcers  should  have  -iven  their  conh- 
,U,,ec  to  ihe  dc.ondant.  But  tliis  averment  of  his  „Hieial  eliaracter  and 
,l„lvs  is  not  an  averment  that  the  acts,  with  wiiieh  he  is  chai-ed,  were 
..ommittod  in.  ur  l.y  virtue  of,  his  ollico,  or  constituted  any  violation  or 
nc'dect  of  Ills  oUieial  iluties. 

U  has  l.eeti  justly  observed,  tliat  t.i  char-je  that  the  defen.lant,  hems 
Fourth  Au.litor,  etc.,  commitle.l  larceny  or  robbery,  or  mur.ler,  is  not 
to  ( iiir"-e  him  with  oilicial  malversation. 

ri,>.  ,",urt  is.  theref..re,  of  opinion  that  these  indictments  (for  that 
which  we  have  just  considered  appears  to  i)e  the  strongest  ease  in  favor 
of  the  defendant,  upon  this  point),  do  not  char.ije  the  delen.hmt  with 
olVieial  misconduct  onlv,  Imt  that  they  stand,  in  this  respect,  up,.n  the 
,1k.  -une  .nound  as  those  upon  which  tiie  former  opinion  of  this  eonrt 
was  ^riveu?  which  opinion,  we  thinlv,  is  not  shai<.M.  by  th.'  ar-ument  in 
M,r  present  cases,  but  is  as  applic;'l>K'  to  these  as  it  was  to  tiin-,e. 

Hut  it  is  said,  that  if  tlie.c  indictments  are  not  for  otlicial  misconduct, 
yet  each  of  tiiom  is  insulUcient.  for  want  of  preei^.  and  I'xplicit  aver- 
iucMls  of  the  deceitful  practices  ,by  whicli  the  frau.ls  are  supposed  to 
lK.^vbeen  effected,  and  that  the  frauds  were  effected  by  means  of  such 

d.iei'.ful  practiees. 

With  a  view  to  this  question,  it   will  be  necessary  to  examine  them 

separately. 

The  iirU  is  for  tlie  S7:.0  o!)tained  from  Mr.  Tauldint,'. 

After  s.ntin-  out  the  olHcial  character  of  the  defendant,  as  Fourth 
\uditor  and  his  duties,  the  authority  of  thc^  Secn-tary  of  the  Navy,  to 
i^.ue  requisitions  to  the  Secretary  of  the  Treasury,  and  of  tlie  latter  to 
..nnt  warrants  on  the  Treasurv  of  the  Tniled  State.,  accordin-  to  such 
r,.,.Mi.iti.)ns.  the  ollieial   <'haracter  of  Mr.  I'aulding.  and  a  pnrt  of  his 
du'.ies  as  Xavv  A-ent :   and  tliat  an  appropriati.ui  of  S-o.ooO  had  been 
tnilr  bv  law  .,n  the  -J.l  of  March.  1S-J7,  for  the  us.^  of  th.^  Navy  Depart- 
,n,  ,.t.  for  arrearages  prior  to  the  1st  of  January.  ls27,  the  indictment 
ehar-es  that  the  defendant.  l>ein-  Fourth  Au.litor.  etc.,  and  intending 
fraudulently  and  unjustly  to  obtain  and  a<-.iuire  for  himself,  and  for  his 
own  i-rivate  use.  the  money  of  the  rnit.>d  Slate...  with  force  and  arms 
„„  the  Ifith  of  January.  is-.'S,  at  Washington  County,  in  the  District  of 
Cnhimbia.  falsely   and  fraudulently  wrote,    addressed,  and  caused   to 
he  sent  to  Mr.  I'auldiu-.  navy  a-enl  in  New  York,  a  letter  of  that  date 
in  the  words  and  tijtures  followino;:  — 

'•Treasury  Department.  Fourth  Auditor's  Olllce.  January  IC.  lSi.'8. 
Sir—  I  have  this  day  drawn  on  you  for  -even  hundred  and  fifty  dollars, 
m  favor  of  C.  S.  Fowler,  on  one  day's  sight.  lo  meet  which  a  ivmittanee 


J20 


KUALl)    AM)    FAI,sr,    ri.'KTIONSKS. 


will  1(0  iii;i(k'  to  you  l)y  tlu-  Tri'iisiiriT  of  tlio  riiitcil  States,  ho  soon  u- 
tlic  nM|iiisili(>a  can  pa^s  llinmjrli  ilic  forms  of  ulliei',  under  tlic  licad  of 
'Anvarajres  |)rior  to  \s-27,'  of  tlio  like  sum,  and  to  tliis  lieud  you  will  hi. 
pleased  to  cliar<re  the  draft,  wlien  paid.  The  draft  is  made  atone  day\ 
.sii,dit,  that  time  may  he  allowed  for  the  remittanee  to  reach  you  in  due 
season;  but  should  anything  occur  to  prevent  this,  you  will  he  please.! 
to  i)ay  it  out  of  any  fund  in  your  hauil,  and  make  the  necessary  transfer 
on  tlie  receipt  of  the  Treasurer's  draft.  1  am,  respectfully,  your  oiie- 
dieiit  servant,  T.  Watkins.     J.  K.  Paidding,  Navy  Agent." 

And,  on  the  same  day,  at,  etc.,  made  his  draft  on  Mr.  Paulding,  navy 
agent,  as  aforesaid,  aeeonlir)g  to  the  advice  of  the  said  letter,  in  favor 
Of  ('.  S.  Fowler,  for  the  said  sum  of  $7.")<),  and  then  and  there  sold  an.l 
delivered  it  to  the  said  KowU -.  and  received  of  him  therefor  the  said 
sum  of  87.'»().  and  kept  and  disposed  of  the  same  for  his  own  use ;  whieli 
draft  was  afterwards  paid  hy  the  said  Navy  Agent,  out  of  the  money^ 
of  the  I'nited  States  in  his  hands. 

The  indictment  furth<'r  charges,  in  the  same  count,  that  the  said  J. 
K.  Paulding,  navy  agent,  as  aforesaid,  on  the  Kith  of  January,  1828. 
wrote,  addressed,  and  sent  to  the  S(>cretary  of  the  Navy  a  letter,  re- 
questing iiini  to  i^>;ue  a  requisition,  in  his  favor,  for  the  sum  of 
$1:.M:!'.I.12,  under  certain  specilied  hey  -i  of  appropriation,  the  head  of 
"Arrearages"  not  being  one  of  them  /hich  letter  was  received  by  tlie 
Secretary  of  the  Navy,  at  Washington,  on  the  P.»th  of  January,  IHl's. 
That  the  defendant  then  and  there,  l)eing  Fourth  Auditor,  etc.,  and  in- 
tending fraudulently  and  unjustly  to  acquire  for  himself,  and  for  his 
own  private  use,  the  uKuiey  of  the  I'nited  States,  and  well  knowing  the 
premises,  with  force  and  arms,  etc.,  on  tlie  said  lUth  of  January,  l«2s, 
at,  etc.,  did  falsely,  fraudulently,  deceitfully,  knowingly,  and  design- 
edly apply  to  the  Secretary  of  the  Navy  to  add  to  the  sum  for  which  Mr. 
Paulding  had  requested  a  warrant  to  be  issued,  as  aforesaid,  the  sum  of 
$7.'>0.  and  did  ther.  and  there  pretend  to  the  said  Samuel  L.  Southard,  Sec- 
retary of  the  Navy  of  the  I'nited  States,  as  aforesaid,  that  the  said  sum 
of  ST.'iO  was  re(iuired  for  the  use  and  service  of  the  navy  of  the  United 
States,  for  the  payment  of  cl.aims  adjusted  and  settled  under  the  appro- 
priation for  arrearages  due  by  the  Navy  Department  of  the  United 
States,  ))rior  to  the  1st  of  Janu.i-^,  1827;  and  did  then  and  there  un- 
lawfully, fraudulently,  deceitfully,  and  designedly  cause  and  procure  to 
be  is-;ucd  by  the  said  Samuel  L.  Southard,  then  being  Secretary  of  the 
Navy  of  the  I'nited  States,  as  aforesaid,  a  requisition  to  the  Treasurer 
of  the  United  States,  for  the  said  additional  sum  of  $7M ;  and  did  cause 
and  i)roeure  the  said  sum  of  ?7.")(>  to  be  added  to  the  said  requisition  of 
Sl2.l;i!t.l2.  which  the  said  J.  K.  Paulding  had  requested  to  be  i.ssued. 
as  aforesaid,  thereby  causing  the  saicl  sum  of  §12,889.12  to  Ik'  inclmled 


>tati's,  so  90011  II- 
under  the  licaii  nt 
is  heud  you  will  In 
iDiidu  ntono  day- 
roach  yo'i  in  diu 
ou  will  be  j)lea>t<i 
ncccssiiry  transfer 
etfully,  your  hIil- 

IJt'Ut." 

Ir.  Paulding,  navy 
ilil  letter,  in  favor 
md  there  sold  aiiil 
I  therefor  tiie  sniil 
is  own  use  ;  wliicli 
ut  of  the  moneys 

,  that  the  said  J. 
jf  January,  IH'JS, 
Navy  a  letter,  rc- 

for  the  sum  of 
ation,  the  head  of 
IS  received  by  tlio 
)f  Januar}-,  18i's. 
iitor,  etc.,  and  in- 
uself,  and  for  his 
well  knowing  thr 
)f  January,  l«2s, 
ngly,  and  design- 
sum  for  winch  Mr. 
resaid,  the  sum  of 
L.  Southard,  See- 
that  the  said  sum 
ivy  of  the  I'nited 

under  the  appro- 
it  of  the  United 
en  and  there  un- 
se  and  procure  to 
■  Secretary  of  the 
to  the  Treasurer 
50  ;  and  did  cause 
laid  requisition  of 
ted  to  be  issued. 
12  to  Ik'  inclmled 


IMTKP    ST.\Ti:S    r.  WATKINS. 

„>e  ..id  requisition,  instead  of  the  sum  of  S12.l:;:U2,  .o  requiivd 
'        V      hJl  i.l  .1.  K.  l'.nldin,,  as  aforesaid  (which  rcqms.t.on  is  s 
^•;i;,   words    ndn.ures),  which  said  sum  of  S12,H^..  1:^.  nient.onod 
'  lr..misition   was  in  conformity  tlu-reto.  by  warrant  under  the 

111  fad,  IH,  11'^  s.iiii  .,   jpf,,,  sitioii  m- 

n  1-.W.W  iliil  the  said  sum  of  bi->^>i  I'l  lue  >.nu  n<i 

.    ,^0     l.»  navy  of  lUo  l-..iwJ  St.los  U.t,  tl,..,  an.l  tl,.io     ,- 

;:::;::i;:„;:;r.:rco..a,,n.Mn.„..>i„.,.s»,^ 

i„.r  ,lr>t  the  navy  age.,t  had  asked  for  a  requisition  foi  S1-,  1-'  on.  , 
;  :  1 'i:.;f  jLi^ry,  I^^H,  appned  to  tl>«  Secretary  o  the  Isavyo 
■M  <^7.-.0  to  the  requisUion;  and  falsely  pretended  that  it  was  for  the 
',■:  L  and  service,  and  caused  a  requisition  to  be  ^--^  J  ^  ;^  ^  ;^ 
II..  .7.0,  which  sum  was.  in  conformity  there  o.  ^'^™f  ^'  ?  ^^ 
Uu.  Trea  ury  of  the  United  States,  and  phuanl  m  the  hands  of  he  n.,x> 
:!;,!t    and  did  thereby  defraud  the  United  States  of  the  said  muu  of 

''iL  objection,  we  think,  can  not  be  sustain.!.  U  --  J;;  Jj^ 
court  that  this  count  charges  only  one  offense,  the  ^^^^^^J^ 
r„it..d  States  of  the  ^ToO,  by  the  means  set  -'^ ;';/^'  ^^  ^^^J;;, 
■1-he  first  part  of  the  count  charges  only  some  of  the  '"'""^"^  ^  ^^^ 
,.,.,„„,•.,!  the  fraud  ;  the  second  part  states  the  -uUie  and  Us  a^  i  d 
a«.oniplishment,  which  is  averred  to  have  ^-'y^--/'"  „  ^  ,;';t 
w„rd.  the  counsel  for  the  defendant  have  justly  said,  icfus  to  the 
whole  preceding  matter  contained  in  the  count. 


222 


rUALU   AND    FALiSK    I'KETKNSKS. 


The  next  ()t)jection  is.  that  it  does  not  appcur  in  the  count  by  wliat 
tleci'itful  practices  tlie  (U'fendaut  got,  or  t  ilil  have  got  the  money  of 
the  United  States  out  of  tiie  hands  of  the  navy  accent;  for  until  Iki  ■ 
money  was  got  out  of  his  hands,  the  offense,  it  is  said,  was  not  com- 
pliite.  The  false  pretense  to  the  Secretary,  it  is  supposed,  only  slio\v< 
llie  deceit  by  wliichthe  money  was  drawn  from  the  Treasury,  and  iiiaccil 
pi  the  hands  of  the  navy  agent;  but  that  wujs  no  fraud  on  the  Unitcii 
States,  for  it  was  safe  in  his  hands. 

Iiut  the  answer  to  that  objection  is,  that  the  getting  the  money  on- 
of  the  Treasury  was  a  necessary  link  in  tlie  chain  of  means  to  acedn:- 
plish  the  fraud  J  and  if  that  single  link  was  obtained  by  the  deeeptiw 
practices  of  tlio  defendant,  those  deceptive  practices  are  as  effectual  in 
constituting  the  offense,  as  if  every  other  link  in  the  chain  had  beih 
forged  by  the  like  deception. 

Another  objection  has  been  taken  to  this  indictment.  It  is  said  thai, 
in  order  to  show  an  indictable  fraud  in  tliis  case,  it  must  not  oul\ 
appear  that  the  defendant  drew  the  draft  on  Mr.  Paulding  and  tl- 
ceived  the  money,  and  tliat  the  draft  was  i)aid  by  Mr.  Paulding  out  of 
the  public  moneys  in  his  hands,  but  that  the  reqiusition  which  was 
obtained  by  false  pretenses,  and  by  means  of  which  the  money  was 
drawn  out  of  the  Treasury,  and  placed  in  the  hands  of  Mr.  Paulding, 
should,  by  a  proper  averment,  be  connected  with  the  transaction 
between  the  defendant  and  Mr.  Paulding,  in  regard  to  the  draft,  which, 
it  is  supposed,  is  not  done  in  this  indictment ;  and  that,  as  there  does 
not  appear,  on  tiie  face  of  the  indictment,  any  connection  between  the 
SToO  drawn  for  and  received  by  tlie  defendant,  and  the  $7.^0  transferred 
from  the  Treasury  to  tiie  navy  agent,  it  must  be  inteudod  that  there 
are  two  distinct  sums  of  S7oO  mentioned  in  the  indictment;  and  thai, 
tlierefore,  when  it  is  said,  in  the  conclusion  of  the  indictment,  that  the 
defendant  "  did  thereby  defraud  the  United  States  of  the  gaid  sum  of 
S750,"  it  is  uncertain  which  of  the  two  sums  of  $750  is  meant;  and 
that,  therefore,  the  indictment  is  bad  for  uncertainty,  and  f(n-  not  con- 
necting the  defendant's  receipt  of  the  money  with  the  false  jiretenses. 

It  has  already  been  said,  by  this  court,  that  the  getting  the  money 
out  of  the  Treasury  was  a  necessary  link  in  the  chain  of  means  to 
accomplisli  the  fraud;  ami  that  if  that  were  done  by  the  deceptive 
practices  of  the  defendant,  those  deceptive  practices  are  as  effectual  in 
constituting  tlic  offense,  as  if  every  otiier  link  of  tlie  chain  had  Ijeeu 
make  by  the  like  deception. 

Rut  it  is  now  urged  that  the  links  of  that  chain  are  not  connected ; 
that  the  ciiain  consists  of  two  parts,  which  have  never  been  joined ;  and 
that  the  false  pretense  is  applicable  to  one  of  those  parts. 


'"'M 


UNITKI)    STATKS    ('.  WATKINS. 


ill  the  count  by  wliat 
ive  gut  tljo  moiK'y  of 
iii,'eiit ;  for  until  tliu 
is  said,  was  rot  ccmi- 
iipposcd,  only  slunvs 
rreasury,  and  jiIuclmI 
fraud  on  tlie  United  || 

etting  tiie  money  out 

of  means  to  ucedin- 

ncd  by  the  ueceptivc 

es  are  as  effectual  in 

the  chain  had  been 

lent.  It  is  said  that, 
e,  it  must  not  ouh 
r.  Paulding  and  le- 
Mr.  Paulding  out  of 
iquisition  which  was 
hich  the  money  w;is 
ids  of  Mr.  Paulding, 
vith  the  transaction 
I  to  the  draft,  whicii. 
id  tliat,  as  there  doe.s 
nnection  between  tlie 
I  the  $750  transferred 
3  intended  that  there 
ndictmcnt;  and  that, 

indictment,  that  the 
tis  of  the  said  sum  of 

$750  is  meant ;  ami 
aty,  and  for  not  cou- 
h  the  false  jiretenses. 
he  getting  the  money 
e  chain  of  means  to 
ne  by  the  deceptive 
;e3  arc  as  effectual  in 
f  the  chain  had  been 

in  are  not  connected ; 
iver  been  joined  ;  aiul 
B  parts. 


Tlio  chain  of  facts  is  this :  —  -.t       i-     i     • 

f    n' "ter  from  the  defendant  to  the  navy  agent  at  New  ^^  m 
whiili  he  informs  him  that  he  has  drawn  on  him,  ui  favor  of  C.  S. 
•     ir     o   $7;.0,  at  one  day's  sight,  to  meet  which,  a  remittance  o    a 
Mm  will  be  ma.le  to  the  said  navy  agent,  by  tlie  Ireasurc.-  of  the 
,      Sta    s  as  soon  as  the  requisition  can  pass  through  the  forms  of 
,t  m  t^ri^ad  of  ^.ArrLages  prior  to  1«27,"  and  that  to  tins 
'U     hould  charge  the  draft,  when  paid  ;  and  that,  if  the  remittanc 
,    no    re^eh  him  in  due  season,  he  should  pay  it  out  of  a.iy  fund 
■:;;!.^ls,td  make  the  necessary  transfer  on  the  receipt  of  the 

"r  xll^^dr^drawn  on  the  same  <lay,  according  to  the  advice  of  the 

*  l^The  sale  of  the  draft  to  Mr.  Fowler. 

,    q-,„  ,,ceipt  of  the  money,  by  the  defendant,  from  Mr.  low  lei. 

6.  The  payment  of  the  draft  by  the  navy  agent  out  of  the  moneys  of 
tli(>  rnitcd  States  in  his  hands. 
";    The  requisition  and  the  Treasurer's  draft,  in  conformity  with  the 

■ismivance  contained  in  the  letter.  ,        '^ 

7    The  false  pretenses  by  which  the  requisition  and  the  Treasure,- s 

,,.aft  were  obtained;    and  by  which  the   $750  were  drawn  from  the 

•rieasurv  and  placed  in  the  hands  of  the  navy  agent.  ,,,,,.,, 

s    The  averment  that  the  defendant  .lid  thereby  defraud  the  I  n.te<l 

States  of  the  said  sum  of  $750.  .  *» 

We  see  no  want  of  connection  in  this  chain.     The  Treasurer  s  ,u  .ft 
which  transferred  the  750  dollars  from  the  Treasury  ;«  ^l- l'-^^- 
Mr.  Paulding,  is  as  much  connected  with  the  origina  ^^f  ^•?-  ^^ ^^'^  ^    '' 
of  January,  as  the  draft  of  the  defendant  is  connected  with  it.     1 1  ey 
are  both  mentioned  in  that  letter;  and  Mr.  Paulding  had  as  good  a 
,i.ht  to  expect  the  one  as  the  other.     It  is  true,  there  are  other  facts 
m^itioned  in  the  indictment,  l>ut  they  are  only  such  -\-^^^-'J'^^^^ 
10  show  the  false  pretenses  by  which  the  defendant  obtained  that  Treas- 
ury draft;  and  do  not  break  the  connection  of  the  material  circum- 
stances by  means  of  which  the  fraud  is  supposed  to  have  been  effected 
If  the  allegation  respecting  the  Treasury  warranv  l>ad  "nmediate  y 
followed  the  averment  of  the  payment  of  the  draft  by  Mr   Pauld.ng 
and  it  had  been  introduced  by  such  words  as  these :  "  An.Uhe  juiors 
aforesaid,  upon  their  oaths  aforesaid,  further  present  that  t be  sa 
Tobias  Watkins,  in  conformity  with  the  assurance  contained  m  the  said 
letter  of  the  IGth  of  January,  1828,  afterwards,  to  wit   on   he  IJth  of 
Jar.uarv,  1828,  at  the  county  of  Washington  aforesaid,  did  cause  the 
like  sum  of  $750  to  be  drawn  from  the  Treasury  of  Umted  States,  and 


221 


IKAI  i>  AM)  I  Ai.sK  i'i;i;ri:\sKs. 


placed  ill  tlu-  lifiiuls  of  Ww  Hni<l  .1.  K.  I'iiiiUliiiij:,  niivy  a<»iMit  U'*  nforo^^iii  i. 
liy  means  nf  a  warrant  issued  liy  llie  Secretary  of  the  Trpastiry  of  ihr 
I'liitiMl  States,"  etc.,  and  if  it  iiad  been  followed  ))y  the  proper  a*,  i. 
iiieiit  of  tlu!  deceitful  practices  used  liy  the  defendant  to  obtain  tin 
warrant,  we  tliiiik  this  ohjcction  would  not  have  been  taken  ;  yet  ilif 
words  '•  in  coiiforniity  .ilii  the  assurance  contained  in  the  said  letter  nf 
the  ICith  of  January,  1H2H,"  would  have  lie(  n  only  an  averment  of  an 
inference  of  law  from  the  facts  stated.  For,  wliether  the  reinittaiii  i 
was  in  confonnily  with  the  assurance  contained  in  the  letter,  wm-  ;i 
mere  ([iiestion  of  law;  it  would,  therefore,  have  been  an  iinniuteriMl 
averment,  and  would  have  aniouuted  to  nothing  more  than  the  l;iw 
would  infer  from  a  comparison  of  the  terms  of  the  letter  with  the  nvei- 
meut  n'spectiiig  the  warrant.  AV«-  think,  therefore,  that  theconnoctitm 
iietween  tin;  defendant's  letter  of  the  HUh  of  January,  182H,  and  \n- 
draft.  and  the  Treasurer's  remittance,  is  sulliciently  apjiarent  ii])on  tin 
face  of  the  indictment;  and  that  it  does  sulliciently  appear  that  tlic 
.ST.Mi,  of  which  the  defeiidaiil  is  charj,red  with  defrauding  the  I'niteil 
States,  are  tiio  87.')l)  included  in  the  requisition  and  warrai>t,  which  tin 
defendant,  by  anticipation,  perhaps,  drew  out  of  the  hands  of  the  navy 
ageiil.  through  the  medium  of  Mr.  Fowler,  the  broker. 

We  have  said,  "  by  anticipation,  perhaps;  "  for  it  docs  not  appenr, 
upon  the  indictment,  whether  the  Treasurer's  remittance  reache(J  Mi. 
rankling  before  or  after  he  had  ymd  the  draft.  Nor  is  that  questicm 
material ;  for  if  he  paid  it  before  he  i.  .'cived  the  remittance,  he  paitl  it 
uiton  the  assurance  of  a  remittance  which  was  afterwards  actuallj^  made. 
In  either  case,  diereiorc,  be  paid  it  out  of  the  moneys  of  the  United 
Slates  in  his  hands. 

It  seems  to  us,  therefore,  that  the  chain  of  facts  and  circumstances 
which  are  set  forth  in  the  in<lictment,  as  the  means  of  effecting  the 
supposed  fraud,  are  sulliciently  connected  ;  and  that  the  deceitful  prac- 
tices averred  to  have  been  used,  by  the  defendant,  in  obtaining  one  of 
those  means  (namely,  the  reiiuisition),  infect  with  fraud  the  whole 
transaction,  as  it  ai)i)ears  upon  the  face  of  the  indictment. 

Another  objection  taken  to  this  indictmc^nt  is,  that  the  offense  wns 
not  complete  until  the  money  was  pnid  by  the  navy  agent  in  New 
York,  and  that  unless  all  the  acts  which  constitute  the  fraud  were  com- 
mitted in  this  county,  this  court  has  not  jurisdiction  of  the  cause. 

It  was  suggested,  however,  that,  even  if  that  doctrine  be  correct,  it 
will  apply  only  to  the  acts  of  the  defendant  himself,  and  not  to  Iho 
act  of  the  navy  agent  in  New  York  who  i)aid  the  money. 

Hut  to  this  it  was  answered  that  Mr.  F'owler,  in  whose  favor  the  bil! 
was  drawn,  anil  who  received  the  monev  from  the  naw  agent  in  New 


IMTIJ)    STATKS    r .   WATKINS. 


•J  J.) 


nt  !i^  nforosni'l. 

'iciisnry  of  tlir 

!u'  proper  a' vi. 

to  obtain  tin 

tilkoil  ;  yet  I  lie 
at  said  letter  i.f 
ivcnueiit  of  ail 
tiic  ri'iuittaim 
u'  letter,  avm>  ;i 
nil  iinni:iteri:ii 
tlian  tile  l:iw 
•  witli  the  nviM- 
,  the  connect  ii III 
,  182H,  and  iii- 
arent  upon  tin 
ppear  tliat  tlic 
iug  llic  I'niteil 
rant,  wliieli  tlu' 
ids  of  the  navv 

oes  not  appear, 
re  reachtuj  Mi. 
is  tiiat  questiiiji 
inoe,  he  i)ai(l  ii 
aetuallj'  uiadi'. 
!  of  the  Uniti'il 

I  cironmstaneo 
pf  effect  iiifj;  tiic 

deceitful  prac- 
ibtainiii<j  one  of 
•anil  the   wholi; 
nt. 
the  offense  was 

agent  in  New 
rand  were  com- 
the  cause, 
c  lie  correct,  it 
and  not  to  llio 

3e  favor  the  hill 
V  agent  in  New 


Y.irk.  was  the  innocent  agent  of  the  defendant,   and  acted  under  his 
iiiitlioritv  in  receiving  the  iiionev  tliere. 

Atlniitling  tlii.s  to  Ix;  so,  yet  Sir.  Fowler,  with  some  reason,  may  he 
considered  as  the  innocent  agent  of  Sir.  I'aulding  in  paying  the  money 
lieri',  in  Wasiiington  ;  for  his  act  was  ratified  by  Mr.  I'aulding,  when  he 
:iece|ite<l  and  |)aid  the  bill  in  N*'W  York  ;  and  a  ralilication  is  equivalent 
to  an  original  authority,  -iccording  to  the  maxim  which  the  common-law 
lawyers  have  drawn  from  the  civil  law,  omnix  ratUiabitio  retrotnihitur, 
(«•  iii'Duhttn  iiiiniiMratitr  ' 

riie  di.Mountof  a  bill  is  only  the  anticipation  of  the  fund  upon  which 
tiie  hill  is  drawn.  Tlie  nuiney  is  acivanccd  on  the  credit  of  the  bill,  and 
ill  the  expectation  that  it  will  be  accepted  and  jiaid.  If  it  be  accepted 
and  I'aid,  the  broker  wiio  discounted  it  is  reimbursed.  His  act,  in 
ii.Uancing  the  money,  has  been  ratified  ;  and  the  drawer  of  the  hill,  for 
whose  acconunodation  it  was  discounted,  has  got  by  anticipation  the 
V.  ly  fund  ujion  which  he  drew.  The  ratification  by  the  drawee,  of  the 
iiet  of  the  liroker,  relates  to  the  time  of  that  act,  and  coii.stitutcs 
the  money  advanced,  tiie  money  of  tlie  drawee,  at  the  very  time  of 
:eiv:meiii!i  it.  In  the  present  case,  the  defendant  did  not  receive  the 
iiiMiiey  of  the  United  States  in  New  York  ;  he  received  it  at  Washington 
liMinMr.  Kowler,  who  advanced  it  n  the  credit  of  the  bill;  and  when 
111.'  navy  agent  in  New  York  paid  the  bill,  he  ado|)te<l  and  ratified  Mr. 
I'.wler's  act  in  advancing  the  money,  and  this  ratification  related  to  the 
liiee  of  the  discount. 

It  is  only  liy  a  fiction  of  law  that  it  can  be  pretended  that  the  de- 
f.  ii.lant  r.ceived  the  money  of  the  Tniled  Stales  in  New  Yiuk,  and  it  is 
not  a  greater  fiction  to  suppose  tliat  Mr.  Paulding,  by  the  instrument- 
ality of  Mr.  Fowler,  paid  the  money  in  Washington,  than  that  the 
.iifendant,  through  the  same  instrumentality,  received  it  of  Mr.  Pauld- 
iiii:  in  New  York.  If  the  defendant  received  Mr.  Fowler's  money  in 
W  a-liington,  and  afterwards  received  the  money  of  the  United  States  in 
New  York,  tlu'U  ho  must  have  received  the  money  twice,  which  is  not 
IHvtended.  Then,  if  he  received  TAO  dollars  only  once,  and  if  he  re- 
ceived 7")n  dollars  of  the  nuuiey  of  the  United  States,  the  T.'.O  dollars 
^^il;eh  he  received  was  the  money  of  the  United  States.  If  the  only 
iii..!iey  he  received  was  received  by  him  in  Washington,  and  if  he  re- 
ceived 7")()  dollars  of  the  money  of  the  United  States,  then  the  money 
of  the  United  States  which  he  received  was  received  by  him  in  AVash- 
ingt,.ii.  The  arguuu-ut  is,  at  least,  as  strong  in  favor  of  his  having 
rer  ived  the  money  of  the  United  States  at  Washington,  as  it  is  of  his 
lia\iii^  received  it  at  New  York. 

■  I>  -.(I,  17,  15:,-2.    Tlie  ingest,  50,  IT,  l.V.',        '• '"   maUihU,   ratiUahitin  mmi<laln  cmnpara- 
'.'.  .xteiiils  tlie  principle  to  criminal  ousi's—       tiir" 
o   I  )i:  FENCES,  1"> 


22ti 


rUALlJ    AM)    IAUM;    I'KKIKN.sKs. 


T^iit  tluTc  is  iinotlicr  view  <>f  ilii-i  siihject  wliidi  lia»  liccii  t;ikcn  1)\  'In 
(•(iiiiiscl  for  the  I'liili'd  Slutfs.  ami  wliicli  it  may  ln'  proper  fur  the  lour' 
to  iiotiri'. 

It  is  contt'inlod  by  llit'in  that  tli«'  offense  (meaiiiiij^  liie  offense  char;;!!! 
ill  (iiis  iiiiiietiiieiit,  wliicli  is  a  frami  iipmi  tin-  I'nited  States),  was  ci.in 
piete  wiieii  tiie  (h'feiKJaiit  .sold  llic  draft  ami  received  tiie  money  frm,. 
Mr.  Fowler,  and  lieforo  the  draft  had  been  paid  by  Mr.  Pauldinfj;  out  n' 
tilt!  mom  ys  of  the  I'nited  SItiles  iu  his  liamls ;  and  that  the  defemhim 
mi^dit  have  bei'ii  immediately  prosecuted  and  eonvicte<l  for  this  offeiiM 
even  if  Mr.  Taiildin^  had  refnsed  to  honor  th»'  draft,  Itecausi!  tlie  I'nili  , 
States  mi^lit  have  been  prejudiced  thereby  if.'  the  dnift  had  beei»  p:ii  i 
and  that  the  risk  wliieli  was  thereby  occasioned  to  tiio  United  States  hv 
the  drnwinjr  of  the  bill  was  an  actual  prejudice  to  tlie  United  States, 
although  that  prejudirc  is  not  stated  in  tluj  indictment  as  tiic  injury 
done  to  the  United  Slates  by  the  fraud;  and  althou-,'h  tlie  injury  alle^iil 
in  the  indictment  is  the  defrauding?  of  the  United  States,  by  the  defeml- 
ant's  fictlinj?  and  applying  to  his  own  use  7oO  dollars  of  the  money  et 
the  United  Stales. 

It  is  said  that  tlic  fraud  was  complete,  upon  somebody,  when  the  de- 
fendant received  the  money  from  Mr.  Fowler;  Unit  it  is  immateria' 
whether  it  was  then  a  fraud  upon  the  United  States  or  upon  Mr.  Fowlei  ; 
that  it  certainly  was  a  fraud  ujuui  one  or  the  other;  and  that  the  (K 
fendant  is  e(iuany  guilty  whether  one  or  the  other  was,  or  whether  buth 
were  injured  then-liy.  That  tiic  question  who  was  injured  thereby. 
or  how  injured,  tloes  not  affect  the  question  of  guilt.  That  tiiey  nic 
immaterial  circum-stonces,  and  need  not  be  set  forth  with  averment  of 
time  and  place. 

Hut  a  majority  of  the  court  is  of  opinion  that  this  indictment,  which 
is  for  obtaining  by  false  pretenses,  or  deceitful  practices,  750  dollars  of 
the  money  of  the  United  Stales,  could  not  have  been  maintained  if  Mi. 
Taulding  had  nut  paid  the  draft;  and  that  until  the  draft  was  paid,  the 
offense  charged  iu  this  indictnient  was  not  complete. 

Upon  the  whole,  it  is  the  unanimous  opinion  of  the  court,  that  none 
of  the  olijections  taken  to  this  iudiclment  can  be  suj-porled. 

As  to  the  second  of  these  indictments,  the  court  wishes  further  time 
for  consideration. 

As  to  the  third  of  these  indictments  (that  upon  the  transaction  with 
Mr.  Ilambleton),  the  principal  objection  is,  that  it  appears,  upon  its 
face,  tliat  the  offense,  if  any,  was  committed  more  than  two  y  ars  lie- 
fore  the  finding  of  the  indictroent  — tlie  time  limited  by  the  thirty 
second  section  of  the  Act  of  the  30th  of  April,  IT'.iO— by  wiiich  it  is 
enacted,  "'that  no  person  or  [lerscns  shall  be  prosecuted,  tried,  or 
punished,  for  treason,  or  other  cajiilai  offense  aforesaid,  willful  murder 


J 


I'XITKD    STATKS    r.   WAI'KINs. 


227 


liropcr  for  the  court 

''t  the  i/ffrnso  char;;!!! 
(I  States),  was  cuin. 

Vl'll    tlu'  IlloIli'V  fl'oiii 

Mr.  Paiil(liiij>j  <iut  uf 
Hint  tlu'  dcfciidiim 
[•till  for  this  offense, 
t,  because  tlio  Uiiilcd 
(liitft  liiul  bi'eii  |i:iiil 
tlie  ITiiiled  Stales  In 
)  tlic  United  States, 
'tment  as  the  injury 
i^h  llie  injury  alle^^til 
tates,  l»y  tlie  defend- 
lars  of  the  nioney  of 

lebody,  when  the  de- 
liat  it  is  immaterial 
or  upon  Mr.  Fowler ; 
er ;  and  tliat  the  dc 
was,  orwliethcM'  hotli 
as  injured  thereby. 
:iiilt.  That  tiiey  arc 
pth  with  averment  of 

lis  indictment,  whicli 
ctices,  750  dollars  of 
en  maintained  if  Mr. 
le  draft  was  paid,  tlio 
:e. 

the  court,  that  none 
u['|).)rted. 
;  wishes  further  tin.p 

I  the  transaction  witl 
it  appears,  upon  it- 
e  than  two  j  •  ars  he- 
mi  ted  by  the  thirty 
17<i() —  i,y  which  it  i-^ 
;>roseeuted,  tried,  or 
resaid,  willful  murdor 


(irf"rj:ery  exeepled,  unles-i  the  iridic  tineut  for  tlie  same  shall  be  f.anid 
li\  a  errand  jury,  within  three  years  next  after  the  treason,  or  capital 
(iffciiHe  aforesaid,  shall  be  done  or  coiiiinitted  ;  nor  shall  any  per-nu  be 
p:-oseciited.  tried,  or  punislied,  for  any  offense  not  ca|iital,  nor  for  any 
title  or  forfeiture  under  any  penal  statuti-.  unless  the  iiidietuieiil  or  in- 
foriiiation  for  the  same  shall  be  found  or  instituted  within  two  years 
from  the  time  of  committing  the  oll'euse,  or  ineurring  the  line  or  for- 
feiture aforesaid.  I'rovided  that  nothing  herein  contained  shall  ex- 
tenil  to  any  person  or  persona  lleeiiig  from  justi<'e." 
Ill  answer  to  this  objection  it  has  lieen  said :  — 

1st.  That  it  diu's  not  appear,  upon  the  face  of  the  indictment,  at 
what  time  it  wtis  found. 

:M.  That  a<lvantug«'  of  the  limitation  can  ii*  t  be  taken  upon  ilemu-rer. 
because  the  United  States  would  thereby  be  precluded  from  replyicg, 
aiconling  to  the  proviso  of  the  act,  that  the  defendant  tied  from  justice 
within  two  years.     And, 

M.  That  the  limitation  extends  only  to  such  offenses  uid  penalties, 
,ti'..  as  are  created  by  ads  of  Congress,  and  not  to  common-law 
.iffeiises.  because  there  could  be  none  su'-h  agains'  he  UiKted  States,  in 
its  national  character. 

1.  lii.  answer  to  the  first  objection  is,  that  it  will  ni.  ar,  from  the 
caption  of  the  indii  tment,  whenever  the  record  is  mnde  u[),  at  what  time 
the  indictment  was  found;  and,  upon  demurrer,  the  judgment  of  the 
court  must  be  upon  the  whole  record.  And  if  upcm  the  whole  record, 
it  >lioiild  appear  to  the  court  that  the  offense  was  committed  beyond  .lie 
time  limited,  they  could  not  give  judgment  against  the  defendant. 

Thus,  in  Khxj  v.  Fmr///.'/,'  "the  court  said  they  were  of  o|iinion 
that  this  was  a  good  objoctiou ;  because,  by  the  caption  of  tlie  indict- 
ment it  ai)peared  that  the  (.Quarter  Sessions  liad  no  jurisdiction.  Uiion 
a  (leraiirrer  to  an  indictment,  the  court  must  look  to  the  whole  record  to 
sec  whether  they  are  warranted  in  giving  judgment  on  it."  So  in  the 
eases  of  Rex  v.  Fishn-,  and  Rex  v.  Saunde.rs:^  "  In  the  case  of  Fisher, 
jmiu-inent  was  arrested  after  verdict ;  and,  in  the  case  of  Siuiwlers.  one 
iii'lictraent  was  (juashcd,  being  taken  at  an  adjourned  Sessions,  and  it 
not  iiiipeariiig  what  day  the  origmal  Sessions  began,  to  bring  it  within 
the  time  prescribed  by  the  statute." 

'2.  To  the  second  objection,  that  the  .defendant  can  not  take  advan- 
taire  of  the  limitation  upon  demurrer,  tlie  answer  is  this,  that  however 
it  iiiuy  be  iii  practice,  yet  in  theory,  and  by  law,  if  judgment,  ui.ou  de- 
miiiTer  to  an  indictment  for  a  misdemeanor,  be  given  against  the  defend- 
ant, it  is  a  peremptory  jieigment  of  condemnation:   aii<l  although,  in 


1  1  r.  U.  320. 


a  'i  SlrauKC,  8*1.5. 


22.S 


IK.MI)    AM)    FAI.SK    I'RKTKXSKS. 


lirfictifo,  liio  court  will  often  rather  intimate  its  opinion  than  pronounco 
sentence,  and  will  i»eriiiit  tlie  (lefcmlimt  to  withdraw  liis  demurrer  ami 
plead  to  issue,  vet  upon  the  (pii'stion  whether  the  defendant  may  avn. 
him- jlf,  liy  demurrer,  of  a  bar  ajjparent  upon  the  record,  the  court  niiisi 
consider  what  would  be  the  lej^al  consequence  of  a  judgment  upon  llu 
demurrer  ;  ai'd  when  w<  see  that  it  may  be  a  i)ererapl.ory  judgment,  ami 
that  the  defendant  has  a  good  <lefenee  upon  the  face  of  the  record,  (he 
court  can  lujt  deprive  him  of  the  beuolit  of  it.' 

We  think,  therefore,  that  the  defendant  has  a  right,  upon  demurrer. 
to  avail  himself  of  the  limitation  of  the  statute. 

It  has  been  said  that  tiie  United  States  would  thereby  be  prccludeil 
from  replying  the  tligiit  of  tlie  defendant,  if  such  should  have  been  the 
fact.  Rut  that  is  not  the  fault  of  the  defendant;  t!ie  Fnited  States 
iuive  put  themselves  in  that  situation,  liy  stating  the  fact  to  iiave  ha])- 
pened  at  a  time  beyond  the  day  of  limitation.  They  were  not  l)ound  t( 
do  so,  for  they  jniglit  have  laid  the  day  to  be  within  the  time  of  limitii- 
tion,  and  have  proved  u  diffi-rcnt  day  at  the  trial ;  and  if  the  day  proved 
should  l)e  beyond  the  time  of  limitation,  and  the  I'nited  States  could 
have  siiown  that  the  defendant  (led  within  tlie  two  3'ears  after  commit- 
ting tlie  offense,  they  might  have  given  it  in  evidence ;  or  the3-  might 
have  staled  in  the  indictment  the  true  time,  and  any  facts  wiiieli  existed, 
and  went,  to  show  that  the  defendant  could  not  avail  himself  of  the 
limitation. 

;5.  As  to  the  third  objection,  that  the  statute  does  not  apply  to  com- 
mon-law offenses,  committed  within  this  district,  the  answer  is,  that  ihU 
court,  so  long  ago  as  December  term,  isrj,  in  the  case  of  United  States 
v.  Porter,'^  who  was  indicted  for  certain  frauds  at  common  law,  decide! 
that  the  limitation  of  the  Act  of  17!t()  did  apply  to  such  cases.  It  is 
true  that,  in  that  case,  it  appears  1)}'  the  docket-entries  that  the  defend- 
ant pleaded  "  not  guilty,  and  the  act  of  limitations;  "  but  Mr.  Key. 
who  was  counsel  for  the  defendant  in  that  cause,  having,  upon  the  trial, 
objected  to  evidence  of  transactions  which  took  place  more  than  two 
years  before  the  finding  of  the  indictments,  said:  "We  do  not  reiv 
upon  the  specia'  plea  of  tlie  statute  of  limitations,  but  make  the  motion 
on  tlie  plea  of  '  not  guilt}-.'  "  Mr.  Jones,  who  was  then  attorney  for 
the  I'liited  States,  contended,  as  it  is  now  contended  by  the  counsel  for 
the  United  States,  "that  the  act  of  Congress  does  not  apply  to  this 
case.  It  was  passed  in  IT'.iO,  and  refers  only  to  the  ca,ses  within  the 
jurisdiction  of  the  Circuit  Courts  of  the  United  States,  and  only  to 
crimes  punishable  in  those  courts.  It  does  not  apply  to  jurisdictions 
creatid  subsequent  to  that  act.     What  crimes  ami  offenses  were  then  in 


1  ru(,'h  1-.  Uobinsdii,  1  T.  K.  lH'.. 


2  2Crmn'li,C.  cm. 


KNSKS. 


I'MTEl)    STATKS    r .   WAIKI.SS. 


22!' 


8  opinion  than  pronoun(( 

thdriiw  his  doraiirriT  iimi 

r  tiiu  ili'fiMulant  may  avi'. 

lie  record,  the  court  nuisi 

of  a  judgment  ui)()ii  liu 

creraplory  judgment,  am' 

le  face  of  the  record,  (lie 
1 

s  a  right,  upon  demurrer, 

)uld  tiierebj-  be  prccludeil 
ueh  Bliould  have  been  tlie 
iidant ;  t!ie  I'nltcd  »Statos 
ng  the  fact  to  have  haj)- 
They  were  not  i)ound  to 
within  the  time  of  liniita- 
ial ;  and  if  the  day  proved 

the  I'nited  States  could 
I  two  3'ears  after  commit- 
1  evidence  ;  or  the}'  might 
,d  any  fact^  wliicli  existed, 

not  avail  himself  of  the 

,e  does  not  apply  to  com- 
ict.  the  answer  is,  that  tlii^ 
1  the  case  of  United  Stiite:< 
s  at  common  law,  decide  i 
ipply  to  such  cases.  It  is 
et-entries  that  the  defeml- 
litations ;  "  but  Mr.  Key. 
ise,  having,  upon  the  trial. 
;ook  place  more  than  two 
said :  "  We  do  not  rely 
ions,  but  make  tin;  motion 
r'ho  was  then  attorney  fur 
itended  by  the  counsel  for 
ss  does  not  apply  to  this 
ly  to  the  cases  within  the 
nited  States,  and  only  to 
not  apply  to  jurisdiction:? 
i  and  offeuM's  were  then  in 

I'li.c.  r.  i-,o. 


t!i(  ('oMtcniplati<ni  of  ihe  LegLslalurc?  Notliint;  but  offenses  created  by 
act,  of  Congress.  The  Circuit  Courts  of  the  United  States  hail  no 
conitnon-law  jurisdiction.  They  had  no  cognizance  of  conniiuu-law 
<ifl\ii>es."  ^fi.  Ki'v,  i''/»/ru,  observed :  ''The  law  ought  t.)  be  cun- 
btruitl  liberally,  for  the  benelit  of  the  accused.  This  case  is  in  liir  very 
\V(iids  of  the  statute." 

This  court  in  that  case  was  clearly  of  opinion,  that  the  net  of  Congress 
of  the  .10th  of  April,  ITHO,'  applied  to  that  case,  and  dincleil  the  jury 
that  they  could  not  lind  the  defendant  guiliy  upon  that  evidence. 

This  decision  of  the  court  has  been  accpiie.sced  in  l)y  the  public  ;  and 
the  question,  we  Ijelieve,  has  never  been  niadc  since. 

AVe  are,  therefore,  of  opinidii  that  the  judgment  upon  the  demurrer 
to  tliis  indictment  must  be  f<ir  the  defendant. 

TniusTON,  J.  On  demurrers  to  two  indictmetits,  known  to  the  Ijcneh 
and  Bar  as  indictments  Nos.  1  and  '2,  —  No.  1  charging  the  defrauding 
the  I'nited  States  of  ST.'jO,  and  No.  2  of  $300. 

I  remarked  on  Saturday  last,  in  the  course  of  the  argument  on  a  point 
wiiieh  the  court,  at  the  earnest  instance  of  the  det'endanfs  counsel, 
permitted  them  to  bo  heard  upon,  because  the  reasons  assigned  bv  the 
court,  in  their  opinion  (which  was  against  the  demurrer  No.  1),  on  the 
uuuli  agitated  (piestion  of  juri.--diction,  were  such  as  had  not  been  be- 
fore considered  and  discussed,  that  1  had  not  an  op|)ortunity  of  fidl 
examination  of  the  indictments,  but  that  I  had  met  the  other  two  judges, 
and  advised  with  them;  and  that,  as  to  the  one  for  S"oO,  I  had  con- 
eurred  with  the  court  in  its  sulliciency,  and  that  the  demurrer  ought  to 
lie  overruled  ;  but  that  I  had,  on  Thursday  evening,  taken  home  with 
ine  the  two  indictments  aforesaid,  and  attentively  examined  them,  and 
that  I  was  more  confirmed  in  my  belief  that  the  court  were  right  in  their 
opinion,  delivered  in  the  one  for  87.')(l,  or  No.  1,  although,  perhaps,  my 
reasons  for  this  belief  were  not  entirely  the  same  as  those  assigned  in 
the  opinion  of  the  court.  I  also  remarked  that  I  was  prepared,  when 
the  court  gave  tlieir  opinion  on  the  second  indictment.  No.  1,  but  took 
time  for  further  consideration  on  No.  2,  to  give  my  opinion  as  to  the 
-iiilioieney  of  No.  2,  which,  I  said,  I  deemed  the  most  unexceptional 
iif  the  two  ;  but  I  did  not  think  proi)er.  at  the  time  the  said  opinion  was 
pronounceil,  to  mention  my  satisfaction  with  the  said  No.  2,  from 
oiiurtesy  to  the  majority  of  the  court.  After  a  few  preliminary  re- 
marks, I  shall  state  my  reasons  for  the  opinions  above  suggested. 

.Vn  intimation  w^as  thrown  out  also,  Oii  Saturday  last,  that  I  had  in- 
'li(  ated  some  impatience,  occasioned  by  the  protracted  discussion  of 
the  ease's  before   us.     If  I  have  done  so.  I  was  not  sensible  of  it;  and 

1  sec.  32, 1  St.its.  ill  I.arpe,  IIU. 


•2M) 


rUMP    ASn    l-ALSK    rUKTENSES. 


if  ,„v  .l..,...rtment  suh.i..el.a  ....  t^.  .nvh  s.^picinn.  o,-  if  I  n,>conscion.ly 

,.x,,;.s.cl   >nvsc-lf  10  it,  I    n...-l  InoU    f„r  a..  .iM.lo-.ry  in  the  eight  ov  ...nc 
vNv.lv.  (.f   (hiiiv  d.'l.at.,  of  at  loust  six  1......  s  cac-h  .lay.  c-hiHly  on  tccl..,!- 

<.al  points,  TNliich  onul.t  to  ho  nn.lerstoo.l,  if  Ihey  can  be  un.lerstood  ,i 
■ai  at  least  in  as  nianv  (lavs  as  ^ve  have  oonsumed  week<.  But  we  have, 
;.s  I  thon.rht,  ^vith  gn-at  patience  U>teue.l  to  all  that  we  were  desire.  u> 
hoar;  an-l  with  the  more  willingness,  as  the  importance  of  the  case  ua. 
l,..en  ur.nMl  with  mmh  solemnity,  alth.u,;:!.  I  have  never  been  able  to 
diMvrn  any  l-eenliar  ciro..n.sta..ecs  wlm^h  ca.i  distinguish  this  case  fro.,, 
that  of  others  of  the  same  grade. 

"  Frand  at  eon,.„on  law  is  bi.t  a  misde,nean.,r.  This  is  a  general  te.-,n 
for  that  class  of  offenses  whi.h  are  considered  the  least  heinons;  an  1  I 
nnderstan.l  that  the  punishment,  on  conviction,  is  but  on."  d..g,'ee  above 
that  of  the  low..st  offense.  Pecuniai-y  line  is  (.o„sideied.  I  bthevc,  \hv 
li.l„..t  p„„isl,ment  known  to  the  law  of  frau.l ;  imprisomnent  may 
In-  siipiMJuhlrd,  but  at  tin-  disn-elion  of  the  comt. 

If  this  case  th.n.  bo  of  anv  pa.Micular  importance,  we  must  search 
for  it  in  extrinsic  circumstances;  this  i.  fo.bidden  ground  to  judges; 
we  can  not  travel  out  of  the  reconl,  and  if.  \u  the  course  of  ju<l,c,al  ,„- 
vesti..ali.M,s.  or  from  other  sources,  any  knowledge  may  rea<-h  us,  nf 
facts^calcnlated  to  excite  in  our  breasts,  sy.ni.athy  for  the  .accused,  ue 
are  bou.,d   by   the   stern  mandatc-s  of  duty  to  suppress  them,  while  ^v. 

OCcu,>v  these  seats.  .  .,     * 

The  questious  now  hefo.-e  the  court,  are  ou  the  s.ifhcency  of  the  two 
indiet.nents.  Two  points  h.ave  been  .nade  1st.  That  offenses,  charged 
in  the  indictments,  are  not  cognizable  in  this  court ;  and  if  they  are 
that  thevaie  not  i.i-operly  charged. 

The  miestion   of  jurisdiction  results  from  the  statement  (as  it  is  al- 
lecrod)    in   both    i>idi(  tments,  that  the  frau.l.  if   any,  was  completed  n^ 
New  Y.nk,  where  the   nion.'V  was  received  fn.m  the  navy  agent,  PauM- 
in.T-and   that,  therefo.'c,  if  the   f;,cts  alleged,  constitute  a  fraud    ,t  ,s 
indictable  there,  and    not   here.     The  indictment,  No.  1 .  has  also  been 
i,np.>a.hed  on  the  ground  that  it  cha.'ges  two  distinct  offenses;  the  one 
for  S7.-.()  received,  by  the    means  of   Fowler's  draft  from  Pauhlmg  ,n 
New   Yo,-k,  and   ano'ther   for  a  liki'  sum.  from  the  Treasury,  by  mean>^ 
of  the  Ti-easurer's  wa.rant  issued  here  on  the  order  of  the  Secretary  of 
of   the  Tieasurv,  upon  the  re(piisiti..n  of   the  Secretary  of  the  Navj  ; 
which  requisition  included  tl,e  false  and  si-urious  item  of  8750  for  "  ar- 
renra-res  prior  to   ls-27."  imposed,  by  false  pretenses,  on  the  sa,.l  Sc- 
relarv,to  had  him  to   add  it  to  M,-.  Paulding's  legitimate  demand  of 
SI-  "i;'>'.t.l-2.  ihereby  causing  falsely,  and  fraudulently,  the  said  Secre- 
taiTlo  issue   a  requisiii<...on  the  Treiisury  Department  for  «12,889.1-' 
including  this  imitosed  item,  instead  of  the  first  lawful  amount. 


ifeM 


UNITED   STATES    V.  WAIKINS. 


•j;u 


if  I  miconscion^ly 
a  the  eight  or  iiiiip 
,  c'hii'tly  on  tecliiii- 
II  1)1'  uiulerstood  iit 
U<.  Hilt  we  have, 
wv  were  desired  to 
nee  of  tiie  case  La? 
nevor  bren  able  tu 
uisli  this  ease  from 

is  is  a  ffeneral  term 
i>ast  lieinous;  an  1  I 
it  one  degree  above 
Icied.  I  believe,  the 
iiuprisoument   may 

ICC,  we  must  search 
ground  to  judges; 
nurse  of  judii'ial  in- 
rc  may  rearli  us,  df 
for  l!ie  accused,  we 
tress  them,  while  we 

iinciencv  of  the  two 
iKit  offenses,  cliargeil 
urt ;  and  if   they  aro 

atcment  (as  it  is  al- 
y,  was  completed  in 
i-  navy  agent,  PauM- 
iistitute  a  fraud,  it  is 
,  No.  1 .  liHS  also  bi'on 
net  offenses;  the  om' 
raft  from  Paulding  in 
;  Tretisury,  by  mean? 
er  of  the  Secretary  of 
icretary  of  the  Navy; 
item  of  8750  for  "ar- 
uses,  on  tiic  said  See- 
legitimate  demand  of 
iently,  the  said  Secre- 
rtment  for  «12,889l-' 
wful  amount. 


Thr  indictmenl  No.  •_',  lias  lieeii  stigmatized  as  wanting  [ireci>ion  and 
iiiii|icr  avi'nui'iits. 

Ill  support  of   these  criticisms  on  tlie  indietnients.  a  great  Miinber  of 
;uithoiities  were  cited,  ciiielly  from  compilations  and  digests  (.  mi  inod- 
orii  dale,  which,  if   I  had  tin;  books  now  before  me,  as  in  truth  1  have 
not.  I  sh  'iild  not  have  time  to  examine  tiiem  with  siitlieientdelibcratiou. 
ami.  theiefonMUtistmaive  up  my  t)i)inion  from  the  imprfssioiis  received 
;it  tiie  time  the  authorities  were  cited,  from  general  jirineiples  of   law. 
iiiid    till'    exercise    of    such   understanding    as   it    has   pleased  Provi- 
,l,nc«'    to   endue  nic  with.     But   these   books    were,    jjriiicipally,    as    I 
said  t>eforc,    compilations    and    dige<ts,   wliicii,  if  I  understand  them, 
ure    attempts    to   frame    general    rules   out   of    particular   cases,    and 
ill  support  of  those  rules,  the  authorities  are  cited  in  the  margin;  tiiai 
is,  reports  of  adjudged   cases.     Now,  as  to  so  much  of  the  case  before 
lis.  as  relates  to  the  form  and  structure  of  the  indictments,  the  allega 
tioiis,  averments,  the  narrative  part,  if  I  may  so  call  it,  of  a  course  of 
Uansactioiis,  resulting  in  a  iireuch  of  the  laws,  particularly  in  frauds, 
iii.thing  can    be  more  fallacious  than  general  rules.     Let  us  consider 
tlie  inlinile  diversity  of  stratagems  and  devices  by  which  a  fraud  may 
he  aeliieved.     Some,  like  the  old  legitimate  drama,  consist  of  unity  of 
tini.'.  place,  and  action;  others,  like  the  more  modern,  have  a  nuinl>er 
ef  acts  and  scenes,  which  are  shifted  from  i-lace  to  place,  and  time  to 
time,  till  the  plot  ripens  and  is  perfected.     Hence,  and  from  the  pecu- 
liar and  divcr'"K'd  nature  of   the  contrivances  made  use  of  to  accom- 
pii>h  a  fraud,  there  must  be  an  equally  diversitied  form   and   manner 
ill  tiie  statements  in  au  indictment.     A  fraud  may  be  comiileted  at  one 
place,  and  by  one  act;   and  if  A.  uses   a  false  token  to  B.,  and  cheats 
iinil  imposes  on  him.  to  get  hold  of  H.'s  nnniey,  this  is  a  simple  fraud, 
:tiid  easily  charged  in  an  i.idictmeiit.     Hut  a  fraud  which  re(piires,  for 
li-  aeconiplislinunl  a  mtire  extended  and    compound  eour-^e  of  decep- 
ti  ins,    partly  by  false  rei)resentations    in    writing,  and  p.artly   verbal, 
where  several  persons  are  to  be  deceived,  before  the  attainment  of  the 
iid,  and   where   operations   are   to   be   carried   on  in  several  distant 
places;  here,  all  these   various  circumstances  being  required  to  be  set 
out  in  an  indictment,  such  an  indictment  must  necessarily  vary  from 
and  other  iiidictinent  that  was  ever  drawn  before  it;  and,  therefore,  as 
to  its  pecuUar  form  and  structure,  no  precedent  of  forms  can  be  found 
to  apply  to  it.     I  do  not  want  precedents  to  inform  me  of  the  leatling 
principles  which  must  govern  all  indictments,  that  they  must  be  certain 
and  precise  in  their  charges;  tliiit  the  7 ko  a/it >»o  must  be  averred,  the 
iri<'utei\  etc.  ;  that  the  negations  must  exclude  any  possible  legal  iufer- 
« lice  of  innocence  in  the  arts  or  intents  of  the  accused,  etc.,  and  as  far 
as  such  general  rules  and   principles  as  these  go,  I  will  pay  , ill  due 


232 


FUAl'l)    AM)    I'AI.SK    I'KI.TKN.nKS. 


respect,  ;iii(l  liavc  applic'il  tliein.  and  inoasiinMl  tliesc  indictiin'iits  ;.y 
tliciii,  u  il  have  iioL  found  tliom  tlelicieiit.  My  ciinlideiico  in  tlm-i 
books,  iiNo,  is  inufli  iinpaired  liy  wlial  I  iiave  seen  on  tliis  tr:a! 
:ind  wlial  1  liavo  often  seen  lieforc.  I  liave  seen  liook  oiiposed  in 
liooli  liy  opposite  counsel;  nay,  I  have  seen  the  same  hook  nsed  to  heiir 
on  tlie  same  point  hy  hoth  sides,  wiiieh  leads  me  to  the  mention  of  an 
olix  rvation  of  u  very  leaiiied  judfxe  on  this  snhjcet,  whom  J  had  oee:i- 
sinn  to  allude  to  onee  liefi>re.  This  distinguished  Chaneelior  of  Vir- 
ginia, having  heen  lenchred  t'xeeedingly  impatient  at  the  frequent 
reversal  of  his  <leeisions,  hy  the  Court  of  Appeals  of  \irginia.  he  puli- 
lishecj,  as  I  s;\id  before,  a  book  in  vindieation  of  his  opinions,  ami 
arraigning  those  of  the  appellate  cnurt.  1  renieinlier  in  a  eertain  casi^ 
tlio  Superior  (■nut  had  cited  a  prt'cedent  from  IJtdstrode,  whieh 
pressed  hard  on  the  ehaneelloi's  (h'rree.  He  did  not  know  how  to  g'  t 
rid  of  the  force  of  this  ease,  and  therefore  belittled  —  if  I  may  use  tlic 
term,  it  has  high  authoriiy  for  its  legitimacy  —  the  author  by  sayinL', 
"Ah!  as  for  IJulstroch;,  he  is  like  a  Swiss  soldier,  he  will  ligiit  any  siijc 
for  I'ay."  !May  imt  tliis  be  said  of  some  of  our  iniunueralde  modem 
book-makers?  1  have  often  seen  them  (to  carry  on  the  venerable 
chancellor's  figure)  battling  on  both  sides.  I  do  most  seriously  de- 
plore ami  (h'preeiate  this  ovi'rwhelniing  inundation  of  books,  particu- 
larly of  tl.;e  class  just  mentioned,  'lliey  are  good  lahor-savini; 
machines  to  the  practitioner,  but  they  have  a  wofnl  effect  on  the  ail- 
ministration  of  justice  ;  and  I  really  do  apprehend,  that  they  will,  if  mt 
stopped,  sulivert  to  its  foundations,  the  empire  of  common  siiisc,  an^l 
render  the  law  which  is  said  by  my  Lord  Coke  to  be  tlie  most  miserable 
slavery  if  it  be  vague  or  uncertain,  the  most  uncertain  and  doubtful  of  all 
human  sciences.  Now,  to  apply  the  form  of  any  one  indictment  (whitli 
has  been  attempted),  from  the  hooks  to  the  indictments  bef(<re  tlu 
court,  so  different  in  the  facts,  intents,  incidents,  stratagems,  and  arti- 
fices by  which  to  test  tlieni,  is  like  applying  two  vacant  tigurcs  ami 
forms,  one  to  the  other,  to  test  their  coincidiiice.  As  to  those  books, 
again  ;  I  have  observed  that  many  of  the  authorities  cited  by  tiiem,  do 
not  support  the  rules  laid  down  by  them  ;  wliether  this  proceeds  from 
misprints,  or  a  want  of  understanding  of  the  spirit  of  those  authorities, 
I  know  not. 

1  will  now  go  into  the  examination  of  tlie  indictment,  No.  1,  for  $'■>'> 
and  try  it  not  by  precedents  of  other  forms  of  indictments  for  other 
offenses,  tuit  by  the  principles  I  have  mentioned  above. 

This  indictment  is  said  to  charge  two  distinct  offenses.     Let  us  dis- 

.  sect  it  and  see  if  this  be  the  case.      1st.  The  first  paragraph  alleges  tlui! 

oil  the  IfUh  and  r.Mli  of  .January,  IsvJS,  and  before  and  after  that  time. 

Tobias  Watkins  was  .\uditor  of  tlie  Navy  Department,  and  states  In? 


VMTKI)    SIATKS    V.  WAIKINS. 


)>:\:\ 


Sv  illilictllU'llts  ;.y 
iitUli'iico  ill  tliii-i 
ecu  on    this    tna! 

liDok     (i|i|iOSl'(l    tn 

luiiik  iisfil  to  hear 
tlio  nu'iilitin  of  nil 

wliniii  J  liail  occa- 
CliaiK'cUor  of  \'n- 
t    at  tliu    frcciiiciit 

\ir^iiii:i.  lie  inili- 
his  upiiiioiis,  aiiii 
"  in  a  certiiiii  casi^ 

Biilstrode,  wliiil) 
3t  kuow  how  to  p  t 
—  if  1  may  use  tlic 

author  by  sayiiiL'. 

will  U^lit  any  .siilc 
luiuicralik;  ukxU  rii 

on  the  vciirralilc 
most  ^se^iously  iK- 
of  books,  i)arti(U- 
goocl  lalior-saviiii: 
il  effect  on  tlu!  ail- 
lat  they  will,  if  imt 
'oiumoii  siiise,  aii'l 
the  most  miserable 
and  doubtful  of  all 
indictment  (whidi 
'tiiu'Dts  bef(/re  the 
ratai^cms,  and  aiti- 
•acant  fi;;ure9  ami 
As  to  those  books. 

cited  by  them,  'lo 
this  proceeds  fnnn 
f  those  authorities, 

lit,  No.  1,  for  S7.'iO 
ictments  for  other 

I'C. 

.'nses.  Let  us  dis- 
ayraph  alleges  that 
,nd  after  that  time, 
ent.  ami  states  his 


,lmi..s  as  <u.'h.  I'\)urth  Auditor.  "Jd.  The  secon<l  paragra].!.  alle.iios  lh:,t 
saiii'.u'l  1-  Southard,  at  the  same  time  was  Secretary  of  the  Navy,  and 
„"n  nut  his  authority  as  such.  M.  The  third  par.-igraph  stales,  that, 
,,  the  same  time,  J.  K.  I'auldiiig  was  navy  agent  of  the  ['uited  States, 
reM.ling  111  New  York,  and  was  re(iuired  bylaw  to  render  hi^  accounts 
•,,  the  Fourth  Auditor  of  the  Treasury  Department,  etc.,  etc. 

nil.  The  fourth  paragraph  states  that  an  Act  of  Congress  was  passeil 
.u  tlie  -2  1  day  of  March,  ls-.'7,  appropriating  Si'O, ()()()  for  the  u-<e  of  liie 
Navy  Department,   for    arrearages   prior  to  the  rir>t  day  of  January, 

1S-J7. 

So  far,  it  is  manifest,  the  indictratnt  is  merely  historical  or  narrative, 
',;it  necessarily  connetted  with  the  charges  which  follow;  then   comes 
tiR.  narrative  of  the  fraud  and  deception  practiced  on  I'aulding  to  ob- 
:.,iu,   out  of  the  public  money,   the  S7:.0,  commencing  with  the   letter 
ilvising   PauMing  of  his  design  to  draw  on  him  in  favor  of  Fowler, 
uhi,  h  s^im  would  be  replaced  in  his  hamls  "  by  a  remittance  to  be  made 
!i  . hie  season,  so  soon  as   a  requisition  can  i)ass  thnmgh  tiie  forms  of 
,Hi,v."  etc.,  therein  premeditating  the  remittance  which  the  indictment. 
n  a  Mibscquent  part,  charges  to  have  been  obtained  by  false  pretenses 
used  to  the  Secretary  of  the  Navy.     Then  follows  the  draft  in  favor  of 
Fowk'r,  and   the  procuring   the  e7;.()   from   him,  by  means  of  the  said 
hall,  and  the  pavment  of  tlie  draft  liy  Paulding.     Now,  although    this 
transaction  is  stated  in  the  form  of  a  charg.',  and  to  be  done  with  force 
iiiul  anus,  etc.,  yet  it  is  not  the  offense  which  constitutes  the  grnniwen 
f  this  iiidictment.      It  might  have  been  made,  perhaps,  a  ground  of 
niai. uncut  as  a  distinct  offense  per  se,  as  in  the  6:100  indictment,  but  is 
not  HO  contemplated  in  this  indictment.     It  is  here  introduced,  because 
of  its  connection  with  the  real  charge,  the  fraud  practiced  upon  the 
s.rretary  of  the  Naw  ;  for  it  was  to  supply  this  defect  in  the  public 
funis  drawn  out  of  the  hands  of  I'aulding,  that  the  subsequent  fraud 
II  tlie  Secretary  of  the  Navy  became  necessary;  and  it  is  that  fraud 
iiiKl  its  consequences  which  arc  the  real  subjects  of    this  indictment. 
riien  comes  another  narrative  part  of  the  indictment,  stating  the  letter 
s.  ill  by  Paulding  to  the  Secretary  of  the  Navy,  dated  the  10th  of  Janu- 
ary,  1S28,  reipiesting  a  warrant  to  issue  in  his,  Paulding's  favor,  for 
iV2.VM.  12,  to  be  charged  to  certain  specified  appropriations  at  the  foot 
of  that  leter,  which  letter  is  stated  to  have  been  received  by  the  Secrc- 
larv  on  the  l',»th  of  January,  1«-JH. 

Tlie  indictment,  thus  far  consisting  merely  of  narrative,  I  consider  as 
introdiiclorv  or  introducing  to  the  main  charge,  that  of  obtaining  the  pub- 
lic money  oy  means  of  false  pretenses  made  to  the  Secretary  of  the  Navy. 
and  dec.'it  an.l  imposition  practiced  on  him.  Because  it  professes  to  be, 
on  its  face,  an  indictment  for  fraudulently  obtaining  the  public  money 


I'ai 


rilAlI)    AM)    lALSK    I'RETKXSKS. 


In-  false  pivtiinses,  iiiul  no  false  pretense  is  set  out  in  the  former  prirt 
of  tlu'  indietnii'nt.     Now,  here  coinmenees  (lie  real  charge  —  tiie  tiui' 
firavamcu  of  the  in.licliiient,  wliieh  is.  "  that  the  saiil  Tol)ias  Watlvins, 
iieiiii,'  tlieii  and  there  Fourtii  Au(]ilor  of  the  Treasury  I)e)>artment  of  tii, 
ruitetl   Slates   as    iiforesaid,  and    heiiij?    an  evil-disposed  j)ersun,  ami 
(li'visiiig  and  intendin-:  frauduKntly  and  unjustly  to  acquire  for  himself, 
and  for  his  own  private  use,  the  money  of  the  United  Stat(>s,  and  wA 
knowing  the  i)remises,  with  force  and  arms,  on  the  said  nineteenth  >h\ 
of  .lanuarv,  which  was  in  the  year  of  our  Lord"  182H,  "as  aforesaid!. 
at    the    C'lunty    of    AVashington    aforesaid,   did    falsely,    fraudulently, 
d.c.ifnlly,  knowingly,  and    designedly    apply    to  the  said  Samuel  L. 
Southard,'  then  being  Secretary  of   the  Navy  of  the  United  States  ;.> 
aforesaid,  to  add  to  the  said  sum  of"  Sli',  i:il».  1-',  "  for  which  the  sai.i 
J.  K.  I'aulding  had  reipiested  a  warrant  to  be  issued  as  aforesaid,  tlu 
sum  of"   7i-)(r'- dollars;   and  did  then  and  there  pretend  to  the  said 
Samuel  L.  Southard,  Secretary   of  the  Navy  of  the  United  States  a- 
aforesaid,  that  the  said  sum  of  "   li>0  "  dollars  was  required  for  the  use 
and  service  of  the  Navy  of  the  United  States  for  the  payment  of  claims 
f..r  arrearages  due  by  the  Navy  Department  of  the  United  States  jMior 
to  the  first  (lay  of  January,  which  was  in  the  year  of  our  Lord"  ISi'T, 
••and  to  cause  the  same  to  be  placed  in  the  hands  of  the  said  J.  K. 
I'aulding,  navy  agent  as  aforesaid,  for  the  purpose     aforesaid,  at  the 
same  time  and  together  \\ith  the  said  sum  of"  S1-.  13!>.  I'i,  for  which 
••the  said   J.  K.  I'aulding  had  requested  a  warrant  to  be  issued  as 

aforesaid." 

Then  follows  the   requisition  of   the  Secretary  of  the  Navy  on  tho 
Secretary  of  the  Treasury,  at  the  foot  whereof  are  the  specitications  of 
I'aulding,  under  the  title  of  appropriations,  in  which  are  stated  the  par- 
ticular services  for  which  the  money  is  wanted,  namely:    "Pay,  etc. 
navy  alloat,  SI. '.'I-';  "   "shore  stations.  S1,0').S.25  ;  "  and,  after  soim- 
others,  comes  last  this  gTaO,  the  specified  service  of  which  is  '•  arrear- 
ages i)rior  to  1S27,  87.'»0."     The  indictment  then  avers  "  that  the  sai^i 
sum  of  S12.><'^!'-1-'.  i»  the  said  requisition  mentioned"  (which  includo> 
this  false  and  spurious  item  of  ST.V)),  "was,  iu  conformity  with  th. 
said  recpiisition,  by  warrant  from  the  Secretary  of  the  Treasury,  drawii 
out  of  the  Treasury  of  the  United  States,  and  placed  in  the  hand-^  of 
the  said  I'aulding,  navy  agent  as  aforesaid,"  with  intent  <'J  .U'fraud  the 
Unite.l  States  out  of  ST-'-O.     It  then  states,  "whereas^     •     vib  Mid  in 
fact,  the  said  T.  Watkins.  at  the  time  of  making  the  sal  1 1         i.-'etenH-^ 
well  knew."  etc.     From  hence  to  the  conclusion  folio'-       e  averments 
of  the  .:.■(>)(^'r,  of  the  criminal  intent,  and  the  ueeessary  ..egations;  the 
whole  of  which  are.  to  my  understanding,  in  apt  and  teclinic.al  form. 
and  relate  entirelv  to  these  $7.-^()  gotten  from  the  Treasury  by  means  ef 


IMTKI)    ST.\TK>    '•.   \V\TKIXS. 


■i-if) 


n  the  former  pnrt 
L'lmrgc  —  tlie  tnn' 
I  Tobias  Watkins, 
l)e)>artnu'iit  of  th. 
lOsed  piTSDii.  ami 
.•quirt'  ftir  liiiiisilf, 
(1  States,  aiul  wi'l, 
lid  iiinetet'iitli  ilay 
IH,  "  MS  aforesaid, 
L>ly,  fraiuUilemly. 
e  said  Samuel  I,. 

Uuilod  States  !i> 
for  which  the  saiil 
\  as  aforesaid,  l!u' 
•etend  to  the  said 

United  States  n- 
•quired  for  the  usi' 
l)aynieut  of  claims 
United  States  jirior 

our  Lord"  IS'JT. 

s  of  the  said  J.  K. 

aforesaid,  at  the 

,  U-?!».l-.>,  for  which 

;it  to   be  issued  as 

I  the  Navy  on  the 
he  specitications  of 
are  stated  the  pur- 
mely:  ''  Pay,  etc. 
"  and,  afttT  smm' 
f  which  is  ••  arnar- 
vers  "  that  the  said 
1  "  (which  includo> 
onforuiity  with  th' 
he  Treasury,  drawn 
ced  in  the  hands  of 
itont^o  defraud  the 
eas  v.ib  !'.nd  in 

sai  (  :  ,M-eU"D^05 

(jllo''  c  averments 
saiy  .w'gntions ;  Hk' 
md  teclnuca)  form. 
•easury  by  means  of 


tie  taNe  pretenses  prueliced  on  the  Secretary  of  the  Navy,  andjhe 
,„l.se(liient  transactions  c,,n>e(iucnt  thereon,  and  to  no  other  87.-)0 
wh:l!i'Ver.  .        ,  . 

IPivintr  now  taken  this  indictment  to  pieces  and  ex.-vratned  its  parts, 
„•(.  will  put  it  to-jether  apiin  and  examine  it  as  a  wlu.le.  And  I  will 
,, remise,  that  as  to  pr.'cision  in  the  char^'es.  the  averment  of  the  fraud- 
iiUnt  intents,  of  the  false  prtlenses,  and,  in  short,  as  to  all  the  forms 
r,,iiiired  in  indictments,  it  Beems  to  be  uuimp.'achalde ;  nor  has  a  sin-ile 
,,:,„a^e  been  selected  and  presentei  to  the  court  wherein  any  defect  of 
firm  "has  bi^en  suggested.  Let  it  be  examined,  and  shown  where  any 
Micii  defect  appears. 

But  the  character  of  the  offense  charged   lias  been  questioned.     It 
was  ur^ed  that  it  was  entirely  ollicial,  as  laid,  and  therefore  not  cogniz- 
i.hlo  h(M-e.     Rut  the  indictment  deserves  no  such  reproach  :  the  charges 
■Mv  exclusively  of  a  private,  and  not  oflicial  aspect;  there  is  no  allega- 
;i,,„  of   a  breach  of    omcial  duty.     It  is  true,  that  in  the  three  first 
ihiuses,  the  oflicial  titles,  powers,  and  duties  of  T.  Wat  kins,  as  Fourth 
All  iitor,  Samuel   L.  Southard,  as  Secretary  of  the  Navy,  and  J.  K. 
Paulding,  as  navy  agent,  are  stated;  Imt  this  seems  neces.sary  for  the 
l,iniiose''of  explaining  and  illustrating  the  ccninected  links  in  the  long 
,',;un  of  deceptions  that  were  practiced  ,  ))ecaiisc  it  was  fnmi  the  facili- 
tirs  derived  to  two  of  these  functionaries  from  their  official  stations, 
and  the  influence  of  his  own  oflieial  station,  that  the  defendant  was  al)le 
to  effect  his  fraudulent  (U'vices,  but  he  himself  exercised  no  official 
fiiiietion  in  the  course  of  his  fraudulent  doings,  although  he  availed 
limself  of  the  oflicial  powers  and  faculties  of  the  other  two.     What  he 
did  was  not  an  abuse  of  any  olHcial  authority  vested  in  him,  but  was 
entirely  in  his  p(>rsonal  and  private  character,  though  he  was  aided  in 
facilitating  his  plans  by  the  influence  of  his  oflicial  station.     So  much 
as  to  this  objection. 

Tlie  next  was  to  the  frame  and  structure  of  the  indictment;  that  it 
tlia'ued  two  distinct  and  independent  offenses  in  the  same  indictment. 
I  think  I  have  sufficiently  answered  this  objection  in  my  analysis  of  the 
instrument.     I  will  add  no  more  on  this  point. 

Th-  next  and  last  objection  there  is  no  ground  for.  that  the  fraud  was 
not  completed  within  the  jurisdiction  of  this  court,  but  in  a  f.jreign 
j  irisdiction,  namely,  New  York.  Now  the  i-irA)  having  been  obtained 
frnui  the  Treasury  by  the  Secretary's  warrant,  rendered  the  offense 
(nmplele  here;  for  if"  the  Treasury  be  anywhere  it  is  here  ;  and  where 
i'milding  received  it  is  of  no  account,  nor  does  the  indictment  state 
where  ire  received  it.  The  money  was  also  appropriated  to  the  pri- 
vate use  of  the  defendant,  for  it  was  applied  to  the  i>aynient  of  his 
debt  to  Pauldin'^.  to  reimburse  that  s:un  whicli,  by  fraudulent  devices, 


23B 


FliALI)    AND   FALSE    I'KETKNSKs. 


he  had  drawn  out  of  liis  liuiids,  and  the  pul)lic'  havo  sustained  a  loss  to 
tliat  amount.  This  iiKlicltiient,  in  the  view  I  have  taken  of  it,  is  not 
liable  1o  tiie  ol)jeclion,  that  the  fraud  was  conipleted  in  a  foreign  juris- 
diflion ;  and  if  it  were,  I  should  doubt  of  the  validity  of  the  objection. 
I  think  tlio  whole  of  the  late  argument  on  this  point,  as  to  this  indict- 
ment, was  totally  inapplieable  to  it. 

I  am,  therefore,  of  opinion,  that  judgment  on  this  indictment  be  for 
the  United  States. 

(The  defendant  proposed  to  withdraw  his  demurrer  in  the  $7.")()  ease, 
and  to  pliiid  (he  general  issue.) 

Cranoh,  C.  J.,  delivered  the  opinion  of  the  court  (Thirstox,  J.. 
dissenting). 

After  the  court  had  given  an  opinion  thi.  none  of  the  exceptions 
taken  to  this  indictment,  for  defrauding  the  United  States  of  $750, 
could  l)e  sustained,  and  before  any  judgment  had  been  rendered  by  the 
court  upon  the  demurrer,  the  counsel  for  the  defendant  moved  the 
court  for  leave  to  withdraw  the  demurrer  and  plead  the  general  issue, 
To  this  motion  the  counsel  for  the  United  States  objected,  and  prayed 
that  peremptory  judgment  of  condemnation  should  be  entered  against 
the  defendant;  contending  that  the  court  has  no  discretionary  power  to 
permit  tiie  defendant  to  withdraw  his  demurrer  and  plead  the  general 
issue,  after  the  argument  upon  the  demurrer,  and  after  the  delivery  of 
the  opinion  of  the  court. 

It  seems  to  be  certain,  that  if  the  court  should  now  proceed  to  give 
judgment  upon  the  demurrer,  that  judgment  can  not  be  judgment  of 
respondens  o^ister,  but  must  be  judgment  of  condemnation. 

The  questions  then  are, 

1st.  Whether  the  court  has  a  right,  in  its  discretion,  to  give  the 
defendant  leave  to  withdraw  his  demurrer,  and  plead  the  general  issue, 
after  the  opinion  of  the  court  has  been  expressed  against  the  validity 
of  the  objections  taken  to  the  indictment?  and 

2il.  Whether  the  court,  if  it  has  that  right,  ought,  under  the  circum- 
stances of  this  case,  to  exercise  it? 

1.  U[)on  the  first  question,  it  may  be  observed,  that  the  right  in  civi| 
cases  is  conceded,  and  has  been  often  exercised.  But  it  is  said,  that 
there  is  no  instance  in  which  this  court  has  exercised  it  in  a  criminal 
case.  This  may  be  true,  but  it  may  be  because  demurrers,  in  criminal 
cases,  are  very  rare,  inasmuch  as  upon  a  motion  to  quash,  or  in  arrest  of 
judgment,  the  defendant  may  avail  himself  of  all  the  matters  which  he 
could  upon  demurrer.  But,  because  no  criminal  cases  in  this  court 
have  called  for  the  exercise  of  the  right,  it  does  not  follow  that  the  right 
does  not  exist ;  and  no  reason  is  perceived  why  it  should  not  exist  in 
ci'iminal  as  well  as  in  civil  cases. 


NSKS. 


UNITKI)    STATKS    V.   WATKINS. 


2;^7 


hiivo  sustained  a  loss  to 

have  lakon  of  it,  is  not 

lileted  in  a  foreign  juris- 

alidity  of  the  objection. 

i  point,  as  to  this  indict- 

)n  tliis  indictment  be  for 

miirror  in  tlic  $~')0  caso, 

e  court  (TiiunsTON,  J., 

none  of  tiie  exceptionjt 
United  States  of  $75l), 
ad  been  rendered  by  the 
e  defendant  moved  tiie 

plead  the  general  issue, 
;es  objected,  and  prayed 
liould  be  entered  against 
0  discretionary  power  to 
ur  and  plead  the  general 
md  after  the  delivery  of 

uld  now  proceed  to  give 
can  not  be  judgment  of 
idemnation. 

discretion,  to  give  the 
plead  the  general  issue, 
sscd  against  the  vaUdity 

lught,  under  the  circum- 

id,  that  the  right  in  civi| 
ed.  But  it  is  said,  that 
ixercised  it  in  a  criminal 
3  demurrers,  in  criminal 
to  quash,  or  in  arrest  of 
ill  the  matters  which  he 
inal  cases  in  this  court 
not  follow  that  the  right 
ly  it  should  not  exist  in 


On  the  contrary,  Chitty.  in  his  Criminivl  Law,'  speaking  of  crim- 
inal cases,  says,  that  "  by  leave  u  demurrer  may  be  withdrawn." 
And  again,  in  p.  4  l(»,  ho  says,  "  when  once  a  demurrer  is  filed,  the  de- 
fendant can  not  withdraw  it  without  the  consent  of  the  parties  on  whose 
prosecution  he  is  indicted ;  or,  at  least,  without  the  permission  of  the 
court."  And  although  he  says,  in  p.  4'M),  that  "  in  cases  of  misde- 
meanor or  judgment  of  respotnleas  ouster  is  of  right  demandablc,  when 
an  issue  in  law  is  found  against  the  defendant,  for  the  decision  opcrals 
as  cniiviction,"  yet  he  says,  "  as  a  matter  of  favor,  the  defendant  ma,\ 
still  be  permitted  to  plead  not  guilty." 

That  a  rvspondeaK  mister  is  not  of  right  demandablc,  in  tlio  present 
case,  is  admitted ;  and  if  we  now  proceed  to  judgment,  that  judgment 
iiinst  be  peremptory.  And  the  law  is  admitted  as  laid  down  by  Chitty, 
in  p.  441,  tliat,  "  in  mere  misdemeanors,  if  the  defendant  demur  to  the 
indictment,  and  fail  in  the  argument,  he  shall  not  have  judgment  to  an- 
swer over;  but  the  decision  will  operate  a  conviction." 

Here  the  defendant  does  not  ask  the  judgment  of  the  court,  upon  the 
demurrer,  that  he  sh  .11  answer  over;  but  he  asks  leave  to  withdraw  the 
demurrer,  before  the  actual  decision  of  the  court  upon  it. 

Tiie  cases  cited,  which,  at  first  view,  seem  to  support  the  counsel  of 
tlie  United  States  in  opposing  the  motion,  on  the  ground  of  the  want  of 
siicii  a  discretionary  p  )wer  to  suffer  the  demurrer  to  be  withdrawn,  only 
show  that  the  judgment,  when  given  upon  the  demurrer,  must  be  a  per- 
emptory judgment.  In  civil  cases,  such  a  motion  has  been  often  made 
and  granted,  in  this  court;  and  we  think  we  have  as  much  right,  in  our 
discretion,  to  grant  it  in  a  criminal  case  as  in  a  civil.  Indeed,  we 
tiiink  the  reasons  for  it  are  much  stronger  in  the  former  than  in  the  lat- 
ter, in  proportion  as  a  man's  reputation  and  liberty  are  dearer  to  him 
tlian  his  lands  or  goods. 

2.  The  second  question  is,  whether  the  court,  in  the  exercise  of  its 
discretion,  ought  to  grant  the  leave  which  has  been  asked? 

That  a  man  has  mistaken  the  law,  and,  therefore,  mistaken  his 
defence,  does  not  seem  of  itself,  to  afford  a  reason  why  the  peremptory 
judgment  of  conilemnation  should  be  entered  up  against  him  ;  and  if  he 
IkuI  a  probable  ground  to  suppose  that  he  was  not  bound  to  answer 
crimiiially  for  the  act  charged,  but  is  mistaken,  it  seems  hard  that  he 
siiould  not  be  permitted  to  deny  the  fact.  For  although,  technically 
sjieaking,  he  must  be  considered  as  having  admitted  the  facts,  before  he 
toiiid  call  upon  the  court  for  their  opinion,  whether  those  facts  consti- 
tuted a  crime,  yet  it  must  be  seen  that  such  admission  is  only  made  for 
'lie  purpose  of  raising  the  question  of  law.  > 

1  vol.  1  p.  437. 


'j;5s 


ri!\ri)  AND  rAi.si:  viMvrKNsKs. 


'I'hiil  the  (]iu'-ti'in>  of  \ii\\ .  w'nicli  liiivc  arisi'ii  in  tliis  vi\hv.  witi'  itn- 
portani,  iiinl  iu  sunn-  ilr^ici'  dnuhtful,  ami  tlisit  -kuw  of  tliciu  were  luw. 
Ill  lc:i>t  ill  tliis  court,  must  I'C  nppari'nl  from  tin-  tiiiu"  consiinuMl  in  ;ii- 
jrumi'iil  hy  111*'  alile  counsel,  ami  liy  'li«  ti"iL'  whic  li  the  court  (liHMiinl 
necessary  for  deliberatiou.     This,  therefore,  can  not  be  called  a  frivd- 

lotlS  ilellllllTtr. 

It  may  lie  olisorvetl,  also,  that,  althoii-li  tlie  jiidgmunt  of  the  court 
upnii  the  (lemuricr.  if  airainst  tlie  (lefondaiit.  is  pereiuptory.  it  is  iint  -n 
if  a;.'iiiiist  the  I'liited  States;  fur  tiuy  may  send  up  new  hills  of  imlict- 
nieiii  successively,  until  tliey  shall  have  made  their  caae  perfect  in 
form. 

Another  circumstance  is,  tliat  in  this  case  there  is  no  appellate  court 
to  reverse  our  judtrment.  and  correit  it  if  it  shoiihl  be  erroneous. 

It  also  deserv.s  consideration,  tiiat,  from  the  known  practice  of  tliis 
court  to  suffer  demurrers,  in  civil  cases,  to  be  withdrawn  after  arjiii- 
ment,  ami  after  an  expression  of  the  o|r,.ioiiof  the  court,  and  from  tin' 
circumstances  that  thi  re  has  tiecn  no  criminal  case,  in  this  court,  in 
which  such  leave  has  lieeii  denied,  and  that  the  reasons  in  favor  of  it,  in 
criminal  cases,  were  apparently  as  strong,  at  least,  as  in  civil  casivj; 
the  defendant,  or  his  counsel,  may  have  been  led  to  believe  that  tlu' 
same  iiidiiltreiice  would  be  extended  to  criminal  cases;  and  this  belirf 
may  have  been  kept  up  diuiny  the  arj:umeiit  of  these  causes,  by  the  cir- 
cumstance that  the  witnesses  for  the  rnited  States,  who  were  to  support 
the  indictment  liet'ore  the  petit  jury,  have  Viccn  detained  here  duriiiLrtiu' 
whole  of  the  ar^rumenls  upon  the  demurriT.  Whereas,  if  the  I'nite'l 
States  had  dischar<;:cd  those  witnesses  as  soon  as  the  defendant  had  di- 
nuirr"d  to  the  indictment,  so  that  the  defendant  might  have  undeistooil 
that  the  United  States  expected  a  peremptory  judgment,  the  defendiiiit 
might  have  offered  to  abandon  his  demurrer  before  the  opinion  of  tlic 
court  was  declared,  and  even  before  the  argument  of  cminstd. 

It  is  true  that  the  defendant  might  have  availed  himself  of  the  same 
objections  to  tiie  indictment  upon  a  motion  in  arrest  of  judgment,  as  by 
demurrer;  but  it  is  not  perceived  how  tlie  United  States  would  have 
been  in  any  degree  benefited  liy  such  a  course.  On  the  contrary,  if  the 
judgment  upon  the  demurrer  to  any  one  of  the  indictments  should  W 
against  the  Uniteil  States,  it  would  save  tlie  exiiense  of  a  jury  trial  uiion 
that  indictment,  and  the  United  Sti-tes  miglit  send  up  a  better. 

The  court  is,  therefore,  of  ojiinion  that  tlie  leave  asked  by  the  defend- 
ant's counsel  ought  to  be  granted  ;  provided  the  defendant  shall  waive 
his  right  of  moving  in  arrest  of  judgment  for  any  matters  apparent  uiion 
the  indictment.   < 

TiiuKSToN,  J.,  dissenting  saying: 

That    lie  felt    himself    compelle.l  to  differ  from    a  majority  of  tbe 


IMTICK    ST,\Ti;s    i\   WM'KINM. 


tins  ciisi',  wiTi'  itii- 
t'  of  tlii'iii  were  luw. 
iiiu'  cout*iinu'<l  in  ui- 
1»  tlie  cuiirt  (k'ciiinl 
)t  be  called  a  frivo- 

graent  of  the  cniiit 

■mptdiT.  it  is  ii'it  -II 

iiiw  liills  of  iiiilict- 

ioir  caao  perfect  in 

s  no  appellate  court 
he  erroni'ous. 
lowii  practice  of  this 
lulrawu  after  nri.Mi- 
couft,  and  from  tin 
ISC,  in  tliis  court,  in 
sons  in  favor  of  it,  in 
»t,  as  in  civil  easi'><; 

to  lielieve  that  the 
ises ;  and  this  bclitf 
sc  causes,  by  tlio  cir- 
who  were  to  support 
lined  here  dnriiii^tlif 
lereas,  if  the  I'nite'l 
le  defendant  had  tlt- 
lyht  have  iindei stool 
;nient,  the  defendant 
re  the  opinion  of  the 
of  counsel, 
himself  of  the  same 
it  of  judiinient,  as  by 
il  States  would  iiave 
n  the  contrary,  if  the 
diet  incuts  shouUl  ho 
a  of  a  jury  trial  uiion 
up  a  better. 

asked  by  the  defend- 
lefendaul  shall  waive 
jatters  apparent  upon 


court,  in  the  opiuiuu  Jmm   r.'ndciv.l  by  tluni.     That   h.-  should  br  w,  II 
.;ili*lied  that  tlic  ui.  rits  ,<{  th..  ,,,so  should  lie  lu^ard,  wIimIi  would  ;rive 
:lic  accu.sc.l  a  fair  opiK.rluuity  ..f  provinjj;  his  innocence  to  the  woHd, 
.111.1  uliich,  by  tlH.J,„|^r„„,„t  of  thccnurt.  he  will  have;    but  he  .•nuid 
n  .t  sec  that  he  ha<l  any  disdx'tion  wlii..|,  h,.  ,.,)idd  cxcicis,.  ..n  this  occa- 
sion.    And  altli.Mi-h  the  majority  of  the  court,  ainnn-  the  reasons  t|,ey 
..Mixned   for  ^'rautiii},'  l-'avo  to  withdraw  the  demurrer,  said  that  they 
'ImI  not  see  why  this  can  not  be  done  in  a  crinunal,  as  well  as  a  civil 
i:we,  he  thou-ht  there  was  a  verystrouir  K-ason  for  it,  ami  that  was  that 
:iH'   law  forbade.     Ami  although  he   was  n  .t,  perhaps,   nm-in^r  n,,,,,. 
lulgcswho  entertain  a  very  profouml  r.'spoet  for  all  the  ilinn  to  be 
fMHidin  compilations  luid    diijests,  yet,   wIl-u  they  are   supporle.I  by 
-Irmn  decisions  of  courts  of  j:-rcat  dij-nity  and  nuMioritv,  he  felt  him- 
M  If  bound  by  them.     That  no  case  coul.l  be  found  in  "which,  after  a 
leinurrer    was   fully  ar-ued,   au<l  the  oj-inion  of  the    court  delivered 
th.Tc.n,  that  the  demurrer  could  be  withdrawn,  and  the  demurrant  per- 
aiilti'd  to  i)lead  over.     The  judj;e    then  read    certain    passa-.>s  from 
(liitly's  Criminal   Law,  in  support  of  his  position.     The   liist   was-i 
•Uheucmce  a  demurrer  is  (iled,  the  defendant  can  not  withdraw  it 
without  the  consent  of  the  parties  on  whose  prosecution  ho  is  indicted, 
nrat  least  without  the  leave  of  the  court."     That,  althoufrh  this  p-J- 
>a-r  nii-ht  seem  to  favor  an  ap|)lication,  in  ceilain  cases,  for  leave  to 
"itli'iraw,  yet  it  is  far  from  sustaining  the  motion  in  the  present  case. 
Ihat  it  was  very  true,  perhaps,  that,  after  d.ininrer  filed,  even  in  a  case 
"f  misdemeanor,  the  court,  before  arjrumcnt,  woidd  allow  the  accused 
■^'"'HspatHitentin';  nnd  not  tic  him  «lown  to  a  step  which  he  may  have 
'ai<en  without  due  delil)eration.     That  if  the  court  have  a  discretionary 
i"wer,  it  is  in  this  sta^^e  of  the  i)rocee.ling,  and  not  after  full  delibera- 
ioii,  and  after  the  defindaut  had  f.)ught  every  inch  of  ground  in  su[.- 
P<rt  of  his  demurrer,  and  found  himself  defeated,  after  one  of  the  most 
-hstinate  and  pertinacious  conflicts  that  was,  perhaps,  ever  witness.'din 
••  'ourt  of  justice.     That  he  could  see  no  substantial  difference  between 
.tlin  ()i)inion  of  the  court,  solemnly  delivered  afti-r  argument,  and  the 
"tgment  of  the  court.     That  the  judgment  ought  to  bo  entered  after 
-H  opinion  delivered,  in  which  case  the  defence  would  be  concluded, 
'"'1  In-  understands  ,hat  the  majority  of  the  co.ut  so  considers  it ;  an<i 
■aiiU,  before  the  clerk  can  be  directed  to  enter  the  judgment  of  the  court 
■n  the  opinion  delivered,  if  the  defendant's  counsel  choose  to  interpose 
'motion  of  this  kind,  it  seemed  to  him  that  it  should  not  make  any  dif- 
firtuee  in  the  iirineiple  or  in  the  results. 


1    a  majoritj'  of  the 


'   1  Chit.  (  1-.  I..  4 JO. 


to 


ritAlM)    ASr)    I'AI.SK    I'KKTKNSKS. 


'I'ln'  Jiidgf  fiirtliiT  ()l)Hcrvoil,  tliiit  ovimi  if  it  w;is  clear  that  lif  hail  ji 
(liHcrction  to  pciiiiit  the  thiimircr  to  ht-  witiuliawii,  iimlor  fxistin;;  i  ir- 
fuinstanct's  lieshoiihl  <linil>t  the  proprict}' of  cxiTfiMing  it  in  tla-  prosi  ,it 
casi',  ftfliT  tilt!  (Icfciiiliiiit  had  rost('(|  on  his  (It'inurrcr  with  Mich  coiili- 
tlciicf,  and  supported  it  wiMi  such  oiistiiiucy  :  and  persisted  in  refusing 
to  ask  tlu!  t'xercisi'  of  this  power  in  his  hehiilf,  until  ho  iiad  become  in- 
formed of  the  opinion  of  the  court. 

The  judge,  then,  to  sustain  the  remarks  above  made,  read  tiie  follow- 
injx  authorities:  '  "  hut  in  inert!  niisdeiiieanors,  if  the  defendant  demur 
to  tiie  indictment,  whether  in  aliatement  or  otherwise,  and  fail  in  the 
ar<.Minient.  he  shall  not  have  juilgmeut  to  answer  over,  but  the  decision 
will  operate  as  a  conviction." 

That  tliis  authority  appeared,  from  the  references,  to  be  supported  by 
a  solemn  decision  of  the  Court  of  Kintr's  Bench,  in  which  all  the  judLres 
concurred.  That  the  laniiuajxc  of  Lord  Ellcnboron<;li,  and  all  tiic 
judges,  in  that  case,  was  so  positive,  and  therefore  the  authority  (in 
I  lie  absence  of  a  single  case  against  it,  either  in  the  books  or  in  our  own 
practice),  so  imperative,  that  he  could  not  resist  it.  This  case  is  to  be 
found  in  8  Kast.-'  Lord  Kllenboroiigii  thcio  says:  "  Only  one  instanci' 
h.'is  been  mentioned  of  tiie  same  privilege  "  (meaning  the  privilege  asked 
of  this  court  to  withdraw  the  demurrer  and  to  plead  over),^  "  and  thai 
is  the  precedent  referred  to  in  Tremainc,  on  account  of  the  magniiuile 
of  the  punishment  for  striking  another  in  the  king's  palace,  being  no 
less  than  the  loss  of  the  offender's  hands." 

Grose,  Justice,  concludes  his  opinion  with  these  words:  "But  it 
seems  that  in  criminal  c;;se3,  not  capital,  if  the  defendant  demur  to  an 
indictment,  etc.,  whether  in  abatement  or  otherwise,  the  court  will  nut 
give  judgment  against  him  to  answer  over,  but  final  judgment."  "All 
the  judges  of  the  King's  Bench  concurred  in  that  opinion  ;  and  he  felt 
himself  bound  by  such  ])ositive  authorities,  and  therefore  was  obliged  to 
dissent  from  the  opinion  of  the  court,  and  to  refuse  the  motion." 

Tbo  defemlant  having  thus  had  leave  to  withdraw  the  demurrer  to  tlu' 
indictment  for  the  ToO  dollars,  pleaded  not  guilty,  and  the  case  came 
on  for  trial  upon  the  general  issue. 


1  1  Chit.  Or.  I..  Hi. 

2  )).  ll'i,  King  I'.  Uilison. 


3  But  see  the  ruso  ittcK. 


SSKS. 

w;is  clear  I  lint  lir  luul  ;i 
■awn,  undiT  fxistin^  i  ir- 
i'rci«iiig  it  in  tlif  prosi'.it 
iniirnT  witli  Midi  cniili- 
11(1  ptT^tistfil  in  rt'l'iisini.' 
until  he  liail  beoonic  in- 

0  made,  road  tiic  follow. 

if  till'  dcfiiidiiiit  dt'iniii 

liorwisc,  and  fail  in  tin 

it  over,  but  the  deciHion 

noes,  to  l)e  supported  In 
,  ill  which  all  the  judi^'cs 
•iiliorougli,  and  all  tlic 
refure  the  authority  (in 

the  books  or  in  our  own 
it  it.  This  case  is  to  ho 
ys ;  "  Only  one  instanci' 
iniug  the  privilege  asked 
plead  over),^  "  and  that 
count  of  the  niagniuule 

king's  palace,  being  no 

these  words:  "  But  it 
defendant  demur  to  an 
•wise,  the  court  will  imt 
final  judgment."  "All 
lat  opinion ;  and  he  felt 
therefore  was  obliged  to 
'use  the  motion." 
Iraw  the  demurrer  to  the 
lilty,  and  the  case  came 


the  cuso  itacU. 


NCOTT    r.   I'KOI'l.i: 


I'll 


KALSK     I'RF.TF.NSEH  _  AUF.NT     AN'D     riUNril'Af,    COLLUDu\G    AS    TO 
I'lUCK  (i|-  I-AND  — MOTIVK. 

S((»TT    ''.    PkoI'LK. 

[t;j  lliirb.  t;;t.] 

l»  thr  Supreme  Court  of  Xmr  York,  1S7'.}. 

I  An  Indictment  for  Obtaining  the  "luniitiiro  of  n  luirchniicr  to  promli^nory  note  «  (tiven 
r.ir  llii'  luiichasc  pricii  ut  |irci|i(!il>-  miIiI  di  liliii  liy  false-  prriiiiiHi'n  nml  io|ii'CBt'iitatioiiH 
iiH  Id  tin'  inicc  askcil  f.ir  llii"  |ir(i|icrlv  Ity  ii  tlilnl  iiiTHori,  wlio  wiii'  tin-  nwinr,  ran  v>{  lir 
-untaliii'il,  wluMi'  tlic  piHiif  Mliiuvt  thai  no  ri'iprcriciilalioiiM  wen)  iiiailc  liy  llio  (lifciidaiil 
in  ri'ttanl  to  tlif  |irici',  i'X('i>|.l  that  In'  tnl.l  tim  iiiir('lia..i'r,  in  tliu  cuiirM!  of  tlii' m't.'n(ia- 
lion-,  that  lin  iliil  imi  think  Ihnt  tho  ni'ljcr  would  laku  lt"<s  than  ii  hiiiii  naniiMl ;  ami  that 
the  only  te|ires«mtiitlonK  as  lo  priuo,  at  tho  tiino  of  tho  »alo  am!  |iiircha»«,  were  iiiadi! 
liy  tlie  Ht'Uor. 

^  Altbouirh  the  Price  Asked,  ami  llnally  aKrocd  lo  be  paid  hy  tho  pnirliahiM-,  hn  llxcd 
liv  lolhisloii  lietwcon  the  owner  I'f  tlic  properly  and  tin'  defoiiilant,  for  tho  ioiipo-<(.  ,,f 
ilifraiiding  the  pMi('liast!r,  -ucli  colluBion,  though  it  may  lio  an  indiotahlt!  otfoii^.,',  if  not 
till'  otfeiiM'  chaiK'i'il. 

:  If.  In  Fact,  the  Price  Atrreed  to  be  paid  Ity  the  piirclijiwor  was  the  prlr,>  (luiiianded  liy 
llic  HclItM-,  at  lliollinr  of  I  lie  Hiili',  Ihn  mot  ire  iniiHkiiiK  that  prltf  I  ^  of  no  ciinsoipK.'noe,  sii 
far  HA  tliu  olfciLHc  I'liarKcil  i«  conuernuU. 

Writ  of  error  to  the  Jefferson  Oyer  and  Terminer.  The  plaintiff  in 
error,  Scott,  was  imlicted  jointly  with  one  William  15.  Nicholson,  for 
nlitaining  under  false  pretenses,  the  signature  of  one  CJcorgc  A.  Wilson 
to  six  promissory  notes  of  Sl.dOO  each 

At  the  close  of  the  jiroof  tiie  prisoner's  counsel  moved  the  discharge 
of  the  prisoner,  on  the  grounds  generally  of  the  insufficiency  of  the 
imlictment  and  the  proof;  which  motion  was  denied. 

Tile  jury  found  a  verdict  of  guilty  in  miiiiner  and  form  as  charged  in 
the  indictment.  A  motion  in  arrest  of  judgment  and  for  a  new  trial 
»;i>  made  upon  the  case  as  settled.  The  motion  was  denied,  with 
exceptions. 

.loiiNsoN,  J.  The  plaintiff  in  error  was  indicted  with  one  Nicholson, 
fur  olitaining  the  sigmituie  of  (ieoige  A.  Wilson,  to  six  iironiissory 
iicles  of  §1,000  each,  liy  false  pretenses,  iijioii  the  jiurchasc  by  the 
latter  of  Nicholson,  of  the  title  to  one-half  of  a  ci'i'tain  patent  right. 
Several  pretenses  alleged  to  have  been  false  were  set  out  in  the  indict- 
ment, only  one  of  which  it  will  be  necessary  to  consider,  as  the  judge 
will)  presided  upon  the  trial,  when  submitting  the  case  to  the  jury 
charged  and  instructed  them  that  upon  that  one  only  could  the  plaintiff 
ill  irror  be  convicted  of  the  offense  charged. 

That  i)retense  was  in  regard  to  the  real  ami  true  price  for  the  whole 
ri^ht.     The  charge  in  the  indictment  upon  this  siibjed,  was  that  Scott, 
ilie  plaintiff  in  error,  and  Nicholson,  falsely  pretended  and  represented 
3  Defences.  Ifi 


^jo  VlUri)    ANP    VM.SI'    VHKTKNSKS. 

^,^.^^  ,„„  ,..,,,  „.a  true  pri-e  in  n.ou.y.  usko<l  mul  I'-kM  by  Niohobon 

no,;;.     .  Uo,   an,l  IW.-I  for  said  ri.ht  by  said  Nicholson  was  only  *•> 
:  ;.   ntiff  in  error  was  convi<-to,l  on  thin  oharizo  m  tin-  nuhctn 
::  •::  ;"o  Ni:;::i:on,  t^e  own. an,l  ....  of  „.e  ..U^nt  ..n.  . 
.s  n  witnc^H  l.v  the  People.     The  only  facts  in  rejzarcl   o  tie  >  h 
;^    "<.ntatlon.  in  respect  to  it,  which  ,hc  evi.leneo    ende.     o 
..  ,-0    h.t  Nicholson,  who  was  the  owner  of  thepatcnte.lr>,ht      e 
;^".l     ,.c  san.e,  an.l  wished  the  plaintiff  in  error  to  ass.t   nn 
n.  the  sale.     That  the  plaintiff  in  error  in,,n,re.l  ..f  >h'1h  -  -  wl 
:o.d     take  for  his  ri.ht,  and  was  inf.-rnu.d  by  l^iebolson  tl.t^^  ^ 
lu.  S:M.(.0.     That  thercnpon  the  plaintiff  in  ---"f^;^^  '' 
hat  he  wonld  ,et  him  three  goods  notes  for  U,  ^"^'^'^^^^^ 
.sk  Sl2.f.0()  or  Si:.,imO  for  it,  so  that  l.e,  the  phunt.ff  m  error 
tnkl  sonn.thing  ont  of  it.     On  the  evening  of  the  same  day    the 
^    ;..     .r  and  Nieholson  together  saw  Wilson,  and  neg.   uUkm  s 
:!,:,dforthepnrchnscoftheright.     ^i-l^olson  ^firs^^U.Ul. 
Wilson  tluandit  the  price  onght  not  to  be  over  $10,000,  but 
in-       iix  d  by  Ki..holson  at  812,000.  and  the  bargain  was  made 
p"  e      The  plaintiff  in  error  pretended  to  be  a  jo.nt  pnrehas 
W  ison  of  the  ri.dU,.     Wilson  gave  the  notes  in  -p.estion  for  Ins  1 
h     n'rele  p.'c;,  and  the  plaintiff  in  error  pretended  to  g.ve  s. 
tSs'rhishidf.     Tbepatentwasthendnlyt..nsferroa^ 
amUhe  plaintiff  in  error,  who  became  the  owners  thcre<>f.     At 
?r  de  W.S  thus  consnnunated,  Nicholson  retnrned  to  the^lauU 
^  itie    he  had  turned  ont  and  the  six  notes  given  by  W.  sor 
di'-  ded  between  Nicholson  an.l  the  plaintiff  in  error,  each  tak.ng 
Th  ret      some  conflict  in  the  eviden  .  in  regard  to  the  represcn 
ITt      price  ;  but  the  judge  charged  the  jury  that  if  they  fou, 
;^      tltionJ  in   respect  to  the  price  to  be  fal.e,  as  char^'d 
indictment,  they  should  render  a  verdict  of  guilty  agam.t  the 

"""rhe'muition  whether  the  indictment  in  this  particular,  set  out  a 
offe  se    an<l  also,  whether  the  evidence  on  the  subject  of  pr.ee, 
^^Z  was  t.;tilied  to  on  behalf  of  the  State  to  be  true,  was^ 
0  Establish  the  crime  of  obtaining  the  signatures  to  the  no  <■«  by  f 
t^  was  suiliciently  raisc.l  in  various  forms  for  the  P  :-!>« 
That  the  contrivance  between  Nicholson  and  the  pUunt.f  m 
^hich  the  trade  was  effected,  and  the  notes  obt^a.ned  fiom  \N  .L 
;   ssly  unfair  and  dishonest,  in  a  moral  point  "f  v.e..  must,  o 
be  admitted,     lint  it  d..es  not  f..llow  from  this  that  the  t  a 
c  nl.ted  the  crime  of  obtaining  ^^^  f^^^^^'Z 
pretenses,  as  charged  in  t..e  in.lictment.     ^Vdson,  by  t,     ba.. 


Hivrr.NSKS. 


SCOTT    r.    I'KOI'I.K. 


243 


,1  !uh1  lixi"!  liy  Nicholson  for 
MTiis,  intniUi.tlu'tnicpric.i!; 
1(1  Ni(;hi)lson.  wusoiily  S:5.nii". 
:1i1h  c'liiiriro  in  Uif  iiHlietnuni. 
nilorof  thepatiMit,  lK'ingus,a 

ctsin  rc<:!inl  to  tlio  i>''i<'0,  ainl 
the  evldonco  ti'iuU-a  lo  prow. 

rof  tlu'pii'f"'*''^'''?^'''-'''^'''''""' 
in  iM-ror  lo  assist  him  in  nink- 
iniiuiriMl  (if  Nifholson  what  he 
(.(1  by  Niobolson  that  he  would 
iff  in  error  iiifornuMl  Niehols"n 
for  it,  l.nt  he.  Nicholson,  niiM 
le,  the  plaintiff  in  error,  coald 
ing  of  the  same  day,  the  phiiii- 
Wilson,  and  negotiations  coin- 
s'icholson  at  first  asked  $15,001). 
)  be  over  $10,000;  but  it  was 
id  the  bargain  was  made  at  tluu 
d  to  be  a  joint  purchaser  with 
notes  in  .luestion  for  his  half  of 
error  pretended  to  give  separate 
thendiily  transferred  to  Wilson 
the  owners  thereof.     After  the 
„n  retnrtied  to  the  ,)laintiff  the 
ix  notes  given  by  Wilson  wen- 
ntiff  in  error,  each  taking  three, 
in  regard  to  the  representations 
the  [ivry  that  if  tlu-y  found  the 
e  to  be  false,  as  charged  in  the 
diet  of  guilty  against  the  plain- 
in  this  particular,  set  out  any  such 
B  on  the  subject  of  price,  admit- 
the  State  to  be  true,  was  sulBcicnt 
gnatures  to  the  notes  by  false  pre- 
fs  forms  for  the  plaintiff  in  error, 
,on  and  the  plaintiff  in  error,  hy 
notes  obtiiined  from  Wilson,  wa^ 
111  point  of  vic'v,  must,  of  course, 
V  from  this  that  the  transaction 
,e  signatures  to  the  notes  by  falsi 
Mit.     Wilson,  by  ti  ;>  bargain,  L^ot 


all  he  harij;aine(l  for,  and  all  he  expected  lo  get.  tf)  wit.  tlie  title  to  one- 
IimU'  the  patent  right,  and  wiiether  it  was  worth  more  or  le>s  tiian  the 
|irie('  he  agreed  to  p.ay  by  his  notes,  tiL(' ea.se  does  not  discidse,  Tho 
I  (se  as  it  stands  upon  the  evidence,  is,  not  that  WiUou  was  really 
injured  and  suffered  loss  by  the  bargain,  but  that  he  might  have  made 
a  more  ativantageous  iiuichase,  and  g.uiicd  more,  had  tlic  facts  in 
rcizard  to  what  Nicholson  was  to  receive  been  stated  and  made  known 
ic  him.  The  point  is,  was  there  a  faNc  representation  as  to  price,  at 
the  time  of  the  trade,  which  was  material  in  the  eye  of  the  law.  There 
is  no  evidence  to  show  that  the  |)laintiff  in  error  made  anv  representa- 
tion whatever  in  regard  to  the  price,  except  that  he  told  Wilson,  in  the 
Kiiirse  of  the  negotiation,  that  he  did  not  think  Nicliols.ni  would  take 
it  ss  than  $1l',<mh».  This  was  a  false  and  dishorn  stcxiinssion  of  an 
npinion  as  to  wiiat  Nicholson  would  or  would  not  do;  but  it  was  no 
represeiUation  .as  to  what  Nicholson's  price  in  fact  was.  All  the  reprc- 
xiitatious  as  to  the  price  were  made  by  Nicholson.  Had  the  indict- 
ini'iit  been  for  a  conspiracy  to  cheat,  between  Nicholson  and  the 
plaintiff  in  error,  Nicholson's  representations,  for  thcjinrpose  of  effect- 
the  conunon  object,  might  i>e  held  to  be  thoNC  of  the  jilaintiff  in 
error.  But  that  rule,  1  apprehend,  tloes  not  ap|)ly  to  a  case  like'  this. 
Ihit  whether  this  m  so  or  not,  it  is  perfectly  well  settled  that  the  pre- 
tri,st>  alleged  to  be  false,  must  have  formed  some  part  of  the  induce- 
MHut  to  the  doing  of  the  act,  and  nnist  bt;  of  some  existing  fact,  anil 
made  for  the  purpose  of  inducing  the  [irosecutor  to  part  with  his  prop- 
I  rly,  or  to  do  the  act.  Both  the  inducement  and  the  fraudulent  pur- 
|iose  are  facts  to  be  {)roved,  and  are  not  to  be  presumed.  It  is  to  be 
I  •  me  in  mind  that  the  false  pretense  charged,  and  up'^n  which  the 
iMiiviction  was  had,  was  that  the  price  of  the  |)atent  was  S  12,000,  where 
ia  truth  it  was  only  S.'i.OOO;  and  wt;  are  to  lo<jk  at  the  case  now,  as 
tliough  nothing  else  had  been  charged  in  tiie  indictnu  iit,  and  no  proof 
i,'i\en  in  regard  to  any  other  pretense  which  was  there  charged,  as  the 
iiilur  pretenses,  and  the  evidence  relating  thereto,  were  all  stricken 
Mit,  or  held  to  be  out  of  the  case.  The  not"s,  it  is  ca-rtain,  were 
-iLTiied  l)y  Wilson,  to  complete  his  ])nrehase.  and  obtain  his  title  to  one- 
tialf  of  the  patent  right.  It  is  (piite  apparent  that  he  would  not  have 
given  his  notes  for  S(i,000  for  this  interest,  if  tlu'  i)ric(!  asked  had  been 
(Illy  Sl.fiOO,  or  $."),0(i0  for  the  entire  right.  To  suppose  the  contrary, 
"(Mild  be  against  all  experience  in  commercial  transactions,  and  all  the 
<rr  iiinds  of  common  inference. 

We  all  know  that  the  higher  price  enters  into  the  inducement  of  the 
seller  to  sell,  and  the  lower  price  enters  into  the  inducement  of  tlie 
purchaser  to  j)urchasc.  The  old  struggle  for  the  higher  price  on  the 
pint  of  the  seller,  and  the  lower  \mce  on  the  part  of  the  jiurchascr, 


L'll 


FUAll)    AND    lAI.SK    IM'.KTKNSES. 


wliicli  Ix'gun  at  the  beginning  of  tralHc  belwoon  wu>n,  still  continues 

and  from  tlic  very  natun-  of  tilings,  must  continiu'  as  long  as  foniincic 

ia  caniod  ou.     When,  therefore,  Wilson  the  purchaser,  testifies  that  li 

would  not  have  signed  tln'se  notes  for  $r.,OI)0  if  he  had  supposed  tli 

price  was  not  812,000,  hut  only  S;5,000,  we  can  see  that  he  only  intend 

to  say  tiiat  he  would  not  have  given  tiiat  price  if  he  had  understood  h 

could  have  purchased  for  less  ;  and  not  that  the  lixing  of  the  high  prir 

formed,  or  entered  into,  the  inducement  to  make  the  purchase,  and  sii: 

any  notes  to  complete  it.     But   in  regard  to  the  existing  fact,  as  to  fli 

price,  how  is  that?     Price  is  the  value  whicli  a  seller  places  upon  ir 

goods  for  sale.     It  is  not  a  fixed  and  unchangeable  thing.     It  may  I 

one  thing  to-day  and  another  to-morrow,  and  one  valuation  to  one  cu 

tomer,  and  a  different  one  to  another  on  the  same  day  or  hour.     Wha 

over  a  seller  asks  any  one  to  give  is  the  price,  until  he  changes  it  f( 

another.     The  ymvc  asked  is  the  existing  fact,  until  it  is  changec 

When  the  price  tisked  is  changed  to  another  price,  the  former  price 

no  longer  an  existing  fact.     The  existing  fact  is  not  what  a  party  mi 

be  willing  to  take  in  case  he  can  not  do  better,  but  what  he  then  pr 

jioscs  to  take.     The  indictment  in  this  case,  in  tliis  respect,  and  the  e\ 

deuce  on  the  part  of  the  People,  and  the  charge  of  the  judge  to  tiie  .j.ir 

all  proceed  upon  the  assumption  that  the  price  asked,  when  this  barga 

was  matle,  was  not  the  price,  i)ut  sometiiing  different ;  a  mere  fal 

jiretense.     Tliis  is  a  mere  confusion  of  ideas.     That  81-,000was  t 

price  that  Nicliolson  in  fact  asked  on  the  occasion  of  that  trade,  no  o 

denies,  but  all  the  evidence,  on  both  sides,   conclusively  establisla 

He  first  asked  $lo,0(»0,   and  was  offered  $10,000.     He   finally  car 

down  to  812,000,  and  avowed  his  intention  not  to  sell  at  that  time  unh 

he  could  get  that  price.     There  is  no  chance  for  dispute  about  this, 

least  on  behalf  of  the  People.     lUit  it  is  said  that  this  price  was  fixed 

collusion  Itetwi'cn  Nicholson  and  the  plaintiff  in  error  for  the  purpose 

defrauding  Wilson.     This  may  be  so,  but  it  docs  not  affect  the  (pi 

ti  n  we  are  considering.     That  may  have  been  an  oi'fense  of  another  ch 

acter,  but  it  was  not  the  offense  in  (luestiou.     No  matter  so  far  as  t 

question  is  concerned,  how   the  price  came  to  be  fixed  and  asked. 

prett'nded  at  that  amount.     It  was.  in  fact,  asked,  and  though  it  n 

have  been  asked  for  the  purpose  of  taking  a  dishonest  advantage 

Wilson,  the  asking  was  the  existing  fact.     No  other  price  was  asked. 

named,  or  fixed  between  the  parties  to  the  transaction,  onthatoccasi 

than  that  aliove  referred  to. 

The  motive  in  asking  this  large  i>rice  is  of  no  consequt-nce,  so  far 
this  offense  is  concerned,  if,  in  fact,  the  price  was  demanded  by 
seller.     It  wouM  be  a  most  extraordinary  and  unheard  of  thing  to  c 
vict  !i  mereliant  of  obtaining  money,  or  the  signature  to  a  note,  by  fi 


PKNSES. 


R.    '.'.    lUHKOWS. 


M"« 


,wooii  incMi,  still  continues, 
iliiiiit'  as  loiiji  :>s  cniniiu'Hr 
purcliasiT,  tor^tifu's  tliul  lit 

00  if  ho  had  siipi)Oso(l  tin 
an  st'i-  tliat  he  only  inti-ml- 
je  if  he  had  understood  In 
the  lixing  of  the  higli  prin 
lake  the  purchase,  and  siL'n 
the  existing  fact,  as  to  flir 
li  a  seller  places  upon  his 
mgeable  thing.     It  may  !»■ 

1  one  valuation  to  one  cii>- 
same  day  or  hour.  What- 
ice,  until  he  changes  it  fir 

fact,  until  it  is  clianged. 
r  prici',  the  former  price  is 
ict  is  not  what  ii  party  may 
■Iter,  hut  what  he  tlien  [n-o- 
in  tills  respect,  and  the  evi- 
rge  of  the  judge  to  tiie  .inrv. 
CO  asUed,  when  this  bargain 
ing  different ;  a  mere  fal:<i 
■as.     That  §12,000  was  tin 
casion  of  that  trade,  no  ont 
'8,   conclusively  cstaldislies. 
S10,<iOO.     lie   finally  canu 
lot  to  sell  at  that  time  ui'.l(-> 
L-e  for  dispute  about  this,  n* 
1  that  this  price  was  fixed  li,v 
ff  in  error  for  the  purpose  of 
it  dms  not  affect  the  ipn- 
■u  an  ol'fi'use  of  another  c!i:ti- 
u.     Ko  matter  so  far  as  tlii- 
e  to  be  fixed  and  asked.  I'l 
•t,  asked,  and  though  it  nui} 
ig  a  dishonest  advantage  1 1 
No  other  price  was  asked.  "■ 
transaction,  on  that  occasion. 

of  no  consetpience,  so  far  !i~ 

I  price  was  denumded  by  iLi 

and  unheard  of  thing  to  ccui- 

signature  to  a  note,  bv  fal^c 


ITi'tcnses,  because  in  selling  his  goods.  l)y  whicli  tiii'  iii'Micy  or  note  was 
oiiiaiiu'd,  lie  had  asked  tiie  purchaser,  and  obttiined,  a  liigher  price  for 
;ln'  goods  than  his  price-mark,  or  than  he  had  offered  to  sell  tlie  same 
L'nods  to  another  customer,  or  than  he  would  have  been  willing  to  fake, 
hnd  tlie  purchaser  refused  to  give  the  pretended  price  asked,  and  in- 
-i>ted  strongly  enough  on  a  lower  price. 

Or,  take  the  case  of  a  person  who  procured  the  aid  of  an  agent  or 
liroker  to  assist  him  in  making  sale  of  his  property,  real  or  personal, 
,111(1  wiio  is  willing,  and  proposes  to  such  agent  to  sell  at  a  given  price, 
:uid  w'iio  at  the  suggestion  of  the  agent  consents  to  ask  a  higher  price, 
ami  to  give  the  difference  between  the  two  i)rices  to  the  agent  in  case 
the  hii^her  price  can  be  obtained;  can  it  be  pretended  for  a  moment 
that  either  the  principal  or  the  agent  could  be  convicted  of  obtaining 
uiciiiey,  or  the  signature  of  the  purchaser  to  oldigations,  by  false  pre- 
tenses in  regard  to  [irice,  even  though,  as  in  the  case  before  us,  they 
iiad  pretended  that  the  higher  price  was  the  true  and  only  price, 
and  that  they  would  refuse  to  sell  for  anything  less.  The  --ases 
are  precisely  analoj^ous  so  far  as  the  false  pretense  is  conerned. 
The  element  of  collusion  and  conspiracy,  which  has  been  brought 
into  the  case  at  bar,  belongs  to  another  and  different  class  of  of- 
fi  uses.  It  must  be  seen,  we  think,  and  admitted,  that  the  false  pre- 
t(  nse  as  to  the  price  charged  and  sought  to  be  proved  in  this  ease, 
is  not  the  false  jiretense  contemplated  by  the  statute,  and  that  the 
plaintiff  in  error  was  wrongfully  convicted  of  that  offense. 

The  judgment  should  therefore   be   reversed,    and   the   plaintiff  in 
en  or  discharged  absolutely. 
Talcott,  J.,  concurred. 


FALSE    PRETENSL'S  —  PRISONER    MUST    KNOW   THAT    PRETENSE    IS 

FALSE. 

R.  r.  Burrows. 

[U  Cox,  258. J 

In  the  English  Court  of  Criminal  Appeal .  1Sf;9. 

On  an  Indictment  for  fraudulently  obtaining  goods  In  a  market  by  falsely  pretending  that 
a  room  had  been  taken  at  which  to  pay  the  market  people  for  their  goods,  the  Jury  found 

that  the  well-known  prurtice  wan  for  buy.rs  to  ongiige  a  r i  at  a  publichnuK',  and 

that  the  prisoner,  prctetiiling  to  be  a  buyer,  i-onveyi>l  to  the  minds  of  the  market  ptoi'ln 
that  eho  had  engaged  such  a  room,  and  that  they  parted  \yith  Iheir  goods  on  «uch  belief: 
llrlU,  there  being  no  evnlence  that  the  piisimer  knew  offuch  a  practice,  and  the  caBe 
being  consistent  wilh  a  promise  only  im  her  part  to  engage  such  a  room  and  pay  for  the 
KixkIs  there,  a  conviction  could  not  be  sustained. 


i>jt; 


Kii.M  i>  AM>  r.M.si;   i'i!i:Tr.\>r.s. 


Ciisc  reserved  fur  the  opinidii  of  (lii-i  cdurt  liy  IMr.  Haron  I?1!.\m\vk 
Tlii-i  was  an  iiuliclinciit   for  (iMainiii'jc  pKids   hy  false  pn  tenses. 
was  tried  l)of()io  iiic  at  tin-  last  assizes  for  llertfoidsliire.     'I'lieeviUei 
was  as  follows  :  — • 

Kli/.a  Oshoin  (wife  of  William  ()sl)oni) :  <'"  Friday  I'\>l)iiiaiy  I'J 
went  to  'I'riuif  iNIarUet.  Met  prisoner  at.  (i^•e  ininnles  past  nine.  ,*■ 
came  and  aske(i  priee  of  plait.  I  said  "  fourteen  pence."  She  s:i 
"Tiiirteeii  pence,"!  said  "  .\o ;  it  was  very  flood  work."  Slie  asl 
how  many  seores  there  were.  I  said  •• 'I'liirty."  She  said,  "I  i 
have  it."  I  said.  "  l-et  me  i)rim,'  it  in  ;  I  will  keep  it  dry."  She  sti 
'■•  .No,  I  will  lirin^-  it  in."  That  means  bring  it  in,  as  I  sup|iosed. 
the  Ivose  and  Crown.  I  asked  for  a  ticket.  She  said,  "  That  did  i 
matter."  I  said,  ''Then  where  do  yon  piiyV  "  She  said  "In 
lii.se  i\m\  Crown  tap-room  ;  there  she  would  pay  me."  She  tool 
tlien  :  I  let  her  have  it.  Our  general  way  of  speaking  to  the  buyer 
to  sav.  "  Where  do  yon  p:iy."  ^Ve  have  to  <io  to  a  piildic  lumsc  to 
paid.  I  parted  witii  it  on  belief  she  would  ])ay  iiie.  I  did  not  know 
as  a  plait  dealer.  1  tlmnLiht  she  was  ii  plait  dealer  liecause  she 
f(.r  it.  and  told  me  when' she  would  pay  for  it.  Several  buyers 
there.  I  went  to  tin-  Ho-e  and  Crown.  They  befrin  to  pay  about  I 
iKist  nine.  I  miyht  have  believed  her  if  she  had  said  she  would  i 
at    half-past  nine  in  the  market  place.      I  di  1  not  find  her.      Other  d 

crs  were  tiicre. 

Cross-examined:    I   have   attended  Tring  market  thirty  years, 
took  it  after   1  asked   where  she  paid,  and  after  she  told  me,  I  belie 
islie  would    pay  me,  and   so  parted    with  it.     There  are    many  pul 
liou-es  where  they' pay.     They  pay  at  some  private  house.';.     I  wen 
the  Hose  and  Crown  in  a  (piarterof  an  hour. 

^  Tamar  Crockett  (wife  of  (ieoVuc  Cripckelt,  Tring) :  She  asked  w 
I  wanted  for  plait.  I  saiil,  '•  ren|)enee  half|)eimy."  She  s 
••Ten  i)ent-e."  She  took  it.  I  said,  "Where  do  you  jiay,  g 
w.iiiianr"  She  said,  '-At  the  IMooming  Feathers."  I  said,  '•  I  d 
knuwthat."     She  said,"   I'll  pay  at    the  Hose  and  Crown  tap-roo: 

Sill'  took  it  off  my  hand,      fl  is  a  comi i  rule  for  many  plait  buyei 

Juki'  it.      I   believed  I  shouhl  linil  an  honest  woman  in  the  tajj-roo: 
pav.      I    did  U'lttind  her  there.      She  offered  ten  pence,  and  theu 
tlie  plait.     Then  we  spoke  about  the  Crown. 

Cross-examined :   When  1  asked   her  where  she   would  i>ay,  she 
got  the  jilait. 

How.  I  saw  the  prisoner.  She  took  plait,  and  asked  whr 
wante(l  for  it.  I  said  "  Fight  pence."  She  said,  "Seven  ponce.' 
a-ked  her  where  she  paid.  She  said,  "At  the  Rose  and  Crown.' 
said.  "  Wliere  ari'  you  paving,  or  where  will  you  pay?"     She    s 


K.  V.  uinnows. 


•2V 


KI'KNsr.S. 

rt  liy  Mr.  Haron  I?1!.\mwki.i., 
lods  hy  falsi'  pn  tcn-cs.  li 
Icrtfoidsliirc.     'I"lu'  fvitleuee 

:  On  Friday  Fcliiiiary  I'i,  I 
\\yv  niiiuilos  past  iiiiii'.  Sh'' 
foiirti'cii  ixMico."  She  saiil, 
■rv  ^odd  worlc."  Slic  iiskrd 
'liirty."  Sill'  said,  "I  will 
vill  ki'i'p  it  dry."  She  saiil, 
ring  it  in,  as  I  supposed,  to 
t.  She  said,  "That  did  not 
l)ay':'  "  She  said  "In  tliL- 
uld  pay  nie."  She  Uuik  it 
of  speaking  to  the  buyers  is 
to  go  to  a  puldic  house  to  he 
pay  me.  I  did  not  know  hir 
[ilait  dealer  liecause  she  bid 
,•  for  it.  Several  buyers  pay 
They  liepfin  to  pay  about  half 
he  had  said  she  would  pav 
ii  1  not  find  her.     Other  deal- 

g  market  thirty  years.  Slue 
after  slu'  told  me,  I  believed 
it.  There  are  many  publit- 
le  private  houses.  I  went  to 
ir. 

ell.  Tring)  :   She  asked  wli;it 
e    iialf|)einiy."         She    said, 
•  Where  do    you    i>ay,     go  ' ! 
Featliers."      1  said,  '•  I  (bm'' 
'  Hosi'  and  Crown  taii-rooin. 
rule  for  many  plait  buyers  t 
est  woman  in  the  tap-ronnit 
•i-ed  ten  [lenee,  and  then  touk 
ill. 
liere  she   would  pay,  she   had 

ik  plait,    and    asked   wh.at   I 

■;he  said,  "Sevea  pence."     I 

At  the  Hose  and  Crown."     1 

will  you  pay?"     She    said. 


"You'll  be  sure  to  find  me."  I  believed  she  was  an  honest  woman.  I 
tlKUight  she  took  the  room  as  well  as  others.  I  thouijlil  she  had  been 
tiire  and  taken  a  room  to  pay.  That  is  the  i>raetiee.  We  ask  the 
.nivers  if  we  don't  know  them.  I  bi'lieve  1  she  had  taken  the  room. 
T'uey  sto|)  a  i)enny  out  of  the  price,  and  we  have  beer;  some  do,  and 
some  do  not,  l)ut  pay  the  room  themselves,  and  stop  nothiu'j;. 

To  me:   I    parted  with  my  plait.    I  because   I   though  she    was  an 
ii  iin'st  woman,  and  h:ul  put  up  there. 
Sarah  Kidd  (barmaid  at  the  Rose  and  Crown):    It  is  the  practice  of 

•Mail  buyers  to  have  so  mueli  beer.     They  eome  and  ask  for  the  room. 

I'iie   l)ecr  is  for   the  use    of  the  room.     'V\h'   sellers    eome  to  receive. 

I'iuV  don't  pay  for  the  room.     Two  front  rooms  were  taken  this  day. 

K  all  buyer  had  a  separate  talile.     The  prisoner  liad  not  taken  a  room, 

I,  .!■  auvthing  to  justify  her  in  saying  slie  was  going  to  iiay  there. 
Cross-examined:    If  they  did  not  have  beer  they  would  have  to  pay. 

1  ,  an  swear,  I  think  she  was  not  there.     There  was  no  strange  plait 

iriMP  that  day.     The  buyers  pay  for  the  beer.     I'he  prisoner  was  not 

la  the  room. 
Tome:   We  have  regular  customers.     Have  had  no  fresh  ones  for 

-ix  years. 

Uoliert  Goodyeiir:  I  .....k  prisoner  at  Leighton  that  afternoon.     I 

~  arched  every  house  in  Tring  first.     Could  not  find  her.     Leighton  is 

;,  !,dle  fromTri:!g.     I  said,  "Arc you  a  plait  buyer?  "     She  said,  "  1  buy 

a  iiitle  sometimes  for  my  neighbors."     I  said,  "  Have  you  bought  any 

lav?"    She  said,  "No."     I  said,  "  Tell  tlu' truth  ;  a  woman  has  been 

.  I'ling  market  and  got  a  lot  of  plait  without  paying;  have  you  been 

M  I'rino- market?  "     She  stiid,  "No."     She  turne  1  to  the  persim  and 

sii  i,  "  You  know  that."     Cpstairs  in  a  back  room,  i  found  plait.     She 

iifuiwards   said,  "  IIow  ranch  further    have  I  to  go?"     She  said,  "I 

.u'bccn  to  Tring  Market,  and  bought  plait  and  paid  for  it,  but  not 

f  ;  llrst  two  bundles." 

C'xld  (counsel  for  the  i)risoner)  submitted  there  was  no  case. 

riie  indictment  was  appro|)riate  to  the  case  proved. 

1  lold  the  jury  as  follows:    If  it  is  the  practice  for  buyers  to  engage 

.1  mora,  or  table  in  a  room  at  [niblie  houses,  of  which  the  Kose  and 

'    )\vn  is  one,  to  i)ay  sellers  of  plait,  if  that  practice  is  well  known  ;  if 

'   al  she,  prisoner,  said,  natur:illy  conveyed  to  seller's  minds  thai  she 

:   ■!  done  so;  if  that  was  untrue  ;   and,  if  they,  or  any  of  them,  parted 

"   h  their  goods  in  the  belief  that  she  had  done  so,  then  they  might  find 

In  r  guilty. 

Iiiey  found  her  guilty. 

1  have  to  request  the  opinion  of  the  Court  of  Criminal  Appeal  whether 


24  « 


FIJAII)    AM»    FALSK    I'KKTKXSF.S. 


tlnTc  was  ovidonco  of  llu-   mutters  left   to  tlio  Jury  :is  to   any  of  ihe 
cases,  ami  wlietlier  tlie  tlirectiou  was  correct  in  point  of  law. 

If  tiu!  direction  was  correct  as  to  any  of  the  cases,  and  there  wa< 
evidence  to  support  it,  the  conviction  as  to  sucli  case  is  to  stand,  other- 
wise to  be  (juashed. 

The  prisoner  is  on  liail. 

G.  Bramwell. 

Co(U,  for  tiu!  prisoner.  The  conviction  was  wronj;.  All  tiiat  tlit? 
evidence  amounts  to  is  a  breach  of  contract.  The  false  pretense  laii'i 
in  the  indictment  was  that  the  prisoner  alleged  tliat  she  had  t.aken  a 
room,  but  the  evidence  does  not  support  a  conviction  on  that  ground; 
all  that  the  case  siiows  is  that  said  she  would  pay  for  the  room. 

No  counsel  appeare<l  for  the  prosecution. 

Kkm.y.  V.  H.  It  is  consistent  with  all  that  is  stated  in  the  case 
that  the  prisoner  may  iiave  gone  into  the  market,  not  knowing  whether 
she  would  make  any  purchases  or  not,  and  havin<:  made  S(jme  pur- 
chases, that  she  then  promised  to  |)ay  for  them  at  the  Rose  and  Crown 
pHblic  house.  At  the  time  she  m.ade  the  promise  she  hatl  not  taken  a 
room  at  the  Rose  and  Crown,  and  there  is  no  evidence  that  she  kuen 
there  was  a  practice  in  the  market  to  take  a  room  for  making  such  pav' 
raents.  It  is  (piite  consistent  with  the  evidence  that  all  she  meant  was 
that  she  would  there  take  a  room,  and  there  pay  for  the  purchases 
That  is  not  a  false  pretense  and  the  conviction  must  be  quashed. 

The  rest  of  the  court  concurred. 

Conviction  quashed. 


FALSE     PRETENSES  —  INTENT     TO    DEFRAUD    ESSENTIAL  —  PROSE 
CUTOR  MUST  RELY  ON  REintESENTATIONS. 

Fay  v.  Commonwealth. 


[28  Gratt.  912.] 
In  the  Court  of  Appeals  of  Virginia,  1S79. 

1.  Falae  Pretenses  -  Intent  to  Defraud.-F.,  expecting  to  buy  a  certain  lot,  sold  itt 
U.  telling  liim  lliat  ho  owni'il  it,  iinU  rcooiveU  the  money  for  it.  Aftfr  selling  to  U.,  I 
made  a  written  contract  (or  the  lot  anil  paid  a  portion  cf  the  pnci,  liut  he  never  paid  ih 
hill  price  for  the  lot  nor  ever  acquired  title  to  It.  F.  wan  prosecuted  for  obtaining  P.. 
money  by  fal.-e  pretenses,  the  false  pretense  being  the  statement  that  he  owned  the  I. 
Btld,  that  if  F.  at  tho  lime  he  made  the  sale  to  It.  and  obtained  his  money,  huncMl 
intended  and  expected  to  make  title  ti>  the  lot  to  K.  he  did  not  have  the  intent  to  defrau 
required  by  the  statute  and  ehuuld  not  be  convicted. 

J.  The  Party  Alleged  to  have  been  Deflrauded  tnust  be  induced  to  part  with  hi?  mmic 
by  means  of  the  false  pretense,  it.,  he  would  not  have  parted  with  U  i(  the  pretense  ha 
act  been  made.    B*ld,  that  the  evidence  in  this  case  does  not  establish  this  fact. 


KNSES. 

10  Jury  :is  to   any  <>f  tin 
1  iioiiiL  of  law. 
tlic  cases,  and  thcro  wa- 
i;li  case  is  to  stand,  other- 


G.  Bramwell. 

ras  wron<».  All  that  t'u' 
.  Tiic  false  jirotense  lani 
2cil  that  she  had  taken  :i 
)nviction  on  that  groum!; 
)ay  f^)r  the  room. 

hat  is  stated  in  the  case 
•kct,  not  knowing  whether 
d  havinir  made  some  pur- 
?m  at  the  Rose  and  Crown 
•inise  she  hatl  not  taken  a 
QO  evidence  that  she  knew 
ooin  for  making  such  pay- 
lice  that  all  she  meant  was 
•e  pay  for  the  pnrchases. 
n  must  he  quashed. 

Conviction  quashed. 


UD    ESSENTIAL  —  PKOSE- 
SENTATIONS. 

LTH. 


jinia,  1S79. 

ting  to  buy  a  certain  lot,  sold  it  to 
Dncy  for  it.    Aftfr  selling  to  It.,  F 

cif  till'  prici',  liut  he  never  paid  ilie 
vviiN  prosecuted  for  obtaining  P..* 
1  8tatenieut  that  he  owned  the  I'.t. 
and  obtained  his  money,  hone.-lU' 

did  not  have  the  intent  to  defraud 

he  induced  to  part  with  hi?  mnney 
:  parted  with  it  if  the  pretense  liaii 
loes  not  establish  this  luct. 


FAY    »'.   COMMOXWKAI/nC, 


•21  J» 


In  Septcraher.  l«7r.,  William  P'ay  was  indicted  in  the  Hustings  Court 
of  the  city  of  Richmond,  for  stealing  divers  notes  of  the  United  Slates 
ciirreiiey,  amounting  to  two  hiindied  and  eiuht  dollars,  the  prop- 
,iiy  of  Nelson  Randnlpii.  lie  was  tried  at  the  Oetolier  term  of 
(1,  comt,  and  was  f..iind  guilty,  and  the  term  <if  his  imprisonment 
m  tlie  penitentiary  was  fixed  by  the  court  at  three  years.  \ 

The  prisoner  then  moved  the  court  for  a  new  trial,  which  was  refused 
by  the  court;  and  sentence  ticcordiug  to  tlie  verdict  was  passed  upon 

hill). 

The  prisoner  excepted  to  the  opinion  of  the  court  overruling  his  mo- 
tioii  for  a  new  trial;  and  the  facts  as  shown  by  the  bill  of  exceptions 
rtiTe  as  follows  :  — 

Sdiuetime  in  the  spring  of  187.3,  at  Seabrook's  warehouse,  the  pris- 
oner had  an  interview  with  one  George  E.  Bowden,  the  owner  of  two 
lots  of  lan<l,  in  which  Bowden  expressed  his  willingness  to  sell  the  two 
lots  tof^ether  for  three  hundred  dollars,  but  declared  that  he  would  not 
sell  them  separately. 

In  the  latter  part  of  January,  1874,  the  prisoner  sold  one  of  these 
lots  to  Nelson  Randoliih,  a  colored  man,  for  two  hundred  dollars,  tell- 
ing him  that  he  owned  them  ;  and  Randolph  paid  him  fifty  dollars  in 
ciisli.  and  agreed  to  pay  the  residue  in  monthly  installments  of  fifteen 
dollars  each.  About  the  8th  or  0th  of  February,  1871,  the  prisoner 
called  on  Bowden  and  said,  "  I  have  come  for  those  lots,"  and  Bowden 
replied,  "  You  can  have  them."  The  prisoner  asked  on  what  terms  as 
to  time,  the  amount  being  mutually  understood,  and  nothing  being  said 
uhoiit  it  at  that  time ;  and  it  w.as  agreed  that  fifty  dollars  of  the  amount 
(including  the  two  lots)  should  be  paid  cash,  and  the  residue  in  three 
notes,  at  eight,  sixtet  n  and  twenty-four  months.  The  prisoner  paid 
the  cash  and  executed  the  notes,  which,  at  prisoner's  retpiest,  were 
.hited  on  the  1st  day  of  February,  as  was  the  contract,  the  actual  time 
of  contract  being  the  Jtth  or  lOtli  of  February,  whereupon  a  paper  was 
ilr;i\vn  up  and  delivered  by  Bowden  to  Fay,  setting  forth  the  contract, 
wiiich  paper  was  as  fallows :  — 

"  Richmond,  Va.,  February  1st,  1874. 
"This  1st  day  of  February,  1874,  between  Geo.  E.  Bowden,  of  the  city 
of  Richmond,  of  the  first  part,  and  Win.  Fay,  of  the  said  city,  of  the 
second  part,  doth  agree,  in  consideration  of  the  sura  of  three  hundred 
dollars,  payable  one-f(Mirth  cash  and  the  balance  in  e(iual  installments 
of  ciiiht,  sixteen  and  twenty-four  months  (with  interest  added)  respec- 
tively, after  date,  to  convey  to  Wm.  Fay  of  the  second  part,  or  his 
heirs  or  assigns,  certain  real  property  in  the  county  of  Henrico,  near 
Union  Hill,  on  the  west  side  of  Twenty-fifth  Street,  between  K  and  S 
Streets,  fronting  sixty  feet  on  Twenty-fifth  Street,  running  back  between 


i>:>(» 


FUAIII)    AND    I'AI.SK    rUKTKNSKS. 


piirallcl  linos  ono  liiindicd  anil  twenty-five  feet  to  an  alley  in  comiuot 
foniti'cn  fi't'l,  (U'.si<fnali'cl  a  lots  Nos.  six  jiiul  seven  in  square  121  n 
Adam's  plan,  being  the  same  and  conveyed  to  the  said  (ieorge  ¥. 
Bnwden,  of  the  first  part,  ))y  deed  dated  July  l.'ith,  18(18.  And  we  cl 
a<;Tee  that  the  title  to  the  above  property  shall  l)e  retained  until  all  tin 
purchase-mouey  is  paid. 

"GKt).     K.     BoWDEN. 

"William  Fay." 


Tt  was  further  proved,  that  on  the  delivery  of  this  i>apor,  the  pris 
oiitr  said  tt>  Howden,  "  I  have  made  one  hundred  dollars  tn-day,  to 
I  have  sold  those  two  to  colored  men,"  and  asked  that  the  deed  shouh 
not  be  made  until  they  paid,  and  then  made  to  them,  to  save  expense 
that  Bowden  rei)lied,  '•  T  don't  care,  as  I  have  got  ray  price  ;"  that  tin 
prisoner  thenceforward  paid  the  taxes  on  the  lots,  Bowden  declining  t( 
jiay  when  the  bills  were  presented  to  him,  and  sending  the  collectors  t( 
Fay,  the  jjrisoner,  telling  them  that  Fay  had  bought  them  ;  the  taxes  oi 
l?:uulolpli's  lot  being  charged  to  him,  and  paid  l)y  him  to  Fay  i-i  tb 
first  payment  to  Fay;  that  when  the  prisoner's  first  note  fell  due  1^ 
failed  to  pay  it,  saying  the  negroes  had  not  paid  him;  that  he  paid  i 
eventually,  but  in  installments. 

And  that  lie  failed  to  pay  the  balance,  continuing  his  excuse  fo 
failure  to  pay  on  the  samt'  ground,  and  did  not  pay  at  all ;  the  balauc 
remaining  unpaid  until  i)aid  by  the  negro,  Randolith,  in  April,  187(1,  t 
Bowden,  in  order  to  get  his  title  :  and  that  Kandolph  never  knew  or  wn 
informed  that  the  i)roperty  did  not  belong  to  Fay  until  he  asked  for  hi 
deed. 

It  was  further  proved  that  shortly  after  the  last  paj'ment  on  said  note 

Fay  went  into  bankruptc}',  and  has  never  j^aid  the  other  notes. 

It  was  further  proved  that,  upon  Nelson  Randolph  completing  hi 

payments  as  agreed.  Fay  gave  him  the  following  order  on  Bowden 

to  wit :  — 

"  April  ;?,  1876. 

"  Mh.  Bowdkn  —  Sir:  This  is  to  certify  that  Nelson  Randolph  ha 
pai<l  all  except  $1  for  one  lot  of  land  on  Twentj'-fifth  Street,  in  sq.  121 
fronting  on  Twenty-fifth  Street,  30  feet,  running  back  125  feet,  it  bein 
the  south  lot.     Is  entitled  to  his  deed  as  soon  as  he  pays  the  balance 

and  I  settle  with  you. 

'Wm.  Fay." 

That  Randolph  went  to  see  Bowden  with  Faj^'s  order,  but  that  Bow 
den  refused  to  give  Randolph  his  deed  unless  the  balance  of  the  on 
hundred  and  fifty  dollars  due  on  that  lot  i)y  Fa}'  was  paid  to  him,  an 
Fay  himself,  a  few  days  after,  went  with  Randolph  to  see  Bowden,  wit 


rKNf*i:s. 


FAV    ?•.  COMMONWKAI.TII. 


251 


ect  to  ai»  alley  in  common 
1(1  si'ven  in  squiue  IlM  nf 
i!cl  to  the  said  (ieorgi;  E, 
!y  i;Hh,  ISr.H.  And  we  d.. 
all  l)c  retained  until  all  tlit 

"Gko.  E.  Bowoen. 
"William  Fay." 

ery  of  this  jiapor,  the  pris- 
Inindred  dollars  to-day,  lor 
asked  that  the  deed  should 

to  them,  to  save  expense; 
ve  got  my  price  ;"  that  tlic 
i  lots,  Bowdcn  declining  to 
id  sending  the  collectors  to 
bonght  them  ;  the  taxes  ou 

paid  by  him  to  Fay  i-i  the 
un's  first  note  fell  due  lie 
t  paid  him  ;  that  he  paid  it 

continuing  his  excuse  for 
not  pay  at  all ;  the  balance 
andolfth,  in  April,  187(1,  to 
andolph  never  knew  or  wiis 
Fa\'  until  he  asked  for  his 

last  paj'ment  on  said  note, 
lid  the  other  notes. 

Randolph  completing  his 
llowing  order  on  Bowden, 

"  April  ;?,  1876. 

that  Nelson  Eandolph  has 
■nty-fifth  Street,  in  sq.  121, 
iiing  back  125  feet,  it  being 
ion  as  he  pays  the  balance, 

'Wm.  Fay." 

Faj^'s  order,  but  that  Bow- 
li'ss  the  balance  of  the  one 
r  Fa}'  was  i)aid  to  him,  and 
idolph  to  see  Bowden,  with 


;ln'  same  result,  and  thai  Handolpli  linally  paitl  his  balance,  anionnting 
U)  t  iirlily-sevcn  dolliirs  of  principal  and  iiitiTcst,  when  Bowden  exe- 
(iilcd  his  deed  to  Kandoljili,  the  prisoner  leliing  him  that  was  tiie  best 
tliinu  lo  do,  and  promisii-ig  to  rcindtnrse  him;   wliidi  he  had  not  done. 

It  was  further  provi'd  that  the  prisoner  luul  lived  in  the  city  for  above 
twniiy  years,  and  was  a  nnin  of  ^.ood  repute. 

I  jMiii  I  he  application  of  the  prisoner,  a  writ  of  error  and  siipersedetix 
was  iiwurded  by  this  court. 

('/■limp,  Yoiiiifj  <fc  Kill;/,  for  the  jirisoner. 

Till'  Attorneiz-Generdl,  for  the  Commonwealth. 

Anokusos,  J.,  delivered  theopinidu  of  the  court. 

This  is  a  prosecution  in  fact  for  oiitaining  money  on  false  pretenses, 
whu  li  is  made  larceny  by  Ihu  statute ;  and  the  iudictmeut  is  for  lar- 
ceny. 

It  is  a  reasonable  proposition  that  upon  this  indictment  it  is  neces- 
sary for  the  Connnonwealth  to  jjtovc  every  fact  which  would  be 
iKiuired  to  be  alleged  in  an  indictment  for  oiitaining  money  on  false 
picicnscs.  And  in  such  indictment  it  would  be  a  material  allegation 
lliat  the  money  was  obtained  by  the  false  pretense  alleged,  and  tliere- 
fnn  was  necessary  to  be  proved  in  this  indictment  in  order  to  a  convic- 
tion.    The  false  pretense  must  be  the  instrument  of  the  cheat.' 

The  pretense  need  not  have  been  the  only  inducement.  If,  operating 
citlicr  alone  or  with  other  causes,  it  had  a  controlling  intluenee,  so  that 
but  for  it  the  person  to  whom  it  was  addressed  would  not  have  yielded, 
ii  is  sulficient.  In  a  note  to  the  al)ove  section  the  author  says:  In 
Cohnaonwealih  v.  Dreiv,^  Morton,  J.,  stated  the  true  doctrine  thus: 
"Tliat  the  false  pretenses,  either  with  or  without  the  co-operation  of 
other  causes,  had  a  decisive  influence  upon  the  mind  of  the  owner,  so 
tliat  without  their  weight  he  would  not  have  parted  with  liis  property." 

In  People  V.  Ilcnjues,'-^  Chancellor  AValworth  employed  much  the  same 
hniiliiaae,  savins:  "  It  is  not  ncycssarv  lo  constitute  the  offense  of  ob- 
taining  goods  by  false  pretenses,  that  the  owner  should  have  been 
induced  to  part  with  his  property  solely  and  entirely  by  pretenses 
whicli  were  false ;  but  if  the  jur}'  are  satisfied  that  the  pretenses,  proved 
to  have  been  false  and  fraudulent,  were  a  part  of  the  moving  causes 
winch  induced  the  owner  to  part  with  his  projierty,  and  that  the  defend- 
ant would  not  have  obtained  the  gocnls  if  the  false  pretenses  had  not 
lieen  superadded  lo  statements  which  may  have  been  true,  or  to  other 
ciixuinstances  having  a  partial  intluenee  upon  the  miml  of  the  owner, 
they  will  be  justified  in  finding  the  defendant  guilty  of  the  offense 
char<j:e(l,  within  the  letter  as  well  as  the  spirit  of  the  statute  on  the  sub- 


I'.i^li.  Or.  L.,  soc.  347. 
\v  Tick.  178. 


11  Weiiil. 'mT  ;  U  Wciiil.  r>lii 


252 


FIJAin    AND    KAI.sr.    I'lM/rKSSKS. 


jicl."  Other  inducomcntHinay  liavi'  coinltint'd  wiili  tlio  false  prett  nsc^ 
to  imliiee  the  owner  to  jpiirt  willj  liis  properly  ;  I'lil  it  iiiUMt  appear  th;u 
but  for  the  false  preleiises  the  owmr  would  ii"t  have  parted  with  bis 
property,  that  they  luid  the  eontrolling.  pr«'\  ailing,'  inlhience.' 

The  only  proof  of  any  false  prelcnso  in  (his  case,  or  that  the  pri'^- 
oner  made  any  statement  that  was  not  Htriclly  true  is,  that  he  said  he 
was  the  «»wnir  of  the  lots.  It  ai>|Kara  from  the  eertilU-ale  of  facts 
that,  in  tin  sprinj,'  of  1H7;?,  tlu-  prison-r  had  uu  interview  with  Georijo 
K.  Howdeu,  the  owner  of  two  lotsof  iand,  in  wliidi  Howden  expressed 
his  willingness  to  sell  the  two  lots  tr.)'ielhcr  for  S.'illO,  but  deelariMl  tlmt 
he  would  not  sell  them  separately;  and  that  afterwards,  in  tho  laltir 
part  of  January,  lM7t.  the  prisoner  sold  one  of  them  to  Nelsin 
Randolph,  a  colored  man,  for  S'-'Oi).  tcUiu'.'  him  he  owned  them;  tliiU 
Han^lolph  paid  him,  tifty  dollars  in  cash,  and  agroeil  to  pay  the  hahuRc 
in  monthly  installments  of  tiftecn  «lollars  each.  It  is  contended  for  tiiu 
Commonwealth,  that  "  tellin<i  him  he  was  the  owner  of  the  lot  "  w;i~ 
a  false  pretense. 

Hut  it  is  not  proved  that  he,  Randolph,  was  inlluencod  l>y  that  declar 
ation  to  make  the  purchase,  and  that  he  would  not  have  purchased  iuid 
made  t'le  cash  payments,  but  for  that  declaration  of  the  prisoner,  nonan 
it  be  inferred.  It  is  rather  to  be  presumed  that  Randolph  desirin;.'  to 
have  the  lot,  wouhl  have  accepted  the  offer  of  the  prisoner  if  he  had  siiitl 
nothing  to  him  about  the  ownership,  as  he  made  no  inquiry  of  him 
about  it.  so  far  as  this  record  shows. 

It  does  not  appear  that  the  declaration  made  by  the  prisoner  was 
made  in  response  to  an  impiiry  made  by  Randolph,  but  seems  to  liav. 
been  incidentally  mentioned  by  the  prisoner.  'I'his  defect  in  the  proof. 
if  it  had  been  in  the  allcL'ations  of  an  intlictment  for  obtaining  nKJiity 
on  false  pretenses,  would  have  lieen  fatal  on  demurrer,  and  it  wouM 
seera  ought  to  avail  the  jtrisoncr  as  effectually  in  this  proceeding. 

The  court  is  of  oi)inion,  therefore,  that  upon  this  ground  the  verdici 
was  contrary  to  the  law  and  the  evidence,  and  ought  to  have  been  sii 

aside. 

The  court  is  further  of  opinion,  that  unless  the  selling  was  by  false 
pretense,  with  intent  to  defraud  the  buyer,  the  case  is  not  within  tlit 
statute.  It  follows  that  the  fraudulent  intent  must  have  existeil  at  tlu 
time  the  false  pretenses  were  made  by  which  the  money  was  obtained 
If  there  was  an  intention  by  the  prisoner  to  defraud  Randolph,  he  eouli 
not  have  intended,  when  he  sold  him  the  lot,  and  received  fifty  dollar 
in  part  of  the  price,  ever  to  pass  to  him  title  for  the  same. 

But  the  facts,  as  certified  by  the  court,  show  the  contrary. 

Anable'8  Ca»e,  24  Uratt.  663,  S«7. 


KNSKS. 


r.W    r.   COMMON  WKAI.TII 


(I  Willi  tlio  false  i)r«'t(  nsi« 
;  lull  it  iiiUMt  appt'ar  tliiu 
nni  liuvo  piirted  with  his 
iiiii^  inlliionce.' 
Ills  cuso.  or  lliut  the  ini- 
\y  trill!  is,  that  lie  sniil  \w 
II  the  certilk'iUe  t>f  l;i(  ts 
III!  interview  with  Cl(ur;;c 
I  wliich  Howden  expre'^M'il 
.r  S.'ilM),  but  ileehired  tliiit 
t  afterwards,  in  the  hUlir 
OIK'  of  them  to  Nel-  11 
liiii  he  owned  tliein ;  tli;it 
ujrroed  to  pay  the  halaiK  t 
It  is  contended  fur  tia' 
c  owner  of  the  lot  "  w;i~ 

I  inlluencod  by  that  dechir 
Id  not  have  i)urehased  :m\ 
ion  of  the  prisoner,  nonun 
that  Randolph  desiriii;.'  to 
the  priiioner  if  he  had  said 
made   no  iniiuiry  of  liim 

made  by  the  prisoner  wa* 
mdolph,  but  seems  to  liavi 
This  defeet  in  the  pionf. 
ment  for  obtaininjj  mcjiity 
)n  demurrer,  and  it  woiiM 
y  in  this  proceeding. 
)on  this  ground  the  venlict 
md  ought  to  have  been  set 

IS  the  selling  was  by  false 
the  case  is  not  within  tin 
it  must  have  existed  at  tin' 
li  the  money  was  obtaineil 
efiaiid  Randolph,  he  roulil 
■,  and  received  fifty  dollar- 
for  the  same, 
low  the  contrary. 

,8«7. 


It  is  a  fair  inference  from  them  that  he  had  previously  been  in  treaty 

«itli  Mowdcn  for  the  purchase  of  the  hits,  and  ascirtnined  that  he  could 

,  iiiliase  them  together  fnr  three  hundred  dollar-,  an  1  was  well  satisfied 

:ii;it  all  that  was  •lecessary  fur  him  to  do  wa  ;  to  acicpt  Bowden's  offer, 

uiid  the   lots  were   his;  and  tinding  th.t  he  could  sell  each  lot  for  two 

!:  indrcd  dollars,  and  make  a   handsome  s|)ei'ulatioii,  he  determined  to 

■ike  them  at  Howdeii's  olfcr,  ami  consideicd  them  as  virtually  his.      It  is 

■  videiit  that  lu!   had  no  piirjiose  to  cheat  Handolph  by  inveigling  him  to 

:iv  him  his  monev  for  property  which  he  had  no  right  to  sell   him,  and 

;  11  which  he  could  not  and  did  not    intend  to  nciUe  him  a  title.     This  is 

-h  iwn  by  the   fact,  that  a  few  days  after  the  sale  to   I{aiidolph  he  went 

t'l  IJowdcn  and  c.miiileteil  the  contract  of  purchase  with  him,  jiaying 

iiiiii  ill  cash  fifty  dollars,  the    money   or  the  amount  he  had   received 

ipnii  liaiidolph,  and  executing  his  notes  for  the  deferred  payments,  and 

Altering  into  articles  of  agreement  with  him,  setting  out  the  terms  i^f 

till' sale  and  purchase,  informing  him    that    he    had  sold  each  of  the 

l.i>  for  two  hundred  dollars,  at  an  advance  of  one  liiindri'd  dollars  on 

;iir  price  he  was  to  i)ay  him  for  them,  and  reipiestiug  him,  when  the 

.iiiciiase-moncy  was  paid,  to  convey  tlu' lots  rcs|)ectively  to  his  vendees. 

llv  ti.is  conduct  hi"  showed  a  bomijiili'  intention  that    Haudol|)h  sliould 

M  what  he  sold  him,  and  for  which  he  had  received  the  cash  jiaymeut, 

iiini  conclusively  repels  the  i<lea  of  an  intent  to  cheat  and  deframl  him 

ill  the  sale.     If  in  his  subseipient  dealings  with   him  there  was  evidence 

I'^liow  that  he  had  changed  his  piir|)ose,  and  soii^rht  to  cheat  and  (U'- 

;ia;id  him,  which  we  think  there  is  not,  it  couhl  not  make  the  previous 

.1  fraudulent  and  criminal,  which  was  bonaj'le  and  lawful.     The  pay- 

iiiiiits  which  he  afterwards  received  from  Uandolph,  though  in  small 

"UiiN,  he  oughi    to  have  turne  I  ovei'   t)   l$o\vdi'U  until  he  had.  secured 

lit!'  to  Handol|)h,  and  to  have  run  no  risk  of  not  being  able  to  make  the 

;  ;i\  Hunts  to  Howden  when  they  fell  due.     But  it  would  be  a  harsh  judg- 

iiinil  to  say  that  his  not   doing  .so  evidenced  an  intention  to  cheat  and 

ufraud  Uandolph.     Jt  is  more  probable,  and   it   is   more   just  to  con- 

'mic,  that    he  calculated    upon  being  al)le,  and    homi  fhh'  intende(l  to 

:u;ik('  the  iiayments  to  Bowden  when  they  fell  due  from  other  source-, 

ii  which   he  was  disajiiiointed  by  misfortunes,  which   reduced   him  to 

Miikru|)tcy ;  and   that  his  failure  to  fullill  his  contract,  and  to  secure 

!!  iiidolph's  title,  was,  though  ceusurabl«',  rather  his  misfortune  than  a 

-nine. 

lint  ho  had  reduced  the  amount  on  Randolph's  lot  to  eighty-seven 
; 'liars,  which  Randolph  paid  to  Bowden,  and  received  his  deed  with 
I'  approval  of  the  prisoner,  who,  though  discharged  from  his  legal 
aliility  by  the  act  of  bankruptcy,  revived  it  by  his  promise  to  refund 
!'•  amount  to  Randolph.     The  court  is  clearly  of  opinion  that  the  evi- 


•■•.'■l 


.VI 


^■|!\I•|>     \\r>    lAlx;    I'|;KTKNSKS 


(h-nc-  is  wholly  insiilllficnl  l..  rsi:vl.Ii>,ii  Hi.,  frmi.liilciii  innm.  which  ,  ,.„. 
diisioM  is  siivntrilu.,,,,,!  Uy  ,1...  (a.t  that,  thr  |.hs„mT  hMs  ivm.!...!  i,,  ilu- 
city  for  twenty  \  (Mis  in  ir,,u(|  ri'imtc 

^  Tlie  iiicli.tinriit,  char^r,.^    ih,.    iaivciiy  of  .livers   notes  of  the  riii!,.,i 
Siiitesciirivncy,  for  the  piiyimMit  of  divere  sums  nf  monev.  in  the  ui,,,, 

amonnliiii,'    to    tiie    s„m    of  S-.'(is,   the  property   mid    n.'.ies  of  NH 

U.'ui.iolpji.  Tile  .-viiUiiee  .lo.w  not  show  that  the  prisoner  reci^ivcd  fmm 
lianWoipli  notes  in  riiite.l  Mates  cnrreney  The  proof  is.  that  he  n. 
ceive.i  fifty  .joHars  in  easli,  and  that  K'andolpji  agreed  to  pay  the  l)ai,,i„v 

in  niontlily  instalinient.s  of  lifleen  dolh.rs  ea<  li.     D the'autliorit v  of 

the  cascof  Johnson  v.  Comnmuwoollh,^  the  court  is  of  opinion  tli.ii  m 
thcalwnco  of  proof  tiiat  sneh  money  as  was  ejiarired  hy  th.^  in.jir,. 
ment  to  iiave  l.een  stolen  was  rec.-ived  liy  the  prisoner,  the  jury  was  not 
Warranted  in  lindini.^  a  verdic'  against  him. 

ITpon  tlie  foreu-.in;,'  ,L;ronndH  the  court  is  of  opinion   to  rovers.'   the 
judgment,  and  to  reinund  tlie  eaiise. 

Judgment  reversed. 


FALSE    PRETENSES  -  CRIME    NOT    COMMITTED    WHERE    NO    PROl'- 

ERTY  ODTALNED. 

Statk  i\  Andkuson. 

r*7  Iowa,  142.] 
In  the  Supreme  Court  of  Iowa. 

Where  by  the  Agrreement  L.tween  the  proserutor  an.l  ilio  .lefendnnt,  the  defendant  gru 

no  tUU.  in  the  pro,.erly  whirh  ,.,  .Icl.vere.l  h,  him  .„.  the  (i.ith  of  the  ullcKe.l  fal«e  pre- 
lenses,  the  ernne  of  obtaining  property  l.y  false  pretenses  Is  not  committed. 

Skuvkh.s,  J.  The  indictment  charged  '-that  *  *  *  defendant 
did  obtain  from  the  St.  Paul  ilarvest.'r  Works,  through  J.  C.  Yetzer, 
•  •  one  Elward  harvester,  of  tlie  value  of  one  hundred  and 
ninety  dollars."  The  defendant  pleaded  not  guilty.  The  false  pre- 
tenses used  for  tlip  puriK..-?,;  of  obtaining  said  property  were  in  writing, 
and  were  as  follows:  -■- 

"^"''•"^^  Atlantic,  Iowa.  July  12,  1875. 

"  For  value  received,  on  or  before  the  first  day  of  October,  1876,  I, 
the  subscriber  of  Benton  Township,  eonnty  of  Cass,  an.l  State  of  Iowa, 
promis..  to  pay  to  the  order  of  the  St.  Paul  Harvester  Works,  one  hun- 
dred  and  fifteen  dollars,  at  the  Cass  County  Bank,  in  Atlantic,  with 

I  ■Jltir.^tt.  565. 


srs. 

lllc'lU    illli'Dl.   Hllicli  ,  ,,„. 

oiHT  lijis  roidi'il  ill  Un, 

IS    llot(  s   o(   tlir  rniini 

I'l'    IlKilicy.  ill   llir  wholr 

and    null's  of  \il„i|i 

liiixiiur  received  fr..in 

le    pntof   is.  fli;it  lie  |,. 

reed  to  pay  the  h.ilaiKT 
Tl the  !iiilli()rity  of 

t   is  of  ()|iiMi(iii  that  ill 

3hur<;ed   l)y  (he  indict. 

ioncr.  the  Jury  was  nm 

pinion  to  reverse  the 
Judgment  reversed 


0    WHERE    NO    PROI". 


STATK    v.   ANDI'.KSON. 


.'.!.» 


^(endant,  the  defendant  gret» 
th  of  the  ullcged  falne  pre- 
not  coimuitted. 

*  *  *  defendant 
hroiiirli  J.  C.  Yetzer, 
)t  one  hundred  and 
ilty.  The  false  pro- 
perty were  in  writing, 

WA,  July  12,  1875, 

of  Oetober,  1876,  I, 
s,  and  State  of  Iowa, 
iter  Works,  one  hun- 
mk,  in  Atlantic,  with 


,,.,e,est  at  ten  per  eent  per  unnutn,  fm.n  date  until  pnid.  and.  in  addi- 
;„,„    ,  ,vill   pay  live-  per  .eul   att,.rney-s  fees,  if  suit  is  eo.nu.eneed  on 

""-nllexpress  eonditi....  -if  Hh-  sale  and  i.urrhase  of  the  Klward  ha.- 
,.,..,.  f.u-  whieh  this  note  is  ^dven,  is  sue!,  that  the  litl'".  ">v'H''-"P;  ';'• 
.session,  does  nut  pass  frun,  said  St.  Paul  llarveMer  NN  or'.s  untd  t h  s 
„;  i.  paid  in  full ;  that  >a,d  St.  I'atd  Harvester  NV.uUs  shall  have  ful 
,,..ver  to  .lec-lare  this  t.ute  due,  and  take  possession  of  said  ntaciuue  at 
:,,,,  Uu.e  they  .nay  deetn  themselves  iuseeute,  even  ..eljuvth^^^^^^^^ 
.f  thiH..nte.      Knrthe  pu.-puse  of  ohtaiuin- ered.l.  1,  1  •  II.  An.U.son, 
,,„nhv  .-.tify  that  I  ow...  in  n.y  own  na...e,  fo.ty  ae.es  of  land  ...  sec- 
,i,„.ti.i.'tv-.u.e,  tow.shipof  nentou.  eo,..ity  uf  Cass,  and  State  of    uwa 
„,„,  ,,,,„v-live  ae.es  in.pruved,  wm-th  Sl.uu..  whieh  .s  ..ut  u.eiiu. U-red 

;;l,rt.a.e  or  otherwise.  exee,.t ■      I  -w,.  S800  worth  u,  per- 

-;,nul  pr^operty  over  and  above  all  i.,dehted..ess.         ^^   ^^    ,,,p,„,oN. 

••  V.  O.  Atlantic,  county  of  Cass,  State  of  Iowa." 

The  "  State  introduced  evidcee  whieh  ten.led  to  show  the  reprosonta- 
,i„„s  .uade  a..d  their  falsity,  a..<l  also  that  d-,.fe.ula,.t  p..rchased  of  the 
s,  Paul  lla.vester  Works  a  harvester,  which  the  agent  of  the  co.npa..y 
.:is  i;,d..eed  to  sell  and  deliver  by  and  thro,.,h  said  rn'rese,.tat.o,.s 

After  the  State  .este.l,  the  defenda,.t  .nove<l  the  court  to  d. net  he 
i„,v   to  acp.it  the  defendant,  for  the    reason    that  it  ap,.eared  by  t  .e 

,„.tra<.t  the  defe.idant  did  nut  obtain,  by  the  allej^ed  false  .epresenta- 
tio..s,  the  title  to  or  pn.pe.ty  in  said  harvester,  b,.t  the  sa.ne  re.nau.ed 
in  the  St.  Paul  Harvester  W.uks  Co.npany,  iun\  that  sa.d  con.p.u.y,  .mt- 
withstandb.g  the  delivery  of  the  harvester  to  defendant,  co..t..n.ed  to 
h..  the  owner  of  the  same,  with  the  right  to  resu.ne  possess.o.,  thereof 
•a  anv   time,"    which  motion  was  sustained,  and  the  j..ry  so  d.recled 

rhe  correct.,ess  of   this  ruling  is   the  o..ly  .pu-thm  to  '^^ ^^'^l^;^^^ 

The   statute  pn.vides:   "If   any  person  des.g.ie.lly  and  by  false  l>r- 

te.,se,  or  by  any  privy  or  false  token,  and  with  intent  to  defraud,  ob- 

tain  from  another  any  money,  goods  or  other  property  • 

In  ^  Vrchbold's  Criminal  Practice  and  Pleading,-  .t  is  sa..l :       In  or- 

,ler  to  eo.,vict  a  man  of  obtainb.g  mo.iey  or  goods  by  false  pretenses, 

il  ,nust  be  proved   that  they  were  obtained  under  such  crcmstances 

that  the  prosecutor  n.eant  to  part  with  his  right  to  the  prope.iy  in  th. 

thing  obtained,  and  not  merely  with  the  possession  of  .t.        J'"«  ^l"^" 

t.inr  .s  recognized  i.,  3   Greenleaf ,■'  and  also,  as  we  understand  m  2 

Wharton  on  Criminal  Law.'' 


1  Code,  sec.  4073. 

2  p.  467. 


a  sec.  IIW. 
<  sec.  '2149. 


25() 


FHAII)    AM)    FALSK    rUETENSES. 


The  only  cases  cited  by  tlio  attoniey-geneml  •■■-  ',cii<r  in  conflict  with 
these  autlioritie.s,  are  Skijr  \.  Pfiople,^  and  7Vny,/f  v.  Ila-iues.-  The 
former  lius  l)iit  little,  if  any.  licaringon  the  ([ucstion  i:efore  us,  and  tiic 
latter  was  reversed,  in  People  v.  ILnjiics,'^  and  it  was  tiicn  held,  when'  a 
person  sold  goods  to  another  on  credit  and  delivered  the  same  on  :i 
steamboat  desi<j;nated  hy  the  pnrchasei',  to  lie  forwarded  to  his  resi- 
dence, that  the  sale  became  complete,  and  the  title  and  i)o.ssessi()n 
vested  in  the  purchaser.  After  such  delivery  the  seller  made  the  at- 
tempt to  stop  the  goods  while  in  transit,  to  prevent  which  the  purchaser 
made  certain  false  representations,  in  consequence  of  which  the  seller  did 
not  persist  in  hi.-,  attempt  to  seize  the  goods.  The  inirchaser  was  in- 
dicted for  obtaining  the  goods  b^'  means  of  false  pretenses,  and  it  wa> 
held  he  could  not  be  convicted.  It  is  evident,  in  the  case  at  bar,  that 
the  seller  did  not  intend  to  part  with  either  the  right  of  property  or 
possession,  for  it  is  exi)ressly  provided  in  the  contract  of  purchase  and 
sale  "that  the  title,  ownership  or  ))ossession  does  not  jiass"  until  iIk' 
note  is  paid,  and  the  right  '•  to  declare  the  note  due  and  take  possession 
of  the  machine  at  any  time,"  was  expressly  reserved. 

The  defendant  did  not  even  obtain  an  umiualilied  right  to  the  pos- 
session. The  plaintiff  ,  in  a  l(<j:al  sense,  [larted  with  nothing.  It  is  un- 
necessary to  go  as  far  as  the  rule  laid  down  in  Archltold,  in  order  to 
sustain  the  ruling  below.  At  least  we  think  tiie  defendant  must  have 
ol)tained.  by  means  of  the  false  pretenses,  either  the  title  or  the  un- 
qualified right  of  i)ossession  as  Itctween  himself  and  his  vendor,  for  at 
least  some  length  of  time.  Here  the  delivery  and  resumption  of  the 
possession  by  the  vender,  could  lie  .at  the  same  instant  of  time,  or  as 
near  thereto  as  it  was  possible  for  the  mind  to  act  and  determine. 

Affirmed. 


falsi:  pretenses  — money  must  he  obtained— obtaining  con- 
sent TO  JUDGMENT. 

Common  WEALTH  v.  Harkins. 

[1-8  Mass-  "I'-J 
<    Supreme  Judicial  Court  of  Massachusetts,  November  Term,  1880. 

An  Indictment  Under  a  Statute  which  provides  that "  whoever  designedly,  by  a  false 
l)retell^L•,  nr  hy  ii  inivy  iir  false  lukcii,  ami  \i;.ith  intent  lo  ik'fraud,  oblaiiis  from  another 
per-ion  any  proi)crty    •    •    •    eimii  be  puniBhca,"  etc.,  wUl  not  lie  agaiuet  one  who  by 


1  '.'  Park.  ('r.    139. 
a  11  Wend.  .556. 


a  U  Wend.  MT. 


,s. 

i.cii^  in  conflict  witli 
e  V.  Ihiynes.'-  Tlif 
iin  boforo  ii.s,  and  \\w 
as  tiit-n  iielil,  when'  ;i 
ivcred  the  same  on  a 
rwardc'il  tf)  his  rosi- 
titlc  and  i)f)sscssi()n 
n'  si'liiT  made  tlio  at- 
I  wiiicli  the  purcliasir 
)f  wliioh  till' seller  did 
lie  inircliaser  was  in- 
pretenses,  and  it  \va.> 
the  ease  at  bar,  that 
ri<i;ht  of  propertj'  or 
;i'a('t  of  pureiiase  and 
*  not  jiass  "  until  liu' 
e  and  talvc  possession 
I'd. 

lied  riirht  to  the  pos- 
h  nothing.  It  is  un- 
Vrehliold,  in  order  to 
lefondant  must  have 
the  title  or  the  uu- 
id  his  vendor,  for  at 
lid  resumption  of  the 
istant  of  time,  or  as 
and  determine. 

Affirmed. 


3  — OBTAINING  CON- 


COMMONWEALTH    V.  HAKKINS. 


•2'.  7 


mber  Term,  1880. 

ever  (Jcpignedly,  by  a  false 
raud,  i>btaiuH  from  another 
not  lie  agaiuet  one  who  by 


false  pretenses  cbtains  the  cunscnt  of  a  rity  to  the  entry  of  n  judgment  against  it  iii  an 
action  then  pending  in  hi-i  favor,  and  receives  a  sum  of  money  in  sallbfacllon  ot  such 
judgment. 

Colt,  J.,  delivered  the  opinion  of  the  court. 

The   defendant  was  iiulieteil   for  ol)tainiii<r  money  from  the  city  of 
l.ynn   by  false  pretenses.     He  moves  to  quash  the  indictment  on  the 
oround  that  it  did  not  set  forth  an  offense  known  to  the  law. 
"  It  is  alleged  in  substance  that  the  defendant  falsely  represented  to 
tiie  city  of   Lynn,  through  its  agent,  the   city  solicitor,  that  a  street 
which  the  city  was  bound  to   repair  had  been  suffered  to  be  out  of 
ri'pair,  and  that  the  defendant  while  traveling  thereon  witii  due  care 
WMS  injured  by  the  defect;  that  the  defendant  at  the  same  time  exhib- 
ited  an  injury  to  his  foot  and  ankle,  and  represented  that  it  was  caused 
l.y  the  alleged  defect.     It  isfurlher  alleged  that  tiie  city  and  its  solicitor 
wire  deceived  by  these  represent vtions,  and  being   induced  thereby, 
.tixreed  to  the  entry  of  a  judgment  iigainst  the  city  in  a  suit  then  pending 
ill  favor  of  the  defendant  in  this  case  ;  and  upon  the  entry  thereof  paid 
the  amount  of  the  same  to  him.     It  is  not  alleged  that  the  suit  was  to 
recover  damages  on  account  of  the  defendant's  injury  from  the  alleged 
defect,  but  we  assume  that  this  was  so,  for  otherwise  there  could  be  no 
possible  connection,  immediate  or  remote,  between  the  pretenses  cLiaiged 
and  the  payment  of  the  money  in  satisfaction  of  the  judgment  rendered. 

In  the  opinion  of  a  majority  of  the  court  this  indictment  is  defective. 
The  facts  stated  do  not  constitute  the  offense  of  obtaining  money  by 
false  pretenses.  The  allegations  are  that  an  agreement  that  judgment 
should  be  rendered  was  obtained  by  the  pretenses  used,  and  that  the 
money  was  paid  by  the  city  in  satisfaction  of  that  judgment.  It  is  not 
alleged  that,  after  the  judgment  was  rendered,  any  false  jnetenses  were 
used  to  obtain  the  money  due  upon  it  and,  even  with  proper  allegations 
to  th.1t  effect,  it  has  been  held  that  no  indictment  lies  against  one  for 
obtaining  by  such  means  that  which  is  justly  due  him.  There  is  no 
legal  injury  to  the  i)ar1y  who  so  pays  wlyit  in  law  he  is  bound  to  pay.i 
A  judirment  rendered  by  a  court  of  competent  jurisdiction  is  conclusive 
.  vidence  between  the  parties  to  it  that  the  amount  of  it  is  justly  due  to 
tiie  judgment  creditor.  Until  tlie  judgment  obtained  by  the  defendant 
w  . .  reversed  the  city  was  legally  bound  to  pay  it,  notwithstanding  it 
may  have  then  had  knowledge  of  the  original  fraud  by  which  it  was  ob- 
tained ;  and  with  or  without  such  knowledge  it  can  not  be  said  that  the 
money  paid  ui>on  it  was  in  a  legal  sense  ol)tained  by  false  pretenses 
which  were  used  only  to  procure  the  consent  of  the  city  that  the  judg- 
ment should  be  rendered. 

'  com.  f.   MoPulty,  I'.'ii  Mass.  i<u  ;  People   r.  Thomas,  :i   lini,  Hl'.t;  Hex  r.  Williams,  T  C 

i  I'.  ;!.'.4. 

;i  Dri'KXCKs.  17 


>')S 


ri;\i  I)   Avi>  r\i>i'.  I'IM-.tknsks. 


Till'  mdicliiii'iil  :ill(>'_'f-<  tlif  l';(rt  of  a  jiiilirinciit  in  fnvnr  of  thi'  dofiini- 
;int  wliicli,  if  Mi>l  roiu-lii'-ivc  iis  luMwci'ii  tlif  imrtifs  to  this  crimi  .al 
lnosiMiilioii,  is  :it  all  ovciils  conclusive  l)ctwccii  the  parlies  to  tlic  tiaii- 
action.  'I'o  lioltl  that  tiic  statute  which  piini-lics  criniinally  the  oiiticn- 
iiiil  of  properly  by  false  pretenses,  extends  to  the  case  of  :i  paynirnr 
ininle  tiy  a  jndiruienl  (ielitor  in  satisfaction  of  a  .jiuljinieiit,  wht^n  tlu' 
evi.ieni'e  only  shows  tiiat  tli<:  fals(>  pretenses  were  used  to  ohtain  tiju.l-- 
ineiit.  as  one  -tep  towards  olitainin^Mhe  money,  would  i^racticaiiy  inak. 
nil  civil  actions  for  the  re<'ov.ry  of  daniair'.'s  liaMc  in  snch  cases  !■ 
rcvisiou  in  the  criminal  ourts.  and  suhject  tiie  judirment  creditor  tn 
]>rosecntion  criminally  for  collectiniT  a  valid  jud^jrinent,  whether  llu- 
same  was  paid  in  money  or  satistied  liy  a  levy  on  property. 

Kxceptions  siistaim-d. 

Citw.  ('.  .!•.  Ami>  and  Soii.i,  .1.1..  di>-sented. 


F\LSK      PUKTEXSES  -  K.Vl.SK      I{r.PKl..Sl- NT.VTION     MfST     UK     MADE 
HEFOUK  DELIVKHY  <>K  (JOODS. 

Peopi.k  '•.  IIaynes. 

[14  Wend.  .".H;:   -^^  .Vni.  Dec.  o.'.O.] 
Tn  tho  Court   for  the  Correction  of  Errors.  Xew  York.  J)i;-rml,er.  JS:ir>. 

1  Purchase  and  Sale  of  Goods  -  False  Representation  as  to  Solvency  by  Pur- 
chaser Subsecuent  to  Delivery.  -  II.  '"'Ugh.  .ertau.  nuTclw.M.UM.  ..i  A  wU,ch  »,.- 
„„.  „.  11  iK.x,  M.aik.d  win.  II. ■>  i.iiniL.  and  a.ldr.-H,  and  d.-liv.Mcd  ..i.  b..iiid  a  boat  nam,.! 
l,V  liim  lo  I,.-  cani.'d  to  lu.  I...,„c.  AfLr  tins  Mit  butoie  A.  wli-  had  lercivcd  tlu-  Mui- 
„",.rN  re-.Mia  and  invoMO  ha.l  Kivoi,  Ih.ni  l-  II.  A.  lioarinj:  that  H.  wa.«  in  ..mharra-^-: 
'■irci.n-lahrcs  in.iiiirrd  „f  luni.  In  answer  Ihcri.to.  >l.  mad."  false  rupres.  i.tatn.ns  «•  u^ 
hm  s„lv.n<-5-.  Hel.l.  Uial  tli.^  jto-ds  haviiiK  l.«'<'i.  ..l.tainod  i.y  H.  aii.l  in  his  possCBM.i. 
Inf.nc  these  r.-pivsoiitalions  were  made  lie  was  ii.,t  guilty  -f  false  pretenses. 

....  Whether  on  an  Indictment  fnr  thiamin,'  .- Is  by  false   pretenses,   .n   "'•'''■t'"'''' 

s,.llu.K'  lortl.  sexe.al  lalse  pretenses  uidiiring  the  .ale  ot  the  gunds  wil.  ne  si.-  uined  b, 
proiif  iif  siiin«  id  llie  fuNe  pretenses,  f/uirre. 

3.  An  Untrue  Answer  to  an  Inquiry  as  t..  .mr-  flnaneial  ability  is  n.,t  a  lalse  preten-. 

i  ForErrLrs  on  Mere  auestion-  of  far.,  the  renudy  of  the  Ininre.l  parlv  .s  by  n  ir.otion 
for  a  new  trial.  .N.  writ  of  error  lies  to  an  inferior  court  f.  review  its  dee.Hion  upon  ma- 
tersoffaet. 

Imlictmont  for  obtaining'  S'>'"ls  ""<1»t  f^l-c  pretenses.  The  Genera! 
Sessions  pronounced  jtidizment  on  the  verdict  of  ^oiilty.  Krror  to  \hi< 
comt.     The  facts  are  fully  set,  forth  in  Chancellor  Walworth's  opinion. 

F.  /{.  Ci'ttln'j,  for  the  prisoner. 

^".  Slirrii-Ooil.   for  the  People. 


I'K.oi'i.K  '••  II  wsr.s. 


•_»:)'.• 


f:iviir  of  th(.'  (lofi'uil- 
ifs  to  this  crimi  i;i! 
parties  to  tlif  tiau- 
riiniiiaiiy  tlio  olit;iiii- 
e  case  of  a  pnyniint 
jiuijliiK'iit,  wiU'll  tin- 
sell  to  olitain  ajuil-- 
mltl  |irartii'iilly  iiiaio 
lijf  ill  Midi  casi's  tn 
jiidirinfiit  crcditnr  to 
iLMiHMit,  wbether  llu' 
iroptTty. 


S'     MUST     BE     MADE 

S. 


] 


nrk.  [)i'-(mhei\  JS.'l'i. 

as  to  Solvency  by  Pv.r- 
iorrli:iiicli-i'  "I  A.  winch  ».i- 
iMi'ti  "II  bditnl  a  Ijual  iiaino  1 
wli"  had  reiiivi^it  the  Khii- 

that  H.  wa.-  Ill  I'liiliarra-M'l 
i\  false  rupre.-i  Illations  a-  i" 
by  II.  ami  in  hi.i  possCB.-hi. 
if  falsi-  prutiMiM's. 
o  pri'lensos.  in  in-lictintiit 
IV  nixnU  will  in-  .sii-:;iim'(l  bv 

bilily  1.-  luit  a  lalsf  iiri'tcii-' 

injiiicd  |>arl\  is  by  n  ii.olion 
I'cvii'W  Us  (U'CisKui  upon  mat 


ctonscs.     Tlio  CfcniTn! 

<.'iiiity.      Krror  to  tiii< 

)!•  Walworth's  opinion- 


Wu,wo.Tn.  ClKUU.ollni-.      W..  aiv  .alK-l   -M-i  ui  ilu^  •  —  f 
U...i.ionof  til.   Siipmn.  t-urt,  upou  a  hiU  uf  .xcvptions  tak.  n  on 
:  iotlie  plaintiff   in  cn-oi..  upon   a.    in.lic.l.n..u,  for  olLaminj. 

■  V  f  N  ■  pr  tenses.      No  l-iH  of  .■x.vplions  can  be  taken  m  a  e.iin- 
-:^2,:'a:t..o,.i.ea..pe..io..eonntoc.<...eetanen-oneo..^ 

,,,e   eonrt  helow,  on   the  deei.on   of   a   ju.v.  upon  ma Ue.s  o.     a 
.;.      Tl.en.eentprovi-.ionoftl.eKevi.e.lS,a.u,es   only  autho, I.  . 
'.•M,aantont.^Ha,ofaninaie,n.cn,.toe.eeptt..^^^^^^^^^^^ 

,.  ■   .,11,1  HI  the  same  iiKinner  proMiled  ii_\   law 

:;:roM,.;       ilnof,hejnry.,ponn.ane,.soff^ 
..;    i.!^      ...  a  Viill  of  cxeoplions,  .heiv  the.v  has  heen  no  eiTonoous  a- 
:,, he  eonit  upon  matters  of  law.     The  lenieily  of  the  party  .ho 
,     ,,„,   ,,,  ,  „,is,  ireetion  of  the  eo-irt  or  an  erroneous  venliet  of    v 
\';    ,  .■    ,.  ,pu.stions  of   faet,  is  i,y  an  applieatiou  for  a  new  trial 

•h.,  Siipren.e  Court  of  the  rni.e.l  States,  m  the  ease  of   (  mm      ^.  ./-a 
;       "  he  e  ,nrt  to  .hieh  a  writ  of  error  is  hrom.ht  has  noth.n.  to  .  o 

:;;;     ;  ,  e     r) f  tin. rt  liohiw  upon  mere  matters  of  faet,  or  w .  h 

:       ol  L^.,u.n   the    weight  of  evi.leme.     Sueh    "'•:-='»"'-' 

,      tiKl  to  1  e  a.Ulressed  to  the  jury  as  the  ultimate  .,n<lL.-  ot  mat- 

■  mer X  for  their  eonsi.leration.  an.l  are  entitle.l  to  m,  uu-re 

■•::  i,:^:t^.'^i-tlie.inrors.    int. serei.e    of  their   o.n 

-  1  ,       riv..  fh.m       Rut  if  the  eonrt  in  sninmmiX  up  the 

''"  •  1         If    he  c^mrt   hefore  whieh  the  trial   is  liail    ear,  no, 

ii,„Mi   to    deenle.      If  tin    Couii  ;  .  «ifh  the  1  e"i-la- 

,„f,,,or  ..ourt.to  review  its  deeision  "l'---^'^*-'^^ J;      ;„,,;,,,,,. 


'  ntov.  stats.,  p.  :!•'■."'•<•  •-' 

v.irahamr.CaMimann.Ji  al.l(■.Hil."ll•^• 
l■.  il6. 


:'.  4  I'et.  i>n. 


L'f.O 


l-|iAi;i)    AND    l-AI.SK    I'KKTKNSKS. 


ill  111'  iii(ik'tnifiit  must  thfrcfun"  lio  hud  out  of  viow  by  this  court  in 
its  (h'cisiou.  !is  lu'iufi  iniTcly  tiio  t'Xpros>i()H  of  an  n|(iiii(iii  upon  ([iic,- 
timis  of  fad  whiiti  wcic  siihiuitteil  to  thi'  jury  for  llicir  cousidcratioii. 
ami  not  !in  iTiont'oiis  (U'cislon  of  the  court  upon  :i  queslion  of  law,  for 
which  !i  liili  of  oxi'options  would  lio. 

It  is  insisted  liowover  Ity  the  counsel  for  the  defendant  in  error,  tlia* 
the  cliarjj;e  was  erroneous  in  point  of  law,  iiecause  tiie  jury  were  in- 
striU'ted,  that  it  was  not  necessary  for  tlie  piiliiic  jirosecutor  to  estali- 
lisli  tlie  falsity  of  all  the  pretenses  charged  in  the  indictment  as  false ; 
tint  that  it  was  suHicient  to  autlmrizi'  n  conviction,  if  tiic  jury  were  smI- 
isfied  tiiat  some  of  tlie  pretenses  were  false,  and  tliat  the  accuscii 
olitained  the  goods  suit  iy  and  entirely  on  tiicse  pretenses,  which  wm 
proved  to  be  false,  witii  an  intent  to  cheat  and  defraud  tlie  persmij 
frcim  whom  tiie  floods  were  tlius  obtained.  On  this  point  I  agree  will, 
Mr.  Justice  Nelson,  wiio  delivered  the  opinion  of  the  Supreme  Court, 
that  the  charge  in  tiiis  respect  was  more  favoraiile  to  the  accused  than 
a  correct  construction  of  tiie  statute  would  warrant. 

It  is  not  necessary  to  constitute  tiie  offense  of  obtaining  goods  by 
false  pretenses,  lliat  tiio  owner  siioiild  have  iieeii  induced  to  part  with 
liis  proi)erty  solely  and  entirely  iiy  preten.ses  which  were  false ;  but  if 
the  jury  were  sati.-lied  tliat  the  jiri'tensi's  provid  to  have  been  false  anii 
frauduleni,  were  a  part  of  the  moving  causes  which  induced  the  owiiir 
to  part  with  his  property,  and  that  the  defendant  would  not  have  ob- 
tained the  goods,  if  the  falr-e  pretenses  had  not  been  superadded  to 
st.'itements  whicii  may  have  been  true,  or  to  other  circumstances  havui;: 
a  partial  influence  upon  the  mind  of  tlu!  owner,  they  will  be  justified  in 
finding  the  defendant  guilty  of  the  offense  chargi  <1  within  the  letter  as 
well  as  within  the  spirit  of  the  statute  on  this  subject.  I  am  accord- 
ingly of  opinion,  that  in  the  case  now  under  consideration,  althougli  .'ill 
till'  pretenses  stated  in  the  indictment,  as  tho^-e  upon  the  stri'iigth  of 
which  the  goods  were  obtained,  were  charged  to  be  false,  if  eitlierof 
tlu  in  was  in  fact  false,  and  was  intended  to  deceive  the  owners  of  tlic 
giiods,  and  thus  to  indu'-e  them  to  part  with  their  property,  and  actu- 
ally jiroduce  that  effect,  the  indictment  was  sustained.  One  fal>t' 
pretense  was  sulUcient  te  constitute  the  crinii',  although  other  false  pre- 
tenses were  also  charged  in  tiie  indictment.  As  a  general  rule,  if  an 
averment  in  an  iuilictmenl,  is  divisible  in  its  nature,  and  any  one 
part  thereof  is  siiirieient  of  itself  to  constitute  t!ie  crime,  the  otber  parts 
of  the  averment  ueed  n<it  be  proved,  unless  they  are  descriptive  ami 
material  to  the  identity  of  tliat  which  is  essential  to  the  charge  con- 
tained in  the  indictment. 

Thus  in  an  indie! nient  for  treason,  where   sexcr.ai  overt  acts  of  the 


SF.S. 


PEOrLK    r.   II.XYM'.S. 


.'t;i 


if  vwv,-  by  this  court  ir, 

ail  ii|)iiii(iii  upon  (|iu'v 

for  llicir  foiisUUTatini). 

1  a  question  of  law,  for 

Ipfendant  in  erroi-,  tliat 
•anse  tlio  jur^-  wciv  m- 
ilic  jjrosecutor  to  estali- 
he  indiclini-nt  as  false; 
m,  if  tiic  jury  wvvv  siil. 
and  tliat  the  accuscii 
c  pretenses,  wliifl>  wiit 
nd  dofrand  tlio  i)orsiiiis 
I  tills  point  I  u^roo  witi, 
of  tlu'  Siipronn'  Court, 
iijr  to  the  accused  tliaii 
ant. 

;  of  ol)taining  froods  liy 
en  iiiduced  to  part  with 
hicii  wore  false  ;  but  if 
I  to  liavi'  lietii  false  anii 
iiieh  induced  the  owiiir 
lant  would  not  have  oh- 
ot  !)een  superadded  to 
•V  eircnmstiinoes  liavin;: 
tiiey  will  be  justified  \n 
r<;i<l  williin  the  letter  as 
subject.  I  am  aeeoni- 
isideration,  although  all 
.«.e  upon  the  strength  of 
to  be  false,  if  eitiier  of 
eeive  the  owners  of  tlic 
lieir  property,  and  aetu- 
sustained.  One  fai>t' 
Ithough  other  false  J)it- 
As  a  general  ride,  if  an 
s  luiture,  and  any  niu' 
e  crime,  the  other  part> 
hey  ure  descriptive  and 
iitial  to  tiie  charge  con- 

(•\('ial  overt  nets  of  tlic 


.,„,..  treason  are  charged  in  one  count  of  the  indictment,  it  is  sullicicnt 
Mi-tain  tlie  count,  if  any  «ine  of  them  is  proved.' 

s„  in  an  indictment  upon  the  statute,  making  it  a  .•apital  fr.cny  for 
i,,ks,  c:.nie,s   and  others  employed   in  the  care  or  trnnsportat.ou  of 
,,  ,„ail,  to  st.al  or  take  out  of  a  l.ttcr  any  Imuk  post-bill,  lu.lc.  Mil  of 
vh'in.H.    etc..   it  was  hehl  sullicieut  f.  prove  that  the  detVmlant  was 
.,„,,lovcd  in  one  capacity,  in  the  care  of  tlie  n.nil.  although  the  ,u.^u•t- 
,  ut  chni-cs  that   he  was  employed  in  two;   and  where  the  ind.etuu.it 
,,Pn.d  that  tlic  letter  whi-h  was  purloined  contained    a  bank  poM-hill 
mI   bill    of  cNchange,   it  was   held    suHicieut   if  the    proof  showed  it 
:;,„i,,,,  ,i„H.r.^     In  the  case  of   h'l.,!  v.  //.»/,:'  which  was  an  nuhct- 
,„„fer  eomposin^r  and  publishing  a  li!>el.  Lord  KUenbnrough  held  it 
;  .,i,.i,„t  to  prove  the  publication,  although   no  cvhh.nce  was  a.ldu.  e.l 
•isl.ow  the  c  .mpnsiuu'  ..f  the  liln.l  by  the  defendant  :   that  if  an  indiet- 
1  ,,,,t  ehar-ed  that  the  defendant  did  and  eause.l  to  b.  .lone  a  particular- 
;:.,    it  was'em.uirh  to  prove  either,     lie  al-o  says:      "  Tliis  distin.t.ou 
us   through  the  whole  crimiual   law.  and   it  is  invariably  enough  to 
.,ve  so  much  of  the  indictment  as  .hows  that  the  defendant  has  co.u- 
uiiih.l  a  sulistantive  crime  therein  specilied."  '' 
N,it  icr  is  it  ncccssarv  to  constitute  the  statutory  offense  of  which  the 
utniff  in  error  was  convicted,  that  any  false  token  shouhl  be  used,  or 
„,t  the  false  pretensi^s  should  be  such  that  or>!ina.y  cure  and  common 
u.lenee  were  not  sunieient  to  guard  against  the  deception.     Such  was 
,„loubtedly  the  rule   in  relation  to  cheats  which  were  punishable  by 
li.tmeut  bvthe  common  law  in  Kngland.     On  this  subject  our  Kn- 
i,h  ancestor's  originally  adopted  a  laxer  rule  of  morality  than  their 
sottish  neighbors,  who  very  propi-rly  h.'ld  the  crime  of  swindling,  or  of 
htaiiun.r.n)o<ls  by  willful  Ivingor  other  false  pretenses,  ns  one  on  a  par 
a„„int",f  morarturpitude  with  stealing;   and  it  was  punished  accord- 
T'ly    under  the  comnu.n  law  of  Scotland.     Thus  in  IIoll's  Cus,-,'  the 
iiKouer  was  convicted  and  transporte.l  for  seven  years,  for  the  crime  of 
ft!.,  iy  assuming  the  character  of  a  merchant  by  hiring  a  shop  and  i.ll- 
MMt'with  lictiiiousbah.s;  by  which  pretense  he  imluced  several  per- 
-  n.  to  furnish  him  with  goods,  on  a  cre.lit,   when  he    had  in   fact  no 
:infntion  of  carrying  on  business  as  a  trader. 

Im  Srotr^  r.,.s.","  the  swindling  for  which  the  prisoner  was  convicted 
vi.l  s.Mitenced  to  ei-diteen  months'  imprisonment,  was  the  obtaining  of 
U-  from  a  farmer  iipoii  the  false  and  fruu.lulent  pretense  that  he  was 

II    -..k..r«.«  niTow  St  TT.Vn.  '  See  also  KiiiK  f.   Uoli.i.Kl.errv,  4   Hum. 

...,,.U..x.SUaw.lW.«..m  ^''^,„„„„cr.L.m. 

-^ '""»'•  ^-  MAiuonCr.  L.3.i6. 


>X>2 


11!  ui>  AM)  !\i.>K  i'I!i;ti;n.si:s. 


tlif  (•uiiliact..rs  ,|,.|k.  iMkiii-  ii|>  fDiM-c  f,.r  i!,,-  u^,.  ,,f  tli.'  iaviii:v 
.IdMiiiia  K'itkrihy  w:i-  aUo  coiivictcil  «.('  >«  iiulliii;:  in  (>litaiiiiiif>'  Wcaiin.' 
si|i|iar('l.  Iiy  ii-..suiiiiii;j:  a  falsi'  naiiu'  ami  iaUily  pivn-miiii^r  that  s!r>  h.,,; 
lo^t  licr  i'l,.tli,.s  hy  sliipwivck.  In  /{"i'l's  C'r-.'.'  tin-  fraud  foiisistcii  i: 
falsely  aNsiiiiiinij  the  iJKira.UT  of  an  rxcisc  i.lliccr.  and  thus  ,,|,iai,ii,|. 
iii'iiii'y  iiiidtT  the  prctin-i' of  coiiiiMniiKlint;  for  tlif  forfeit  iiif  on  jr,>,„l- 
llial  hail  lie.ii  siiiiiLiirled.  In  //.'/•.'//"n  Tk.v- .-  the  i>ri>oner  was  en],. 
vieled  and  lraM-|.orled  f,,r  seven  years,  for  ohtaininj:  iroods  ile|.()>iiei, 
with  another  l.y  ihi-  (.wner  for  safe  keeping:,  under  the  false  preteuM 
that  he  was  I'inpl  lyi'd  l.y  such  owner  lo  receive  tiie  <r<.(ids  so  dcpositi d; 
and  in  Kirl-./'s  Ci.si'.-'  the  prisone/  was  sentenced  to  he  transported  lev 
live  years,  for  ol.iainiiii:  a  >uin  of  nmney  from  a  hanker  in  Leith.  undn 
the  fal-e  preiens,.  thai  he  had  a  sum  of  money  in  the  hands  of  hi- 
banker  in  hon.lon.  and  aee-irdinuly  (lrawin<,' a  draft  on  a  banker  tiurr 
with  whom  he  had  no  accunnt.  and  when  he  had  no  reason  to  sMppn>, 
the  draft  would  he  paid. 

It  was  found  in  Kn<,dand.  a-  early  as  the  rei<:n  of  Ceorfje  II.,  tluit 

""■  '"''■  "f  I'"'  Hn.irlisl nmon  law  was  not  sudiciently  riirid  to  jiroted 

■ •''   •■""•   iiii-iispici(ins  —  that  class  who  stand  m<,st  in  need  nf 

'  I'll  — a<;ain^t  the  falsehoods  and  impositions  of  swindlirs  ;  and  u 
statute  was  thereupon  passed  to  remedy  the  defect  of  the  tMunmon  hnv, 
which  is  tiicoriiriii  <.f  our  own  statut(u-y  provisi,,iis  and  of  tiie  suhscpun- 
^■'''  '"•''*'  •  '«  on  thissul.Ject.  These  statutes  have  adipted  the  pnii- 
cipK's  of  tac  ^••••,lt,.,h  c(Mninon  law  and  the  decisions  under  them,  hnti, 
in  this  State  an.l  in  Kn-Iand.  have  heen  suhstautially  the  sanu'  as  in  lli, 
cases  aiiove  referred  to  from  Ilnme.  Hurnet,  and  Alison,  who  are  Hi. 
principal  writers  upon  the  conunnn  law  of  Scotl.ind.  I'nder  these  st:il- 
iitcs,  as  in  the  law  of  Sc(,ilaud,  the  offen-e  consists  in  intentionally  aii-i 
fraudulently  inducin;,'  the  owner  to  part  with  his  .roods  or  other  t'hini:" 
of  value,  either  by  a  willful  falsehood  or  by  the  offender's  assuming  :i 
character  he  does  not  sustain,  or  by  representini>:  himself  to  be  in  a  sii- 
nation  he  knows  he  is  not  in.  Thus  in  Airp'i's  Cusr,  under  the  Kn<Tlisli 
statute,  the  prisoner  was  convicted  and  transported  for  seven  years  foi 
;il>t;uninir  l':iy  for  the  carriairi-  of  .roods,  upon  the  false  pretense  that  lif 
had  delivered  tlie  nro,,ds  and  taken  a  receipt  for  the  same,  which  he  hud 
lost  <n-  mi-laid.'' 

So  in  WitcheU's  Cass.-' Ww  obtaining  of  money  upon  a  false  account 
of  the  number  of  workmen  employed  in  the  business  of  a  manufactiu'- 
iu-,'  establishment  by  which  the  prisoner,  who  was  intrusted  to  pay 
them,  obtained  a  larger  sum  than  was  due  to  them  for  their  wa"-es,  was 


1  num.  lT:i. 
-  1  Alison,  :.WA. 
■'■  1  iluiiio,  174. 


'  KinK'f.  Airey.  i  East,  ;10. 
■  2  Kasl's  r.  c.  (iio 


I'KOri.K    '•.   IIAYNKS. 


■2iV.\ 


il>t'    (if     the    CtlV   I  :  ; 

ill  iilitaiiiiiin  Wi{ii  ,;i 
tfiiiliiiir  thai  sill'  li  r: 
111'  fraud  foiisisli'il  i: 
■.  and  tliii-;  olilainiii:, 
.'  foi  IViiin'c  (111  o^onii, 
Ik-  pri>niirr  was  (-..n- 
iiiiii:  ,U()im1>  (lc|)()>iioi, 
iT  tlif  false  prctriM 

'  <,'(>iids  ^O  dopd.sitc  il; 
In  lie  tr:ills|i()itt'd  fiir 
inker  ill  I^citli.  inidn 
in  tiie  hands  of  hi- 
ift  on  a  liaiikt-r  tluiv 
lo  reason  to  !s'1|i|ium 

1  of  r.eortje  II..  tiitit 
I'litlv  rijiid  lo  iirott'd 
iiid  most  in  need  cf 

of  swiiidiirs  ;   and  i 

of  llie  fdiniiion  hnv, 
ii<ii)f  tiie  siiiis('(|iiiii- 
ivt'  adopted  llit>  |ii!ii- 
ns  under  tiiem,  hniU 
!y  the  same  as  in  I  In 

Alison,  Mho  are  llii 
1.  I'lider  these  st;il- 
i  in  inteiitiniially  aim 
joods  or  other  tliiiii:- 
ffeiider's  assiiiiiiii!;  a 
iniself  to  he  in  a  sii- 
"',  under  the  Kiigli.sji 
I  for  seven  years  fei 
alse  pretense  that  Uv 

same,  which  he  had 

ipon  a  false  account 
!S8  of  a  maniifactin- 
as  intrusted  to  pay 
for  their  wages,  was 


•i  Kast,  30. 


„,ld  to  be  within  the  statute.      In  /.'.v  v.  .hl.usnn,^  upon  an  indictment 

f„,  ohlainin- Is  uu-Ut  tli.-  fals.-  pretense  of  immediate  i.aynient    l>y 

.ivin.r  i„  pavnunt  a  eli-eU  on  a  hanUer  willi  whom  the  prisoner  had  no 
fund:,  and  with  .iiom   h.  kept   m.  aeeo.int.  Hailey.  .1.,  said  the  same 
,,„i„t  l.ad  reeentlv  Leeii  before  the  twelve  judges,  and  they  «-ere  all  of 
;,,i„i.„.  „KU  it  was  an  offense  indietalde  ni.der  tlie  statute,  to  obtain 
„',„ds  bv  -nvin-  a  ehe.k  upon  a  banker,  with  whom   the   party  kept  no 
;..vsh.  an'd"  hieh  hi-  knew  would  not  be  paid.     In  this  State,  also,  so  far 
.,.,  ouestions  have  been  bnu.tiht  before  the  lii-her  tribunals,  the  statute 
i,,3  H'.-ived  a  .similar  ••oust nution;  and  the  deei>ions  in  the  eourts  of 
.  .ver  and  'rerminer.  so  f.r  as  tlu  y  havee..ine  under  my  i.otu'e,  espee.ally 
M„,.r  the  decision  of  the  ea-e  of  rmph'y.  Juln.snn  in  IS].,.-'  have  been 
„  ..onformitvwith  the   prim.i,.les   adopted   by  the  Knjzlish  .jud^.-s,  in 
„iviu<r  .>ff,..l  to  their  statutory  provisions  on   this  subjeet.     /.//'eV'  « 
r„se'ciled  bv  the  counsel  for  the  plaintiff  in  error,  from  the  City  Hull 
U....„rder  -^  was  inconecllv  decided,  a>  the  ofbnse  in  thai  case  was  clearly 
„Ui,in  the  statute.     The  fact  that  che.d.s  are  freMueidly  draun  by  men 
of  business,  before  they  have  funds  ae.ually  in  l.mk  to  meet  them   could 
not  alter  the  law  of  the  case  ;   as  it  must  always  be  a  .p.estioii  for    he 
...msideration  of  the  jury  whether   the  prisoner  intended  to  commit  a 
fraud  by  imposing  a  check  upuu  another  which  he  knew  would  uut  be 

paid  when  presented.  ,„,,,.„ 

I  am  aware  fn.m  numerous  cas,.s  which  have  been  umU-r  my  o bsorNa- 
tion.  judicially  an.l  <,therwise,  thai  the  rule  of  morality  establishea  by 
the  decisions  under  the.se  .statutes  and  by  the  common  law  of  Scotland, 
l.as   been  deemed  too  strict  lor  those  who  in  1H25  and  subse.piently 
have  been  enoa^a-d  in  d.-fraudin- widows  and  orphans,  an.l  the  honest 
and  unsuspecting  part  of  community,  by  inducing  them  to  invest  their 
little  all,  which  in  manv  instances  was  their  only  dependence  for  the 
wants  and  inlirmities  of  age,  in  the  purchase  of  certain  stoc  ks  of  mcor- 
pontted   companies,   which   the  vendors    fraudulently  represen  ed  08 
ound  and  p  o.lnctive.  although  they  at  the  time  knew  the  institutions 
o,:  insolvent  and  their  stock  perfectly  worthless.     But  I  urn  yet  to 
learn  that  a  law  which  punishes  a  man  for  obtaining  the  property  of  h.8 
unsuspectimr  neighbor  l,v  m.-ans  of  any  willful  misrepresentation  or 
deliberate  fdsehood  with  intent  to  .lefraud  him  of  tl--"J;  - -tab- 
lishing  a  rule  of  moralitv  which  will  be  deemed  too  rigid  for  the  re- 
s' aM     merchants  and  other  fair  business  men  of  the  city  of  ^ew 
7U  or  of  any  other  part  of  the  State.     Neither  do  I   -'-e     ^  ^ -f 
honest  man  will  be  in  danger  of  becoming  a  tenant  of  the  ^  "^te    mon 
if  the  statute  against  obtaining  money  or  other  things  of  value  b^  false 


1  3  Camp-  :''0- 

2  12  Johns.  '292. 


1  Citv  Hall  llec.  l;W. 


2<;t 


FRAUD    AM)    FAI.SK    IMIKTENSKS. 


and  fiMiKhiloiit  prott-nscs.  is  ciinicd  into  full  effert,  arc'ording  to  iIk 
primiiiK's  of  the  deiisions  to  wliicli  I  lisivc  rcffrri'd.     Hut  it  may  imlcni 
limit  and  ivrftrsiin  tlio  fraudulent  speculations  and  acts  of  sonic  wIk.m 
princi|ilc8  of  moral  honesty  are  regulated  solely  by  the  denunciatimm 
of  the  penal  code.     The  law  upon  tiiis  point  as  laid  down  by  the  Sw 
prenit«  Court  in  this  and  numerous  other  cases,  is  luuiuestionably  llu 
settled  law  of  the  land,  in  conformity  with  both  the  spirit  and  the  in- 
tent of  a  i)osi;ivc  let^islative  enactment,     liut  if  those  members  of  tin- 
court  wlio  arc  .*>enalors,  believe  that  either  the  morals  or  the  welfare  of 
the  connnuiiity  will  be  proniotdl  l)y  repeiding  this  statutory  provision 
for  ])unisliing  the  crime  of  swindling,  which  in  point  of  moral  turpitiidi 
isfrc(iuently  more  agiiravatcd  tlisinsomc  cases  of  simple  stealing,  it  will 
be  then  tlu  ir  duty  in  their  legislative  capacities  to  vote  for  a  repeal  of  tlw 
law  ;  leaving  the  honest  and  the  unsuspecting  to  protect  themselves  as 
they  may  against  the  acts  and  decei)tions  f)f  those  who  intentionally  ilc- 
traud  them  of  their  property  by  willful  and  corrupt  lying  and  other  faJM 
pretenses,  calculated  to  deceive  that  class  of  citizens  which  is  most  iu 
need  of  the  protection  of  the  law.     In  tliis  place  as  members  of  the  court 
of  dernier  resort,  it  is  our  duty  to  declare  the  law  as  it  now  exists;  so 
that  the  declare<l  will  of  the  Leijislature  may  be  carried  into  full  effect. 
In  the  case  now  under  consideration  I  have  no  doubt  that  the  i)ris- 
oner   was  properly  convicte<l  of  the  offense  charged  in  this  indictment, 
if  the  goods  were  obtained  upon  the  representations  which  were  proved 
to  be  false.     It  is  evident  from  the  testimony,  that  at  the  time  the  rep- 
resentations were  made,  he  was  hopelessly  insolvent  to  the  amount  ef 
seventy  thousand  dollars ;  that  he  knew  hjs  situation  and  for  the  pur- 
pose of  inducing  the  owners  of   the  goods   to  let  hira  have  them  on  si 
credit,  he  represented  himself  in  easy  and  unendiarrassed  circumstances 
as  to  his  money  matters,  al)le  to  pay  all  he  owed  ;  and  that  he  was  wortli 
from  nine  to  ten  tliousan<l  dollars  ovtr  and  above  all  his  debts.     It  only 
remains  therefore  to  consider  tlic  question  whether  the  delivery  of  the 
goods  was  obtained  by  means  of  these  false  and  fraudulent  prctens.s 
or  wlutlier  in  legal  contemplation  the  goods  had  been  delivered  before 
that  time,  although  the  prisimer  was  not  then  aware  of  that  fact. 

It  appeared  from  the  testimony  that  the  plaintiff  in  error  had  been  iu 
the  haliit  of  dealing  with  Cochran,  Addoms  &Co.,  previous  to  the  time 
when  these  goods  were  obtained,  and  upon  credits  of  about  four 
months;  that  wiien  he  applied  for  these  goods,  they  entertained  no 
suspicion  as  to  his  credit ;  that  the  goods  were  selected,  packed  up  in  a 
V)ox  marked  Charles  Ilaynes,  Boston,  which  was  the  place  of  his  resi- 
dence, and  sent  on  board  of  the  Providence  steamboat,  according  to 
his  direction,  to  be  tr;nisporte<l  at  his  expense  to  the  latterplace,  imd 
taken  from  thence  to  his  place  of  residence  ;  and  that  a  receipt  was  taken 


I'EOrLE   r.  HAYNKS. 


•2(;.'» 


'fert,  ac'o<>r(lin<T  to  ilic 
cl.  Hilt  it  may  imlcni 
1(1  iic'ts  of  sonic  wIkf.m' 
•  by  tlie  (k'niiiicialidhs 
s  laid  down  l)y  tlif  Sii- 

is  inuiui'stionably  Uu 
1  the  spirit  and  the  in- 

tliose  mcnihers  of  tin- 
lorals  or  tlie  wolfarrof 
Jiis  statutory  provision 
lint  of  moral  tiirpitiidi 

simple  stealing,  it  will 

vote  for  a  repeal  of  tin 
)  jjrotcet  themselves  a^ 
le  who  intentionally  dc- 
|it  lying  and  other  falx 
lizeiis  wliieh  is  most  iu 
IS  members  of  the  court 
aw  as  it  now  exists ;  so 

earried  into  full  effect. 

no  doubt  that  the  ima- 
rged  in  this  indictment, 
ions  which  were  proved 
hat  at  the  time  the  rcp- 
olvent  to  the  amount  of 
luatiou  and  for  the  jtur- 

let  him  have  them  on  ii 
)arrassed  circumstances 
;  and  that  he  was  wortii 
e  all  his  debts.  It  only 
ther  the  delivery  of  tiie 
d  fraudulent  pretenses 
I  been  delivered  before 
ware  of  that  fact, 
tiff  in  error  had  been  in 
'o.,  previous  to  the  time 

credits  of  about  four 
Is,  tliey  entertained  no 
selected,  packed  up  in  a 
as  the  place  of  his  rcsi- 
iteamboat,  according  to 
!  to  the  latter  place,  and 

that  a  receipt  w  as  taken 


,l,>.  prosecutors,  who  was  .i  wm.  ,  ,     llavnes,  he  considered 

'..red  on  b.ard  t'^^^;-  •;:!-;; j'^stoiln.  Aftc  the 
r  us  being  at  the  risk  of  the  l.itt*  i  ir  a  ^^.^^^ 

;..  had  i;^en  thus  delivered  on  board    he  '-    ;    ^    '^^l     J  .^  ,,,,,,,, 

U-,  of  that  faet,  the  -it-ss  heanl  a   .       .    r  HIH     n„      ^^^^.^ 

.Uich  induced  him   to  suspect    us  -';';;^^;^  ::,,,,  ,,,a  .Un-ady    • 

,.,  store  the  ..tness,  «;t»-^ -J^^;-^^^;        Id  nordcliver  the  g-od, 

,,een  sent  to  ^»'''  ^^^i;  ;;;^,^:;  :^;  ^,l^..a  a  note  protested.  I'pou 
u  consequence  of   having   in  .iru  u  ,„  his  situation  and  credit 

.UK.U  occasion  the  false  »*-n>--"^^  l^^  "  ^  ,"^,^  ^ed  to  bin.  the 
...re  made  ;  and  the  witness  being  f^^^^''^^^^;^,  u,  same  at 
„...eipt  and  the  invoice  of  the  goods,  and  to,.k  his  not. 

thirty  days.  .  .      ,     .  ^j     jj^urt  so  to  in- 

„.  counsel  ^-j^^^';:;:-:;  :rCl:.'^-d  of  the  boat  was 
.tiuetthe  jury,  that  the  dtliv>  t,  „^„,|e   aft-'r 

,  complete   delivery,   and   tliat   as   the    1^  ;,'"        (-^ 
..ch  delivery,  although  they  m.g lit  ^>-«     "-X   J  „^" 'Lt^as   not 
,    Co.    from    obtaining    a   '-•'^■''^7^,  ,  f    ' '^.^  „t.     The  court, 
.,«eient  to  ^^^^^iX^y^^  :!  ^ hJ^trubtedly  obtained 
liowever,  charged  the  jury  tnai  u.c  i  indictment ;  to  which 

,„„  g„„,„  from  U,e  „ro,e.^ors  '^^;-^-^ltZ>^^^'  -oug 

lions  were  made.  ^i^Hvprv  of  the  ''oods  as  incom- 

The  Supreme  Court  consulered  the  '^«^'\7>  *^,;  '  ^^^  j,,i,ered  nor 

,lcte  and  conditional,  because  the  invoice  »^"'   »«^  '^^  ;^;;,^^  ^^^^,^,,, 

l,.e   security  for  the  P^-l'-^'^-^^^f  y^!;,:     ,^0^^^^^^^^^^^^^  l\lo 

of  the  master  of  the  boat  was  still  m  the  l^^"'"  ^^^    _'^^^  ;.^^ 

not  understand  from  the  testimony   howeve.,  ^  >-     »';^;;;^  J, ^ -,,,,, 

,nent  or  understanding  ^^^^^^^^^  ;^l^:';^^  ^^.o  delivered 
that  the  goods  should  be  retained  unt     the  --'      "  '      ^      ^^,  ,,^.  ^,,. 

and  a  note  given  for  ^^^j;^-;:^^;^^  'I^l^..  to  show 
ter  of  the  boat  was  merely  taken    ^y  ^"^^  ^  ^      j,.         ^,,e  testi- 

Uiat  they  had  sent  the  goods  on  the  '^^^^^^  Z  not  n.-ces. 
mony  it  also  appears  that  the  y^^^^^'!']^' ^^^'^^^  Uieir  arrival  at 
sary  to  enable  the  purchaser  to  obtain  the  goods  upon 


2('.t; 


FUAiK  AM>  r.\r,sK  i'ki;ti:n.sks. 


tin  |pln(t>  of  (U'Stinalion.     Kvcn  wlitri:  gootU  an- sold  uiion  tlic  undei. 
stamliiiL;  lliat  tlicv  arc  to  be  paid  for  on  di'livciv.  if  tiif  j:i>ods  mv  dtliv- 
trt'd  witliout   iii^isliii^  ii|">ii  |iayini'iit   at   llir  liiiu'  of  liu'  tirliviTV,  the 
title  i)ah:M's  alpN;)luU'i3-  tn  tiif  imrcliaMT.  imffr^s  Uierr  is  a  sju'cial  nijri'r. 
iiu'iit  or    a    ii>a<:i!  of   tradf  >lu)\viii^   llic   drlivrry   to    lu-   I'oiulitiiiiial. 
Di'livcrv  of  fji'iuds  also  to  a  servant   or  a^tiil  of  tiic  inirclia.siT,  or  to  :i 
caniiT  or  iiia>l»T  of  a  vi'.s.-sel,  wiu'ii  tlioy  art-  to  lie  Iransiiorlvd  liy  a  car- 
rirr  or  liv  walt'r,  is  ((niixaii'iil  to  a  dtliviry  to  the  jtiircliastT ;  and  tlif 
|iroiK'rty   witli   tlic  corri'sixiiidiiit    risU,   iiiiiiirilialcly  vests  in  tlu'  pur- 
ciia-fr,  siihjcct  to  tin'  vrndor's  rij,'iil  of  stoppage .//(  trunsitn.  if  tin'  piir- 
ciia-ir    lufoims   iiisolvi'nl   In-fore   tin*  <ioods  iirrivr   at  lluir  jilaiT  of 
il(  siinatioii ;   aiicl  particularly,  wliiMi  tiu-  carrier  is  .specially  nanu'd  liy 
tin;  vendee'     In   llie  present  case,  tlicrefurc,  I  tiiiidv  we  are  bound  to 
consider  the  delivery  of  tlie  box  on  board  of   the  iioat  to  be  sent  on  to 
the  vendee's   residence  at   Itoston,  and  delivered  tlu're  according  to  the 
directions  on  the   box  itself,  us  u  valid  deli\ery  (.f  the  goods,  .so  as  to 
divest  the  Vendors  of  the  possession  as  well  as  of  the  title,  leaving  them 
tlu'  mere  right  of  stoppage  in  transitu,  in  cabc  of  the  purchaser's  insol- 
v(  ney, 

riu'  right  of  the  vendor  to  reclaim  his  goods  as  a  security  fcr  the 
unpanl  purchase-money,  while  in  the  hands  of  the  middleman,  was 
originally  «lerivi d  from  the  court  of  chancery,  ll  is  a  mere  etiuitable 
authority  to  repossess  himself  of  the  goods,  ui»on  the  insolvency  of  the 
vendee;  and  it  can  not  be  exercised  at  the  mere  caprice  of  the  vendor, 
when  no  such  in.-olvency  exists.-  To  invest  the  vendor  with  the  right 
of  property  and  possession  of  the  goods,  after  they  have  been  abso- 
lutely ilelivered  to  the  carrier  or  middlennm,  there  must  be  an  a<tual 
bti'ppage  by  u  jiositive  I'xertion  of  the  right,  by  the  vendor  or  hia  agent, 
C'itlu  r  bv  taking  coiporal  posscssimi  of  the  goodw,  t>r  by  a  notice  to  the 
carrier  not  to  deliver  them  to  thi' vendee,  or  by  some  equivalent  act ; 
and  until  such  \vj.\\i  is  actually  exercised,  the  right  of  property  and 
possession  remains  in  the  vendee,  who  may  maintain  an  action  of  trover 
against  any  one  withholding  the  goods  from  him.  But  the  actual 
exi-roise  of  the  right  revests  the  title  to  the  properly  in  the  vendor,  and 
enables  him  theri'iifter  to  maint.iin  irover  against  any  one  who  subae- 
(puntly  to  till'  cxi'rcisc  of  his  right,  obtains  possession  of  the  goods 
and  refuses  to  «leliver  them  to  him.''  In  the  present  case  the  right  of 
possession  and  of  property  was  actually  vested  in  Ilaynes,  by  the 
delivery  on  board  the  steamboat  at  the  time  the  false  and  fraudulent 
pretenses  were   j)nt   forth  by  him;    and  the  vendors  had  not  in  fact 


1  -'  Kent's  Com.  4;>'.i,  Dawns 
n.  :l:lti. 


riik,  s  T.  2  Per  Lord  stowcll   in  llio  case  ot  The 

ConHtantia,  c.  Udb.  Adm.  3'il. 
3  Litt  r.  Cowley,  7  I'uunt.  169. 


I'KorM:  '•.  iiAVM>. 


2U7 


upon  the  under- 
I'  <fi)0(ls  an'  di'liv- 

tiic  ililivi'iy,  llu' 
is  ii  sju'cial  ftijri'o- 
1)  lie  roniUtioiial. 
imrcliasiT,  or  In  u 
iispoilrd  l>y  a  car- 
iircliasiT;  and  tlu' 

vi'slis  in  tlu'  pur- 
ruiitiitn.  if  till'  pin- 

iil  llii'ir  jtlaic  of 
pccially  iiainod  hv 
k  we  art'  bound  to 
L  to  be  sent  on  to 
<■  ac'CMinling  to  tlie 
lie  {iuods.  so  an  U> 
title,  leavinji  tliem 

puicliaser's  insol- 

a  sccnritv  fcr  the 
a  middleman,  was 
IS  a  mere  i'<iuitat)le 
!  insolvency  of  the 
riee  of  the  vendor, 
iidor  with  the  right 
'y  have  l)een  abso- 

must  be  an  a<tual 
endor  or  hia  aijent, 
•  by  a  notice  to  the 
me  equivalent  ait ; 
lit  of  property  and 
an  action  of  trover 
Hut  the  actual 

in  the  vendor,  and 
my  one  who  suhae- 
ssion  of  the  goods 
nt  case  the  right  of 
n  Ilaynes,  by  the 
iLse  and  fraudulent 
rs  had  not  in  fact 


cU   in  Iho  case  of  The 
.dm.  3il. 
;  TuuDl.  169. 


,,,„vcsti.d  themnelves  with  the  title  to  the  pr..pc<rty  by  st..ppw..Mt  -n 
'2..,,^^  „,  ,id  no,,  therefore,  in  h  ,:d  cunU.n.plat.,n  obta.n  ,he  pos- 
::Xu  or  deliverv  ..f  the  property  by  n.ans  of  the  false  pretensea 
:i.acd  in  the  i..d;..n.cn,  ;  nllhongh  he  intended  to  do  s,..  not  be>n.^ 
,  ...P..  of  the  fad  of  the  delivery  of  the  gou.ls  „n  board  the  .s  ea,nb„a, , 
:/,„.,  ,i,..,  the  falM.  representations  as  to  hi.  si. nation  and  s-heney 
„.,,,  ,.,,,.,  Al,h..„,l,  in  puint  of  n.oral  turpitude  there  .s  -  i- 
U.fferenee  between  obtaining  the  possession  of  the  gooils  by  w,l  f  1  n 
,..,„.,,,,e  falsehood  in  the  iir.s,  instance  a.,d  prev..n..ng   he  vem.orf.on 

,      .i„.  a  h.gal equitable  right  by  nimiiar  frandnlent.md  eonnpt 

:       .  ir  wouUl,  .  ..o„l.  be  going  too  far,  in  a  pro.eeut.on  f..r  fi  ony. 
,o  .:.v  the  two  eases  are    .0  san.e,  and  that  the  accused  nu,    be  i      - 
..d  of  the  latter  offense  under  an  indie.ment  ehar.mg  hnn  w  th 
Zoning  the  delivery  of  ,he  go.  da  by  means  of  these  fulne  pretens 

i  Uu.,'f,.re  for  .h>s  rea.M.  only,  think  the  judgment  of  the  court 
below  was  ennueous  an.l  tiiat   it  shouhl  be  reversed. 

T.<v.  V.  Senator.     1  think  so,„e  of  the  exceptions  to  the  charge  of  the 
,,,,„.der  were  well  taken  and  tl>at  the  supre.ue  court  has  erred  tn  dec.d- 

'"^■lie  •::i;:;ment  was  under  the  statute  against  obtaining  property  by 
,,,,  ,„,,u.nses  w„h   intent   to  defraud.     The  proof   on  the  tnal  w      t 
..„i,,jv  to  show  that  the  goods  were  obtained  .m  a  pr^.i...!,   e,  ab- 
hshed'credit.  without  any  pretense  or  repri^e.dat.on  ^^  '-         • -^ 
„.,st  that  after  being  so  obtained  the  defendant  -'--'    «    '         ;  ^; 
the  possession  of  them  by  n.eans  of  false  preten.es.      If  t  u>  b.   th.   t     C 
a  acter  of  the  transaction  the  defe.nlant  was  conv.cted  of  an  off  en  c 
.0    ;lhibited  by  law,  and  for  which   he  ..rtait.ly   was  -    -^^^^ 
Whi'ther  it  be  so  or  not  de,.ends  on  the  fact  of  tl'-^^-''--  >  ^^      ^ 
Zu.     Addoms,  the  principal  witness  forthe  K---'";- ^j^;;:;^ 
Havnes  hud  a  very  good  cred.t  with  the  house  "-'-,^.^  ;;;:;;;; 
a  partner  ;  that  he  (Haynes)  selected  the  goods  h.n^self  ;    hat  th       .ire 
nn    aside  frotn  the   rest  of  the  goods,  packed  up  >n  a  box  wh    h  -...8 
:^::^n  Ihe    out.ide  and    addressed    to  Tharles    »;;'y;-  /    -- 
bein..  the  place  of  his  residence,  th.t  the  goods  were  aflerw.t  d.  .    n^  to 
1  e    Providence  stean.boat,   accoruing    to  Ilaynes'  dn-ect,ons,    and    a 
•   r     u        bv   the  cotman       I  hav,   no  doubt  that  these  facts  eon- 
:r  :i^2oL:':i;;:n  and  mdeed  it  is  ad.nitted  o,.  all  .des  that  tt 
1  such  a  delivery  as  put  the  property  wholly  at  the  r.    o    U^        -^  -N 
ami  it  might  be  added  «ueh  a  delivery  aa  would  -ahle    n^  o  .^  n U 
trover  or  any  other  action  for  their  loss  or  .njurv  .        ut  t  r 
while  the  gooda  were  in  this  situation,  -^   ^^-^      \.      ^  ^^ 

actual  possession  of  tUem.      inis  i  >i.ij  • 


2»)M 


FI!AI  l»    AM)    lAi.sK    IMiKTKNSKS. 


Ilnyn.'s  was  on  tlir  spot.  |.crs(.n(ill.v  l<.  s..|,..t  tlir  j;..n.|s.  nn.l  to  hav,. 
Ih.'iii  liii.l  !i>m1...  I.un,.,!  ,.,,.,1  .lin.ctf.l.  m.,.|„s  t,,  „„•  to  !..•  i.  |),.rf,.,M  <Uli\. 
frv,  KIM  I,  MS  t  .  ,1.  piivf  Ihr  vrii.ldrof  Miiy  s|K.,'ili(;  lini  on  tln/ii.      I  tak.' 

till'  ml.-    to   1.0    (llMt    tl.Ollfrll    ^r.HulH  UtV  snl.l   „|M,n  (Tclit.     Vfl    if     llu-.V  UIV 

a.tiiiilly  .l.livcrod  to  tho  |.urcl.as..r  without  i.nv  nrral.p.iH'nt  .".s  f,, 
tiio  sr,.|inty  f„r  i|„.   payinn.l  of  tiu-m.  the  v»MMi,.i'.s  lira  upm.  tlicii.  i> 

fJfOlll'.' 

The  case  is   in   tiiis  ivsp..!   .li.tin^r„isl,ahIo  from  tiios,.   in  w  „• 

pon<Is  liMVf  n.v.Tn.hluMl  tin-  lian<ls  of  tiif  vendee,  l.nt  liav  ni,!y  pa»e,| 
from  ti.e  liafi.ls  of  tl,,.  v,.,i,lor  to  snnu'  inlefniediarv  pei...n  as  a"  carrier, 
•■t<'..to  l,e  l.y  liJMi  (leiiv.'nMl  to  tlie  vendee.  15, ,1  s.ippnsjn-  tiie  fart 
tlial  Ilaynes-  presence  at  tlie  p.ir,-|,ase  and  s.ttinfr  asidr  ..niie  .rood. 
made  no  .liffi-renee  as  to  tlie  eliararter  of  Lis  posse-siun,  and  tl.at'lhev 
were  only  in  transition  so  that  t!i.-  veminr  still  ha-l  a  lien  on  tiuin. 
Waynes  was  yi  th,.  l,.^ral  „wner  (,f  the  p'ods.  So  far  as  owners), ip  i. 
eoneerned  the  delivery  t.  tiie  nin-ter  of  the  steanil.oat  or  even  to  the 
eartinan  was  snilleient.  an<l  any  disposition  wliieh  Ilavnes  saw  fit  to 
make  of  them  would  l,e  valid,  snli.jeet  at  most  to  the  eipiitalde  lien  of 
the  vendor  for  the  amount  due  to  him.  Delivery  of  goods  to  the  .serv- 
ant or  a;r,.„t  of  the  purchaser,  or  to  a  carrier 'or  master  of  a  vessel, 
where  they  are  to  he  sent  l.y  a  carrier  or  hy  water,  is  cpiivalent  to  the 
deliv.iy  to  the  pnrciiaser,  and  thist!:ou-h  the  carrier  was  to  I.e  p;  '  I  l.y 
the  vendor.-     The  ri^'ht  of  stoppage  v,  tr^msitn  has  not  the  effe(  eh 

the  .Supreme  Court  se.Mus  to  suppose,  of  making  the  .leliverycon' 
hut  is  only  a  lien  which  the  vendor  under  ceriain  circumstances  may  en- 
force to  secure  the  price,  and  even  if  enfoeed  the  goo.ls  strictly  hchmg 
to  the  vendee;  and  if  they  .shall  j.rove  of  more  value  than  the  lien'^ 
though  that  he  f(.r  the  whole  ptwchase-m<.ney,  the  halancc  belong.s  to 
the  vendee.  It  is  erroneou.s  to  suppose  that  the  right  of  stoppage^coii- 
tinnes  the  ownership  in  the  ven-h.r.  '•  It  is  a  contra.lidion  in  terms," 
says  Justice  Huller,  "  to  say  a  man  has  a  lien  on  his  own  goods,  or  has 
siicha  right  tostop  hisown  goods  intrtnixitn."  The  rightof  thevendor 
to  goods  in  tmti.sitii,  in  case  of  the  ins(.lvrncy  of  the  vendee,  originated  In 
the  courts  or  e(iuity,  and  was  «rst  heard  of  In  Wi.srman  v.  Vumlcputt,^ 
and  though  it  has  been  greatly  favored  and  encouraged  liy  the  courts  of 
law.  as  well  as  those  (.f  equity  for  the  purpose  of  substantial  justice,  yet 
it  has  never  I.een  held  to  rest  on  the  ground  of  a  right  to  rescind  the  con- 
tract :■«  and,  therefori'.  it  is  w.H  >ettle<l  that  a  court  of  equity  has  lu. 
jurisdiction  to  supjjorf  it  l.y  process  of  injunction.-' 

1  noKhtlinli   ...InRMs.:!  Ka»t,  .'iO.) ;    Dixon  v.  Lathro|.,  (1  Cow.   114;  ,.   c.   Hi  Am.   IX,'. 

i>.   Hiililwiii,  .-J   1(1.    175;  Wnglii   i     I.awts,  4  rx; 
««P-  '^^^  "  2  Vern.  iOT. 

■-'  Kmgf.  Meri'(litli,.'C!<mi.b.  i!:in;  Dutton  <   TiV/e  ilo.lgson  r.  l,oy,  7T.  li.  445. 

f.  Sol<)in(.ii>.iti,  :l  I!us.  .^t   I'ul.  r,m  ;  (  li:iiiiiiaii  'J  Kent's  Com.  4'.>J. 


I'KOPLK    r.   IIAVM'.H. 


•Jtll' 


foods.  Mini  to  liavr 
lie  a  pcrfi'cl    (lili\- 

1  oil  111.  Ml.        I    tilKf 

if.  ytl  if  they  !iir 
rraiiH^ciiu.iit,  .-m  f,, 
lii'ii  upiiii   tlit'iii  i> 

lioso   in  w  ic 

:  lia\i'  niily  iia.->i'i| 
t'i>iiii  !is  a  carrier, 

llllpiisil|;r  tin.  fact 
tisilic  of  tllC  jro()(l> 

Jii,  and  that  llicy 
ii  lii'iJ  on  tikiii, 
ir  as  owncrsliiji  i-; 
;it  or  even  to  the 
layiies  saw  tit  to 
1'  e(|iiitalile  lien  of 
foods  to  the  serv- 
iister  of   a  vessel, 

ei|uivaleiit  to  the 
was  to  lie  pi  ■  '  by 
t  the  effei  eh 

iverycoie  ', 

insfaiues  may  en- 
ds strictly  belong 
le  than  the  lien, 
dance  belongs  to 

of  >toppage  con- 
liction  in  terms," 
wii  goods,  or  has 
iglitof  the  vendor 
dee,  originated  in 
in  V.  V(inilcj)utt,^ 
il  by  the  courts  of 
mtial  justice,  yet 
)  rescind  the  con- 
of  equity  has  no 

14;  s.   c.   Ki  Am.   l>i'C. 


Ibii   the  .Siiprenie  Court  thinks  thtit  although  the  property  wann- 
(loiilitedlv    for    some    purposes    to    be    eonsiileied    deiiveied,    yet    the 
(lelivei  V  was  "  incoinplete  and  eoii<litional,"    so  that  the   vendors  had 
the    right   to    resume    the    possession.     If    this    were   coiiecded    I  do 
Udl   see    how    it    affects    the    present    question,    unless     the    (ilteiise 
chaiged  was  that  .f  preventing  the  vendors  from  nsiuuing   the  po-»- 
session  by  means  of  false    pretenses   which  it  reipiires   no  argument 
to   show   would    not   sustain  an  indictment.     Hut  1    lind   nothing    in 
the  ease    to  show  that  the  delivery  was  incomplete   and   conditional ; 
indeed,  I  am  iu)t  sure  that  1  t'omprehend  what  is  meant  l«y  an  iiicom- 
|)iete  delivery,  but  presume  it  means  at  most,  no  more  than  a  comli- 
fioiial  delivery  ;  and  to  constitute  a  conditional  delivery  it  is  necessary 
the  condition  shoiUd   be  ex|)resf..        I'lie  circumstances  fi'om  which  the 
Suiireme  Court  infer  that  the  delivery    vas  conditional,  are,  (1)  the  ii' 
voice  had  not  been  delivered ;  (2)  security  for  the  purchase-money  had 
not  been  given;  and  (:'>)  the  receipt  of  the  master  of  the  boat  was  in 
tiie  hands  of  the  vendors.     The  first  and  last  of  these  circumstances  no 
way  affect  the  fact  or  character  of  the  delivery;  the  invoice  or  bill  of 
the  goods  was  immaterial,  and  the  receipt  of  the  master  of  the  l>oat  was 
lucessarily  given  after  the  dilivcry  and  of  course  any  disposition  made 
of  il  eouhl  not  affect  that  fact.     The  objection  tliat  "  security  for  the 
pun  hase-money  had  not  been  given,"  assunu-s  what  nowhere  appears, 
that  security  was  to  be  given.     The  utmost  security  that  could  have  been 
contemplated  was  the  purchaser's  note,  and  if  this  had  been  an  eqiress 
condition  of  the  sale,  of  which  there  is  no  evidence,  yet  it  was  waived 
by  a  delivery  without  a  concurrent  and  express  demand.     This  principle 
was  fully  settled  in  Clidpnitnt,  v.  J (ttliropr  and  in  lliis  court  in  Lnjna  v. 
Murii'/'i     In  every  view,  therefore,  ihat  I  can  take  of  this  point,  I  am 
sutislied  the  exceiition  that  there  was  no  evidence  that  the  goods  were 
olitained  by  means  of  the  false  pretenses  was  valid. 

I  am  also  satisfied  that  another  exception  was  well  taken  ;  it  is  that 
to  the  instruction  to  the  jury,  that  if  some  of  the  pretenses  were  false, 
and  they  (the  jury)  believed  the  goods  were  obtained  solely  by  means 
(f  them,  tjhe  indictment  was  sustained  notwithstunding  other  pretenses 
alleged  to  be  means  of  obtaining  the  goods  and  averred  to  be  false,  were 
not  proved  to  be  false.  My  impression  on  the  argument  was  against 
this  exception  ;  but  on  re-examining  the  opinion  of  the  Supreme  Court, 
their  views  on  this  point  appear  to  me  to  be  plainly  erroneous.  The 
offense  of  obtaining  goods  by  false  pretenses  is  combined  of  two  dis- 
ti.,ct  dements,  to  wit:  false  pretenses,  and  obtaining  the  goods, 
neither  of  them  alone  constitutes  an  offense.     An  indictment,  therefore, 


oy,  7T.  Ii.  iVo. 


1  Hi'sscy  f.  Thornton,  4  Mass.  406;  Far- 
niss  r.  Home,  8  Wend.  247. 


2  (1  Cow.  110;   10  Am.  Uoc.  H't 
'  T  Wouil.  77. 


'J  70 


lUAl  I)    AM)    VAI.M;    rWKTENSES. 


„u,>t  ^I'i  fnrtli  th.'  i.rot..ns..s  l,y  wlii.  1,  llio  -onds  nvro  obtaiuo.l  !iml  ex- 
pressly  avrr  tl.c.n  f .  h-  1:.1m.  :   aiul  wIkm.  so  mI  f-uth  mm.I  uvrml  to 
fdM-  "lli.'V,  to-'CtluT  with  tlio   (ihtMii.injx  of  llio  jioods,  coustmite  .... 
offriiM'  .hnr-cd.      It   follows  lu'ccssiu-ily  lliat  ovcry  pivlfiiso  thus  set 
f„rth  and  diai-cl  to  ho  falso  is  nui.U'  a  suhstantivo  luiit  or  constitiuna 
,,|,.„H.iit  of  tlu>  ..ffonse  for  w  hidi  lh»^.  iudictnu'nt  is  found,  and  of  course 
c.,n  not  ho  doemo/l  imniatnial.  niu.h  los  impertinent.     Tlie  distinction 
between  inateiial  and  immaterial  avermmls  in  an  indictment  is  settled 
to  he    that  if  the  avcniHiit  he  connected  witli  the  char-e,  it  must  he 
proved  •   but  if  it  he  wholly  immaterial,  or  if  the  aveimont  he  totally 
„„,.„„noet.d  with  the  char-e,  it  n.-od  .lot  be  proved.'     Here  each  an.l 
every  invteiise  .set  forth  and  alie-.d  to  be  false  is  not  only  lutimatrly 
connccte.l  with  the  cir.'iimstancos  that  constitute  tlu-  crime,  but  -s  m 
fact  a  part  and  portion  of  the  crime  ch.iroed.     It  is.  therefore,  a  nuuh 
stronger  case  than  tiiose  usually  put  to  distinguish  a  material  from  an 
imi'-.aterial  or  impertinent  averment. 

The  general   rules  and   principles  of   i)leadin^^  with  respect  to  the 
structure  of  a  declaration  are  ai.i.licahle  to   an  indi.'tment,  and  if  we 
look  to  the  decish.ns  as  f.  avermi'nts  in  the  former  which  must  he  pr..v.  d 
■i«  laid  tlu're  would  se»MU  no  room  for  doul)tin<r  tiie  necessity  m  the 
"present  cate.     The  leadin-  oa-c,  Bristow  v.  Wririhtr  sefled  by  a  jud;.e 
renowned  for  disreganlin-  technical  ind-'S  when  they  inlerf-red  wuh 
substantia!   justice,  was  of  an  averment  by  no  comparison  as  material 
as  that  under  consi.leration.     The  .Supreme  Court  seems  to  regard  the 
cases  of  A'//«/v.  /Vr^)/^•' and  People  v.  .Vo/u-.'  as  authorities  wln.hsui- 
port  the  reconler's  charge  on  this  point;  but  I   iind-nothing  in  then, 
tluit  can  be   propt'^lv  viewed  in  this  aspect  ;  certainly  not  in  the  lust 
ca,se   the  whole  reasoning  of  which  is  to  show  the  necessity  of  making 
the  c!iar.re  si-ecific,  by  a  <listiiict  averment  of  the  falsity  of  those  pre- 
tenses or  representations  which  are  intended  to  he  relied  on  as  coiisti- 
tutin-  the  offense.      Why  it  shoiihl  be  indispensable  thus  to  designate 
Ihem'^  if  they  or  any  of  them,  when  8<J  designated  and  averred,  can  be 
disregarded  on  the  trial,  as  "  not  intimately  connected  with  the  circum- 
stances which  constitute  the  crim."."  I  am  unable  to  perceiv;e ;  and  m 
Stun,''^  a-ise,  though  there  is  an  expression  of  the  court  seeming  to  con- 
found tlie  case  of  several  pretenses  with  that  of  s.-veral  assignments  <.f 
perjury  in  one  count,  yet  Justice  Sutherland,  who  delivered  that  opinion, 
in  sliowing  that  it  was  necessary  to  negative  only  the  pretenses  hdied 
upon  as  material,  savs:   "  If  it  were  necessary  to  negtitive  all  the  false 
pretenses  in   the  iudietment,  it  would  be  necessary  to  prove  them  all 
false  on  the  trial."  plainly  indicating  tliat  notwithstanding  his  intiuia- 


1  1  Chit.  Cr.  I.,  r.^2. 
•i  Poug.  •>*>&. 


:i  i  Mau.  *  Scl.  ;!70. 
<  '.)  Wi'iiU.  18J. 


wcio  nV)taiiuMl  sukI  t\- 
(Uth  iiiid  averred  to 
<roiKls,  constitult^  ,. 
^erv  lueU'iiso  \.\n\^  >et 
;ive  part  or  eonstitueul 
3  foiiiul,  ami  of  eour:so 
iiu'iit.     Tlie  (UstiticlidU 
111  indielineiit  is  settled 
ilio  eliariic,  it  imisi  lu' 
ic  averment  be  totnlly 
•oved.'     Here  each  :nid 
■  is  not  only  intimately 
itc  the  crinu:,  bnt  is  in 
It  i-^.  therefore,  a  nuicli 
iiish  a  material  from  an 

ng  with  respect  to  the 
I  indictment,  and  if  \ve 
■r  which  nuist  lie  provi  d 
ns  tlio  necessity  in  tlie 
Ullit.-  setMed  by  a  jnd;.'e 
■n  ti>ey  interfered  with 
comparison  as  material 
iirt  seems  t<>  regard  the 
IS  authorities  which  snp- 
1  tind- nothing  in  them 
•ertainly  not  in  the  lirst 
the  necessity  of  niakinii 
tlie  falsity  of  those  pre- 
)  be  relied  on  as  coiisti- 
nsable  thus  to  desigaate 
ted  and  averred,  can  be 
iinected  with  the  circiun- 
able  to  pi'rceiv;e  ;  and  in 
the  court  seeming  to  con- 
f  several  assignments  of 

lio  delivered  that  t>p'"'""' 
iiily  the  pretenses  hdied 
to  negative  all  the  false 
cssarv  to  prove  them  all 
:witlistandiug  his  intima- 


PKOPIK    ?•.   IIAYNKS. 


271 


,io„of  its  bei.m  suir.rient   to  prove  one  of  several  assigmnents  „.  the 
vm.e  count,  he  perceive.l  the  necessity  of  making  the  j.roof,  on  an  in- 
,li,.tment  for  false  pretenses,  co-extensive  with  the  pretenses  especially 
.,v>  rred  to  be  false.     'I'ho  supposed  analogy  to  an  indictment,  for  per- 
'j„rv  does  not  hohl.     Here  several  porjnries.  cich  couslitnting  a  distinel 
offense   may  be  assigned  in  the  same  count,  and  proof  of  one  is  suth- 
cie.,1     which  is    in.leed    no  more   than  to  say  if   several    off.'uses  are 
,lcu-.re<l  in  several  ••ounts,  proof  to  support  one  .niint  is  snllicent :  but 
l,,.e"tlie  several  fal<e  pretenses  charged  constitute  luit  one  offense  ;  and 
...uh  is  •dleo-ed  by  the  indic4niciit  as  an  ingredient  of  it. 
'  To  say  that  en'oui.d.  of  them  was  proved  to  show  that  the  jury  .lid  no 
injustice  to  the  prisoner  bv  convicting  him,  is  no  more  satisfactory  tli;.n 
,|H.  same  ar-rument  miszht  be  if  there  had  been  n.)  indictment  wliatevr. 
Tlic  objection  of  tlu-  inconvenience  and  difliculty  of  proving  every  pre- 
tnis.^  to  be  false  that  the  in-lictment  alleges  to  be  false  is  entitle.l  to  no 
wehdit    even  if  such  inconvenience  and  ditlicnlty  really  exist  ;  but  they 
do  not      The  -rand  jurv  h:ne  no  right  to  lind  that  any  other  pretenses 
were  f.lse  than  such   as  are  proved  to  them  to  be  so;  an<l  if  they  do 
not   there  will  be  uo  more  ditlicnlty  of  proving  tl.i-ir  falsity  on  the  trial 
,1,...   '  .  ore  them.     And  here  is  t.)  be  found  a  decisive  test  of  the  neces- 
.;tvof  having  the  proof  sustain  all  the  averments  of  the  imlidment. 
Inless  it  does  the  grand  jury  may  Indict  for  one  offense,  and  the  trav- 
erse jury  convict  for  another.     This  actually  has  occurred  ni  the  pres- 
ent case".     That  the  grand  jury  would  have  iiulicte.l  for  what  the  petit 
jury  have  convicted,  or  vlcr  versa,  is  what  may  be  surmise.l.  bnt  never 
can  be  known;  consequently  that  great  principle  of  security  for  per- 
sonal liberty  which  requires  the  concurrence  of  both  in  the  same  facts 
to  produce  a  conviction  has  not  been  observed. 

I  have  another  strong  objection  to  the  conviction  which  is  founded  in 
;he  belief  that  the  false  declarations  proved  were  not,  under  thenreiim- 
stanc.s  in  which  they  were  made,  false  pretenses  within  the  meanu.g  of 
the  statute  Th.-y  were  direct  answers  to  distinct  interrogatories  put  to 
the  <lefeiidant,  and  are  I  think,  distinguishable  from  those  artfully  con- 
trived stories  against  which  only,  in  my  opinion,  the  statute  was. lesigned 
to  .nianl.  To  say  as  in  this  case,  that  an  untrue  reply  to  an  iiu,n.ry 
„KH?e  of  a  person  how  much  he  is  worth,  or  whether  he  is  cmbarrasse.l,  is 
what  the  statute  means  by  a  fals.>  pret..nse.  is  to  give  to  it  a  sweeping  an. 
mischievous  construction ^-  a  construction  which  if  carri...l  out  to  al 
the  cases  it  would  reach,   no  court  could  eufor.'c.  no  nmimumty  co.d.l 

'"I'allmit  with   L.)r.1  Kenyon.'  that  tlie  offense  ..i^ated  by  the  statute  is 


&  sel.  ;170. 
1.  IS'J. 


I  VouiiK  1-.  Kiiijr.  :>T-  't   ^^^' 


•2'2  KRAll)    AND    KALSK   PUETKNVSKS. 

(Icscribcd  in  terras   I'xtii'inely   general  and   that  there   is   difIieuU\-  in 
diawinii  a  ilistimt  liuo  between  the  cases  to  which  it  does  and  to  wiiicli 
it  (lues  not  apply.     But  this  very  admission  of  Lord  Kenyon  made  inanv 
yeiirs  after  the  statute  was  in  force,  proves  what  till  very  lately  has  never 
been  doubted,  tiiat  a  bare,  naked  lie,  unaccompanied  with  any   artfi'l 
contrivance,  is  not  what  the  statute  denominates  a  false  pretense.     If 
it  were  Lord  Kcnyon's  remarks  would  l)e  altogether  unfounded  ;  for  in 
thai  case  there  couUl  be  no  difllculty  in  drawing  tiie  line,  indeed  there 
would  be  no  line  to  draw.     At  common  law  no  mere  fraud,  not  amount- 
ing to  a  defined  felony,  was  an  indictable  offense,  unless  it  affected  the 
public.     Jjord  Mansfield  observed  that  "  au  offense  to  be  -ndictaljle  must 
be  such  an  one  as  affects  tiie  juiblic ;  "  and   he  instanced   the  use  of 
false  weights  and  measures  in   the  course  of  general  dealing,  fraud  i)y 
means  of  false  tokens,  etc.     But  fraud  liy  a  false  token,  designed  to 
cheat  only  the  individual  defrauded,  was  uot  indictable  at  common  law ; 
it  nuist  be  a  false  token  designed  to  affect  the  public  generally  —  jueh 
as  false  weights  and  meiLsures,  counterfeit  marks  on  goods,  etc.     To 
meet  the  insuflicien<y  of  the  law  in  this  respect,  the  statute  33  Ilenrv 
VIIL   was   passed,    njaking   frauds  on  individuals  liy  means  of  privy 
tokens,  misdemeanors.     Under  this  statute  it  was  settled  that  to  consti- 
tute a  token,  it  must  be  something  real  and  visible  —  as  a  ring,  a  key, 
etc.  ;  but  as  this  statute  did  not  reach  cases  of  fraud  effected  by  verl)al 
misrepresentations,   however,    ingenious  in  their  contrivance  and  well 
fitted  they  might  be  to  deceive  the  most  wary,  and  a  case  of  most  flagi- 
tious fraud  occurring,  where   the  perpetrator  went  unwhipped  of  jus- 
tice because  there  happened  to  be  no  token  used,  notwithstanding   the 
means  that  were  used  were  ciiually  fitted  to  throw  a  cautious  man  off  his 
guard,  the  statute  30  George  II.,  called  conuuonly  the  statute   against 
false  i)retcnse8,  was  enacted.     From  this  statute  the  term  false  jjretenses. 
found  in  our  statute  was  taken  ;  an«l  the  connection  in  which  it  is  j)laced  in 
our  statute  shows  plainly  that  it  was  adopted  there  with  a  regard  to  the 
circumstances  which,  in  the  original  English  statute,  attached  to  it  a  par- 
ticular and  technical  meaning.    Our  statute  '  reads :   "  Every  person  w  ho, 
with  intent  to  duat  or  ilef  raud  another,  shall  designedly  by  color  of  any 
false  token  or  writing  or  by  any  other  false  pretenses,"  etc.     The  inquiry 
here  is  whether  "  any  other  false  pretenses  "  means  anj'  false  assertion 
however  bald  and  naked  it  may  be  —  as  in  the  present  case,  when  the 
defendant  on   being  asked  if  he  was  any  way  embarrassed,  he  replied 
he  was  not,  —  or  means  such  false  pretense  as  would  naturally  have 
an  effect  on  the  mind  of  the  person  to  whom  it  was  addressed  e(|uiva- 
lent  to  that  of  a  false  token.     The  history  of  the  adoi>tiou  of  the  term 


2  Itev.  Slat-.  i;t;,  sl'c.  .lil. 


TKOrM'.    r.   IIAYNKS. 


'21  ^ 


re   is   dillicullv  in 
(I008  and  U)  wliic'li 
Lt'iiyon  made  inanv 
>ry  lately  has  iievor 
[I  with  any   artfi'! 
false  pretense.     If 
unfounded ;  for  in 
3  line,  indeed  there 
fraud,  not  aniouut- 
nless  it  affected  the 
i  be  -ndictaljle  must 
itanccd   the  use  of 
1  dealing,  fraud  i)y 
token,  designed  to 
ble  at  common  law ; 
!  generally  —  Juch 
on  goods,  etc.     To 
e  statute  33  Henry 
by  means  of  privy 
ttled  that  to  consti- 
-as  a  ring,  a  key, 
1  effected  by  verbal 
ntrivance  and  well 
I  case  of  most  flagi- 

unwhippcd  of  jus- 
lotvvithstanding  the 
cautious  man  off  his 

the  statute  against 
term  false  jjretenses. 
I  which  it  is  j)laced  in 
with  a  regard  to  the 
attached  to  it  a  i>ar- 
"  Every  person  who, 
edly  by  color  of  any 
,"  etc.  The  inquiry 
8  anj'  false  assertion 
[>sent  case,  when  the 
nrrassed,  he  replied 
•ould  naturally  have 
is  nddressed  ('([uiva- 
iloptiou  of  the  term 


U.iivfs  me  witli  no  .l()ul)t  tliat  the  latter  is  lis  statutory  Mieiming.  It  in- 
,|>  ,.,1  is  not  as  clear  as  it  has  been  a^sumed  to  l)e,  tlial  the  common 
1,  xieo^rniiiiical  meaning  of  pretense  is  assertion.  An  authorized  deli- 
i,iti..n"i)f  it  is  "a  delusive  appearance  produced  by  false  representa- 
tions:" and  this  comes  much  nearer  to  my  notion  of  its  statutory 
in.  aning,  tnan   any  detinition  does  which  confounds  it   with  a  naked 

falseliood. 

It  was  many  years  after  the  act  of  (leorge  TI.  before  the  Enghsii 
,  omts  nia.li-  any  considerable  advance  towards  the  construction  that  is 
I  ,,w  so  much  favored.      Yuuxfj  V.  Kiwj.^  may,  in  this  respect,  be  con- 
Mltred  a  pioneer  case;  and  when  the  facts  in  it  are  compared  with 
Umsc  of  s..nie   modern  cases,  it  will  be  seen  how  fast  of  late  the  new 
,i,.rtrine  lias  been  traveling.     In  that  case  four  persons  conspired  to 
,l,fiaud  another  by  concertedly  and  falsely  representing  to  him  that  a 
i,,,>re  bet  had  been  laid  with  a  colonel  in  the  army  that  a  certain  pedes- 
triim  feal  would  be  performed,  and  that,  they,  or  some  of  them,  had 
sharrs  in  the  bet,  thi'reby  inducing  him  to  advance  to  one  of  tliera  a 
Mim  of  money,  and  become  a  shareholder  in  the  wager.     This,  which  in 
tniih.  was  indictable  at  common  law  as  a  conspiracy,  was  held  to  be 
wilhiii  the  statute,  and  the  rule  was  then  laid  down  that  when  a  party 
h:,^  obtained  money  or  goods  by  falsely  representing  himself  to  be  in  a 
siiiiatiou  in  which  "he  was  not,  or  by  falsely  representing  any  occurrence 
thn*  had  not  happened,  to  which  persons  of  ordinary  caution  might  give 
CIV. lit,  he  was  guilty  of   the  offense.     This  rule  the  Sui)remo  Court 
udnpttd,  without  argument  or  explanation,   in   the   case  of  Pcoiile  v. 
Jnimsuu:^  and  it  has  been  gradually  enlarging  itself  down  to  the  present 
c:iM'.     The  rule,  as  originally  announced  and  applii'd,  is  not,  perhaps, 
exceptionable,  except  for  its  vagueness,  and  great  liability  to  abuse- 
It  meant  in  the  case  where  it  was  (irst  applied  a  false  representation 
wi;:i  circumstances  fitted  to  deceive  a  person  of  connnon  sagacity,  ex- 
eni-ing  ordinary  caution.     It   is   now  con-trued    to   mean  any  false 
declaration  by  which  any  person  has  been  ileceived. 

The  construction  adopted  in  this  case  is,  I  am  persuaded,  not  only  an 
incorrect,  but  a  mischievous,  construction  of  tin'  statute  —  a  construe- 
ti m  which,  if  strictly  maintained,  would  overtlow  our  courts  with  crim- 
inal prosecutions,  alid  our  jails  and  penitentiaries  with  convicts;  the 
wlmle  penal  code  beside  would  not  be  half  so  burdensome  to  execute, 
or  !i:df  so  fruitful  of  convieti<jns  ;  most  of  the  common  dealings  of  life 
nn.'ht  give  birth  to  complaints  before  grand  juries,  and  every  exchange 
of  propertv,  from  a  ship's  cargo  to  a  barrel  of  Hour.  an<l  even  less, 
might  afford  occasion  for  a  pulilic  prosecution.     T!ie  prin.  iple  that  has 


I  i  T.  1!.  lltt. 

3  Dkkkncks. 


■i  12  JollU.-.  'WJ. 


18 


^ 


L>7t 


niAii)  AM)  I'Ai.sK   I"i;i;ti:nsi;s. 


bcoii  ii(lvaiiO(>(l  ill  till'  iipiiiioii  we  nif  ivvii'wiiiLt  is.  iliat  •'  wIuto  faKi- 
lio.xl  lias  a  material  iffocl  lo  iiidiirf  a  pfrsoii  lo  part  wiiii  his  pn)|n'n\ , 
tlif  offense  has  heeii  committed."  Apply  this  rule  not  only  to  iIk' 
•rreat  exehanjies  of  property,  tint  to  the  iumimerahK'  and  eomparativt  ly 
iiisi;,Miilicaiit  (lealia.tts  of  men  —  to  every  swa|)  of  horses  —  in  tine,  to 
every  transaetioii  l>y  which  property  is  traiiNt'erred,  a  n.'tc  piven.  (h 
money  paid  — and  ikj  man  eonld  eomit  tlie  ea-^es  it  would  reaeh.  jMe:- 
cliants  and  others  in  the  lialiit  of  <.n\  ing  credits,  of  iiiciirrin;.'  jrreat  risk- 
<;f  the  cliance  of  gn'at  prolits,  niii:lit  at  lirst  lie  gratified  with  a  nil.' 
that  eiial)led  tiiein  to  enforce  collections  hy  the  terrors  of  a  criminal 
prosecntion;  hut  when  even  handed  justice  commands  the  poismiol 
chalice  to  their  own  lips,  ami  they  shall  find  themselves  arrai^nicd  at  the 
bar  of  criminal  ju-.tice  for  every  misrt'preseutation  of  the  cost,  (luality. 
salableness,  or  value  of  every  article  they  had  sold,  they  too  will  W 
ready  to  »'xclaiin:   "  'Tis  ritcor,  and  not  law." 

It  can  be  said.  I  know,  there  will  be  no  <liHieiilty  if  men  are  honest 
and  tell  the  truth.     All  will  ;idmit  the  olilij^ations  of  truth  and  honesty  ; 
all  have  admitted  them  from  the  he<>;iuning  of  time;   but  how  feelile 
have  human  laws  proved  in  their  efforts  to  enforce  them.     Hoes  it  fol- 
low if  men  are  not  honest  and  will  not  tell  the  truth,  that  they  are  to  !>■■ 
arraigned  and  tiieil  and  convicted  as  felons?     What  scheme  of  criminal 
jurisprudence  conld  carry  out  this  priiici|.le?     What  prisons  could  con- 
tain the  convicts?     Wc   iiave  it  from   the  highest  authority  that   by 
nature  "  all  men  are  liars ;  "  and  a  master  judge  of  tlie  human  character 
has  said  that  "  to  be  honest  as  the  world  goes,  is  to  be  ouc  man  picked 
out  of  ten  thousand."     To  punish  as  a  crime  then,  what  the  multitude 
of  offenders  make  a  custom  is  an  attem])t  to  what  wo  can  never  hope  to 
execute.      It  is  the  remark  of  a  profound  philosopher  that  "the  opera- 
tion of  the  wisest  laws  is  imperfect  and  iirecarious  ;  they  seld(nn  inspire 
virtue;  they  can  not  always  restrain  vice ;  their  power  is  insulllcient  to 
prohibit  nil  that  they  condemn,  nor  c;in  they  always  jninish  the  actions 
whichthey  prohil)it."     Though  the  laws  will  not  justify,  yet  they  must 
recognize  tho  frailties  and  imperfections  of  human  nature,  and  they  do 
(leal  with  men  as  being  subject  to  propensities  and  jiassions  which  they 
may  aid  to  restrain,  butwhich  it  is  impossible  to  extirpate.     IIow  incon- 
sistent would  it  be,  when  the  law  will  not  receive  a  ma  \'s  oath,  if  he  has 
sixpence  at  stake  iii)on  it,  that  it  should  send  him  to  ilie  State's  prison 
for  an  untrue  answer  to  an  inquiry  into  his  pecuniary  affairs,  which  he 
may  have  the  strongest  motive  for  concealing.     And  how  disturbed  and 
uncomfortable  W(ndd  be  the  condition  of  a  community  like  ours  where 
tralhc  and  credit  are  inlinitely  ramilied  and  unceasingly  active,  if  every 
person  (li-isatisfhMl  with  a  bargain  or  disappointed  liy  a  misplaced  conti- 
dence,  in  the  responsibility  or  punctuality  of  another,  shall  be  quick- 


ri'.ori.K  /',  H.wxKs. 


,  iliui  ••  wluTC  faUi - 
rt  Willi  liis  pmiu-rty, 
ilo  not  only  to  llio 
r  and  coinpiirativtly 
lior-ii's  —  ill  tiiio,  to 
il,  a  ii-'tc  p;iveu,  or 

WDlllll  ICtU'll.       IVIcM-- 

iiifiiriiii;^  frrcut  ri>ivH 
^ralitit'il  with  a.  rule 
I'l'iiirs  of  a  criniinal 
iiaiids  tlie  poisdUiil 
Ivi'S  arraigncil  at  the 
of  tile  cost,  quality, 
kl,  tliey  too  will  l)c 

ty  if  men  are  honest 
f  truth  and  honesty  ; 
inc ;   hut  how  ferMc 
(  thi'in.      Does  it  fol- 
1,  that  they  are  to  W 
It  scheme  of  criminal 
at  prisons  eouhl  et)n- 
,t  authority  that   l)y 
tlie  human  eliaractir 
)  he  nuc  man  picked 
.  what  the  multitude 
ive  can  never  hope  to 
)her  that  "the  opera- 
;  they  seldom  inspire 
)Wer  is  iusutlicieiit  to 
ys  punish  the  actions 
ustify,  yet  they  nuisi 
1  nature,  and  they  do 
I  passions  wliieh  they 
[tirpate.     IIow  incon- 
ma  I's  oatli,  if  he  lias 
to  I  he  State's  prison 
iary  affairs,  which  he 
rul  liow  disturbed  and 
unity  like  ours  when- 
!in<jcly  active,  if  every 
hy  a  niisphiced  conli- 
)ther,  shall  Ije  quick- 


ened. Ity  tiic  ]iro-]iect  i>f  rtdres-  or  rev('ii'.:e.  t<<  reciill(>(t  sonv  nniiue 
ri  pi'i'scntalion  made  in  the  course  of  t!H>  transactinn.  .Stiimiiatcd  liy 
the  hiipc  of  ii'sciiidini^  a  liad  liaii^aiu  or  of  securinif  a  douhtftil  dcht,  or 
initati'd  l)y  the  iiinxiicctcd  loss  of  what  he  liad  sujiposcd  a  pood  one  — 
linw  natural  it  is  that  he  should  ))ersuade  hiinsclf  that  "  falschnod  had  a 
nialcrial  effect  to  iii<liice  him  to  part  with  his  property  :  "  and  inuiupted 
liy  an  opinion  whiih  interest  or  irritation  liad  create*!,  (iiNt  to  tlircalcn 
a  criinimd  prosecution,  and  afierw.-irils,  if  the  terror  of  it  pruMd  un- 
availing, to  sustain  it  \)y  tesiimony  always  colored,  and  somctinies 
wholly  composed  by  his  passion.  It  is  dangerous  to  give  i  ne  man  such 
power  over  the  rei>utatioii  and  p.ersonal  lilirrly  of  anoliier.  If  po-- 
sc'-'-ed  it  would  lie  often  alnised  ;  and  it  is  inevil.alile  tli.'it  perjuries 
would  be  multiplied,  and  injustice  and  raiili  op|)ressioii  promoted. 

1  can  not  concede  or  eonct'ive  that  a  coiistructi(ui  is  sound,  orlittedfo 
aiUancethe  gcuier.al  welfare,  which  ])ropose3  to  protect  property  from 
loss  by  impositions  which  the  owners  c:ni  easily  guard  against  and  ex- 
poses rei)utation  and  liberty  to  invasions  which  no  prudence  or  integiiiy 
may  ;  bvays  repel.  Besides  it  is  an  I'toiiian  idea  that  the  sanctions  of 
eriiniiial  justice  can  be  made  co-exteiisive  with  moral  delinquencies. 
However  agreeabh"  to  our  seiitiinents  of  natural  justice,  it  might  be  to 
punish  every  immoral  act,  it  would  be  Quixotic  to  attemiit  it.  No 
coinnnmity  ever  assumed  the  obligati(»n  of  protecting  by  penal  laws 
(Very  member  of  it  from  the  consequences  of  his  own  credulity,  impru- 
deiK  e  or  f<illy  ;  and  if  any  one  should,  it  would  be  but  following  "  false 
images  of  good,"  that  could  make  no  promise  perfect.  It  is  iin[)ossible 
fir  the  public  to  sustain  the  burden  of  redressing  every  injury  or  loss 
which  individual  credulity  or  cupidity  may  ining  upon  itself.  The  most 
it  can  do,  and  what  by  the  statute  under  consideration  it  j>roposes  to 
do.  is  to  protect  individuals  from  those  ingi-nionsiy  contrived  frauds 
:iiid  unusual  artifices  against  which  common  sagacity  and  an  ordinary 
experience  of  inaiikind  will  not  afford  a  sndicieut  guard.  Beyond  this 
nun  must  trust  to  their  own  prndence  and  caution,  with  such  aids  and 
reiinss  as  may  be  obt.ained  from  the  civil  tribunals. 

For  all  and  each  of  the  objections  I  have  stated.  T  am  for  reversing 
the  Judgment  of  the  Supreme  Court. 

0[)inioiis  were  also  delivered  by  Senators  Edmonds,  Edwauds,  and 
Mai^iin-,  concurring  wilh  the  chancellor  and  Senator  Tuacy  in  their  con- 
clusions that  the  delivery  of  the  goods  on  board  the  steamlioat  w.as  an 
absolute  delivery,  and  invested  the  inirchaser  with  both  the  title  and 
possession;  and  that  conse(|iiently  under  no  possible  view  of  the  ease, 
eonid  the  prisoner  be  considered  as  having  obtained  the  goods  l>y  false 
pretenses. 


•2,>< 


ri!Ari>  .\M>  ivi-sK  i>Kr.TK\si:s. 


On  ,iu.  su-o«tinn  -f  the  .■l.nnc-oUor  tl.c  nmrt  afrm-.l  ,„  t  u-  f.r.t  .n. 

.t. .  :  t..  pa^s  onlv  u.K.n  ti,e  .,.ostinn  wlu.,!..,-  th.  .U  ivory  of  the  ,o..l. 

n      .ani    ho  ...au.l.oat.  un-lor  tlu-  cin.un.stan..os..r  , he  case,  .aB  an     ,- 

"    ,0   l..livo,v,  una  inv..s.o.l  ,ho  purchaser  .vith  the  title  as  well  a.  th. 

s    .in  «f-t lu-  poods  ;  a-ul  on  the  question  l.eing  ,,ut  the  members  of 

S     co«  rt  unani,ncLlV  ex,>.e>s..l   ,he  opinion  that  the  del.very  was  a  - 

=^ute      Whereupon  the  judgment  of  the  Supreme  Cour,  was  reversed. 

soiuie.     YTutri    I  Judgment  reversed. 


yALSKPUKTENSES-..nT.UNlNK    cnARlTABLK    DONATIONS 

Pkoplk  v.  Clouoii. 

[17  Woml.  ;^.-.l ;  31  Am.  Dec.  30:5.] 
In  tin'  Saprnn,' Cmirt  of  Xew  York,  Johj,  7A77. 

money  llicri'liy. 

Indi.tmeut  a-'ai.;.!  the  <lefendant  for  obtaining  money  by  false  pre- 
^IZ  .■epn:eu.iug  himseir  to  be  deaf  '^^^  ^^^^^^  ^'J^^^' :^ 
tainin.r  donations  of  money.  Don.urrer  to  the  ""'•  f'^"*  ^^'"^^^'^ 
Tv^'nUed  ;  but  .iudg.neu,  suspemUd  until  the ...         ■  of  this  court  could 

be  bad. 

/,.  L.  Xowcomh.  for  the  dcl'tiidant. 

iiil^Zt,  Co-....,.     Thedeeisionof  this  case  depends  upot^th^ 
cues  inn  whether  the  stututeto  punish  the  obtaining  of  '--^^.r  ' 
bv  false  pretenses  wa.  in.en.U.l  to  protect  the  c.fzen  f'"'"  ^•^'"  ^   " 
Voml  his  conunercial  dealings,  and  to  reach  forger.es  and  ot^.       b 
"   nsesconnnonly  got  up  by  beggars  to  excite  compassion  and  u  Uu 
us  of  charitv  in  favor  of  themselves  or  others.     1  lUul  no  case  m  da- 
ti    d  g  this  class  of  persons  within  the  operation  of  this  statute^ 
2  Russ'dlon  Crimes.^  a  case  is  put  which  the  writer  represents  as  a 
.;  us  species  of  indictable  fraud,  viz.,  that  of  a  man  who  ma.med 
uself  in  order  to  have  a  more  precious  pretense  for  nskmg  chanty, 
:1c,  Hale  and  Hawkins  are  referred  to.     This  le<l  me  to  examm. 
the  authors  alluded  to,  and  I  find  that  none  c  f  then>  put  the  case  ou  the 

1  p.  'iSlt. 


PKOI'I.K    ?•.   CI.Ol  (ill. 


m 


ppd  ill  tilt"  first  ill. 
livery  of  the  jxcxul- 
ic  ease,  wiis  an  at - 
title  as  well  as  tin 
lilt  thenienilters  of 
e  delivery  was  al - 
"ourt  was  reversed. 
dtjment  reversed. 


)    DONATIONS 


;/,  1S37. 

not  indictnlile  as  a  false 
t  ami  'lumli  aiul  nbtaiiu 


money  I'y  'alse  pre- 

ut>,  aud  tlierehy  ol>- 

1-1=  tnietit  whieb  was 

<  of  this  court  could 


ise  depends  upon  the 
.r  of  money  or  goods 
izen   from  frauds  be- 
;eries  and  other  liUc 
impassion  and  induce 
1  tiud  no  case  or  die- 
-ation  of  this  statute, 
writer  repr».6euts  as  a 
'  a  man  who  maimed 
ic  for  asking  charity, 
lis  led  me  to  exammo 
HI  put  the  case  on  the 


fniiiil,  I'lit  on  the  max  lu'in.  and  anordingiy  treat  of  it  under  the  title 

•  Maiiiiiiij^."     Thi'y  all  ^o  on  the  case  stated  i)y  Lord  Coke,  who  says: 

•  In  my  circuit  in  anno  1  Jacolii  Regis,  in  the  county  of  I.eiccster,  oik, 
\V  iulit.  a  vouiig)  strong  and  liistie  rogue,  to   make  himself  im|>.)tenl 
tin  rchy  to  have  the  more  color  to  lieg,  or  to  he  relieved  without  imtting 
hiiii-clf  to  anv  lalmr,  caused  his  coiii|iauioiis  t'>  striki'  off  his  left   hand, 
:iiid  liotli  of  t. em  were  indicted,  lined  and  ransomed  thrnfor;  and   that 
liy  the  opinioa  of  the  rest  of  the  justices  for  tin."  cmiisc  aforesaid."  i 
Phis  and  other  causes  are  introduced  by  Lord  Coke  with  the  ohscrva- 
tion,    "Note,  the  life    anil  inemi)ers  of  every  subject  are   under  the 
>ate<iiiard  and  protection  of  the  king."     So  that  the  indictment  was 
clearly  nut  for  the  fraud.     1  have  looked  into   the  books  fartlicr  and 
tailed  to  lind  a  single  case  which  holds  a  false  pretense  of  any  kind  to 
ilie  end  that  another  should   do  a  charitable  act  to  be  iiidictalile.     The 
aiisence  of  any  such  authority  csi)ecially  in  Kngland,  where  beggars 
-really  abound,  drilled  and  jiracticed  too  in  all  tlu' fraudulent  d>viccs 
(if  their  trade,  is  itself  enough   to  raise  a  doubt.     The  exercise  of  the 
virtue  of  charity  has  practically  been  left,  where  I  suspect  the  law  iii- 
leiiiled  it  should  remain,  upon  the  basis  of  the  mere  moral  duty,  both 
of  the   beggar  and  donor.     The  virtue  is  sutliciently  cold,  iiKjiiisitive 
;ind  scrupulous  to  be  safe  without  the  protection  of  the  criminal  law. 
The  duty  of  the  donor  ii  one  of  imperfect  obligation    and   i    am  not 
iiware  that  the  beggar's  duty  as  to  the  means  of  calling  it  into  exercise 
is  aiiytliiug  more.     I  should  even  doubt  whether  an  action  for  money 
ha.l  and  received  would  lie  to  recover  back  a  charitaiile  advance  made 
(111  a  false  pretense  ;  for  I  believe  the  understaiuling  is  always  to  let  the 
scanty  pittance  go  on  the  rcpresi'iitation,  true  or  false,  better  or  worse 
without  any  implied  duty  of  restoration. 

I  admit  that  the  crime  in  (piestion  is  one  of  a  very  dark  moral  grade 
^o  are  adultery,  ingratitude  towards  benefactors,  and  various  other 
moral  offenses  not  noticed  by  the  criminal  law.  I  admit,  also,  th.at  it 
i>  within  the  words  of  our  statute  and  within  the  enacting  elaii>e  of  .".o 
(leoige  II.,'-  from  which  our  statute  is  vop'ml.  Our  system  of  rexi-ion 
however,  has  in  this,  as  in  many  other  cases,  unfortunately  obscured 
the  history  and  reascm  of  the  law  not  only  by  alterations  of  words,  but 
MKiiiy  times  liy  dropping  the  recital.  The  true  reason  of  ix-lh  the 
I'.ngiish  and  New  York  ijtatutes  was,  doubtless,  the  same  :  and  it  will  be 
useful,  therefore,  to  look  at  the  reasons  stated  for  the  first.  After  recil- 
iiiLj  "  Whereas  divers  evil-disposed  pi>rsoiis,  to  support  their  proMigale 
way  of  life,  have   by   vtu'ious  subtle  stratagems,  threat-,  and  <levices, 


Co.  Lit.  1J7  a. 


ch.  -M. 


•^78 


lliAll)    AM>    I'AI.Si:    I'llKTKNSKS. 


fiaii'liilonllv  (.l.ttiiiicd   divers  sums  of  inoiioy.  jioods,  wnirs,  and  ni.i- 
tliandisfs  I'o  111.- -real  injury  of  industrious  familios.  aiid  to  ll.e  n.anifi-^i 
prriudic-o   of    trade   an.l    credit."    tl.e    statute    proceeds   as   follow-: 
"  Tlierefore,  for  puniHiiintr  of  all  smli  offenders,  hv  it  enacted,  ete.. 
that  from  and  after,  etc.,  uU  [.ersons  who  knowingly  and  ilesi-uedly,  l.,v 
false  pretense  or  pretenses,  shall  obtain  from  any  pt-rson  or  person>. 
iu..nev    <^oods,  wares  or  nieri'handises.  with  intent  to  cheat  or  defraud 
M.v  lierson  or  p.'rsons  of  the  same;  or  shall  s..nd.  etc.  (a  thrcateninf: 
Ut'ter)  with  a  vi.'W  to  extort,  etc.,  shall  be  deeni.-.l  offenders  afiauist 
law  and  the  public  peace."     It  tlu'U  prescribes  the  punishment  which  h 
1o  be  by  One,  imprisonmout,  [.illory,  whipping,  or  transportation  to  tins 
c.untry.'     Looking  merely  to  these  punishments,  one  can  not  but  admit 
that  some  of  then,  are  u.lmirably  calculated  for  such  "  lustie  rogues' 
us  he  of  n.v  Lord  Coke  and  many  others;  but  the  r.-cital  seems  clearly 
to  point  out  evils  entirely  differ.-nt  from  any  which  ever  arose  in  the 
history  of  charity.     AVhcn  did  wc  ever  hear  of    industrious   famd.es 
ruined,  and  certainly  never  of  any  prejudice  to  trade  or  credit,  under 
any  system  of  fraudulent  beggary?     On  the  co..trary,  our  books  of 
moral's  and  tales,  with  a  few  scalteri.ig  exceptions,  are  continually  con.- 
plaining  of  deaf  ears  and  hard  heails,  even  when  add.essed  by  the  best 
authenticated  stories  of  ival  distress ;  so  much  so,  indeed,  that  our  law 
has  been  obliged  to  interpose  a  system  of  rogulat.-d  public  chanty  f..r 
the  p.otectiun  of  the  honest  suflVre.-.     Nay,  it  makes  the  offense  of 
begging  a  ciime,  punishable  by  summary  ,)roceediug  befoi-e  a  uaagis- 
tra"e.2     Looking  to  our  statute,  the  man  who  merely  gives  to  a  l>cggar 
without  ordering  him  instantly  to  be  taken  into  custody  and  carried  be- 
fore u  justice  of  the  peace,  as  he  may  do.^'  wo.ild  seem  to  be  amoral 
participant  i..  the  crime  of  vagrancy.     It  would  sound  somewhat  ex- 
trava-'ant  were  we  to  ai>plv  a  law  severely  penal  to  such  an  act. 

O.rthe  whole,  we  all  feel  quite  clear  that  this  indictment  is  not  sus- 
tainable. We  all  agice  that  the  pretense,  had  it  been  exercised  in  a 
matter  of  trade  or  cifdit,  would  li.ave  fallen  within  the  statute  ;  but  we 
«an  not  bring  ourselves  to  hold  that  this  or  any  pretense  resorted  to 
merely  to  e.iforcc  a  beggar's  reqm>st.  is  cognizable  by  the  criminal  law. 
The  Sessions  are  advised  to  discharge  the  defendant. 


1  'ii  Pick,  stilt.  lit  I.ainc,  114. 

.;  1  Uev.  Stats.,  r.io,  tui  (Jil  «(1.)  aces.  1, ; 


■)  rd.,  ace.  :. 


i;.  r.  iiKN>il.\>v. 


2T1> 


,  w'lics,  and  nn  r- 
lul  to  tin'  tiianiffst 
•('('<1h  art  follow-.; 
•  il  ciKuted,  etc., 
ukI  «lesi<iiu'(Uj,  l>y 
iTson  or  porsoiis. 
(  cheat  or  di'fnuul 
i"tc.  (a  threatening; 

offenders  ajrainsl 
uiishnient  whieh  i> 
nsporlation  to  this 

can  not  but  admit 
h  "  histie  rojjues'' 
cital  seems  ch-arlv 
1  ever  arose  in  tlie 
idiistrioiis  fatniUes 
de  or  credit,  under 
•ary,  our  hooka  of 
re  continually  coni- 
dressed  by  tlie  best 
uhH'd.  that  our  law 

imblie  charity  for 
lUes  the  offense  of 
ug  before  a  niagis- 
ly  gives  to  a  beggar 
ody  and  carried  be- 
seem to  be  a  moral 
ound  somewhat  ex- 
such  an  act. 
dictment  is  not  sus- 
been  exercised  in  a 
the  statute  ;  but  we 
[iretense  resorted  to 
by  the  criminal  law. 
t. 


I'ALSK  I'RKTKNSES-MUST  UK  OF  EXISTING  FACT. 
R.  r.  IIknshaw. 

[L.  *.  C.  I4t.l 
Tn  ihi'  Enffinh  Court  /<»•  Crown  Cases  A'e.t'Cce'/,   IS(i4. 

1.  In  an  Indictment  f-r  (also  protonscs  it  must  .Icaily  ii|.|.oar  that  llu-r.-  wa^  a  false  pre- 
ti'iii-e  111  :iti  K\i>liiig  fart 

•J.  An  Indictment  Alleged  that  C.  proton.lod  to  A.'s  nKCnt  that  M...  A.'^  agonl,  «n«  to 
givi-  liHM  JOS  for  II.  aiPl  that  .\.  was  RMinK  K.  allow  him  Mf.  a  wc.^k.  Ihl.l,  that  it  ilid  iiul 
Dumcicntly  appear  that  thoro  was  any  falso  protcmtc  »(  an  fxi»tiiiK  fact. 

The  following  case  was  stated  by  the  Recorder  of  Brighton. 

At  the  (ieneral  Quarter  S.-ssioiis  of  the  Peace  for  the  borough  of 
Brighton,  hol.len  on  the  l8tli  of  March,  IHf.l,  Lewis  Ilenshaw  and  John 
Clark  were  tried  l)efore  me  upou  the  following  indictment:  — 

Borough  of  Brigton,  to  wit.  The  juroirt  for  our  lady  tlie  Queen  upon 
lli.ir  oath  iiresent  that  Lewis  Ilenshaw  and  John  Clark  on  the  llth  day 
of  January  in  the  year  of  our  Lord  IHC.  I  unlawfully  knowingly  and 
designedly  did  falsely  pretend  to  one  Henrietta  Pond  who  then  lived  at 
one  Madame  Temple's  and  acted  as  her  represent.-itive  that  the  said 
.lohii  Clark  had  come  down  from  London  to  the  residence  of  the  said 
Lewis  Ilenshaw  antl  that  the  said  Henrietta  Pond  was  to  give  him  lOs 
Mild  that  the  said  IMadame  Temple  was  going  to  allow  the  said  Jolin 
(lark  ins  a  week  for  the  benelil  of  his  health,  by  means  of  whieh  said 
fiilso  i)retense  the  said  Lewis  Henshawand  John  Clark  did  then  attempt 
uiilawfidly  to  obtain  from  the  said  Henrietta  Pond  the  sum  of  lOs, 
with  intent  to  defraud,  whereas  in  truth  and  in  fact  the  said  Henrietta 
I'.iiid  was  not  to  give  the  said  John  Clark  the  sum  of  10s  or  any  other 
Sinn  of  money,  and  whereas  in  truth  and  in  fact  the  said  INFadame  Tem- 
l.le  was  not  going  to  allow  the  said  John  Clark  the  sum  of  10s  a  week 
or  any  other  sum  of  money  for  tlii>  benefit  of  his  health,  as  they  the  said 
Lewis^Henshaw  and  John  Clark  well  knew  at  the  time  when  they  did  so 
falsely  rei)resent  as  aforesaid,  against  the  form  of  the  statute  in  such 
cast!  made  and  iirovided. 

The  facts  of  the  case,  so  far  as  they  are  material  to  the  point  re- 
served, were  as  follows:  — 

On  the  loth  of  January  last,  in  tlit;  evening,  the  two  prisoners  went 
together  to  the  shoii  of  Madame  Temple,  in  Brighton.  She  has  also  a 
siiup  in  Loudon.  After  Ilenshaw,  in  the  presence  and  hearing  of  Clark, 
had  made  a  statement  to  one  of  Madame  Temple's  assistants,  he  re- 
((iicsted  to  sec  the  one  of  the  assi.stants  who  kept  the  accounts,  lleiiri- 
otta  Pond,  being  the  person  by  whom  the  accounts  of  Madam  Temple's 


2.s() 


ritAM)  AM>  1  \r.sr.  im{i:tknsks. 


Hrijihtoii  c-tiildisliim'tit  urf  kv\>\.  tlu'ii  lanu'  forward,  llif  evidence 
w:is:  •'  llcnaliuw.  in  tiif  pitsfiir.'  niiil  lu'iirin^j;  of  Clark,  naiil  tliat  vniinu' 
mail  (iiifaiiiiiu'  Clark)  liad  coiiu' tlow  ii  frniii  F-ihuIdh  ;  tliat  he  (iiican- 
iii;,' Clark)  had  lici-u  iii  llii'  Uiomptoii  lliispital  willi  a  bad  lf;i ;  tlial  \w 
(iiitaiiiiiLr  Clark)  '""I  ><i'«''>  Mailaino  Tciiiple  in  Loinluii ;  That  Midan, 
'IVinplc  said  that,  I  (lli'iiriclta  Poii.l)  was  to  p;ivc  liim  (incaniii.^ 
Chirk)  lO.s  a  w.-ck,  while  lit-  was  at  Hri<.dilnn,  for  tlio  hi'iiolit  nf  1,  . 
health.  I  ri'fiistd  to  do  so  sayiiiiJC  that  if  Madaino  Tomplo  wisiiid  inr 
to  do  it  «lu«  would  send  mo  a  K'ttor  (he  in'xt  iiioruiiiji.  Onco  or  twiiv 
lIi-iiHliaw  said,  '  You  do  not  iiitind  to  fjive  the  lOs?  '  lliiisiiaw  said  to 
Clark.  'Was  that  what  Madamr  T<'inplo  said?'  ("lark  said,  '  Yes.' 
llciisliaw  then  said  tliat  lif  would  write  to  Madame  Tiinple;  and  tin 
prisoners  went,  away  tntrether. " 

Madame  Temple  was  called,  and  denied  ever  liaviti-;;  seen  or  haviiia 
any  knowled^n-  of  either  of  tin;  prisoners. 

The  counsel  for  the  prisoners  ohjeeted  that  the  iiHlietment  ane<.,'ed  iiu 
false  protewse  of  an  existing  fart,  and  nejj;atived  nc)  false  pretense  i4 
anexistimr  fart,  all  the  faets  alle-j;e(l  or  negatived  lain-,'  future. 

I  liild  tliat  the  false  pretense  that  the  said  Henrietta  Pond  was  In 
•jive  hiin  lOs  was  a  sullieient  false  pretense  of  an  existing  faet  to  siip- 
poit  the  indictment,  and  thut  the  second  false  pretense,  even  if  not  of 
an  existin;,'  fact,  mi;.'lit,  therefore,  he  taken  into  consideration  in  eon- 
junction  with  tlio  first  false  pretense,  Imt  reserved  the  point  for  the 
consideratl  III  of  the  Court  of  Criminal  Appeal. 

Th(!  jury  found  both  prisom'rs  guilty  ;  and  they  were  sentenced  by 
me  to  four  calendar  months'  imprisonment  willi  hard  labor,  and  wen 
committed  to  the  House  of  Correction,  at  Lewes,  in  execution  of  that 

sentence. 

The  (pie-ition  for  the  consideration  of  the  honorable  the  justices  of 
either  Beneli  and  tlielionorai)le  the  liaronsof  the  Kxche([uer  is,  whethn 
ujion  this  indictment  the  said  conviction  was  right. 

This  case  was  argue<l  on  the  lidth  of  April,  ls<M,  nefore  Poi.i-ocK.  C. 
1?..  Bi.Ai  KuruN,  J.,  Ki-ATiNc,  J.,  Mki.i.ou,  J.,  and  PiooiT.  li. 

No  counsel  appeared  for  the  ])risoiier. 

Cotiolhi,  for  the  Crown.  There  was  a  sullieient  false  representation 
of  an  existing  fact,  laid  in  the  indictment,  vis.,  that  Henrietta  I'oiui 
(who  iicled  as  Madame  Temiile's  representative)  was  to  give  John 
Clark  Uls. 

l'..i.i,o<-K.  C.  H.  What  is  stated  in  the  indictment  seems  to  le.ive  the 
nature  of  tlu;  false  pretense  (piite  uncertain. 

Bi.ACKBriiN,  J.  1  doubt  whether  what  is  stated  in  the  indictmen! 
amounts  to  a  false  i)retensc.  Can  you  supply  the  words,  "  on  account 
of  Madam  Temple?  "      Hecause  the  evidence  fchowa  the  false  pretense 


It.   V.   MKNSIIAW. 


281 


nl.  lli'f  fviilflH'c 
-U,  saiil  tliat  vmin.: 
I ;  tliat  111'  (iiu'n:,- 
i  l)uil  li';i ;  tluit  h.' 
1(111 ;  Tlint  Muilaiii 
ivo  liiiii  (MU';niiii^ 
tllO    lu'lli'lit    nf   li  - 

'I'l'inplti  wislit'd  iiif 
<r.  Onco  or  twill' 
'  '  Ucnsliiiw  said  tu 
L'lark  said,  '  Yo.' 
!  Temple ;  and  tin 

iiijj;  sofii  or  liaviiia 

liclincnt  allc<?ed  no 
i(»  false  prctonso  it 
■in<^  fiittiri'. 
iriftta  I'oiid  was  In 
■xistincf  fact  to  suh- 
•nso,  cvou  if  not  of 
lusidoraliou  in  imi- 
l  tlio  point  for  tlii 

wi'n>  sentenced  liv 
;ird  labor,  and  wen 
n  execution  of  tiiai 

able  the  justiees  ol 
:clie([uer  is,  wlntln  i 

nefore  Pollock,  C*. 
I'KiOTT,   li. 

false  representation 
liat  Henrietta  Ponii 
)  was  to  give  Joim 

it  seems  to  leave  the 

li  in  tlie  indictment 
words,  "  on  account 
'3  the  false  pretense 


was  tlia<  Mndani  Tcmph'  liad  given  them  authority  to  aslv  for  llie  Mis; 

I, 111  is  that  laid? 

Cunoll'i.  'Ilie  indie.n)ent  does  state  that  I'ond  acted  as  .Maihime 
T.mph-'s  representative.  Tlu^  .videnee  disclosed  u  sulll<ient  false 
l.nt.iise,    and   showed   the    sensi-    in   which    the    iudictmt'nt   was   tcK 

he  taken. 

I'ni.i.oi  K,  C.  H.  If  a  man  were  to  go  to  .a  person  hkeiy  to  li'ud  lum 
iMoney!  an.'l  were  to  say,  "  1  am  a  peer,"  and  so  obtain  the  money,  that, 
,f  iiutrne,  wonhl  lu-  u  false  pretens.-,  If,  however,  hi'  were  to  say  only, 
•I  expect  to  be  made  a  peer,"  or,  "  I  exi)ect  to  Ik-  elected  a  niem- 
l,erof  Parliament,"  that  would  be  no  false  pretense,  however  iii'iirob- 
ahle  it  might  be.  The  language  of  an  indictment  ought  to  be  plain  and 
il.ar.  llere,  on  tic  ciuitrary,  it  is  uncertain;  and  it  is  (inite  consist- 
.  Ml  with  the  pretense  alleg.d  that  the  prisoner  may  only  have  meant 
tlKil  he  was  in  a  condition  to  .lemand  tlu-  10s  of  Poiul,  because  so  and 
so  was  about  to  happen, Or  becaur  he  had  no  doubt  he  should  be  able 
to  lursiiade  Madame  Temple  to  let  him  have  it. 

Mki.i.ok,  J.  There  are  two  allegations  in  the  indictment:  The  first 
is  tiiat  PoikI  i.^  to  give  the  prisoner  lOs;  the  second  that  .Madame  Tem- 
ple is  iroing  to  alh.w  Clark  Kts  a  week  for  the  benelit  of  his  health. 
Do  tluy,  oiMloes  either  of  them,  necessarily  import  a  false  pretense  of 

:iM  (  \i-ting  fact. 

Cnanlbj.  There  is  no  doubt  that  a  false  pretense  of  a  future  fact, 
which  is  rather  in  the  nature  -if  a  pnmiisc  not  intend,  d  to  be  kept,  is 
iini  indictable.  Thus,  in  AVx  v.  ooodludl,^  where  the  prisoner  had  ob- 
tained meat  by  promising  that  he  would  pay  for  it  on  delivery,  it  was 
luld  that  there  was  no  false  pretense  within  the  st:ilute.  Here,  how- 
ever, liie  two  allegations  taken  together  amount  to  a  representation  that 
the  prisoner  ha.l  Madame  Teiui)le's  authority  to  demand  the  money, 
uliicli  in  fact  he  had  not. 

I',i.A(  Kiuus,  J.  That  might  be  so,  if  the  indictment  alleged  that 
I'ond  was  to  give  the  money  on  account  of  Madame  Temple.  In  A'e- 
i/inn  V.  Arrher,-  the  defendant  was  indicted  for  obtaining  goods  by  pre- 
ieiiding  tliat  therci  was  a  man  named  .John  Smith,  an  ironmonger  living 
at  Newcastle,  whom  he  dare  trust  with  i-|,{)()0,  and  that  he  wanted  the 
conds  for  him.  The  jury  found  that  the  prosecutor  parted  with  his 
•roods  in  the  belief  that  the  defendant  was  a  i)erson  with  whom  In?  might 
safely  contract  as  being  connected  with  the  supposed  John  Smith,  and 
employed  by  him  to  obtain  the  goods.  The  conviction  was  supported 
on  the  ground  that  there  was  a  fal-e  representation  tl«at  the  defendant 
was  connected  with  a  person  of  opulence. 


1  itu?!'.  .V  IJ.  4i:i. 


-  Dears.  C.  C.  449. 


'JH-2 


nt.MI)    AM)    KAKSK    I'ltKTKN.SKS. 


i'oDnlli).  Thill.  iH  uh  authority  in  favor  of  the  vnliility  of  this  iiuliit- 
iiiiiil,  for  liu!  Mlalciiifiil  thai  Poiid  was  to  liivc  him  the  KN  iiupnii-i 
that  h»'  wan  in  a  coiKlilinii  to  iK>iniui<l  it.  and  that  ciPiihl  only  !'<•  so  if  ln' 
hiiil  Madaino 'rcu)|iU'"s  aiitliorily.  V.wn  if  the  srcoml  alh'i;ation,  viz.: 
tliat  .Madamf  rcuiiili!  wan  ;;..in,'  to  allow  (larii  ids  a  woi'k,  l)o  oonsid- 
•Ti'd  a-*  MotiiinL'  inoif  than  a  rrprrstMitatioM  of  a  fntiiro.  fiict.  ytt  thai 
will  not  invalidate  ilu'  iiidiclinoiit  ;  for  in  Rfjimi  v.  /•'/•'/.'  it  was  Inld 
that  a  fal-t!  iirctcnsc  of  an  cxistin'j;  fact  without  whi<li  tin-  property 
would  not  li;i\e  iteen  olilaiued.  will  support  the  eonvii'lion.  althous^h  ii 
irt  united  with  fiiUe  proini-*es  whieh  alone  wouhl  not  have  been  indiet- 
ttl.ie.-    " 

Cur.  (idr.  rult. 

The  judijuient  of  iheeourtwas  delivered  at  a  later  period  ontlie  sumf 
day  "^  follows:  — 

I'oi.iix  K,,  C  H.  The  majority  of  the  court  are  of  opinion  that  the 
indictment  do"s  nnt  slate  with  sutlijient  eertainty  any  false  pretense 
aceordiii^  to  law.  that  is,  that  it  does  not  clearly  alh'<!;e  any  false  pre- 
tense of  :iu  existing  fact.  An  inference  that  there  was  such  a  false  pre- 
tense may  undouhtedly  he  drawn  from  the  allegations  made  in  the 
indictment.  But  that  is  not  enough.  The  indictment  must  state  the 
pretense  with  certainty. 

Hi.vtKiuuN,  J.  I  tpdte  agree  with  the  majority  of  the  court  that  tlio 
indictment  shouhl  state  the  false  pretense  with  certainty,  hut  I  should 
have  said  that,  where  it  was  alleged  that  I'lmd.  who  was  the  represen- 
t:dive  of  Madame  Temjile.  was  to  give  lOs,  and,  further,  that  Madame 
Temple  was  going  to  all  iw  lOs  a  week,  coupling  the  two  together,  it 
might  have  l)een  construed  to  mean  that  Tond  was  to  give  the  money  on 
accuimt  of  Madame  'I'emple.  The  evidence  shows  that  to  have  been  the 
false  pretense  actually  made,  and  I  lielieve  we  are  all  of  ojiinion  tliat 
that  false  pretense,  if  stated  in  the  indictment,  would  have  been  sulH- 
cient.  Speaking  for  myself,  I  thiidc  the  allegations  of  the  indictment 
do  amount  to  that.  Hut.  as  I  do  not  feel  contidiMit  enough  to  require 
the  point  to  be  argued  before  the  fifteen  judges,  I  concur  in  this  judg- 
ment. 

Kkativc.,  J.     1  (piite  agree  that  the  words  admit  of  the  meonin?  put 
on  them  liy  my  brother  HIackburn :   but  that  mcanimr  is  not  sol  -   <'  ' 
the  indictment  with  the  certainty  which  the  law  re.     in       n  criminal 
pleading. 

Mki,i.ou,  J.     The  rule  which  governs  this  cast  Deen  laid  do^ 

very  distinctly  by  the  Chief  Baron.     This  case  is       rv  near  the  line; 


1  Deiirs.  A  II.  C.  C.  449;  •.  f.  27   L.  J.,  M. 

C.  OS. 


2  Soc.  also.  Rcgina  f.  Wo^i  (Dears.*  U- 
C.  t'.  S",")),  and  IlP^fina  r.  Jennisoii  (I<.  4C., 
p.  157),  wiiicli  ;iru  Id  the  same  effect. 


roMMoNWi: \i.rn  '■.  mooki:. 


•.»h;{ 


ity  of  Uii^  iiidict- 

tli«>  Ids  iiiipoiH 

(I  only  I"'  Hii  if  lie 

il  allriiJitioM,  viz.  ; 

I  WL'l'k,   l)t'   C'Kllsicl- 

,iiro..  fiut,  yi't  tliut 

/•>'/.'  it  waa  liiiij 

lii<h  llu'  pinpcrty 

iciidii.  iiltlioiii^h  It 

liikvc  Ill-Ill  iiulii't- 


)criod  on  '111'  Mump 

f  opinion  liiiit  the 
im\-  fiilfte  protensi! 
U'liv  liny  fal.so  [in- 
is  siK'li  :i  false  pir- 
ions  niadi'  in  the 
;nt  must  state  the 

the  court  that  tlio 
inty.  hut  I  slioiild 

was  the  lepriseii- 
ther,  that  RIadaiiio 
11'  two  to<;('thfr.  it 
I  jjivo  till'  nioni'v  on 
at  to  liave  been  the 
all  of  oiiinion  tliat 
lid  have  been  sulH- 
*  of  the  indictment 
t  enough  to  require 
oncur  in  this  judg- 

)f  the  menninir  put 

IIIL'  is  II'  '    -» I 

ei,  lire      n  criminal 

Deen  laid  do^ 
terv  near  Mie  line ; 


na  f.  Wo-c  ;  Dears.  A  H- 
ma  I'.  JeiiniRoii  (I,.  AC, 
H  the  same  effect, 


I, lit  1  ;uii  of  <»piniiiii  that  il  falls  upon  the  wroii;j  side  of  the  line,  and 
thai  111.'  indietinent  doe.s  not  alletre  an  indietalile  false  pretense  with 
Mnllieieiit   certainly. 

riiiorr.  1».      I  feel  Nome  doubt,  but  not  sulUcient  to  indiue  me  to  dis- 
.';ent  from  this  ji.d^nneiit, 

I'l.ii.n,  K,  ('.  n.      It  appears  to  me  that  if  the  lanjruaL'e  of  the  indiit- 

ment  is  siiseeplilile  of  the  interpretation  which  some  of   my  brothers 

seem  inclined  to  place  upon  il,  it  should  have  been  left  to  the  jury  to 

sav  wheiiiiT  the  words  used  by  the  defendants  were  used  in  the  sen-e 

«;ii   11  would   make   them   indictable,  and  that   judi.'es  should   not  take 

iipiin  themselves  to  say  that  e\pressi(Mi-  used  by  persons  accused  mean 

thut  which  il  is  the  province  of  the  jury  to  lind. 

('()iin\'finti  iiiiiisht'ih 


F.VLSK    PRKTENSKH-PIUX'fHlNd    NOTK  1»V  FKAi:i)  —  FlTl'Ul';    I' ACT 

CoMMOXWKAl/ni    r.  MooUK. 

['.I'.i  I'a.  St.  :)70.] 

Ill  fill'  Siipremf  Cnm-t  of  /'I'iDi.v/lvania,  ISS2. 

1.  A.  Procured  B.  to  Indorse  In.i  iwite  under  llin  prBteii.sc  tliat  lir  woiilil  use  tlio  note  to 
l.'ikc  ii|i  uiiiitluT  (iiwvlucli  n  wiiH  inilorser;  ill^tl■U(l  nf  wliicli  .\.  li;icl  il  ill.M'.ouiinMl  ami 
iiM'il  till'  proreeds.    //«/./,  Ihal  A.  was  not  guilty  c.f  tal.M'  prolen.-c-. 

■:.  A  False  Pretense  must  be  llio  asserti.n)  c,f  an  exlHtinn  (act,  not  a  promi.-e  to  perform 
III  future. 

:i.  A  Conviction  for  Constructive  Larceny  ean  u..t  I.e  had  on  an  indic.tinunl  lor  (al.so 
pretenses. 

V.  Gilpin  Rohiiiunn,  Distriel-Attorney,  for  the  Commonwealth;  E. 
M.  Hull,  for  defendant  in  error. 

I'A.xsoN,  J.,  delivered  the  opinion  of  the  court. 

Tlie  only  ipicstion  |iresented  by  this  record  is,  whether  the  indictment 
.sets  forth  an  indictable  off"nse.  It  contains  two  counts,  in  each  of 
which  till'  defendant  below  is  charged  with  cheating  by  false  pretenses. 
'Ihe  particular  act  alleged  was  the  procuring  of  the  prosecutor's  indorse- 
uuiil  of  the  defendant's  promissory  note,  and  the  false  pretense  charged 
e,,nsisti(l  in  his  representing  to  the  prosecutor  that  he  would  use  the 
note  so  indorsed  to  take  up  and  cancel  another  note  of  the  same  amount 
then  about  maturing,  and  upon  which  the  prosecutor  was  liable  as  in- 
dorser.  In  other  words,  the  note  was  given  in  renewal  of  another  note 
.i  like  amount,  and  the  indictment  charges  that  the  defendant,  instead 
ct  using  It  for  this  purpose,  as  he  promised  to  do.  procured  it  to  be  dis- 
ounted,  and  used  a  portion  of  the  proceeds  hn-  other  purposes. 


284 


riJAUD    AND   FALSK    PRETENSES. 


A  false  prptonso.  to  he  within  the  statute,  must  he  the  assertion  of  au 
existiii!,'  fact,  iiol  a  prumise  to  (.erforin  some  act  in  tlie  future.  'I'lu- 
man  who  assorts  that  in-  is  the  owner  of  a  house  stat.'s  a  fael,  un.l  oxw 
that  is  caieuhited  to  -ive  him  a  ere.lit.  Hut  a  mere  failure  to  keep  ;. 
promise  is  another  and  very  different  affair.  That  oeeurs  when.v.r  a 
man  fails  to  pay  his  note.  It  is  true.  Chi.'f  Justice  (iihson  douhted  u, 
Comvioxivealth  v.  Ihn-nirk.'  whetlier  every  nake.l  lie  hy  which  a  credit 
has  heen  f,'ained  is  not  a  false  pretense  within  the  statute.  This  doubt 
has  run  its  course,  and  ha>  long  since  ceased  to  disturh  the  criminal  law 
of  this  Slate.  Tiiere  was  notiiiug  in  Cnminuxtccjilth  v.  Biirdick  to  sn-- 
.rcst  such  douht,  as  the  defen.lant  had  willfully  misrepresented  that  lir 
had  a  capital  of  ?s.(K)0  in  right  of  his  wife,  while  in  all  the  cases  cit(  d 
therein  there  was  a  mi>n'i)resentation  as  to  existing  facts,  hy  means 
whereof  credit  was  ot)taine.l.  The  .leciMons  upon  this  suhject  are  uni- 
form, and  it  would  he  au  affectation  of  learni  ig  to  cite  the  cases, 
Manv  of  them  may  he  found  in  the  foot-note  to  Purdon. 

In  the  case  in  hand  there  was  no  assertion  of  an  existing  fact.  Now 
was  there  aiivtiiing  done  hy  which  even  a  credit  was  given.  The  credit 
had  heen  ol.laiued  when  the  original  note  was  indoiTcd ;  the  present 
note  was  in.lorsed  in  lieu  of  and  for  the  purpose  of  taking  up  the  orig- 
in;d  ;  the  failure  to  use  it  for  such  purpose  was  certainly  a  dishonest  act 
on  tlie  part  of  the  defendant,  hut  we  do  not  think  it  punishahle  under 
the  statute  dciining  false  i)'-etenses. 

It  was  urged,  however,  tnal  if  it  was  not  cheating  l)y  pretenses  un 
der  the  staUite,  it  was  constructive  larceny,  and  therefore  within  the 
provision  of  section  1 1 1  of  the  act  of  :nst  of  March,  ISC.O,'^  whi-li  is  ae 
follows.  "Trovided,  always  that  if,  upon  the  trial  of  any  person  in- 
dicted fov  such  a  misdemeanor  (false  pretenses),  it  he  pr(!ved  that  he 
obtained  the  property  in  (luestion  in  such  mannei  as  to  amount  in  law  to 
larcenv.  he  shall  not',  i.y  reason  thereof,  he  entitled  to  he  acquitted  of 
such  misdemeanor;  and  no  person  tried  for  su.li  misdemeanor  shall  he 
liai)le  to  he  afterwards  prosecuted  for  larceny  upon  the  sanv,  facts." 

The  fourth  assignment  of  error  avers  tluii  "  the  learned  court  erred  in 
not  holding  that  the  facts  set  ^-tli  in  the  indictment,  and  proved  on  the 
trial,  showed  the  defendant  , '..tained  the  property  in  (lUestion  in  such 
manner  as  in  law  would  amount  to  larceny,  a'.ul  in  not  giving  judgment 
for  the  Commonwealth." 

We  do  not  tliink  it  necessary  to  discuss  the  line  of  cases  cited  in  the 
able  and  interesting  argument  of  the  learned  district-attorney,  dciining 
the  distinction  between  the  offenses  of  cheating  by  false  pretenses  and 
constructive  larciny.  While  the  distinction  is  a  nice  one,  it  is,  nevir- 
theless,  clearly  detined.     The  difliculty  upon  this  head  is  not  in  the  law. 


1  J  Itiin  ,  li;i. 


•i  V.  I..  410. 


3S. 

hi'  the  assertion  of  an 
,  in  the  future.  Tho 
;tates  a  faet,  and  one 
ncrc  failure  to  keep  n 
lat  occurs  wliencvcr  a 
cc  (iiljson  doubted  in 

lie  by  whioli  a  credit 

statute.  Tins  doulit 
sturl)  the  criminal  law 
Jth  V.  Biirdick  to  siil'- 
lisrepresented  that  lie 
1  in  all  the  cases  <it( d 
stliiji:  facts,  tiy  means 
in  tins  subject  are  uiii- 

ig  to  cite  the  cases, 
'urdon. 

n  existing  fact.  Now 
vas  iriven.  The  credit 
indoned;  the  present 

of  taking  up  the  orig- 
iMtainly  a  dishonest  act 
ik  it  punishable  under 

iting  l>y  pretenses  un 
tl  therefore  within  the 
rch,  ISCO,-  whi'h  is  at- 
rial of  any  person  in- 
I,  it  be  proved  tliat  he 
as  to  amount  in  law  to 
Lied  to  be  acquitted  of 
1  misdemeanor  shall  be 
)(,n  the  sanv.  lacts." 
c>  loarned  court  erred  in 
icnt,  and  proved  en  the 
rty  in  (luestion  in  such 
in  not  giving  juilgment 

ne  of  cases  cited  in  the 
strict-attorney,  defining 
by  false  pretenses  and 
a  nice  one,  it  is,  nevir- 
i  head  is  not  in  the  law, 

410. 


ALLKN'    V.  ST.VTK. 


28.') 


Ik 
( 


hut  in  the  application  of  the  law  to  the  facts  of  a  particular  case.     We 
arc  not  called  upon  to   pursue  this  imiuiry  in  the  ,  resent  instance.     It 
re(iuires  l)ut  a  moment's  reflection  to  see  that  we  coild  not  reverse  the 
court  below  npon  this  ground.     How  can  we,  as  an  :  i.pellate  court,  say 
wiiether  it  was    j-roved  \i\Hm  the  trial  below  that    the  defendant  ob- 
tained the  property  iutiueslion  in  such  nianiu-r  as  to  .iinount  in  law  to 
larceny,  when  not  one  word  of  the  evidence  is  befo-e  us?     liut  it  is 
said,  the  jury,  having  convicted  the  defendant  of  the  offense  of  cheat- 
ln<r  l.y  false  pretens.'S,  we  must  assume  that  the  facts  proved  amounted 
to^larceny.     This   docs  not  follow.     A  general  verdi(  t  of   guilty  upon 
luc  indictment  is  a  finding  only  of  the  facts  sufTicientiy  pleaded.     Nei- 
ilur  of  the  counts  would  sustain  a  charge  of  larceny.     The  first  count 
„itai.!s  no  averment  that  Horace  V.  Green,  the  prosecutor,  was  or  ever 
,ad  been  the  owner  of   the  note  in  question,  and  if  never  the  owner  it 
,.,Mild  not  have  been  stolen  from  him.     The  second  count  was  evidently 
intended  to  cover  both   offenses;  but  such  criminal  pleading  is  rarely 
a  success,  and  certainly  is  not  so  in  this  case.     It  contains  an  averment 
at  the  close  that  the  sai(.  m)le  was  "  then  and  tlu're  tlie  p-operty  <  f  the 
said  Horace    V.  Green."     Unfortunately  for  tins  averme.it,  the   nrior 
portion  of  the  same  count  sliows  the  fact  distinctly  t!:at  the  iu,<e  in  ques- 
tion was  the  note  of  the  defendant,  drawn  by  him  in  favor  of  th-i  prose- 
cutor,  and  by   the   latter   indorsed   for   the    accommodtition    of    the 
.iffendant  and  handed  back  to  him.     It  was,  therefore,  the  i.roperty  of 
the  defendant,  and  not   of  the  prosecutor.     The  secimd  count  eoitra- 
dii'ted  itself    upon   the  facts,  and    the   finding  of  the  jury  is  wholly  in- 
Milliiient  to  enable  us   to  say  the  facts  proved  ni)on  the  trial  amou.ited 

lu  liireeny. 

We  are,  therefore,  of  the  opinion  that  the  learned  judge  of  die  court 
below  committed  no  error  in  arresting  the  j,:dgment,  and  iiis  ruling 
mii>t  be  aflirmed. 

SiiAU8W<.)OU,  C.   J.,  concurs   in  the   opinion,  but   ^-ould   quash  the 

writ. 


SWINDLING -Ulil'RKSENT ATI- >NS     MUST    NOT    BK    AS    TO    FUTrUE 

K  'ENTH. 

Allen  v.  State. 

[15  Tex.  (App.)  loO.] 
In  the  Court  of  Appeals  of  Texm,  lS>i4. 

To  Constitute  tho  Offense  of  Swindling  .-om.;  false  representation  as  m  cxining  facia  or 
I.asl  events  must  be  mailo  by  Iho  ac.  UKe.l.  Mere  false  prcuniseH  or  false,|in.fessi,)i..,  oi 
uuenlion,  Ihouith  acted  upon,  arc  not  sufficient.    The  Informulion  in  this  case  charged, 


W) 


I'ltAll)    AM)    VAI.SK    IMJKSKNSKS. 


eiibBtnnlially,  that  defctidant  jiromliieil  lo  pay  oiic  15.  fifty  •■cnl."  for  four  certain  ll.-l.,  ,f 
Haul  II.  would  deliver  llie  (-aiiie  at  lii.",  defendant's,  house ;  that  It.  did  ^«  deliver  the  ll-li. 
and  that  Iho  said  represeiitati'Mis  ol  tii  •  defendant  were  llien  and  Ihere  fal.se,  ete.  //(■;,/, 
thai  the  inforinatinn  was  insu'Ueient  to  charge  swindling  or  any  other  offense. 

Ai'Pi-.AL  from  tlic  County  Court  o*  i'alo  Pinto.  Tried  below  hefuiv 
tlic  llmi.  K.  K.  Tiiylor,  Couutv  \i(lge. 

Tlie  ojiiuion  .stsites  the  •.■ii.'<f.  A  line  of  tifty  doihirs  and  eunlinennni 
in  tlif  county  jail  for  a  tirni  of  ten  day.s  eonstiltited  tiie  piiiiisimiciil 
awarded  l)y  a  verdict  of  miilly.  Tlie  record  brings  up  no  statement 
of  facts. 

./.  JI.  liurtu,  Assistant  Attorney-General,  for  the  State. 
Wii.i.-oN,  J.  The  charging  part  of  the  information  in  this  case  is 
as  follows:  "  Tliat  luretofoi'e,  on  or  aliout  tiie  twenty-^^ecoml  day  nf 
.June,  A.  1).  b'^X'"'.  in  the  county  of  Palo  I'into  and  State  of  Te.vas,  one 
George  Allen  did  llien  and  there  acipiire  and  ol.lain,  l)y  false  and  de- 
ceitfid  pretense  and  fi-audulent  ie|)resentations,  with  intent  to  ai/pro- 
priate  the  saiiie  to  the  use  of  him,  the  said  George  .Mien,  the  party  sn 
aetpiiring,  four  certain  iisli.  personal  projicrty  of  the  value  of  tifty  cents, 
belonging  to  Gnat  IJrailford,  by  then  and  there  representing  to  him. 
(iiiat  liradford,  that  he,  (Jeorge  Allen,  wotdd  pay  him,  Giuit  Hradford, 
liftv  cents  in  money  if  said  Gnat  Bradford  would  deliver  said  tish  al 
(ieurge  Allen's  house,  which  he,  said  Gnat  IJradford,  did  then  sind 
there,  and  delivered  said  tish  at  George  Allen's  house,  and  which  said 
reprcsi'iitations  then  and  there  by  the  said  George  Allen  made  were 
false  and  untrue." 

We  presume  that  this  information  is  based  upon  article  790  of  the 
Penal  Code,  and  is  intindcd  to  allege  the  offense  of  swindling.  The 
facts  alleged  <lo  not  constitute  the  offense  of  swindling,  or  any  other 
offense  denounced  by  (uir  Penal  Code.  To  constitute  the  offense  of 
swindling,  some  false  representation  as  to  existing  facts  or  past  events 
must  have  been  made.  Mere' false  protiuses  or  false  professions  of  in- 
tentiiui,  although  acted  upon,  are  not  sullicient.*  The  information  be- 
fore us  ciuuges  notliiug  more  than  a  promise  on  the  part  of  the  defend- 
ant to  jiay  for  the  iUh  when  delivered  at  his  house.  It  does  not  even 
allege  directly  that  the  defendant  refused  to  pay  for  the  tish  when  so 
delivered. 

The  judgment  is  reversed,  and,  because  the  information  does  not 
allege  any  offense  against  the  law  of  this  State,  the  prosecution  is  dis- 
missed. 

Jleversed  H7id  dixmisseu. 


1  .(ohnson  r.    Sinle,  41    Texas.  (»;  Mat-       4«<i;  :i  Cr.  I..  Map.  838;  People  r.  Blanchard. 
Uicwn  f.  stale.  10  rexas  (  App.  ■  'i?.< ;  2  Hish.       90  N.  Y.  314 ;  Com.  v.  Moore.  99  Pa.  St.  570. 
Cr.   I..,  Bee.  41'.i;    Tefft   v.  Windsor,  17  Mich. 


K.  r.  UAKUNKK. 


2S7 


l.-i  fill-  four  coi-taiii  ll-li,  ,( 
It.  iIhI  m>  deliver  llie  ti-li 
III  I  here  f:ilse,  etc.  //■■;.,', 
y  oilier  otfeiise. 

Tried  below  liof  iii 

sirs  and  t'onf'meiiicnl 
led  tlie  piiiiislmitiil 
:is  up  no  stutenifut 

State. 

tion  in  this  case   is 

veiity-'-i'cond  day  "f 

Static  of  Texas,  oiif 
liiK  V)y  false  and  de- 
ith  intent,  to  apiird- 
■  Allen,  the  party  su 
2  value  of  ilfty  cents, 
•eprcsenting  to  him. 
lini,  (iuat  Hradfoid. 

deliver  said  tisli  at 
Iford,  did  then  and 
Duse.  and  which  said 
ge  Allen  made  wen 

)n  article  790  of  tlie 

of  swindlinji;.     The 

indlinj;,  or  any  other 

titute  the  offense  of 

facta  or  past  events 

Ise  {)rofe8sions  of  in- 

The  information  l>e- 

c  part  of  the  defciid- 

e.     It  does  not  even 

,'  for  the  lish  when  so 

information  does  not 
lie  prosecution  is  dis- 

rspd  and  dismissed. 


C  838;  rcoi)le  f.  Blancharii. 
i.f.  Moore.  99  Pa.  .St.  570. 


FAhSK  I'RKTE.NSKS-KKMOTKNKSS  Ol'  rUETKNSi;. 

R.  V.  (Iaudnkk, 

[Dears.  ><•  H.  40;   7  Cox.  IM.] 
Ill  tho  Eii'jl  ,s/(  Court  of  (.'rimiivil  Apjwd,  /.S.'Jfi 

The  Prisoner  by  Falsely  Pretending  lliat  lie  wan  a  imvii)  oflicer.  •.mlnrcd  tlic  prvisc- 
cutn.'C  to  enter  into  a  e,.iilracl  with  liiiii  to  loiiKe  ami  lioard  liini  at  a  jriiiiiea  a  week,  and 
iindir  tills  eontrait  he  wa.s  lodjted  and  .^uiiiihed  wiUi  various  arlie.leHof  food.  //-)•/, 
Ihata  I'onvieliou  for  oi.taining  the  arlieles  of  food  hy  false  pretcuses  eould  not  lie  ,-ui- 
tmued,  a.«  the  oblainiug  of  the  food  was  too  reaiotely  the  result  of  the  false  pretense. 

The  following  case  was  reserved  and  stated  for  the  consideration  and 
d.cision  of  the  Court  of  Criminal  Appeal  by  the  chairman  of  the  Cen- 
.  nil  Quarter  Sessions  for  the  county  of  Kent. 

At  the  (Jeneral  Quarter  Sessions  of  the  Peace  for  the  county  of 
Knit,  holdi-n  at  iMaidsti.ne,  on  Thursday  the  ;>d  of  Janiiaiy.  l.'^">6,  be- 
fore the  Kight  Honorable  Charles,  Earl  of  Koinney,  J.wk.s  K-^i-inassk, 
;iiid  IIknhvSiiovei.l  M.\ksii.\m,  Ivsiiuires,  and  others,  her  jMajesty's  jiis- 
ti(  ts  (if  the  ]>eace  for  tiic  said  coiiiity,  Wiliiion  (lardnor  was  trun  lipon 
Mil  iiidiitment  charging  him  as  follows:  that  he  did,  on  the  i;Uh  day  of 
Niiviiiilier,  1S.")5,  unlawfully,  knowingly,  and  falsely  jjretend  to  oiu; 
KlitMi  Henrietta  lininsden,  that  the  name  of  him,  the  said  William 
Cardner,  was  William  Edgar  l)e  Lancy,  and  that  he  the  saiil  William 
(iMidner,  was  paymaster  of  the  ship  called  the  Duke  of  Wellington, 
iiiid  that  the  said  ship  was  lying  at  Portsmouth,  and  (the  said  William 
(liudner  being  then  dressed  in  naval  ollicer's  uniform)  that  he,  the  said 
William  Gardner,  was  the  son  of  a  half-pay  ollicer,  who  was  living  at 
Chelsea,  and  that  his  brother  was  a  lieutenant- colonel  in  the  army,  by 
means  of  which  said  fal.<e  pretenses  the  said  William  (lanhier  did  then 
Mild  there  obtain  of  and  from  the  said  Ellen  Henrietta  Bruiisden  twenty 
iKiiinds  weight  of  bread,  twelve  pounds  weight  of  meat,  three  jiounds 
wei-ht  of  butter,  one  iiound  weight  of  cheese,  three  pcmnds  weight  of 
MiL'iir.  six  quarts  of  beer,  and  ten  quarts  of  coffee,  and  other  articles 
of  fou.l,  together  of  the  value  of  thirty  shillings,  of  the  goods  and  chat- 
tels of  tiie  said  Ellen  llenriett  i  Briinsden,  with  intent  tlu-n  and  there  to 
clioat  and  defraud,  whereas  in  truth  and  in  fact  the  name  of  the  said 
William  Gardner  was  not  William  Edgar  De  Lancy,  and  whereas  in 
truth  and  in  fact  the  said  William  Garihicr  was  not  the  paymaster  of 
saiil  ship  called  the  Duke  of  Wellington,  nor  was  the  ship  then  lying  at 
Portsmouth.  And  whereas  in  truth  and  in  fact  the  said  William  Gard- 
lur  -viis  not  the  son  of  a  half-pay  otlleei  who  was  residing  at  Chelsea- 
lull  was  the  son  jf  one  William  Gardner,  a  collector  of  rates  at  Sheer- 


2S8 


FRAl'I)    AND    FALSK    rUKTKNSrs. 


Mcss:  and  wlifMvns  in  truth  and  in  fact  tlio  said  William  Gardnor  liail 
iK.t  a  hrotluT,  wlio  was  a  lieuteiiaut-colonel  in  the  army;  at^ainst  tlie 
ftji-m  of  the  statiil'-',  vXv. 

Tlip  ovidenco  on  tlic  part  of  the  prosecution,  as  far  as  is  material  for 
the  purjiose  of  tliis  case  was,  that  on  the  KUii  day  of  NovemhiT  l:i-*l 
the  dcfondant  wi-arini,'  tlie  dross  of  a  naval  oIliciT,  cngiigfd  a  lod-iug 
of  Klhn  Hfiiriotta  Hrunsdcn  (tlio  i)rosefUtrix)  at  tlie  rate  of  tt-n  shill- 
ings per  w('i'k;tliat  on  tiic  ITtii  day  <>f  Novemlier  tlie  dofi-iidant  ox- 
pressed  himself  to  prosceutrixas  liting  comfortaljle,  and  tli:it  he  shoul.j 
beliivelv  to  remain  some  lime,  and  stated  tliat  he  was  paymaster  of  lli.' 
Duke  of  Wellington,  and  liis  name  was  Do  Laucy,  that  the  defendant 
continued  ii  lodger  till  tlie  '.'.'jtliof  November,  and  then  expressed  a  wish 
to  beeome  a  Imarder,  and  an  arrangement  was  aceordingly  entered  vW" 
that  lie  should  become  a  boarder  at  a  guinea  a  week,  that  the  proseeii- 
trix  supplied  tlie  defendant  with  board,  consisting  of  cooked  meat,  ten, 
sugar,  bread,  Imtter,  cheese,  and  lieer.  for  the  six  days  following,  hut 
thedc-fendant  did  not  pay  her  anything  for  the  lodging  or  board. 

Upon  the  ease  for  the  prosecution  being  t'losed,  it  was  submitted  liy 
counsel  for  the  prisoner  that  the  contract  for  board  was  a  mere  addi- 
tion to  the  tiisL  contract  for  lodging,  and  that  what  the  defendant  in 
fact  obtained  by  llu-  false  pretenses  was  an  alteration  of  first  contract, 
and  not  goods  within  the  meaning  of  the  statute. 

The  chairman  overruled  the  objection,  ami  left  the  case  to  the  Jury, 
who  returned  a  verdict  of  guilty.  Counsel  for  the  prisoner  then  ap- 
plied to  the  court  to  reserve  the  case  for  the  opinion  of  the  Court  of 
Criminal  Appeal  upon  the  objection  taken,  alleging  that  a  case  similar 
to  this  was  then  before  the  court  for  decision.  The  court  thereupon 
postponed  passing  sentence  on  the  prisoner,  but  ordered  him  to  be  de- 
tained in  custody. 

The  opinion  of  the  court  is  requested,  whether  the  objection  taken  by 

the  prisoner's  counsel  is  valid  inlaw? 

RoMN'KY,  Chuintian. 

This  case  was  argued  on  2('>th  April,  1850,  before  Ji:uvis,  C.  J., 
Coi,i.i!!D(;k,  ,T.,  CiiKsswKi.L,  J.,  Kaui.k,  J.,  and  Maktix.  B. 

fforn  appeared  foi'  the  Crown,  and  liihton  for  the  prisoner. 

Jh'!itoii,{ot  the  prisoner.  The  conviction  was  wrong.  It  is  impor- 
tjint  to  observe  the  dates.  When  the  false  statement  was  made,  neither 
money,  chattel,  or  valuable  security  wa^  obtained  by  it;  and  obtaining 
lodging  by  a  false  pretense  is  not  an  offense  within  the  statute.  On  tlio 
2r)th  November,  when  the  contract  to  board  was  obtained,  no  false  pre- 
tense was  made. 

CoLKKiiMiK,  J.  Would  it  not  lie  a  question  for  the  jury,  whether 
there  was  not  a  continuing  false  pretense? 


R.   ?'.  CARDNKK. 


i>s!) 


/■illiain  Gaidncr  liail 
army ;  as^ainst  the 

:ir  as  is  material  for 
ly  of  Novi'inhtT  last 
,  ciigiiLCt'tl  a  lodLriiiij 
tlie  rate  of  tfn  sliil!- 
•  tlic  (U'ffiulaiit  cx- 
,  and  tii:it  ho  slioulil 
as  paj'inastrr  of  tl\f 
,  that  the  defendant 
K'li  expressed  a  wish 
rdin.nly  entered  m\" 
k,  thai  the  prosecii- 
Df  cooked  n)eat,  ton, 

days  foHowing,  hut 
ini^  or  Ixiai'ii. 

it  was  aulmiilted  liy 
ird  was  a  imTe  addi- 
liat  tin-  defeiiihuit  in 
,ion  of  lirst  coutracl, 

,lie  case  to  the  Jury, 
I  he  prisoner  then  ap- 
liou  of  the  Coiiit  of 
g  tliut  a  ease  similar 
riie  court  tliercupon 
rdered  him  to  l>c  «U'- 

le  objection  taian  ly 

OMNT.Y,  ChuirnKin. 
cfore  Ji:uvis,  C.  J., 
liTIN.  B. 

he  prisoner, 
vrong.  It  is  impor- 
:nt  was  made,  neithor 
])y  it ;  and  obtainin;: 
the  statute.  On  tlio 
)taiued,  no  false  pre- 

3r  the  jury,  whelbor 


Jiibton.  To  obtain  a  contract  by  a  false  iiieten>e  i-,  not  wilhiii  the 
;nt.  It  is  not  olitainini^  floods.  Ilerr.  if  anythinii  beside*  the  lodginj^ 
was  obtained  l>y  the  false  pretense  it  was  nnt  fooil,  but  simply  a  new 
enn'rael  to  su|iply  board,  and  that  would  not  be  within  tlie  statute. 
The  board  miLjiil  have  been  supplied,  not  in  coii-^eciui'ure  of  f;d>i'  pre- 
tense made  when  tlie  contract  for  the  Iod::in^  was  obtained,  but  incoii- 
seiiuenee  of  the  prisoner's  manners  and  conduct  after  tlial  time,  anil 
whilst  he  was  a  loduer. 

('ni.r.i,ii»;i:,  .1.  Ves  ;  but  your  point  is,  that  there  was  no  evidence 
to  Lio  to  the  jury,  even  supi>osiu<^  the  inteival  iielwecn  the  f:dse  pre- 
tense !uid  the  contract  had  only  been  an  hour. 

.'{ilitnii.  It  iscjuite  clear,  that  to  obtain  lodging  alone  would  not  lie 
witliin  tlie  statute.  Here  the  contract  is  for  board  and  lodging  united, 
:uid  it  is  doul)tful  niielher  in  any  case  obtaining  board  ami  loilging 
woidd  be  within  the  statute.  It  would  always  be  dillienlt  to  separate 
tlie  two  so  as  to  show  that  the  articles  of  food  were  obtained  by  means 
uf  the  false  pri'tense ;  but  here,  at  all  events,  the  evidence  fails 
aitotrellier  to  connect  the  obtaining  of  the  food  with  the  false  pretense. 

Jl'irn,  for  the  Crown.  It  is  indisputable  law  that  the  intervention  of 
a  ci'iitraet  is  no  answer  to  achargeof  obtaining  goods  by  false  pieteuses 
if  the  contract  be  part  of  the  fraud.  li're  the  pri.-oner  h:is  obtaiueil 
Liuods  iiy  means  of  his  false  pretenses,  and  the  fact  tiiat  the  contract 
was  to  i)ay  for  the  board  and  lodging  together  does  not  make  it  less  an 
oliiaining  of  goods.  In  Itcjinn  v.  Ki'iirick,^  the  money  was  obtained 
upon  the  Side  of  horses  which  the  i)rosecutor  was  induced  to  buy  by 
falsi'  ]iretenscs. 

C'ia>swi,i.i,.  J.  That  is  a  remarkable  ease.  Sir  F.  Thcsiger,  who 
appeared  for  the  Crown,  abandoned  the  counts  for  obtaining  the  money 
iiy  faUe  [jretenses. 

.Iiuvis,  C.  J.  That  case  is  now  under  consideration  ni  Jiprfiitu  v. 
B'lr  1(111.'-  and  licgimi  v.  Itocburk.'-^ 

ll'ini.  The  decision  in  Jie/jhin  v.  Kevrirk,  was  acted  upon  and 
allirnied  in  Ri-cjiim  v.  Aliholt.'^  Where  money  was  borrowed  from  tiic 
drawer  of  a  bill  by  tlie  acceptor  for  the  alleged  purpose  of  paying  it, 
and  upon  a  false  pretense  that  he  was  prepared  with  the  residue,  it  was 
lirld  to  be  within  tin;  statute.''  and  so  it  was  held  where  a  baker  delivered 
short  weight  to  the  poor,  and  presented  tickets  as  if  he  had  delivered 
full  wi  iirlit  according  to  his  contract.'"  The  decision  in  Rfijinn  v.  (Jod- 
riii'jtoiij  can  not  be  considered  law  unless  it  can  be  distinguished  from 


■.  l^  K.  4i). 

Hears.  4  n.  C.  C.  II. 
I 'cars.  A  11.  ('.  <•.  24. 
1  Den.  C.  (:.2T:i;  'JCA  K.  Cn. 
i)  Dkkkm  i;s. 


'  Hex  r.  (;ro(<elcy,J  M()i>.  It,  U.  17. 
«  lifg.  r.  KuBlctoii,  OiMis.  C.  ColS. 
M  C.  4  P.  WJU 


It) 


L'lMI 


FUAUI)   AM)   FALSK    PUETENSKS. 


tlio  sul.siMiuci.t  cases  of  Jiogina  v.  KeiiHck  and  i?f'f/"i"  v-  Abbott,  on 
the  frmiind  tli:il  tin-  false  i)retonso  was  not  sulllcicntly  proved. 

.iKuvis,  ('.  .1.     Tlie  dimctilty  in  llie  case  of  i-ontniets.  is,  when-  the 
j.arty  di-eeives  gels  not  the  cousideiatiou  which  he  expects,  but  sorar- 

tiling  lilvc  it. 

Horn.  In  tliis  case  the  false  iiretcnsc  is  clearly  proved ;  it  was  a 
oont inning  i)rctense,  and  the  prosecntrix  acting  ni)on  it  was  eventually 
induced  to  supply  the  prisoner  with  hoard  as  well  as  lodging.  It  is  oh- 
jected  tliat  lodging  is  not  within  the  statute,  hand  is  not  within  Ihf 
statute;  bu.  suppose,  by  a  false  pretense,  I  get  an  estate  and  a  pnrst 
of  gold?  Tiu'  articles  of  food  which  the  prisoner  obtained  were  chat- 
tels  within  the  meaning  of  the  statute;  and  the  fact  that  the  prisoner 
gained  lodging  as  well  as  board  can  not  niaUe  any  difference.  The 
question  whether  the  fo„,l  was  ..l)tained  by  the  fai.se  pretense  was  for 
the  jury,  and  they  have  found  that  it  was. 
Ciir  adr.  villi, 
liihton  replied. 

Tlie  judgment  of  tiic  court  was  delivered  on  M  May,  185G,  by 
Jkuvis,  V.  J.     In  this  case,  which  was  argued  before  us  on  Saturday 
last,  tlie  court  took  time  to  consider,  principally  with  a  vii^w  of  first  tak- 
i„.r'into   consideration  the  cases  of   Re'jhiax.  liorfwck  and  licghw  s: 
iCninn,  which  have   just  been   disposed  of.     It  was  an  indictment  for 
obtaining  goods  nn.ler  false   pretenses,  the  circumstances  being,  that 
tiie  i>risoncr  represented   himself  to  be  the  paymaster  of  the  Duke  of 
AVelliiK'-ton,  of  the   name  of  He  Lancy,  upon  which  he  in.ade,  with  the 
prosecutrix,  a  contract  for  board  and  lodging,  at  the  rate  of  one  guinea 
a  week,  and  he  was  lodged  and  fed  as  the  ri'sult  of  the  contract  in  con- 
sequence  of  the  engagement  so  entennl  into  ui)on  that  which  was  fouiul 
to  be  a  false  pretense  ;  and  the  question  wliicli  was  submitted  to  us  was, 
whether  it  was  a  false  pretense  within  the  statute  ;  or  rather  whether  the 
conviction  was  right?     That  we  have  considered,  and  on  consideration 
we  are   of  opinion  that  the  conviction  was  not  right,  because  we  think 
that  the  supply  of  articles,  as   it  was  said  upon  the  c<mtract  made  by 
reason  of  the  'false  pretense  was  too  remotely   the  result  of  the  false 
pretense  in  this  particular  instance  to  become  the  subject  of   an  indict- 
ment  for  obtaining   those   specified   goods   by  false  pretenses.     We, 
therefore,  think  the  conviction  should  be  reverst'd. 

Conviction  quashed. 


^t^ 


MOROAN   V.  STATE. 


2S>1 


iin<t  V.  Abbott,  nn 
\y  proved, 
icts.  is,  where  the 
xpccts,  but  sorao- 

provod  ;  it  was  a 
it  was  cventiKilly 
odfiinj^.  It  is  uh- 
1  IS  not  wittiiii  tlio 
state  iiiul  a  pnrsi' 
jtaiiied  were  cliiit- 
,  that  the  prisoner 
difference.  Tht 
J  pretense  was  fur 


ly,  1856,  by 
ire  us  on  Saturday 
a  view  of  first  tak- 
biick  and  licgiiKi  v. 
i  an  indictment  for 
stances  being,  that 
tor  of  tlie  Duke  of 
he  made,  with  the 
rate  of  one  guinea 
.he  contract  in  con- 
it  wliich  was  found 
ihmitted  to  us  was, 
rather  whetlier  tlie 
id  on  consideration 
I,  because  we  think 
c  contract  made  l)y 
;  result  of  tiie  false 
il)ject  of   an  indict- 
se  pretenses.     We, 

nviction  (piashed. 


FALSE     PRETENSES  -  PROPERTY    MU.ST    BE    OBTAINED  -  REMOTE 

CAUSE. 

MoKOAN'  r.  State. 

[tJ  Ark.  i;n  ;  48  Am.  Rep.  55.] 
Tn  the  Supreme  Court  of  Arkansas,  138,1. 

1.  The  Object  of  a  Felonious  Falae  Pretenae  must  be  to  obtain  property,  andthc  prop- 
erty iiiUKt  1)0  K' veil  111  itoiiseiiueiue  i«(  the  false  pretense. 

"..  The  Prosecutor  went  to  Hot  Sprinsrs,  Ark.,  fnr  the  purpose  of  boardinK  at  the  snmn 
liiinse  wilb  Or.  W.,  an  aciiuaiiitanco  of  liis  who  was  visiting  there.  Ho  went  to  defend- 
ant'-'lu'lel  nn.l  defendant  t<dil  him  he  knew  Dr.  W.  and  that  he  had  been  boardinRat 
his  hotel  for  some  time,  but  bad  left  town  ;  all  of  whieh  was  willfully  false,  liy  means  <if 
said  Representations  the  iirosecutor  wBs  indneed  to  take  board  with  the  defendant  lor 
a  inontli  and  pay  liim  in  advanec.    Jltlil,  not  u  ease  of  false  pretenses. 

Conviction  of  false  pretenses. 

Tile  opinion  states  the  case. 

A.  Curl  and  W.  J.  Hiajhes,  for  appellant. 

Moore,  Attorney-Cieiieral,  for  State. 

Eakin,  J.  Mor;.;an  was  indicted  in  Garland  County,  and  upon  change 
of  veiuie  to  Hot  Sprino;s  County  was  convicted  and  sentenced  to  a  years' 
iiu|)risonnient  in  the  penitentiary.     Tills  is  the  imlictment. 

"The  grand  jury,  etc.,  *  *  *  accuse  M.  T.  Morgan  of  crime 
.'f  f.ilse  pretenses  commitUHl  as  follows,  to  wit:  On  the  -Jrith  day  of 
May,  1SS2,  one  Walter  Fisher,  a  resident  of  State  of  Kentucky  arrived 
as  a  visitor  in  the  city  of  Hot  Springs  with  the  purpose  fixed  in  his  mind 
of  procuring  board  and  lodging  at  the  same  hotel  or  boarding-house  in 
stiid  city,  where  one  Dr.  John  S.  Welsh,  an  accpiaintance  of  the  said 
1  -r  and  then  in  the  said  city,  was  boarding;  ami  with  such  purpose 
the  said  Fisher  went  to  the  Gwinn  Hotel  in  said  city  of  which  the  saidJI. 
P.  ^lortran  was  the  proprietor,  for  the  purpose  of  getting  breakfast  and 
ascertaining  where  in  said  city  the  said  John  S.  Welsh  was  stopping ;  and 
wliile  at  the  said  Gwinn  Hotel  in  the  County  and  State  aforesaid,  on  the 
said  i.'.'ith  ilay  of  May,  1H82,  the  said  M.  T.  Morgan  teloniously,  willfully 
and  designedly  did  falsely  represent  and  pretend  to  the  said  Walter  Fisher 
tliat  he,  the  said  Morgai'  was  ac(piainted  with  the  said  John  S.  Welsh 
and  that  the  said  JohnS.  Welsh  was  not  then  in  the  city  of  Hot  Springs  ; 
tiiat  the  said  John  S.  Welsh  had  boarded  with  him,  the  said  ^rorgan,  two 
or  three  weeks,  while  in  the  city  of  Hot  Springs,  just  prior  to  that  d.ay  ; 
and  that  the  said  John  S.  Welsii  had  hift  Hot  Springs  for  Kurcka 
Springs  a  day  or  two  before  that  day ;  by  means  of  which  said  false 
pi-etenses  and  representations  so  knowingly,  feloniously  and  fraudulently 
made,  the  said  M.  T.  Morgan  did  then  and  there  feloniously  induce  the 


i'!t2 


rUAUI)   AM)    lAI^K    I'KKTKNSKS. 


siii.lWiilUT  FisluT  to  i-nu;a':;o  h«:inl  and  lo(lj,'in<;  at  tin-  (Iwinn  Hotel  for 
..lie  inoi.tli  nn«l  di.l  feloniously  obtain  from  the  said  Walter  Fisher  one 
pi.^ee  of  United  Stales  paper  ciirreney,  commonly  called  j.'reenl.a(  k.s 
and  of  the  d.-nomi.iation  and  vain."  of  §10,  of  the  money  of  the  said  Wal- 
ter Kislier  with  tiie  felonious  intent  to  cheat  and  defraud  the  said  Walter 
Fisher  of  the  same.  Whereas  in  truth  and  in  fact  the  said  M.  T.  M<ir- 
jran  was  not  ae.inainted  with  the  said  John  S.  Welsh  ;  the  said  John  S. 
Welsh  had  not  at  any  time  hoarded  with  the  said  M.  T.  aiorgan  ;  tlir 
said  John  S.  Welsh  had  not  left  the  city  of  Hot  Springs  for  Eureka 
Springs  a  day  or  two  before  that  day  ;  and  the  said  John  S.  Welsh  was 
then  in  tin-  said  city  of  Hot  Springs  l>oarding  at  a  hotel  other  than  tiie 
said  (iwiun  Hotel," against  the  lu-ace  and  dignity  of  the  State  of  Ar- 
kansas. ,,    ,     1,     Al- 

"J.  B.  ^^oo^, 

■'  I'rosecHtini/  Atlorni'ij." 

A  demurrer  to  this  indictment,  and  also  motions  for  a  new  trial  and 
in  arrest  of  Ju.lirment  were  successfully  made  and  overruled.  A  bill  of 
exceptions  was  taken  and  the  defendant  appealed. 

[Minor  matter  omitted.] 

Consi<lering  tirst  the  motion  in  arrest  with  the  demurrer.  They  are 
based  upon  the  ground  tliat  the  facts  charged  do  not  disclose  an  indict- 
able offense. 

Section  \:u2  of  (iantt's  Digest,  so  far  as  ai)plicable  to  this  case,  pro- 
vides that  "  I'veiv  person  wiio,  with  intent  to  defraud  or  cheat  another, 
shall  designedly," by  color  of  any  false  token  or  writing,  or  by  any  other 
false  pretense  »  *  *  obtain  from  any  person  any  money,  personal 
propertv,  riirht  in  aclfon,  or  other  valuable  thing  or  effects  wh.atever. 
upon  c.')nvietion  thereof,  shall  be  deemed  guilty  of  larceny  and  punished 

accordingly." 

Such  has  been  the  law  of  this  State  since  the  adoption  of  the  Revised 

Statutes  of  is:^. 

It  was  early  held,  in  consonance  with  English  authorities,  that  there 
could  be  no  false  pretense  regarding  an  intention  or  future  purpose. 
It  conhl  not  be  applied  to  a  promise  to  do  something,  however  fraudu- 
lent in  desiirn,  or  hurtful  in  effect,  the  promise  may  have  been.  The 
tlistinction  is  n.^t  based  on  any  idea  of  difference  in  degrees  of  moral 
turpitude  iM'tween  the  two  sorts  of  scoundrelism,  but  upon  the  neces- 
sity of  limiting  in  some  way  the  broad  significance  of  the  words  of  the 
statute.  To  what  extent  that  limitation  is  to  be  carried  was  I'ft  uncer- 
tain, but  it  was  held  in  the  case  now  referred  to  that  it  must  be  u  pre- 
tense regarding  some  existing  fact  or  condition,  to  be  felonious.'     It 


I  McKoiiiif  f.  siHtf,  II  Eng.  894. 


MOIMiAN    ''.  STATK. 


203 


lie  (iwinn  Hotel  fiT 
il  Walter  FisluT  (hk.- 
,'  called  ^rcTiiliai  ks 
iioy  of  tlio  said  WmI- 
-aiid  the  said  Wal'ar 
the  said  M.  T.  Mnr- 
h  ;  liie  said  John  S. 
IM.  T.  aior-raii ;  i\w 
Springs  for  Eiirek;i 
I  John  S.  Welsh  wa> 
lotel  other  than  tlit- 
of  the  State  of  Ar- 

"  J.    li.    W(H)I), 

iciitiii'i  Attornt'ij." 

i  for  a  now  trial  and 
werruled.     A  bill  of 


lemnrrer.     They  are 
ot  disclose  an  indict- 

hle  to  this  case,  pro- 
uid  or  cheat  another, 
itiiifi,  or  by  any  other 
any  money,  personal 
or  effects  whatever, 
larceny  and  puuished 

:)l)tiou  of  the  Revised 

luthoritics,  that  there 
)n  or  future  purpose, 
liuii,  however  fraudu- 
nay  have  been.     The 

ill  desxrees  of  mora! 
,  but  upon  the  neees- 
i  of  the  words  of  the 
larried  was  I  "ft  uncer- 
that  it  must  be  a  pre- 

to  be  felonious.'     It 


w:is  remarked  by  Mr.  Justice  Scott.  deliverin<r  the  opinion,  that  il  couid 
not  be  supposed  "  that  the  Le^dslature  intended  to  make  every  imagin- 
al)!e  case  of  fraud  an  indictalde  offense."     1  may  achl  that  if  it  iliil  so 
intend,  and  could  enforce  tiie  intention,  one  or  two  things  would  result  — 
either  we  would  iiave  a  Ttopian  condition  of  society,  or  the  revenues  of 
thi>  St.ate  would  be  exhausted  in  the  building  and  support  of  peniten- 
tiaries.    Seriously  constituted  as  human  nature  is,  in  the  struggles  for 
wealth,,  social  position,  selfish  indiilgencies,  political  intluence,  or  for 
food  and  clothing,  so  broad  a  construction,  even  within  the  letter  of  the 
statute,  would  be  impracticable;  or  if  practicable,  more  barbarous  than 
tlie  must  shocking  h'gislation  of  the  early  Puritans.     The  court  in  that 
C'lse  deeliHed  to  make  any  effort  to  lix  all  tiic  limits  of  the  operation  of 
the  words  of  the  statute,  deeming  it  safer  to  leave  tliem  to  be  fixed 
fidin  lime  to  time  in  each  case  as  they  might  arise.     It  certainly  was  a 
wi-e  i)recaulion,  founded  upon  sound  views  of  practical  judicature  and 
a  true  forecast  of  the  dangers  and  abuses  to  which  such  statutes  may 
lead.     For  in  general  I  suppose  it  will  be  admitted  that  it  is  wiser  to 
leave  the  correction  of  ordinary  cases  of  fraud  and  deceit  to  the  civil 
triliunals,  and  more  especially  the  e(iuity  courts,  aided  by  social  ostra- 
cism, tiian  to  create  the  temptation  to  enforce  civil  claims  by  the  terrors 
of  criminal  i)rosccutions,  or  to  intlict  the  most  crushing  punishment  and 
evirlasting  disgrace  for  every  kind  of  violation  of  fair  and  ingenuous 
dealing.     Human  nature  must  be  dealt  with  as  found,  and  wisely  cor- 
iveted  and  rcstraine<l.     The  question  of  wiiat  would  constitute  a  feloni- 
ous false  pretense  had  not  been  raised  in  the  previous  case  of  State  v. 
//'Oil/, I  but  the  indictment,  which  passed  unchallenged,  set  up  a  false 
pretense  of  an  existing  fact  of    a  very  material  character,   upon  the 
lirlief  in  which  money  was  advanced.     Then  it  was  faith  in  the  fact 
wiiieh  gave  the  a.ssurance  that  the  money  would  be  retnrned. 

In  Bnrnno  v.  State,'^  upon  the  argument  of  the  present  chief  justice, 
wlio  was  then  of  counsel  for  plaintiff  in  error,  the  court  reasserted  the 
rule  in  MrKoizie  v.  State,'^  but  went  still  further  in  the  wary  policy  of 
guarding  against  the  abuses  to  which  a  too  literal  construction  of  the 
words  and  too  wide  a  scope  of  the  intention,  iniglit  lead.  In  that  case 
i!n  re  was  an  actually  false  misrepresentation  of  existing  facts,  or  rather 
a  false  pretense  which  did  not  exist  by  which  the  defendant  obtained 
from  one  Richard  S.  Hodge,  a  conveyance  of  a  negro  slave  named  Hill. 
I'lii'  pretense  charged  in  the  indictment  w.as  that  Burro\y  represented  to 
Hodge  tluat  certain  persons  had  conspired  to  seize  the  slave  by  which 
Hodge  would  be  unjustly  and  unlawfully  deprived  of  the  value,  and 
thereby  induced  him  to  convey  the  slave  Burrow  for  safe-keeping,  with 


I  1  KtiR.  Hi."). 


■i  T  Knif.  i;.-i. 


supra. 


2\H 


FIt.\ll>    AM>    lAI.SK    l-KKTIASKS. 


tlif  felonious  intent  to  cliciil  un^l  ilofraud  him,  and  that  the  roprospntn- 
lioiis  w.ri'  iiiitiiie  and  15urmw  knew  it.  'Hie  court  I'onct'dod  liiaHlii> 
.•.Mint  was  not  liable  to  th.^  ol.Jrction  tiiat  tlif  |)ivtciisi's  wciv  not  iv;:anl. 
in."-  cxistini,'  facts.  'I'luTe  was  no  <|nostion  i-itluT,  Imt  that  the  prctciiso 
had  Im'cu  tiie  innnediate  imhicemcnt  to  llie  convcvanco,  or  liad  Iktm 
proiHTly  HlU-f,'.-d  to  have  la'en.  The  court  hchl  this  count  had.  (  In.  I' 
.Inslice  .loimson  deUvering  the  opinion  of  tiic  court  said  that  "  it  \v;,> 
not  the  intention  of  tiie  statute  to  convert  every  fraud  wiiicii  nii^dit  f:i!l 
within  the  cogni/ance  of  a  court  of  ctiuity  into  n  criminal  offense."  In 
that  case  it  was  coiisideri'd  tliat  tiie  rei.resentati.m  complained  of  \v;i-, 
not  of  so  <U')inite  an.l  piausihh-  a  character  "as  to  drive  from  his  pro- 
priety ft  man  of  ordinary  capacity  and  to  induce  him  to  divest  himself 

of  liiH  property." 

Ih;  said  tiie  statute  "was  designed  to  extend  no  further  tlian  to 
emlirac'e  such  representations  as  were  accompanied  witli  circumstances 
litted  to  lieceivc  a  person  of  common  sagacity  and  exercising  ordinary 
caution."  Anotiier  count  in  the  sanu'  indictment  was  hehl  bad  upon 
tiie  ground  tliat  it  was  not  sullicient  to  ciiarge  false  pretinscs  in  gen- 
eral terms,  but  that  tliey  siioidd  be  set  out  specilically  and  with  strict 
certainty.  The  iirinciples  of  construction  were  substantially  reannounced 
in  Stiiia  V.  Vidi'limnrk.^  and  supported  by  authorities.  Upon  tli.- 
authority  of  Mr.  Hi^liop,  Justice  Harrison  in  that  case  said  the  repre- 
sentation must  Ije  of  such  a  nature  as  to  induce  the  person  to  whom  ;t 
ia  made  to  part,  with  sometliing  of  value. 

In  the  sulisecpient  case  of  Jnhn.ion  v.  Stati'.-  which  was  a  case  of  oh- 
taining  go.xls  on  the  false  pretense  of  having  been  sent  for  tiicin,  IMr. 
Justice  Harrison,  delivering  the  ()i)inion  of  the  court,  somewhat  modi- 
fied the  doctrine  laid  tlown  by  Chief  Justice  Johnson  in  nurroio  v.  StnW:-' 
and  announced  that  it  was  not  necessary  that  the  pretense  should  be 
such  as  is  calculated  to  deceive  a  person  of  ordinary  prudence  or  cau- 
tion, but  that  it  would  be  sutlicient  .f  the  i.crscm  were  actually  deceived 
or  defrauded.  Kvidently  there  are  shades  of  distinction  on  this  point, 
and  neither  position  can  be  followed  to  the  extreme  limits  of  its  logical 
consecpiences. 

Without  pausing  to  discuss  the  statutes  of  Kngland,  and  other  States 
of  a  simihu-  character,  which  all  set  in  i)n'tty  much  in  accord  with  earli 
other,  it  is  only  necessary  for  the  purposes  of  this  case  to  say  th.at  tiie 
false  pretenses  must  be  the  "  inducing  motive  to  the  obtaining  of  the 
goods  by  the  defendant." 

In  some  States  it  is  held  that  they  must  have  been  the  decisive  cause 
of  the  transfer,  while  in  others   it  is  sutlicient  if  they  have  materially 


1  36  Arl£.  396. 


■2  *•,  Ai'k.  -HI. 


^  lupra. 


MoniiAN    ''.  >TATK, 


L".!.*) 


thtit  tlif  rpproapiitn- 
L  I'oiKTfli'd  llial  tL  « 
SI'S  wc'i't'  not  ri';:iii li- 
lt that  till-  plTtciHr- 
k'liniT,  or  liad  lifi  ii 
s  count  l)!i(l.  (  liii  I' 
t  suid  that  "  it  \va« 
tiid  wliicli  ini}j;lit  l':i!l 
iniiial  ol'IViixi',"  In 
1  t'oinplaiiK'il  of  w:i  ■ 
»  (liivo  from  liLs  pic- 
liiu  to  divest  himself 

no  flirt  hor  tlian  tn 
I  with  circuinstaiirts 

I'xort'ising  ordimii) 
,  was  ht'ld  bad  ii|"iii 
isf  pretfiiscs  in  i^'w- 
(■ally  and  with  strict 
aiitially  roauiiouiictd 
iioriticH.     Upon   tli>- 

case  said  the  repni- 
:ie  person  to  whom  .1 

ch  was  a  case  of  ob- 
[1  sent  for  them,  Mr. 
iirt,  somewhat  modi- 
i  in  Barrow  v.  State? 
L"  pretense  should  \w 
ry  prudence  or  cau- 
ere  actually  deceived 
nction  on  this  point, 
e  limits  of  its  logical 

md,  and  other  States 
1  in  accord  with  earh 
s  case  to  say  that  tiu' 
the  obtaining  of  tlie 

en  the  decisive  cause 
they  have  materially 

-  rupra. 


,  nntrilMii.'d  with  oih.T  motives  to  induce  it.  Ading  ni'on  the  fornu  r 
,.,,itiou  of  this  court,  and  laying  down  noll.im,'  wliich  this  .msc  docs  not 
,,,|ui,v  for  its  d.MM^ion,  leaving  otlier  points  to  he  s.^lllcd  an.l  deler- 
,„ii.ed  as  they  ari-e.  we  nroeecd  to  examine  this  indictment  in  ihc  light 
(if  our  jiast  decisions. 

The  f:dse  pretenses  are  all  with  reganl  to  (he  matter  of  Welsh  havin- 
l„.,.Manac.iuaintanceof  the  landlord,  and  a  guest  of  the  (Jwinn  Hotel 
y,\v.\-\  m  town,  and  having  left  lor  Kurcka.  Fh-'y  were  damning  false- 
l„„„ls,  altogether  unworthy  of  a  respectable  hotel-keeper.  The  object 
,,f  them,  h.nvever.  was  not  to  get  Fisher  to  pay  him  money  bcc;iu-.e  of 
the  facts  represented.     It  is  not  liUe  the  case  where  one  wonhl  go  to  an- 

utlier  and  say,  for  instance,  "your  fanuly  is  suffering  at  home  I   I 

Mill  sent  to  vo'u  for  money  to  relieve  them."  wheuthat  i.  faUe.  Then  the 
iiinncy  is  given  because  of  the  actual  pri'tcnse.  Was  there  any  rtascm 
in  the  nature  of  thiniis  why  Kislier  shoidd  give  money  to  the  defendant 
hecausehe  knew  Welsh,  and  Welsh  had  patronized  his  house,  and  had 
,l„.n  gone  to  Kureka?  It  is  not  pretended  thai  there  was  or  that  Fisher 
Iia,l  been  himself  bem'fitcd  by  the  conduct  of  the  dcfcn<laiit  toward 
WeM).  or  would  be  benelited  by  Welsh's  preseiie.-.  It  would  simply 
iKive  iiratith'd  his  taste  and  sentiment  to  be  with  Welsh.  No  injury  was 
;,lle._r,.,l  to  have  iieen  done  to  him  by  not  glutting  at  the  same  hotel  with 
Welsh.  Kvidently  he  gave  no  money  or  |>roi)ci  ty  to  defendant  upon  ac- 
count'of  the  false  represeiitalion8.  Tlwy  induced  him  only  to  make  a 
,,. 1,1  ract  for  board  there.  Ibit  of  what. li.l  that  defraud  him?  Only  of  the, 
MUtiuienlal  gratilication  (from  all  the  indictment  shows),  of  lieiug  with 
hi-,  friend  Wdsh.     But  the  result  of  a  felonious  false  pretense  must  lie 

to  oliiain  i)roperty. 

The  money  was  paid  for  board  in  advance.  No  false  pretense  as  to 
furnisliing  iioard  and  lodging  is  averred  or  shown.  Nothing  appears  to 
.liow  that  it  was  not  as  good  as  any  other  hotel.  The  money  was  paid 
for  value,  and  the  defendant  was  willing  to  give  value,  all  that  he  prom- 
i-ed.  Indeed,  nothing  more  appears  on  a  careful  study  of  the  allega- 
tions than  this,  that  he  was  cheated  not  out  of  any  property  or  thing 
of  value,  but  disappointed  of  his  anticiiiate.l  pleasure  in  being  in  close 
connection  with  Welsh.  If  he  had  any  remedy  it  seems  that  a  civil 
rcinedv  to  rescind  the  contract  might  have  been  ami)le.  A  fr:iud  had 
I.ecn  doubtless  perpetrated  upon  him.  if  the  indictment  be  true,  and  a 
verv  reprehensible  one.  Rut  whilst  the  contract  stood,  he  was  not 
clieated  of  his  money.  He  eouM  get  thi-  full  value  of  that  which  he  ex- 
I'ccted  of  it  when  he  paid  it. 

The  payment  of  the  money  for  board  is  too  remote  a  conseiiuence  of 
the  false  pretenses.  Thev  were  not  made  directly  for  the  purpose  of 
having  money  advanced  because  of  the  facts.     The  oliject  as  disclosed 


mm 


1 


2W 


FKAin    AM)    I  AI.si;    IMiKTKNSKS. 


by  till-  indictment,  was  to  iiidurc  Ki-luT  to  liocoinc  a  rrnv>*i.  Tliis  (Ioc> 
iioUoiiic  witliin  tlu'  iuliiliitioii  of  tlio  Hliitiitr.  To  -rot  llio  fiistoiu  or 
piitroii!i<;c'  (if  II  fjiii'st,  is  not.  to  ^rct  property.  I>ut,  to  iiidiioi'  ti  conditidii  if 
tiiiiii:H  or  rciiitioii  of  tlii'  purtifs  out  of  whieh  u  contract  to  pay  luoiiiy 
fir  value  may  arise. 

It  wa-t  held  ill  Jt'ijina  v.  Onrdner.^  as  reported  in  Wharton's  CriniiiKil 
Law."-' that  when'  ii  person  ohtained  food  and  lo(lf,'inL!;  as  a  lioanler,  i  ii 
the  prctonsi!  that  he  was  ii  naval  olllcer,  the  ol)tainin<,'  of  ssuch  food  ami 
lodjiin;:  \\&>*  too  remotely  the  result  of  the  fal.se  pretense. 

We  think  the  court  erred  in  overruling  the  demurrer  to  the  indict- 
ment, and  also  \\w  motion  in  arrest. 

Hoversi-  willi  instruetious  to  arrest  the  judftment  and  sustain  the  de- 
murrer til  the  iudictmcnt. 

Judfjinent  reversed. 


falsi;  IMil7rK.NSi;S-OHlAIMN(;  MOXKY  RKillTFULLY  DUE. 
CoMMONWKALTII    V.   McDl'FFV. 

[120  Ma.ss.  Km, J 
111  the  Siiprnne  Jiidiriul  Cnnrt  of  MituKachusetts,  1S70. 

A  Person  who  by  False  and  Fraudulent  rcprcsontatioiis  obtains  from  another  a  aura 
of  Miiiiicy  wliich  IS  nil  niiir.-  tlimi  i"  iiKlU'iilly  iluc  liiin  from  tlio  latter,  can  not  bi-  I'l.n- 
Tictcil  ofobtiiininK  money  by  faJM'  inetennes.umler  llieticneral  Statuter.,-anit,at  ilielniil 
of  an  Inilictnient  aKUiiiHt  him  on  that  statute,  eviiieuc.e  of  the  amount  of  the  tiebt  to  him 
in  a<lnii8!<ible.. 

iNoicT.Mr.NT  on  the  Gonertd  . Statutes, ^  for  obtaining  money  of  Corne- 
lius Sweetser  l)y  false  pn-tenses. 

At  the  trial  in  the  Superior  Court,  before  Am.kn,  J.,  it  appeared  that 
by  virtue  of  an  a<rreement  dated  October  '3.  ^Ti',  Sweetser  became  tiic 
trustee  of  certain  fumls  for  Susan  K.  Howard  and  her  two  daujrhter:-; 
tliat  in  the  fall  of  1874,  Sweetser,  by  an  arrangement  with  the  cestnis  que. 
Irnst,  l)oii<,'ht  a  parcel  or  land  in  Lowell  with  a  i)ortion  of  the  trust  funds, 
and  took  a  tleed  thereof  in  trust  for  the  persons  above  named.  It  also 
ai)peaied  that  the  defendant  was  to  build  a  house  upon  this  land,  and 
was  to  pay  all  bills  for  nutterials  used  in  said  house  with  money  which 
was  to  be  given  to  him  by  Mrs.  Howard,  from  time  to  time,  upon  tlie 
presentation  by  him  t(>  her  of  bills  for  such  materials;  that  the  money 
was   to    ije  sent  to   Mrs.   Howard  at  Lowell,  by  Sweetser,  from  Saco, 


1  ;tii  Kng.  Law  A  Kq.  licp. 

2  sec.  21'.n!. 


I  oh.  1«1,  secM. 
«  lb.  101.  sec.  M. 


IS. 


rOMMONWEALTII 


M   l>l  I'lV. 


297 


i\  ^iR'st,  Tliis  (liii , 
(>  jiet  tlio  I'listdih  1,1 

iiidiici'  II  cDnililinii  if 
iilract  lu  pay  inoiay 

11  Wharton's  Criniiiial 
fjiiiLj:  :is  !i  lioiinliT,  cii 
linji  of  fsucli  food  iimi 

L'tCllSC. 

imurrer  1o  the  indkt- 

it  ;m(l  sustain  the  ile- 
Judcjment  reversed. 


nilTFULLY  DUE. 
f'\. 

husetts,  1S7D. 

obtains  from  another  a  sura 

tlie  latter,  can  not  bt;  ('"ii- 

ral  Statuto,  'ami,  at  ilic  tniil 

e  amount  of  tliu  <)fbt  to  liim 

uiiig  money  of  Corne- 

N,  J.,  it  appeared  that 
!,  Sweetser  became  tlie 
lid  Iter  two  daughter?; : 
fut  with  tiie  cestvis  que. 
tlon  of  the  trust  funds, 
ibove  named.  It  also 
le  upon  this  land,  and 
)U9e  with  money  wliic  h 
me  to  time,  upon  tin' 
erials ;  that  the  money 
Sweetser,  from  Saco, 

.  :>4. 


.Maine,  where  he  resith'd  ;  tlittt  the  final  settlement  for  the  building  of 
the  liouse  was  made  on  Septemlier  IC,  bs?.');  tliat  at  tliat  time  a  dial't, 
(Iniwii  by  tile  cashier  »>f  a  l>aiili  in  Saco,  upon  a  banli  in  Hostoii,  Cor 
S'.lMMi,  dated  N<iveiiil)er  -2,  \X~>>,  payable  to  Mrs.  Howard  ororder,  and 
iiidorsrd  by  iier,  was  given  by  her  to  Sweetser,  and  l<y  the  latter  deliv- 
ered to  the  defeiKlaiit.  and  a  certain  sum  was  returned  to  .Mrs.  Howard 
l,v  tlie  defendant,  and  hi.s  bill  was  thus  .settled. 

'  Sweetser  testilled  that  [he  had  collected  certain  notes  mentioned  in 
the  aLMceinent  of  trust,  and  iiad  deiiosited  lliem  in  ti  bank  at  Saco  with 
UU  own  funds;  tlial  he  purchased  the  draft  aliove  mentioned  with  the 
fiiniN  so  held  bv  him  in  said  l)anlv,  and  .sent  the  draft  to  Mrs.  Mowaril, 
:uid  charged  ujion  his  Ixiok  IB  i  ,0(1(1,  as  ptud  out  of  the  trust  fund  ;  that 
his  piirpuse  iii  sending  the  draft  wa.s  tliatf  it  might  lie  used  to  pay  for 
the  house,  and  that  the  baluin'e,  iifter  the  payment  of  the  defendant's 
l)ill>.  was  to  be  piiid  out  upon  other  bills  contracted  for  the  house. 

The  defendant  contended,  and  asked  the  jinlgo  to  rule,  that,  us  a 
uiMlter  of  law.  Ihi-  money  paid  to  the  defendant,  at  the  time  of  the 
Mllleineiit,  was  not  tln!  money  of  Sweetser  within  the  allegation  of 
the  indictment;  l)ut  the  judge  refused  .so  to  rule,  and  the  defendant 
e.scepled. 

The  defendant  contended  that  lie  could  not  lie  convicted  upon  the  in- 
(liclnient,  because,  iiiion  the  settlement  at  which  it  was  alleged  he  made 
the  false  representations  set  forth,  he  had  been  allowed  nothing  for  his 
services  in  l)uilding  the  hoiisi- ;  that  lie  was  entitled  to  recover  for  his 
pei'sonal  services  the  sum  of  $tu>() ;  and  that,  if  the  sum  he  received  in 
fact  was  not  more  than  enough  to  pay  him  for  the  bills  actually  paid 
and  for  his  services,  then  he  wtis  not  guilty  of  false  pretenses,  even  if 
he  had  made  untrue  stateineuts,  because  he  had  defrauded  no  one. 

When  the  defendant  was  on  the  witness  sfind,  he  was  asked  what  sums 
he  had  actually  put  into  the  house  upon  certain  bills  ;  Itiit  the  judge  ruled 
llie  inquiry  immaterial.  The  defendant's  counsel  then  suggested  that  it 
inishl  lie  important  to  the  defendant  to  prove  that  he  only  received 
iiioney  cnougli  to  pay  him  what  he  sictually  paid  out,  and  what  was 
actually  due  for  labor  and  materials  furnished  at  llie  time  of  the  settle- 
iiniit.  Hut  the  judge  ruled  that,  if  the  defendant  actn-illy  made  false 
icpresentations  as  to  what  went  into  the  house  as  materiais,  he  might  be 
<:iiilty,  even  if  he  had  not  received  more  than  was  due  him. 

The  defendant  asked  the  judge  to  ride  as  follows-  "1.  If  the  de- 
f(nd;iiit  only  received,  at  the  time  of  the  settlement  with  Sweetser,  money 
'  iioiiudi  to  pay  what  w.as  actuidly  due  him,  then  this  indicrmcnt  can  not 
1)0  inainttiined.  2.  If  the  defendant  made  representations  only  for  the 
imi-poseof  getting  tlie  money  due  him,  and  not  for  the  purpose  of  olitaiii- 
iii!,'  monev  not  due  him,  then  this  indictineut  can  not  be  maintained." 


208 


FRAUD  AND  FALSE  PRETKXSES. 


The  judge  declined  so  to  rule  ;  but  ruled  that,  if  the  defendant  made 
the  false  representations  fo'-  the  purpose  of  obtaining  money  that  lie 
believed  to  be  due  liira,  and  believed  that  ho  had  a  right  so  to  obtain  the 
money,  the  indictment  could  not  be  sustained. 

The  jury  returned  a  verdict  of  guilty;  and  the  defoi.dant  alleged 
exceptions. 

T.  II.  Siveetser  &  G.  A.  A.  Pecey,  for  the  defendant. 

J.  F.  Brown,  Assistant- Attorney  General,  (C.  li.  Train,  Attorney- 
General,  with  him)  for  the  Commonwealth. 

Louu,  J.  The  only  question  in  this  case  upon  which  we  feel  called  to 
give  a,n  opinion  is,  whether  the  instructions,  requested  by  the  defendant 
or  either  of  them,  should  have  been  given. 

It  is  not  easy  to  understand  why,  in  the  view  of  the  law  as  stated  by 
the  presiding  justice,  evidcnee  of  the  exact  amount  of  indebtedness  to 
the  defendant  was  excluded ;  for  such  evidence  would  be  apparently 
competent  upon  the  issue  of  the  defendant's  belief.  Nor  do  we  see 
how  the  question  whether  the  defendi-ut  believed  that  he  had  a  right  so 
to  obtain  the  money  can  of  itself  be  a  deciaive  test  of  his  guilt  or  iimo- 
cence.  We  understand  the  use  of  the  word  "  right"  to  signify  legal 
right,  and  not  moral  right,  although  its  use  might  perhaps  tend  to  mis- 
lead tho  jury,  and  lead  them  to  suppose  that,  in  order  to  acquit  the 
defendant,  he  nuist  have  believed  that  he  had  a  moral  right  to  lie  and 
deceive  for  the  purpose  of  obtaining  what  was  justly  due  him.  W  •  do 
not  however,  decide  the  case  upon  any  criticism  of  the  particular  form 
of  lang"age  in  which  the  instruction  was  given,  nor  upon  any  apparent 
inconsistency  between  the  instructions  as  given  and  the  rules  previously 
laid  down  as  to  the  admissibility  of  evidence. 

We  understand  the  broad  and  naked  «;uestion  to  be  presented, 
whether  the  offense  of  obtaining  property  by  false  pretenses  can 
be  committed  when  the  party  charged  obtains  no  more  than  is 
rightfully  due  him,  by  whatever  fraudulent  means  or  devices  he  thus 
oiitains  it.  This  loads  to  an  inquiry  into  the  essential  elements  of  the 
offense,  in  Commomvealth  v.  Drew,^  Morton,  J.,  says  that  to  consti- 
tute the  statute  offense  four  things  must  concur:  (1.)  There  must  be  an 
intent  to  defraud;  (2)  thuie  must  be  actual  fraud  committed;  (3) 
false  i)retcn3es  must  be  used  for  the  purpose  of  perpetrating  the  fraud ; 
and  (1)  the  fraud  must  be  accomplished  by  means  of  the  false  pretenses 
made  use  of  for  the  purpose.  And  in  Commonwealth  v.  Jeffries,- 
Bigelow,  C.  J.,  says  that  the  intent  to  def.aud  is  part  of  the  substance 
of  the  issue,  and  must  be  proved.  We  are  not  aware  that  the  precise 
question  now  presanted  has  ever  been  considered  by  this  court ;  and  we 


1  19  Pick.  179. 


■-'  7  AIU'n,ri48,S68. 


CSES. 


C05IM0NWKAI.TII    V.  Jl    DUFFY. 


2!l!» 


,  if  the  defendant  made 
btainiiig  money  that  lie 
[  a  right  so  to  obtain  the 

tlie  defendant  alleged 

efendant. 

C.  li.  Traill,  Attorne\'- 

n  w  hich  we  feel  called  to 
uested  by  the  defendant 

•  of  the  law  as  stated  by 
lount  of  indebtedness  to 
lee  would  be  apparently 
belief.  Nor  do  we  see 
'd  that  he  had  a  right  so 
test  of  his  guilt  or  inuo- 
■'  right"  to  signify  legul 
ijht  perhaps  tend  to  mis- 
.t,  in  order  to  acquit  the 
I  a  moral  right  to  lie  and 
Justly  due  him.  AY)  do 
aa  of  the  particular  form 
1,  nor  upon  any  apparent 
and  the  rules  previously 

jstion  to  be  presented, 
by  false  pretenses  can 
tains  no  more  than  is 
leans  or  devices  he  thus 
essential  elements  of  the 
s,  J.,  saj-s  that  to  consti- 
•:  (1.)  There  must  be  an 
il  fraud  committed ;  (3) 
f  perpetrating  the  fraud ; 
!ans  of  the  false  pretenses 
ommoniv^alth  v.  Jeffries,^ 
[  is  part  of  the  substance 
u)t  aware  tiiat  the  precise 
red  by  this  court ;  and  we 


liuve  not  been  abb  to  find  any  decision  in  any  court  of  last  resort  that 
a  party  may  be  convicted  of  the  crime  of  obtaining  property  by  false 
pretenses,  when  he  has  obtained  no  thing  \v  value  which  he  would  not 
hcmtitlcdtoasof  right.  In  Rex  v.  WiUiinns,^  a  servantofB.,  obtained 
property  belong  to  A.  by  means  o^  falsehood,  to  enable  B.  to  obtain 
piiyment  of  a  debt  owed  by  A.  ;  and  it  was  held  tliat  if  C.  did  not  in- 
tend to  defraud  A..,  but  only  to  enable  B.  to  obtain  what  was  due  to 
iiini,  he  could  not  be  convicted;  and  Coleridge,  J.,  in  that  case  told 
the  jury,  that  if  the  prisoner  did  not  intend  to  defraud  the  prosecutor, 
but  only  to  put  it  in  his  master's  power  to  compel  him  to  pay  a  just 
delit,  they  ought  not  to  convict,  and  added,  that  it  was  not  sufficient 
tl-.at  the  prisoner  knowingly  stated  that  which  was  false,  and  thereby 
obtained  the  propertj',  Imt  they  must  be  satisfied  that  the  prisoner  at 
the  time  intended  to  defraud  the  prosicutors. 

In  People  v.  Thomas;^  the  defendant  was  charged  with  obtaining 
property  by  false  pretenses,  the  fraudulent  pretense  being  that  a  note 
f)f  the  prosecutor  which  he  had  for  the  amount  had  either  been  lost  or 
hurned,  which  was  knowu  by  him  to  be  false,  and  afterward  he  nego- 
tiated the  note  to  a  third  person.  The  court  held  that  a  false  repre- 
sentation ti  'ig  merely  to  induce  one  to  pay  a  debt  previously  due  from 
him  was  not  within  the  statute  against  obtaining  i)roper._,  l»y  false  j/e- 
tenses;  the  court  saying,  "  a  false  re|)resentation,  by  which  a  man  may 
lie  clieated  into  his  duty,  is  not  within  the  statute,"  and  in  Common- 
wealth v.  Henry, ^  Woodward  J.,  makes  use  of  almost  precisely  the 
b^ame  language. 

In  Pi'ople  V.  Getchell,^  the  defendant  was  charged  with  procuring  the 
indorsement  of  the  prosecutor  to  a  promissory  note  by  fraudulently 
pretending  that  a  former  note  for  the  same  amount  sf)  indorsed  was  de- 
stroyed; and  in  bis  defence,  he  offered  to  show  that  the  proscr^itor 
was  bound  by  an  agreement  with  him  to  indorse  for  him  to  an  amount 
larger  tlian  both  of  the  notes,  and  that  the  money  obtained  on  the  notes 
was  used  for  the  [)urposes  contemidated  by  the  agreement.  It  was 
held  tiiat  such  evidence  should  be  received  as  tending  to  disp-'ove  the 
presumption  of  an  intent  to  defraud. 

We  are,  of  course,  not  to  be  understood  as  decidl.  -;  that  a  mere  pre- 
tense of  indebtedness  by  the  person  from  whom  the  jjroperty  is  obtained 
's  sufficient ;  nor  is  anything  which  we  decide  to  be  construed  as  in 
conflict  with  the  well  established  ruU^  of  law  that  a  party  is  to  be 
presumed  to  intend  all  the  natural  and  ordinary  <•  msecjut  .ices  of  his 
acts;  and  fraud  and  falsehood  are  always  evidence  u'ndinir  <"  show 
that  the  party  had  a  dishonest  purpose:  aw!  Mie  iiuest.;!!  for  "U'  jury 


■i48,  nfis. 


1  7  C.  *  P.  H54. 
'^  3  Hin,  169. 


s  tr  P».  St.  253. 


300 


FHAUD  AND  FALSK  rUETENSKS. 


to  decide  is  whether,  upon  all  the  facts  and  circumstances,  the  defendant 
had  an  intent  to  defraud,  and  effected  that  purpose,  and  whether,  in 
ord-r  to  accomplish  it,  he  made  use  of  fraudulent  representations,  and 
succeeded  by  means  of  such  representations. 

The  defendant  should,  therefore,  have  been  allowed  to  offer  evidence 
in  support  of  the  facts  upon  which  his  prayers  are  predicated,  and  the 
jury  should  have  been  instructed  that,  if  proved,  the  defendant  was 
entitled  to  an  acquittal ;  and  for  this  reason  the  exceptions  must  be  sus- 
tained. Upon  the  other  point  in  the  ca3e  we  make  no  decision.  Undir 
the  provisions  of  the  General  Statutes,'  the  indictment  might  be  sui- 
ported  if  either  the  actual  or  constractive  possession  of  the  money,  or 
the  general  or  special  property  in  the  whole  or  part  of  it  was  in  the 
person  named  in  the  indictment.  We  do  not  think  the  facts  upon  this 
point  are  so  fully  and  carefully  stated  in  the  bill  of  exceptions  as  to  r. 
quire  us  to  say,  as  matte,  of  law,  that  neither  the  actual  nor  c(.fistnh  ■ 
tive  possession,  nor  the  general  nor  special  property  in  the  money 
obtained,  was  not  in  Sweetser.  That  ipiestion  will  be  open  upon 
another  trinl,  where  the  evidence  relating  to  it  may  be  varied,  or  may 

be  more  fully  developed.  . 

Exceptions  sustained. 


FALSE    PRETENSES  -  ORDINARY    PRUDENCE    REQUIRED   OF   PROSE- 

CUTOR. 

Commonwealth  v.  Gkady. 

[13  Uush.  285.] 
Tn  the  Court  of  Appeals  of  Kentucky,  1877. 

A  False  Statement  that  a  House  and  Lot  were  TTninoumbered,  when,  in  fact,  they 
were  subject  to  ii  lecoi .I.mI  inorlguge.  is  not  a  false  prctenee  within  the  statute,  hocnusc 
the  party  <lefrHU<le<l  I  ,i.|  the  means  of  detecting  it  at  hand,  and  might  have  protcctea 
himself  by  the  exercise  of  common  prudence. 

Elliott,  J. ,  delivered  the  opinion  of  the  court. 

Tliis  is  an  iti'li^ment  charging;  the  appellee  with  having  obtained  the 
money  and  |*oi<«rty  of  Presley  O'Bannon  by  i\\a  false  pretense  of 
frau<lulenlly  representing  to  O'Bannon  that  he  was  the  owner  of  a  house 
and  lot  in  Owen's  addition  to  the  town  of  Eminence,  and  that  the  house 
and  lot  so  owned  were  free  from  lien  or  mortgage  to  any  one. 

1^  these  misrei)resentations  it  is  <  Uarged  that  appellee  obtained  from 


!  cli.  1?;,  sec.  K. 


KS. 


COMMONWEATTH    I'.  GKAUT. 


301 


itanccs,  the  defenilant 
[lose,  and  whether,  in 
;  representations,  and 

)wed  to  offer  evidence 
•e  predicated,  and  the 
d,  the  defendant  wus 
;ceptions  must  be  sus- 
:■  no  dicision.  Under 
3traent  might  be  su|h 
sion  of  tlie  xnoney,  or 
part  of  it  was  in  the 
nk  the  facts  upon  this 
[)f  exceptions  as  to  rt 
e  actual  nor  ccristru. 
oporty  in  the  money 
II  will  be  open  upon 
oay  be  varied,  or  may 

^xce}^tions  sustained. 


tEQUIREl)   OF   PROSE- 


[imbered,  when,  in  fact,  they 
ee  within  the  statute,  because 
(J,  and  might  have  protccttd 


ith  having  obtained  the 
tht!  false  pretense  of 
as  the  owner  of  a  house 
ice,  and  that  the  house 
;e  to  any  one. 
,  appellee  obtained  from 


O'Haimon  S12o  in  money  and  some  promissory  notes  for  the  house  and 
lot :  and  tliat  it  turned  out,  on  investi<jation,  there  was  a  recoriled  mort- 
jruge  on  the  property,  which  had  been  executed  by  appellet;  to  Lotty 

Krlso. 

'llio  indictment  fails  to  state  iiic  amount  of  the  mortgage  lien  of 
Mrs.  Kelso,  for  if  it  was  merely  nominal  the  appellee  may  have  made  the 
iiprcscntations  charged  with  no  intention  of  defrauding  O'Bannou,  but 
witii  tiio  intention  of  removing  the  incumbrance  with  a  part  of  the 
moiuy  .  cived  from  him.  lint  we  agree  witli  the  opinion  of  the  lower 
court,  that  the  indictment  was  insufticicnt  for  several  reasons. 

In  tlie  case  of  the  Commonivfiolth  v.  Iluiu/hei/,^  it  was  charged  that 
I'luiiiiiey  obtained  credit  on  a  note  he  owed  R.  R.  Jones,  upon  the  false 
and  fraudulent  pretense  and  representation  that  a  large  cpiantity  of 
tobacco  which  Jones  then  purciiased  would  average  in  quality  with  a 
sample  which  Haughcytiien  and  there  exhibited  to  said  Jones. 

Tills  court  affirmed  the  judgment  of  the  lower  court  dismissing  the 
in(]"ctiu('nt,  and  say  that  a  common  caution  on  the  p:ut  of  Jones  would 
Imve  |\otected  him  from  any  injury;  he  could,  without  trouble,  have 

mined  his  note  till  the  tobacco  was  delivered  ;  and  if,  upon  an  offer 
to  (Iciiver  it  to  Ilaughey,  it  was  not  equal  in  quality  to  the  sample  ex- 
hibited, he  could  have  rejected  it. 

So  in  this  case,  O'Bannon  could  have  refused  to  execute  and  deliver 
his  note  to  appellee,  or  even  to  pay  him  the  $125  in  money,  till  he 
stepped  to  the  clerk's  office  and  ascertained  from  the  records  of  the 
Henry  Comity  Court  whether  the  title  to  the  house  and  lot  was  such  as 
represented. 

In  Wharton's  Criminal  Law,^  the  doctrine  is  laici  down  that  a  "  rep- 
resentation, though  false,  is  not  within  the  statute  (meaning  the  stat- 
ute against  obtaining  money  and  property  by  false  pretenses),  unless 
taleulaied  to  deceive  persons  of  ordinary  prudence  and  discretion  ;" 
and  this  author  further  says  that  the  st;  tutes  against  obtaining  money, 
etc.,  by  false  pretenses,  ought  not  to  be  so  interpreted  as  to  include 
a  case  where  the  party  iJiefrauded  had  the  means  of  detection  at 
hand. 

Here  O'Bannon  had  the  means  of  detection  at  hand  ;  for,  by  a  viiit 
to  the  clerk's  office,  he  could  have  ascertained  whether  the  appolee 
tiad  the  unincumbered  title  to  the  house  and  lot  as  represented  by 
him. 

Wherefore  the  judgment  is  affirmed. 


T  Met.  223. 


^  vol.  2,  sec.  2129. 


302 


FRAUD   AND   FALSE   PRETENSES. 


FALSE    PRETENSES  -  MONEY   MUST   BE   PARTED  WITH  -  PARTNER- 
SHIP. 

R.  V.  Watson. 

[Dears.  &  B.  348.] 
In  the  English  Court  of  Croivn  Cases  Reserved,  1857. 

1.    To  Constitute  the  Crime  of  False  Pretenses  the  money  of  the  injured  party  must  be 

partL'd  with. 

<^   —  Partnership -InduoinK  one  to  Enter.- W.  by  false  rnd  fraudulent  represcma- 

■■     fons  "ule  u,  U.  »«  to  hi.  busincs,  customers  and  „rofll.  induced  B.  to  enter  ...to  a 

.°rtner»hi,.  with  hi...  a.>d  to  Hdvai.ce  if.'iW)  .is  purl  of  the  capital  of  the  concern,  a...!  B. 

I.fterwa.-d«  rocoK„i^ed  and  acted  upon  Buch  partncrahip.    //eW.  that  tbi.  was  not  obtam- 

ing  money  by  false  pretenses,  as  the  money  was  still  undc  the  control  of  B. 

The  facts  of  this  case  were  as  in  the  8yllabus  above.  The  prisoner 
w«.s  convicted  below,  i)ut  iiis  case  was  reserved  for  this  court.  It  was 
argued  on  tiie  21st  of  November.  18,57,  before  Cookbukn,  C.  J.,  Eule, 
J.,  Williams,  J.,  Ck  >mi'ton,  J.  and  Ciiannell,  B. 

Bulwer   appeared   for   tli*^   prisoner;  no  counsel  appeared    for   the 

^^Bulwer,  for  the  prisoner.     The  question  is  raised  on  the  three  first 
counts  of  the  indictment. 

CocKBUUN,  C.  J.  How  was  it  put  to  the  jury?  The  aggregate  of 
the  ]>reteuse3  alleged  in  these  counts  may  have  induced  the  prosecutor 
to  part  with  his  money;  but  instead  of  being  put  into  one  count  tliey 
are  subdivided  and  split  up.  Each  pretense  forms  the  subject  of  a  dis- 
tinct and  separate  count  and  in  each  count  the  money  is  alleged  to  have 
been  obtained  by  the  particular  pretense  mentioned  therein;  and  as 
tliese  pretenses  are  .ali  made  in  the  course  of  one  transaction  it  is  diffi- 
cult to  say  on  which  the  jury  believed  tho  prosecutor  acted. 

Bulwer.  The  chairman  after  reading  the  evidence  and  making  some 
observations  to  the  credit  of  the  witnesses,  told  the  jury  that  if  they 
believed  the  account  given  by  the  prosecutor  they  would  find  the  pris- 
oner  guilty  on  the  throe  first  counts. 

Crompton,  J.  If  the  money  was  obtained  by  a  mere  fraud  and  not 
received  by  the  prisoner  as  a  jiartner  in  the  concern  the  conviction 
miglit  be  right;  but  that  question  was  not  left  to  the  jury. 

Buliuer.  The  general  effect  of  the  evidence  is  that  the  prisoner  ex- 
acrgerated  the  nature  and  extent  of  tlip  business,  and  thereby  itduced 
the  prosecutor  to  enter  into  partnership  with  him  ;  and  this  rais.s  the 
question  whether  it  can  be  said  that  the  money  which  the  pro&ecutor 
thereupon  advanced  to  the  capital  of  the  concern  was  obtained  by  the 
prisoner  by  false  iM-etenses.     It  is  contended  that  there  has  been  no 


R.  r.  WATSON. 


WA 


riTii  —  partner- 


<ed,  1857. 

le  injured  party  must  be 

I  fraudulent  represcnta- 
luccd  n.  to  enter  into  a 
il  of  the  ooiicern,  and  B. 
that  thiri  was  not  obtain- 
control  of  B. 

ove.  The  prisoner 
this  court.  It  was 
tuuKN,  C.  J. ,  Eklk, 

appeared    for  the 
d  on  the  three  first 

The  aggregate  of 
iced  the  prosecutor 
into  one  count  they 
;hc  subject  of  a  dis- 
ey  is  alleged  to  have 
ed  therein;  and  as 
ransaction  it  is  dilfi- 
or  acted. 

ce  and  making  some 
he  jury  that  if  they 
would  find  the  pris- 

mere  fraud  and  not 
ttcern  the  conviction 
the  jury. 

that  the  prisoner  ex- 
and  thereby  it  duced 
;  and  this  raises  the 
vhich  tlie  pro&ecutor 
I  was  obtained  by  the 
it  thert^  has  been  no 


ohtainiiig  of  the  money  within  tiie  meaning  of  the  statute,  for  the  pros- 
ecutor did  not  part  with  the  control  over  tlie  money. 

t'ocKiuRN,  C.  J.  If  there  were  a  partuersliip  the  prosecutor  never 
par*,ed  with  the  money  in  the  sense  contemplated  Ity  the  statute,  for  he 
still  liad  a  joint  interest  in  it;  and  there  certainly  is  a  prima  facie  case 
of  partnership. 

CiiOMrroN,  J.  The  question  should  have  been  put  to  the  jury 
wlu'thcr  the  representations  of  the  prisoner  were  merel^'^  an  exaggera- 
tio".  of  tlie  amount  of  busines'^  lie  was  doing  or  a  total  fiction.  I  should 
he  unwilling  to  hold  that  the  mere  exaggeration  of  the  profits  of  a 
business  by  a  seller  is  indictable. 

Bnlicer,  read  some  letters  which  were  not  inserted  in  the  case,  but 
which  were  admitted  by  Dusetit,  v'ho  was  counsel  for  the  prosecution  at 
Uic  Sessions,  and  was  now  in  court,  to  have  been  given  in  evidence  at  the 
trial.  The  effect  of  the  letters  was  to  show  that  the  prosecutor  recog- 
nized and  acted  ujion  the  partership  by  endeavoring  to  dispose  of  his 
interest  in  tlie  concern. 

CooKuruN,  C.  J.  The  (juestion  submitted  to  us  is,  whether  the  jurj', 
if  they  believed  the  evidence,  were  bound  to  find  the  prisoner  guilt3\ 
We  are  of  opinion  that  they  were  not,  and  ccmscquently  that  this  verdict 
can  noi  stanci.  It  appears  that  the  prosecutor,  liy  certain  representa- 
tions made  to  him  by  the  prisoner  as  to  his  business,  customers,  and 
profits,  was  induced  to  enter  into  partnership  with  the  prisoner,  and  to 
advance  the  sum  of  £500  as  part  of  the  capital  of  the  concern.  Now 
I  am  far  from  saying  that  where  a  party  is  induced  by  false  pretenses 
to  enter  into  a  partnership  and  to  advance  money,  the  allegations 
being  altogethei-  fraudulent  and  false,  or  colorable  merely,  he 
might  not  have  ground  for  maintaining  an  indictment  for  ob- 
taining the  money  by  false  pretenses,  or  from  saying  that  he 
might  not  rescind  a  contract,  obtained  by  fraud.  But  I  am  clearly 
of  opinion,  tha*^  if  he  does  enter  into  the  contract  of  partnership  and 
does  not  rescind  it,  and  advances  money  as  part  of  the  capital  of  the 
concern,  he  has  not  parted  with  his  money  within  the  meaning  of  the 
statute ;  because,  being  a  partner,  he  is  still  interested  in  that  money. 
Whether,  in  this  case,  Mr.  Irving  might  or  might  not  have  resoinded 
this  partnership  is  another  q  lestion ;  but  instead  of  doing  so,  he  treated 
it  as  an  existing  partnership,  advanced  money  as  part  of  the  capital, 
and  afterwards  endeavored  to  dispose  of  his  interest  in  the  concern. 

EiiLE,  J.  I  concur  in  the  opinion  expressed,  and  on  the  same 
grounds,  I  am  obliged  to  conclude,  upon  the  evidence  before  us,  that 
there  was  a  real  partnership,  which  was  assented  to  for  some  time  by  the 
prosecutor.  I  am  not  aware  of  any  cases  in  which  it  is  held  that 
money  advanced  to  a  concern  by  one  of  the  partners  in  it  can  be  treated 


304 


FRAUD   AND    FALSE   PUETENSES. 


as  money  obtainocl  by  anotlier  partner  by  false  pretenses.  I  wish  to 
guard  myself  against  the  notion,  that  in  no  case  of  a  partnership  ob- 
tiiincd  by  fraud  and  money  advanced,  as  where,  for  instance,  the  whole 
thing  was  a  pretense  and  tlic  party  always  intended  to  obtain  and  appro- 
priate the  money,  an  indictment  under  the  statute  might  not  lie;  and 
on  the  other  hand,  I  would  guard  myself  against  being  supposed  to  say 
tiiat  such  an  indictment  coidd  be  sustained  upon  mere  exaggerated 
rei)resentations  as  to  the  profits  of  a  concern.  I  am  aware  of  the  dilli- 
cidty  of  dr.awing  the  line ;  but,  at  all  events,  in  this  case  there  was  no 
obtaining  of  the  money,  within  tiie  meaning  of  the  statute. 

Williams,  J.  I  am  of  the  same  opinion.  The  only  point  of  law 
reserved  for  our  consideration  is,  whether  in  every  possible  and  conceiv- 
able view  of  the  evidence  by  the  jury,  they  were  bound  to  return  a  ver- 
dict of  guilty,  and  I  think  tiiey  were  not. 

CiiOMi'TON,  .1.  I  quite  agree  with  my  brother  Williams,  that  the 
question  put  to  us  is  as  he  has  stated  it.  No  doubt  other  questions 
might  have  been  raised  in  this  case,  but  tiie  direction  to  the  jury  was, 
that  if  they  JRlieved  the  eviilencc  of  Irving  they  must  (in  d  the  prisoner 
guilty.  There  were  grave  matters  whicii  might  have  been  submitted  to 
the  jury.  They  might  have  been  asked  wliether  the  defendant  carried 
on  any  real  trade  ;  but,  if  the  whole  story  of  the  trade  was  not  a  fiction, 
I  sliould  be  strongly  inclined  to  tliink  a  mere  misrepresentation  as  to 
the  number  of  barrels  of  beer  sold  would  not  l)c  within  the  statute. 

CiiANNKLL,  B.  I  also  think  that  this  conviction  can  not  be  sustained. 
There  was  evidence  to  sliow  that  there  was  a  partnership,  not  repudi- 
ated l)ut  affirmed.  Assuming  there  to  be  a  partnership,  the  money  was 
paid  as  part  of  the  capital. 

Conviction  quashed. 


INDICTABLE  FRAUDS  AT  COMMON  LAW. 

PEorLE  V.  Babcock. 


[7  Johns.  -'01;  5  Am.  Dec.  25G..] 
In  the  Supreme  Court  of  Neiv  York,  1810. 

1.  A  Cheat  or  Fraud  to  be  an  Indictable  offense  at  common  law  must  be  such  as  would 

affect  the  public  ;  such  a  deciption  that  common  pruUence  can  not  puard  ag.linst,  as  by 
using  false  weights  and  measures  or  false  tokens  ar  wliere  there  is  a  <'on8pirttcy  to  cheat. 

2.  No  Indictment  will  lie  where  one  obtained  a  release  of  a  judgment,  falsely  pretending 

he  had  ability  to  discharge  it. 

Indictment  for  a  cheat,  setting  forth  that  Babcock  did  falsely,  fraud- 
ulently  and  deceitfully  and  by  false  acts,  colors,  and  pretenses,  obtain, 


PKOl'LK    r.   UABCOCK. 


305 


tenses.  I  wish  to 
a  partnership  ob- 
istance,  the  whole 
obtain  and  appio- 
liirht  not  lie  ;  and 
1^  supposed  to  say 
mere  exaggerated 
iware  of  the  dilli- 
case  there  was  no 
itute. 

3nly  point  of  law 
ssible  and  conceiv- 
id  to  return  a  ver- 

ILLIAMS,  that  the 
t>t  other  questions 
n  to  the  jury  was, 
st  find  the  prisoner 
l)eon  submitted  to 
defendant  carried 
e  was  not  a  fiction, 
l)icsentation  as  to 
bin  the  statute. 
11  not  be  sustained, 
ership,  not  repudi- 
lip,  the  money  was 

nviction  quashed. 


.AW. 


'SIO. 

iw  must  be  such  as  would 
11  not  puard  ag.iinst,  as  by 
e  i.s  a  ('ouspiracy  to  cheat, 
gmeiit,  falsely  protending 


li  did  falsely,  fraud- 
id  pretenses,  obtain, 


acquire  and  get  into  liis  possession  from  one  K.  llrown,  the  partner  of 
I.  Dickinson,  a  receipt  and  full  disciiarge  of  judgment  obtained  by 
lirowu  and  Dickinson  against  Babcociv,  under  color  and  pretense  that  he 
wdukl  ])ay  a  sum  of  nione}'  on  such  judgment  and  give  his  note  for  the 
residue,  with  intent  to  deceive  and  defraud,  etc.  The  defendant  was 
convicted. 

Gold  moved  in  arrest  of  judgment  on  the  ground  that  the  offense  Wiis 
nut  indictable  at  common  law.' 

Fa»i  Fec/iieu,  Attorney-General,  and  JV.  Williams,  contra,  contended 
that  indictments  iu  cases  like  the  present  were  to  be  found;-'  that 
cheating  was  classed  among  offenses  against  public  trade;''  and  tliat 
an  indictment  has  been  held  to  lie  for  tearing  an  account  after  it  had 
been  signed  and  settled ;  ■•  also  for  selling  wine  as  Lisbon  wine,  when 
il  was  not.  5 

By  Tin:  Court.  Lord  Kenyon  said  that  the  case  of  King  v.  Wheatley,''' 
established  the  true  boundary  between  frauds  that  were  and  tliose  that 
were  not  indictable  at  common  law.  That  case  recpiircd  such  a  fraud  as 
would  aff"ct  the  public ;  such  a  deception  that  common  prudence  and 
caic  were  not  suflicient  to  guard  against,  as  the  using  of  false  weights 
and  measures,  or  false  tokens  or  where  thei-e  was  a  conspiracy  to  cheat. 
Thus  in  the  case  of  Jones,'' who  obtained  money  of  A.  i)retending  to 
hiive  a  command  from  B. ,  whereas  B. ,  did  not  send  him ;  Init  as  he  camo 
with  no  false  token,  it  was  held  not  to  be  indictable.  The  offense  was 
nothing  more  than  telling  a  lie.  So  in  the  case  of  King  v.  Lam,^  the 
defendant  got  possession  of  certain  lottery  tickets  the  property  of  A. 
pretending  that  he  wanted  to  purchase  them,  and  he  delivered  to  A.,  a 
fictitious  order  on  a  banker,  knowing  that  he  had  no  autliority  to  diiiw 
it,  by  means  of  which  he  got  possession  of  the  lottery  tickets.  On  the 
urgumcnt  in  arrest  of  juilgment,  it  Avas  admitted  as  this  was  a  fraud 
upon  a  private  individual,  the  prosecutor  must  show  that  the  fraud  was 
affected  by  means  of  a  false  token,  as  well  as  of  a  false  pretense,  and 
one  of  such  n  nature  as  that  ordinary  prudence  could  not  guai-d  against 
it.  The  counsel  for  the  Crown  contended  that  the  false  pretense  was 
the  alleged  wish  to  purchase,  and  the  false  token  was  the  order.  But 
tiic  court  said  that  tliere  was  no  false  token  ;  that  it  would  be  ridiculous 
to  call  the  check  a  false  token,  and  that  all  depended  upon  the  credit 
due  to  the  defendant's  assertion,  and  the  judgment  was  arrested. 


1  King  V.  Wheatley,2  Burr.  IIM;  Rex  v. 

Voung,  3  T.  R.  lot ;  (>  Mod.  42 ;  Say.  H(i ;  1 
Kast,  1S.5;  2  Str.  806;  G  L.  R.  565;  2  Kast's  C. 
L.  fliJ.S34. 

-  Hawk.  P.  C,  ch.  71,  p.  I;  King  i\  Jones, 
1 1.cach,  Ifil. 

3   DlU-'KXCKS. 


'  4  Bla.  Com.  157;  4  Com.  Dig.   'trA;  Jus- 
tices B.  32,  3:i;  Comb.  16. 

*  Queen  v.  Crisp,  ti  Mod.  IT.'i. 

^  Queen  t'.  Mackcrty,  2  Ld.  Raym.  1179. 
1  2  Burr.  1125. 

•  1  Salk.  37!). 
'  (!  T.  R.  ol!5. 


-'0 


—        I" 


3()(; 


lltAUD   AND    FALSK   VKKTKNrtKS. 


In  the  present  case  we  search  in  vain  for  the  false  token.  There  .va. 
ncthin.r  beyond  the  defendant's  false  assertion  tliat  ho  was  ready  to  puy 
the  ind-nnent.  Tliere  was  not  even  the  production  of  either  note  or 
n^ou.'V,  and  common  prndence  would  have  dictated  the  withholduig  o 
the  receipt  until  the  money  was  paid  and  the  note  drawn.  To  support 
this  indictment  would  be  to  overset  established  prmcirles. 

The  iud"ment  must,  therefore,  be  arrested. 

°  Juclgment  arrested. 


INDICTABLE    FRAUDS-NKW    YoKK    STATUTE-FALSE   PRETENSES. 

Ka\ni.v  r.  Pkople. 

[•.'•-•  N.  Y.  4U.] 
In  the  Court  of  Appeals  of  New  Tnrk,  ISGO. 

1.  under  the  Ac.  of  1863,.  no  other  frau,..  ..o  ,.unish.mo.  than  Buci.  H«  are  in.Uctatle 
at  co>n.n..n  la«-,  wiU,  U.e  single  c^copUon  of  u.ock  ttu.au,n». 

^^.   ,    .  ,TW„„„„i,vifil8L>  representation,  ossentiaUypromiBBory  in  its  iiatmc, 

'■  r.X  im'^r^'^r.rof  ;:e;;:.r::a'nce.  iB  not  i„.UctabIe  unUer  tUo  statute  oi  ,aUe 

pretenses.- 

AVrit  of  error  to  the  general  term  of  the  Supreme  Court,  m  the  first 
district,  where  a  conviction  of  the  plaintiff  in  error  in  the  ^ew  ^rk 
General  Sessions  upon  an  indictment  for  a  fraud,  had  been  affirmed. 

The  indictment  charged  that  the  defendant  obtained  from  one  John 
Hock  the  sum  of  one  hundred  dollars,  by  fal.oly  pretending  that  he  would 
.ive  him  certain  employment  in  the  City  of  New  York  and  the  State  of 
New  Jersey;  and  averred  that  the  defendant  had  no  intention  of  em- 
ploying  Hook  or  of  paying  him  the  stipulated  wages. 

The  court  charged  the  jury  that  the  prisoner  was  not  guilty  of 
the  offense  of  obtaining  money  by  false  pretenses,  but  that  if  they  be- 
lieved  he  had  obtained  the  prosecutor's  money  by  a  gross  cheat  or  fraud 
he  mi-ht  be  convicted  under  the  act  of  1853.  The  prisoner's  counsel 
excepred  to  the  latter  part  of  the  charge,  and  the  conviction  having  been 
affirmed  by  tiie  Supreme  Court  the  defendant  sued  out  this  writ. 
Brady,  for  the  plaintiff  in  error. 
iied(mk^k,fovtheTco\^\e. 

CoMSTOCK  C.  J.  The  offense  charged  consisted  in  a  false  represen- 
tation made  by  the  prisoner  to  Hock,  that  he  could  give  to  him  a  certain 
emplovment,  and  in  a  false  and  fraudulent  promise  that  he  would  em- 
ploy him  and  pay  him  fifty  dollars  a  month  for  his  sei-vices  Hock. 
believmcr  the  representation  and  relying  on  the  promise  deposited  SlOO 


1  ch.  ];w. 


2  2  Ilev.  Slats.  CiT 


RANNEY   V.  PKOl'LE. 


307 


token.  There  wa-; 
10  was  ready  to  puy 
111  of  either  nolo  or 
[  tlie  withholding  of 
Irawn.  To  sui^port 
cirles. 

udgmeid  arrested. 


JALSE   PRETENSES. 


ISGO. 

lau  siirli  iis  are  indlctatle 

ly  pvomiBBory  in  its  iialuic, 
under  tlio  statute  of  false 

me  Court,  in  the  first 
ror,  in  the  New  York 
had  been  affirmed, 
aiut'd  from  one  John 
itending  that  he  would 
York  and  the  State  of 
id  no  intention  of  em- 
;s. 

r  was  not  guilty  of 
's,  but  that  if  they  he- 
a  gross  cheat  or  fraud 
Che  prisoner's  counsel 
onviction  having  been 
\  out  this  writ. 


od  in  a  false  reprcsen- 
l  give  to  him  a  certain 
nise  that  he  would  em- 
ir his  services.  Hock, 
)romi3e  deposited  SlOO 

5.  CTT. 


as  a  security  on  his  part  for  the  faithful  performance  of  the  contract. 
The  <iui'stioii  is  wiiether  the  prisoner  obtained  tliis  money  by  means 
which  are  denounced  and  punislied  l)y  tho  criminal  law. 

It  is  conceded  that  such  a  clieat  as  this  was  not  indictable  at  the  com- 
mon Uiw  because  no  false  tokens  were  used  and  because  tho  fraud  in 
respect  to  the  instrumentality  by  wiiich  it  was  accomplislied  had  no 
special  reference  to  tiie  public  interest.  Tlie  transaction  Avas  simply  a 
piivate  cheat  without  a  conspiracy  and  liaving  certainly  no cxtraordi- 
naiy  circumstances  of  art  or  contrivance.' 

But  the  offenses  belonging  to  this  general  class  wl;ic!i  are  punishable 
criminally,  have  been  considerably  extended  by  legislation,  both  in  En- 
glund  and  this  country.  Tlie  English  statute  of  30  George  II., ^  intro- 
duces a  new  rule  by  declaring  that,  if  any  person  shall  knowingly  and 
designedly  by  false  in-ctense,  obtain  any  money,  goods  or  chatteh,  etc. , 
with  intent  to  cheat  or  defraud  any  person,  he  shall  be  punished,  etc. 
This  statute  was  repealed  ;  but  the  act  of  7  and  8  George  IV.  ,^  which  is 
now  the  law  of  England,  provided  in  similar  language,  that  "  if  any  person 
shall  by  any  false  pretense,  obtain  from  any  other  p'^.suu  any  chattels, 
money  or  valuable  security,  with  intent  to  cheat  or  defraud  any  per- 
son of  the  same,  such  person  shall  be  guilty  of  a  misdemeanor"  and 
punished  as  therein  required. 

The  language  of  the  statute  of  George  II.  was  transcribed  into  the  crim- 
iual  code  of  this  State  at  an  early  day.""  In  the  revision  of  1830,  the 
moans  by  which  criminal  cheats  and  frauds  can  be  perpetrated  are  dc- 
bcrihed  in  the  words  "by  color  of  any  false  token  or  writing  or  by  any 
otlier  false  pretense,"  and  the  offense  is  raised  to  the  grade  of  a  felony, 
by  declaring  that  the  offender  may  be  punished  by  imprisonment  in  a 
State  prison. 5 

We  come  next  to  the  act  of  1853  "to  punish  gross  frauds  and  to  sup- 
press mock  auctions.""  From  the  preamble  of  this  act  it  is  evident 
that  the  suppression  of  mock  auctions  in  the  city  of  New  York  was  the 
object  chiefly  aimed  at.''  But  in  the  enacting  part  it  is  made  a  criminal 
offense  to  obtain  money  or  property,  not  only  by  that  particular  instru- 
mentality but  by  "any  other  gross  fraud  or  cheat,  at  common  law  ;" 
and  the  punishment  prescribed  is  imprisonment  in  the  State  prison,  or  in 
the  county  jail  orbyafine  notexceeding  $1,000.  Under  this  statute  it 
i3  claimed  that  the  indictment  and  conviction  in  the  present  case  can  be 
sustained. 

But  putting  aside  such  frauds  and  cheats  as  are  consummated  by 
means  of  mock  auctions,  we  tiiink  the  act  of  18"»;5  has  not  created  any 


1  People  i».  Babcock,  7  Johns.  201 1  Uex  v. 
Wheatley,  2  Burr.  1125;  Rex  v.  Lara,  6  T.  U. 

•!  ch.  24. 

3  ell.  229,  sec.  B3. 


«  1  R.  L.  410. 

'  2  Rev.  Stats.  677;  Id.  702,  sec.  30. 

•  Laws  of  1853,  ell.  163. 

'  sec.  2. 


•M)H 


FKAUD   AM)   I'ALSK   I'KETKNSKS. 


new  offense.  In  tlic  previous  legislation  of  Knglnnd  and  this  State, 
the  words  "fsilse  pretense,"  were  used,  as  descrii)tivc  of  iiidictaliK! 
cheats ;  the  nature  of  the  pretense  has  never  Jx'en  delined  by  the  law- 
making power,  cxeept  that  it  nnist  be  false.  We  suppose,  and  so  it  li;is 
been  often  held,  that  it  may  ineludc  any  artfully  contrived  misrepresen- 
tatioii  or  falsehood,  altliough  no  false  tokens  are  useu,  and  altiiougli 
the  cheat,  is  not  of  a  kind  which  affects  the  public  at  large.  In  the  act, 
of  lsr>;}  the  descriptive  words  are,  '•  other  gross  fraud  or  cheat  at  com- 
mon law."  There  is  some  reason  for  saying  that  these  words  inchule 
only  such  frauds  and  cheats  as  were  indictable  at  common  law;  ami 
this  construction  is  i)referal)lc  to  one  which  would  indiscriminately  con- 
vert  into  crime  every  fraudulent  dealing  or  practice  which  might  be  a 
cause  of  action  for  damages  in  the  civil  courts. 

If  we  were  to  adopt  that  construction,  then  a  fraudulent  warranty  in 
a  horse  trade  would  be  a  felony,  and  the  offender  might  be  punished 
In  the  State  prison.     The  cheat,  it  is  true,  must  be  a  "gross"  one; 
but  that  term  suggests  no  legal  standard  or  test.     One  court  and  jury 
might  think  the  fraudulent  representation  to  be  slight  and  venial,  and 
another  might  consider  it  gross  or  criminal ;  there  would  be  no  certainty 
or  rule  in  the  administration  of  the  law.     Even  a  mere  suppression  of 
the  truth  may  be,  in  many  circumstances,  a  very  gross  fraud,  according 
to  a  popular  acceptation  of  those  terms,  yet  we  can  not  suppose  that 
the  Legislature  intended  it  should  be  indicted  and  punished  as  a  crime. 
Great  insecurity  to  the  citizen  would  be  the  result  of  such  a  construc- 
tion, and  we  must,  therefore,  look  for  a  milder  one.     If,  besides  the 
main  purpose  of  the  act,  which  was  to  punish  and  suppress  mock  auc- 
tions, we  do  not  contine  its  operations  to  sucli  other  frauds  as  were 
indictable  at  common  law,  we  certainly  ought  not,  in  the  absence  of  a 
plain  expression  of  the  legislative  will,  to  give  it  a  broader  scope  than 
the  courts  have  allowed  to  previous  statutes,  which  punished  as  crimi- 
nal certain  frauds  under  the  name  of  false  pretenses.     If  it  may  be 
thought  an  objection  to  this  view,  that  the  Legislature   would  not 
re-enact  in  substance  what  had  already  been  enacted,  the  answer  is  that 
statutes  are  not  unfrcquently  passed  containing  such  provisions.     It 
is  only  too  true  that  laws  are  often  enacted  without  attending  to  the  ex- 
isting rule  on  the  subject  to  which  they  relate.     In  respect  to  the  act  of 
18rj3,  it  may  be  further  observed  that  the  punishment  provided  is  quite 
different  from  that  prescribed  in  the  previous  statute  of  1830.     "NVe 
may,  therefore,  impute  an  intelligible  purpose  to  the  Legislature,  with- 
out  supposing  that  anything  new  was  intended  in  the  definition  of  the 

crime. 

Assuming,  then,  as  we  do,  that  false  pretenses  in  former  statutes 
or  gross  fraud  or  cheat,  in  the  more  recent  act,  mean  essentially  the 


i 


t 


8TATK   V.  Sl'MNKU. 


309 


d  ami  this  Stale, 
live  of  iiidicUihlo 
(■liiied  by  tlic  l;i\v- 
[)()so,  and  so  it  ii;is 
rived  iniarcprt'soii- 
scti,  and  altiioimli 
larsrc.  In  tlio  net, 
d  or  cheat  at  coin- 
liese  worda  iuchidi! 
common  law ;  and 
[liscriminatoly  coa- 
!  which  might  be  a 

dulent  warranty  in 
uight  be  puniiihod 
!  a  "  gross"  one; 
)no  court  and  jury 
ht  and  venial,  and 
)uld  be  no  certainty 
uere  suppression  of 
ss  fraud,  according 
a  not  suppose  that 
imished  as  a  crime. 
)f  such  a  construc- 
e.     If,  besides  the 
suppress  mock  auc- 
her  frauds  aa  were 
in  the  absence  of  a 
broader  scope  than 
punished  as  crinii- 
ises.     If  it  may  be 
islature  would  not 
I,  the  answer  is  that 
iuch  provisions.     It 
attending  to  the  ex- 
respect  to  the  act  of 
nt  provided  is  quite 
itute  of  1830.     "NVe 
le  Legislature,  with- 
the  definition  of  the 

in  former  statutes 
uean  essentially  the 


same  thing  —  or,  certainly  that  there  is  no  difference  which  is  favorable 
to  tiic  indictment  in  this  case  —  can  the  judgment  bo  sustained?  We 
thinii  it  can  not.  Tiicre  are  numerous  cases  in  the  books  of  indict* 
mtuts  inider  the  statutes  against  fraud  by  false  pretenses,  And  they 
are  not  all  agreed  in  principle  or  result,  but  I  think  there  are  none 
which  sustain  this  indictment.  Some  of  them  seem  to  recpiire  more, 
and  others  less  of  art  or  contrivance  in  tlio  means  of  accomplishing  tlie 
fraud ;  but  according  to  all  of  them  there  must  be  at  least  a  direct  and 
positive  false  assertion  as  to  some  existing  matter  by  which  the  victim 
is  induced  to  part  witli  his  money  or  property. 

In  this  case  the  material  thing  was  the  promise  of  the  accused  to 
employ  the  person  defrauded  and  to  pay  him  for  his  services.  There  was 
a  statement,  it  is  true,  that  the  prisoner  had  employment  which  he  could 
;;ivc  to  Hock,  but  this  was  obviously  of  no  imi)ortanco  without  the  con- 
tract wliich  was  made.  Tlio  false  representation  complained  of  was, 
therefore,  essentially  promissory  in  its  nature,  and  tliis  has  never  been 
held  to  be  the  foundation  of  a  ci'iminal  charge.  Undoubtedly  tlie  ac- 
cused, in  performance  of  his  contract,  could  have  taken  Hock  into  his 
employment,  even  if  he  liad  nothing  for  him  to  do  at  tlie  time  the  con- 
tract was  made,  but  tliis  he  did  not  do  and  doubtless  never  intended  to 
do.  In  morals,  the  imposition  was  gross  and  detestable  ;  but  in  logic 
and  law  the  offense  consisted  in  making  a  false  and  delusive  promise, 
witii  no  intention  of  performing  it ;  this  is  not  indictable.  The  judg- 
ment should  be  reversed  and  the  prisoner  discharged. 

Ordered  accordingly. 


FALSE    PRETENSES— NOT    INDICTABLE    AS    "OTHER    FRAUDULENT, 
SWINDLING  OR  DECEITFUL  PRACTICES." 

State  r.  Sumneu. 

[10  Vt.  587;  33  Am.  Dec.  219. J 
In  the  Supreme  Court  of  Vermont,  1S3S. 

A  Person  Obtaining  Goods  of  Another  liy  false  aiici  fraudulent  declarations  roapecting 
liis  estate  and  circumstances,  is  not  indictublo. 

Information  filed  against  the  defendant  by  the  State's  attorney.  The 
defendant,  after  having  pleaded  guilty,  moved  in  arrest  of  judgment 
for  the  insuflSciency  of  the  information.  The  other  facts  sufficiently  ap- 
pear from  the  opinion. 

E.  L.  Ormsbee  and  M.  Stroiuj,  Jr.,  for  the  defendant. 

S.  Foot,  State  Attorney,  for  the  pro.sccution. 


;u() 


KKAUP    AM)    lAI.SK    I'KKTKNSKS. 


7Jv  Ihn  Court,  RoYOE,  J.     The  infonnalion  chargOH  in  sul.stmico  1ml 
tho  r  .s,.nn.U.nL,  by  cerluiu  false  an.l  f rau.luh.nt  dcoh.rat.ons,  rosix.cUng 
l\s,   ic  una  c.irou,n.lancos,  ohtaincd  tUo  incpcrly  of  one  Anthony 
with  intent  to  cU-fran.l  him  of  the  san.-,  and  the.iucsuon  is  ^vhcth.l  hucU 

1  .tionn  nuulo  >vilh«udnntc..tanaoi>oratingsuc.c.^ 
h  o  .nso  fur  .Inch  our  statnlo  provide,!.  It  .as  never  Hole.nn  y  dc 
.iaed  that  t;.o  assertion  of  a  bare  falsehood  occasiomng  ^'^-T  -- 
other  and  nuulc  ^vith  that  view,  fnrnished  the  grou..d  even  of  a  u  i 
:^U  n',ntil  the  ease  of  /^../e,  v.  Fre.nan.^  The  early  ^f^^^^^ 
United  tho  erinunal  offense  to  tho  u.o  of  false  okens,  but  that  of  30 
Geor.ro  II.  extended  it  to  false  pretenses,  un,l  under  th..  act  mere  false 
and  fnuiduli'nt  declarations  were  held  to  be  sullicient. 

By  the  thirtieth  section  of  our  statute  for  the  punishment  of  Ing 
crimes  and  misdemeanors,  the  offense  i.uinesliou  i.  described  in  the 
Xwin.'  terms:  "  That  if  any  person  shall  by  false  tokens   messages, 
^  "    or  by  other  fraudulent,  swindling  or  deceitful  l>r-t,ces   obta. 
or  pro  uro  from  a.,y  person  or  persons,  any  nuuiey,  goods  or  cha  tels, 
etV     As  the  offense   charged  upon  the   respondent  is   evidently  not 
;ithin  the  former  or  speeilic  part  of  this  cW^.tion,    the  ques  ion 
arises  upon  the  terms  "  other  fraudulent,  swindling  or  deceitf  d  i  la  - 
Ls."     From  the  impossibility  of  anticipating  every  device  which  ar 
and  wickedness  might  resort  to,  the  statute  has  P^-^y  "'^'l;'^  /^^^^^^^^ 
irencral  w<.rds.     And  for  this  reason  they  are  not  to  be  rejected,  though 
Lrt  of  a  hi.ddy  penal  statute.     It  is  the  duty  of  the  court  to  construe 
them      In  doin-  this,  it  must  be  remembered  that  penal  statutes  should 
b       list':;!;  briefly.     T^y  are  never  to  be  carried  beyoml  the  leUer 
for  the  purpose  of  effectuating  tho  supposed  intent ;  nor  beyond  the 
obvious  spirit  and  intention,  though  the  words  may  admit  of  amoreex- 
tended  construction.     Now,  we   find  these    «;^!'---"^.^";;;  I^^^^ 
immediate    cnm.ction    with   certain    acts,   which   are  described   and 
™ade  punishable  by  the  statute;  and  such  acts  constitute  fraudulent 
swindling  and  deceitful  practices  within  the  statute      Hence,  we  con 
sMer  tlmt  the  words  in  question  were  added  not  for  the  purpose  o 
e,d-u--in.v  the  definition  of  the  offense  from  positive  acts  to  mere  declara 
tionsrbia  from  the  dilllculty  of  extending  the  description  to  all  othe 
acts  or  practices  of  a  like  nature,  which  might  be  resorted  to  as  mean 
for  effecting  the  same  criminal  object.     Besides  a  well  known  d.sim 
tion  between  swindling  practices  and  swindling  pretenses  or  declan 
tions  had  been  made  and  long  settled  under  the  English  statutes,  ai 
had  the  Legislature  designed  to  abrogate  that  distinction,  they  woul 
doubtless  have  spoken  in  terms  more  clearly  adapted  to  such  purpose 

Judgment  arrested. 


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ITALSE  PRE 
RESENTi 


,  To  Convict 
tenses,  it  i 

signing  of  1 
raateriall)'  1 

,  Case  in  Jut 

thr  disclini 
prosccutioi 
proved.  Tl 
llnil  tlie  fal 
consider  tli 

1 3.  While  the 

elemunls  o 
uot  be  ans^ 

Error  to 

[department 

I  Oyer  and  'I 

I  upon  a  ven 

I  ing  the  slgi 

a  mortgage 

The  facti 

WiUimn. 

Benjanw 

Anduewi 

I  indictment 

j  with  his  pr 

l)y  reason  ( 

I  solely  by  v 

action.     Ir 

pretonsea  < 

tlie  defeml 

would  not 

[shown  by 

[direct  inte 

[proof  it  m 

{proved,   pi 


1  Reported 

2  People  V, 
|M6. 


THEUAS80N  V.  PEOPLE. 


311 


ITALSE  PRETENSES -PROSECUTOR   MUST  BE  INFLUENCED  BY  REP- 
RESENTATION—NO INFERENCE  OF  THIS  FROM  OTHER  FACTS. 

Thekasson  V.  People. 

[82  N.  Y.  238.] 
7*1  the  Court  of  Appeals  of  Neio  York,  ISSO. 

11  To  Convict  of  Obtaining  Money  or  a  Signature  to  »n  u   ligation  byFaUePra- 
"    tenses  il  imist  bo  ghowu  by  tl.e  proKocuti..!!  that  tlio  ..     t.     ■  with  tlio  i)ro|perly  or  the 

signii.g'of  tho  inBtruincnt  was  by  reason  of  the  false  p  jtonses  charged  or  that  Ihey 
materially  influenced  the  action  of  the  party  complaining. 

12  Case  In  Judgment.    On  the  trial  of  an  Indictment  for  obtaining  the  signature  of  7,.  to 
'    the  discharge  of  a  mortgage  by  false  pretenses,  Z.  was  examined  as  a  witness  for  tlia 

prosccuUon,  but  was  not  aslied  whether  she  was  induced  to  sign  by  tho  representations 
proved.  The  prisoner's  counsel  askod  the  conrt  to  charge  that  although  tlio  Jury  might 
«nil  tlie  false  pretenses  and  the  fraudulent  intent  as  charged,  yet  they  had  no  right  to 
consider  these  on  the  question  of  influence,  which  the  court  refused.  HeU,  error. 
Is  While  the  Falsity  of  tho  Pretense  and  tho  Fraudulent  Intent  arc  necessary 
elements  of  llio  crime,  the  question  whether  the  prosecutrix  was  iullucnced  by  thorn  cau 
not  be  answered  by  them. 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  first  juclicial 
department,  to  review  a  judgment  afllrming  a  judgment  of  the  court  of 
Oyer  and  Terminer  in  and  for  the  tit y  and  county  of  New  York  entered 
upon  a  verdict  convicting  tlie  plaintiff  in  error  of  the  crime  of  procur- 
ing' the  signature  of  one  Sarah  J.  Zabrisliie  to  a  satisfaction-piece  of 
\  a  mortgage  held  hy  her,  by  means  of  false  pretenses.^ 

The  facts  mateiial  to  the  questions  discussed  appear  in  the  opinion. 

WiUiam.  A.  Beorh,  for  plaintiff  in  error. 

Benjamin  K.  Phelps,  District  Attorney,  for  defendant  in  error. 

Andrews,  J.     In  order  to  justify  a  conviction  upon  the  trial  of  an 

indictment  for  false  pretenses  it  must  appear  that  the  prosecutor  parted 

I  with  his  property  or  signed  the  written  instrument,  as  the  case  may  be, 

l)y  reason  of  some  of  the  pretenses  laid  in  the  indictment,  or  if  not 

solely  by  reason  of  such  pretenses,  that  they  materially  induenced  his 

action.     In  the  absence  of  evidence  tliat  the  prosecutor  relied  upon  the 

[pretenses  charged,  the  essential  averment  in  such  an  indictment,  that 

jtlie  defendant  obtained  the  property  or  signature  by  means  thereof, 

would  not  be  supported.*    It  is  not  necessary  that  this  fact  should  be 

[shown  by  direct  proof.     It   is  indeed  competent  to  establish  it  by 

I  direct  interrogation  of  the  prosecutor,3  but  in  the  absence  of  direct 

|l)roof  it  may  be  inferred  by  the  jury  from  the  facts  and  circumstances 

Iprovcd,   provided  the  inference  could    legitimately  bo   drawn    there- 


iMii. 


1  Reported  below,  20  Hun,  55. 

'■i  I'uoiile  V.  llaynes,  11  Wend.  557;  U.  /(f. 


1  Voople  V,  Herrick,  l:i  Wend.  87. 


312 


FRAUD  AND  FALSE  PRETENSES. 


from.  If,  for  example,  upon  the  trial  of  an  indictment  against  a  vendee 
for  obtaining  goods  by  false  pretenses  it  should  appear  that  the  repre- 
sentation laid  in  the  indictment  was  made  when  the  goods  were  sold  and 
was  calculated  to  induce  the  sale,  the  jury  might  naturally  infer  that 
the  representation  was  a  materially  operating  and  inducing  motive 
thereto.  The  same  would  be  true  where  the  defendant  was  charged 
with  obtaining  the  signature  of  the  prosecutor  to  a  written  inptrument. 
Tlie  other  elements  of  the  offense  being  shown,  the  jury  might  reason- 
ably find  that  a  pretense  calculated  to  influence  the  prosecutor  did  in 
fact  influence  him,  where  the  act  of  signing  the  instrument  charged 
to  have  been  fraudulently  obtained  followed  proximately  the  making 
of  the  representation.  But  it  is  certainly  possible  that  in  the  cases  sup- 
posed, the  prosecutor  might  notwithstanding  have  acted  independently 
of  and  without  reliance  upon  the  representation.  It  is  quite  conceiv- 
able that  the  prosecutor  in  the  one  case  may  have  sold  the  goods  and 
in  the  other  h.ave  signed  the  instrument  for  reasons  wholly  disconnected 
with  the  false  pretense,  paying  no  regard  to  the  representation  and 
placing  no  reliance  thereon.  This  in  most  cases  would  be  an  unnatural 
inference;  but  if  special  facts  appeared  it  would  be  for  the  jury  to 
say,  whether  the  representation  was  an  efficient  operating  cause,  in- 
fluencing the  prosecutor's  action,  or  whether  he  acted  from  other  and 
wholly  disconnected  considerations. 

The  prosecutrix  in  tins  case  was  examined  on  the  tri&l  as  a  witness 
for  the  Teople,  but  was  not  asked  wliether  in  signing  the  satisfaction- 
piece,  she  relied  upon  the  statement  of  the  defendant  that  a  mortgage 
was  not  a  good  investment ;  but  the  character  of  the  representations 
proved  and  the  circumstances  under  which  the  satisfaction-piece  was 
executed,  would  have  fully  justified,  although  it  can  not  be  said  to 
have  required,  the  finding,  that  it  was  executed  in  reliance  upon  the 
representation,  and  that  question  was  submitted  to  the  jury. 

But  we  think  the  learned  trial  judge  committed  an  error  in  charging 
the  jury  upon  this  question  and  in  his  ruling  upon  tlie  request  of  the 
defendant's  counsel  in  respect  thereto.  The  judge,  after  explaining  to 
the  jury  the  otlier  elements  constituting  the  offense,  correctly  stated 
that  the  representation  made  should  not  only  be  false,  and  made  with 
intent  to  clieat  and  defraud,  but  that  it  should  be  a  materially  control- 
ling and  operating  cause  leading  to  the  act  of  the  pa;-ty  who  is  deceived 
and  that  it  was  not  necessary  that  the  prosecutrix  should  have  been 
asked  the  direct  question  whether  she  was  influenced  or  induced  to  sion 
the  satisfaction-piece  by  the  representation  proved,  and  that  in  the 
absence  of  such  a  direct  question  the  fact  might  be  found  by  the  jury  if 
the  surrounding  circumstances  justified  it.  The  judge  then  proceeded  as 
follows :     "  When  the  party  jitates  that  such  a  representation  was  made 


^i^ 


THEBA880N   V.  PEOPLE. 


313 


nst  a  vendee 
it  the  repre- 
ere  sold  and 
ly  infer  that 
eing  motive 
was  charged 
inptniment. 
light  reason* 
cutor  did  in 
ent  charged 
the  making 
le  cases  sup- 
depeudently 
lite  conceiv- 
3  goods  and 
lisconnected 
ntatioa  and 
m  unnatural 
the  jury  to 
g  cause,  in- 
Q  other  and 

as  a  witness 
satisfaction- 
a  mortgage 
resentations 
)n-piece  was 
t  be  said  to 
ce  upon  the 

in  charging 

quest  of  the 
xplaining  to 
rectly  stated 
,  made  with 
ally  control- 
» is  deceived 
d  have  been 
need  to  sign 
that  in  the 
y  the  jury  if 
)roeeeded  as 
)Q  was  made 


and  that  he  acted  upon  it  and  the  object  has  been  acomplished  and  the 
jury  see  as  a  result  that  he  was  cheated  and  defrauieJ,  and  they  find 
evidence  of  an  intent  to  cheat  and  defraud  and  that  the  representation 
made  was  false,  from  these  and  surrounding  circumstances  they  would 
be  justified  in  concluding  that  the  party  was  induced  to  act  upon  such 
representation." 

On  the  conclusion  of  the  charge  the  defendant's  counsel  stated  that 
he  understood  the  court  to  have  charged  that  in  determining  the  ques- 
tion whether  the  prosecutrix  relied  upon  the  alleged  or  proven  false  pie- 
tense  or  whether  it  exerted  a  material  influence  over  her  mind  the  jury 
were  at  liberty  to  consider,  upon  that  question,  the  evidence  showing  the 
fraudulent  f ntent  of  the  defendant,  and  he  thereupon  asked  the  court 
to  charge  "  that  although  the  jury  may  find  the  false  pretense  to  have 
been  made,  and  although  they  may  find  the  necessary  fraudulent  in- 
tent, that  in  determining  the  question  whether  the  pretense  exerted  a  ma- 
terial influence  over  the  mind  of  Mrs.  Zabriskie  they  have  no  right^o 
consider  the  question  or  the  evidence  as  to  the  fraudulent  intent  or  as 
to  the  false  representation."  The  judge  in  response  to  this  request 
said :  "I  charge  that  they  have  a  right  to  consider  all  the  evidence  in 
the  case  bearing  upon  the  subject  directly  or  indirectly."  The  defend- 
ant's counsel  excepted  to  the  refusal  of  the  court  to  charge  as  requested. 

We  think  the  exception  was  well  taken.  The  prosecutrix  could  not 
have  been  deceived  by  a  representation  which  she  at  the  time  knew  to 
be  false,  and  it  must  be  assumed  in  disposing  of  tlie  exception  (as  was 
doubtless  the  truth),  that  she  was  then  ignorant  of  the  falsity  of  the 
pretense  and  of  the  fraudulent  intent  of  the  defendant.  It  is  mani- 
festly impossible  that  the  fact  that  the  representation  was  false  or  that 
the  defendant  in  making  it  intended  to  cheat  and  defraud,  could  have 
influenced  the  conduct  of  the  prosecutrix.  Such  an  assumption  sup- 
poses knowledge  on  her  part,  which  if  it  existed,  would  have  entitled 
tlie  defendant  to  an  acquittal.  The  falsity  of  the  alleged  pretense  and 
the  fraudulent  intent  of  the  defendant  were  both  elements  in  the  crime, 
and  the  prosecution  was  bound  to  show  that  they  existed  in  the  case, 
but  the  question  whether  the  prosecutrix  was  influenced  by  the  repre- 
sentation was  a  distinct  one,  having  no  necessary  connection  with  the 
others,  and  proof  that  the  representation  was  false  to  the  knowledge  of 
the  defendant  reflected  no  light  upon  the  point  whether  the  prosecutrix 
acted  upon  it.  The  charge  was  susceptible  of  the  construction  placed 
upon  it  by  the  defendant's  counsel,  and  justified  his  request  to  the 
court.  The  answer  made  by  the  court  stated,  what  is  undoubtedly  the 
case,  that  all  legitimate  evidence  bearing  directly  or  indirectly  upon  a 
particular  fact  nay  be  considered  by  the  jury  in  determining  that  fact, 
but  it  did  not  meet  the  point  of  the  request  that  the  particular  facts  al- 


314 


FRAUD  AND  FALSE  rUETENSES. 


luded  to  were  irrelevant  to  the  inquiry  whether  the  prosecutrix  was 
deceived  by  the  representation  made.  Tlie  defendant  was  entitled  to 
the  explicit  instruction  of  the  court  upon  the  point  suggested. 

The  subsequent  statement  of  the  defendant's  counsel  can  not  be  con- 
strued as  an  abandonment  of  the  exception.  That  simply  called  the  at- 
tention of  the  court  to  the  claim  made  by  him,  that  in  the  absence  of 
direct  testimony  by  Mrs.  Zabriskie  that  she  was  influenced  by  the  repre- 
sentat'on,  that  fact  could  not  be  found  by  the  jury  from  the  other  evi- 
dence. This  claim  was  unfounded,  but  by  making  it,  the  defendant 
did  not  waive  the  exception  to  the  refusal  to  charge,  to  which  we  have 
referred.  For  this  error  the  judgment  and  conviction  should  be  re- 
versed and  it  is  unnecessary  to  consider  the  other  questions  the  case. 

All  concur,  except  Folgku,  C.  J.,  and  Rapallo,  J.,  not  voting;  Mil- 
ler, J. ,  concurring  in  result. 

Judgment  reversed. 


FALSE  PRETENSES -MONEY  OBTAINED  BY  PARTNER  FROM  I?IRM  BY 
WILLFUL  MISREPRESENTATIONS. 

K.  I'.  Evans. 

[9  Cox,  238.] 
In  the  English  Court  of  Criminal  Appeal,  1S62. 

A  Havinir  Invented  an  Improved  Laap,  entered  into  a  partnership  deed  wllh  B.  and 
C  for  carrying  out  and  vending  the  subject  of  the  invention.  By  a  subsequent  verbal 
agreement  with  his  copartners  he  was  to  travel  about  to  obtain  orders  for  the  lamps 
UDon  a  commission.  On  all  orders  received  by  him  such  --ommission  ibesides  his  travel^ 
ing  and  personal  expenses)  was  to  be  paid  u  him  as  soon  as  he  received  the  orders,  and 
to  be  payable  out  of  the  capital  funds  of  th.  irtnership  before  dividing  any  profits.  By 
falsely  representing  to  his  copartners  t  .  .  ho  had  obtained  orders  upon  which  his 
commission  would  bo  £12  lOs,  he  obtained  from  them  that  amount:  fl^eW,  that,  as  the 
subject-matter  of  the  misrepresentation  would  come  under  consideration  m  the  part 
nership  accounts,  such  misrepresentation  was  not  sufficient  to  sustain  an  indictment  for 
false  pretenses  against  A. 

Case  reserved  by  the  Recorder  of  Chester. 

The  prisoner,  Isaac  Marie  Evans,  was  tried  before  me  at  the  Quarter 
Sessions  for  the  city  and  borough  of  Chester,  held  on  the  4th  July, 
1862,  on  an  indictment  charging  him  with  having  unlawfully  obtained 
from  David  Williams  and  Henry  Wadkin  certain  sums  of  money  by 
falsely  pretending  to  them  that  he  had  obtained  an  order  from  the 
Wynn  Hall  Colliery  Company,  near  Ruabon,  for  the  sale  to  them  of  one 
hundred  patent  lamps  called  "  Miner's  Lamps,"  with  intent  to  defraud- 

It  appeared  in  evidence  that  the  prisoner  having  invented  an  im- 
proved lamp  for  the  use  of  miners,   on  the   16th  November,  1861, 


^^m 


K.  V.  EVANS. 


315 


rosecutrix  was 
was  entitled  to 
'Pted. 

3an  not  be  con- 
ly  called  the  at- 
tlie  absence  of 
d  bj"  the  repre- 
1  the  other  evi- 
the  defendant 
which  we  have 
should  be  re- 
ions  the  case, 
ot  voting ;  MiL- 

nent  reversed. 


FKOM  VntM  BY 


862. 

hip  deed  with  B.  and 
f  a  subsequent  verbal 
orders  tor  the  lamps 
)n  (besides  his  travel - 
:eived  the  orders,  and 
idlng  any  profits.  By 
rders  upon  which  his 
nt:  AeM,  that,  as  the 
[deration  in  the  part 
tain  an  indictment  for 


le  at  the  Quarter 
on  the  4th  July, 
lawfully  obtained 
ims  of  money  by 
n  order  from  the 
lie  to  them  of  one 
intent  to  defraud- 
;  invented  an  im- 
November,  1861, 


David  Williams,  Henry  Wadkin,  and  the  prisoner,  entered  into  part- 
iieisliip  together,  by  a  deed  which,  after  reciting  tiiat  the  prisoner 
claimed  to  be  the  inventor  of  an  improved  miner's  lamp,  and  had  ap- 
plied for  letters  patent  granting  to  him  the  sole  use,  benefit,  and  advan- 
tage of  t)  said  invention  within  tlie  United  Kingdom,  and  that  the 
prisoner,  Williams  and  Wadkins  had  agreed  to  become  partners  for  the 
jmrpose  of  worlting  the  said  patent,  and  bringing  the  said  invention  into 
use,  and  manufacturing  and  vending  the  said  improved  miner's  lamp, 
upon  the  terms  and  under  the  stipulations  thereinafter  mentioned,  wit- 
nessed that  it  was  thereby  agreed,  and  each  of  them  the  said  parties  did 
thereby  for  himself,  etc.,  covenant  with  the  others  of  them,  etc.,  in 
manner  following  (that  is  to  say,  amongst  other  things) :  — 

1.  That  the  said  Isaac  Mark  Evans,  David  Williams,  and  Henry 
Wadkin  shall  be  partners  in  the  trade  or  business  of  working  and  car- 
rying out  the  said  patent  and  bringing  the  said  invention  into  use,  and 
nianufactu.ing  and  vending  the  said  "  Improved  Miner's  Lamp,"  from 
the  day  of  the  date  of  these  presents  for  the  term  of  fourteen  years. 

2.  That  tlie  firm  or  style  of  the  said  partnership  sliall  be  Williams, 
Wadkin  and  Evans,  and  that  the  said  trade  or  business  shall  be  carried 
on  ill  such  place  of  business  as  the  said  partners  shall  from  time  to  time 
agree  upon. 

3.  That  the  said  I.  M.  Evans  shall  forthwith  take  all  necessary  and 
proper  steps  for  obtaining  the  said  letters  patent,  and  for  perfecting  and 
completing  the  said  invention. 

4.  That  tlie  expense  of  obtaining  the  said  letters  patent,  and  of  all 
drawings  and  models,  and  other  things  whicli  may  be  necessary  for 
liringing  the  same  and  the  said  invention  to  perfection,  shall  be  paid 
and  borne  by  the  said  partners  equally. 

5.  That  the  said  letters  patent,  as  soon  as  the  same  shall  be  obtained, 
shall  be  and  become  the  property  of  the  said  partners  in  equal 
shares.  ♦ 

6.  That  the  said  I.  M.  Evans  shall,  when  called  upon  by  the  said  D. 
Williams  and  H.  Wadkin  so  to  do,  and  at  the  cost  of  the  person  or  per- 
sons requiring  the  same,  by  a  proper  deed  and  assurance,  or  proper 
deeds  and  assurance^  well  and  effectually  assign  one  equal  and  undi- 
vided third  part  or  share  of  the  said  letters  patent,  and  the  rights  and 
privileges  thereby  granted,  to  the  said  E.  Williams,  his  executors, 
administrators,  and  assigns,  and  one  other  equal,  undivided  third  part 
or  share  thereof  unto  the  said  H.  Wadkin,  his  executors,  administra- 
tors and  assigns. 

7.  That  the  capital  of  the  said  partnership  shall  consist  of  the  sum  of 
^300,  and  that  the  same  sum  of  £.300  shall  be  advanced  and  lent  to  the 
said  copartnership  by  the  said  D.  Williams  and  II.  Wadkin,  in  equal 


liiiWiiiiiii 


316 


FRAUD   AND   FALSE   PRETENSES. 


shares,  in  such  sums  as  may  from  time  \fi  tune  be  required  for  carry- 
ing on  the  said  trade  or  business. 

8.  That  the  said  sum  of  £300,  together  with  interest  thereon  at  the 
rate  of  five  per  cent  per  annum,  from  the  time  tlie  money  is  advanced 
until  the  same  is  repaid,  shall  be  repaid  to  the  said  D.  Williams  and  H. 
Wadkin  out  of  the  first  profits  to  arise  from  the  said  trade  or  business 
before  any  profits  ure  divided  between  the  said  copartners. 

9.  That  the  said  sum  of  £300  is  not  to  include  the  sums  expended  or 
incurred  in  obtaining  the  said  letters  patent,  or  of  the  drawings,  models, 
and  other  things  which  maybe  necessary  for  V  inging  the  said  invention 
to  perfection,  but  that  the  sums  so  expended  and  paid  by  the  parties 
hereto  in  the  shares  mentioned  in  the  fourth  paragraph  of  these  pres- 
ents shall  not  be  repaid  to  them,  or  any  of  them,  out  of  the  capital  or 
profits  of  the  said  copartnership. 

14.  That  the  net  profits,  after  the  payment  thereout  of  all  costs  and 
expenses,  and  after  payment  of  the  said  sum  of  £300,  shall  be  received 
by  the  partners  equally. 

After  the  execution  of  the  deed,  Williams  and  Wadkin  advanced  the 
prisoner  money  to  pay  the  expenses  of  going  to  London  in  order  to  ex- 
hibit the  lamp,  and  of  obtaining  the  patent.  After  he  returned,  he  on 
several  occasions  obtained  from  them  further  advances  of  money  until 
at  length,  in  February,  18G2,  they  refused  to  give  him  any  more  money 
unless  he  agreed  to  go  out  as  an  agent  to  sell  the  lamps  on  commission. 
A  verbal  agreement  was  thereupon  made  between  Williams,  Wadkin, 
and  the  prisoner  that  the  prisoner  should  travel  about  the  country  to 
obtain  orders  for  the  lamps  upon  the  terms  tliat  Williams  and  Wadkin 
should  pay  him  a  commission  of  fifteen  per  cent  on  all  orders  received 
by  him ;  that  is  to  say,  2s  6d  on  each  lamp,  ti .  price  of  the  lamp  being 
15s,  besides  his  traveling  and  personal  expenses,  such  commission  to  be 
paid  to  him  as  soon  as  he  received  the  orders,  and  to  be  payable  out  of 
the  capital  funds  of  the  partnership  before  dividing  any  profits. 

On  the  14th  of  March,  18G2,  the  prisoner  came  to  Williams  and 
Wadkin  and  stated  that  he  had  got  an  order  from  the  Wynn  Hall  Col- 
liery Company,  near  Ruabon,  for  one  hundred  lamps,  to  be  made  in  a 
month,  and  paid  for  in  a  month  after  delivery. 

In  the  faith  that  this  statement  was  true,  Williams  and  Wadkin  gave 
the  prisoner  several  sums  of  money,  amounting  in  all  to  the  sum  of  £12 
10s,  the  commission  which  would  be  due  to  him  under  the  agreement 
above  mentioned  on  the  sale  of  one  hundred  lamps. 

No  such  order,  nor  any  order,  except  for  one  specimen  lamp,  had  in 
fact  been  given  by  the  Wynn  Hall  Colliery  Company  to  the  prisoner. 

It  was  objected  for  the  prisoner  that  the  indictment  could  not  be  sus- 
tained, on  the  ground  that  the  money  obtained  by  him  from  Williams  and 


^* 


R.  V.  EVAN8. 


817 


luired  for  carry- 
it  thereon  at  the 
)ney  is  advanced 
WilliaitiS  and  H. 
trade  or  business 
tiers. 

ums  expended  or 
irawings,  models, 
he  said  invention 
id  by  the  parties 
^h  of  these  pres- 
of  the  capital  or 

of  all  costs  and 
shall  be  received 

Ikin  advanced  the 
on  in  order  to  ex* 
e  returned,  he  on 
es  of  money  until 

any  more  money 
)3  on  commission, 
filliaras,  Wadkin, 
•ut  the  country  to 
ams  and  Wadkin 
ill  orders  received 
of  the  lump  being 

commission  to  be 
be  pa,yable  out  of 
lUy  profits. 

to  Williams  and 
'.  Wynn  Hall  Col- 
s,  to  be  made  in  a 

and  Wadkin  gave 
to  the  sum  of  £12 
der  the  agreement 

imen  lamp,  had  in 
to  the  prisoner, 
t  could  not  be  sus- 
f rom  Williams  and 


Wadkin  was  money  in  which  he  was  interested  as  a  partner,  under  the 
provisions  of  the  deed  of  partnership;  and  further,  that  the  Iqient  to 
defraud  was  negatived  by  the  fact  that  the  money  payable  to  tbo  pris- 
oner for  commission  came  out  of  the  partnership  funds. 

I  reserved  the  questions  for  the  consideration  of  the  Court  for  Crown 
Cases  Reserved,  and  left  it  to  the  jury  to  say  whether  the  prisomr 
obtained  tlie  money  by  means  of  the  false  statement  made  by  him  with 
intent  to  defraud. 

The  jury  found  the  prisoner  guilty,  and  I  respited  the  judgment, 
ac'mitting  the  prisoner  to  bail. 

Tlie  question  upon  which  I  respectfully  request  the  decision  of  the 
court  is,  whether  the  prisoner  was  entitled  to  be  acquitted  on  either  of 
the  grounds  above  stated. 

No  counsel  appeared  on  either  side. 

Pollock,  C.  B.  The  facts  in  this  case  appear  to  be  that  the  defend- 
ant entered  into  partnership  with  two  other  persons,  and  by  a  verbal 
agreement,  made  subsequently,  tliey  agreed  to  make  him  an  agent  for  a 
particular  purpose  connected  with  the  business  of  the  partnership,  as  to 
which  his  commission,  traveling,  and  personal  expenses  were  to  be  paid 
out  of  the  partnership  funds  before  any  division  of  the  profits  took 
place.  The  indictment  was  for  obtaining  money  by  false  pretenses,  in 
respect  of  charges  for  which  there  was  no  foundation.  As,  before  any 
division  of  the  profits  took  place,  it  was  sp*:!cifically  a2,Teed  that  such 
charges  were  to  be  paid  out  of  the  capital  funds  of  the  partnership,  it 
was  necessarily  a  matter  of  account  between  them,  and  such  charges 
would,  if  there  was  a  real  foundation  for  them,  come  into  the  accounts 
and  be  deducted  from  the  profits  before  any  division  was  made.  The 
defendant's  misrepresentation  (and  it  was  nothing  more)  to  his  part- 
ners would  be  overhauled  when  the  accounts  were  gone  into,  and  there- 
fore we  think  that  the  defendant  was  not  guilty  of  obtaining  money  by 
false  pretenses.  I,  speaking  for  myself,  and  I  beg  to  say  that  no  other 
member  of  the  court  is  responsible  for  this  opinion,  —  entertain  a  con- 
fident opinion  that  the  statute  was  never  intended  to  meddle  with  the 
real  business  of  commerce,  unless  the  falseiiood  really  amounted  to  a 
piece  of  swindling ;  but  when  it  was  a  mere  fraudulent  statement  made 
in  the  course  of  a  commercial  transaction,  it  was  never  intended  to  visit 
it  with  an  indictment.  I  wish  to  express  my  own  opinion  on  this  point 
very  strongly,  because  I  think  that  a  departure  from  the  rule  would 
make  every  knavish  transaction  in  commercial  matters  the  subject  of 
indictment,  which  would  be  going  far  beyond  what  was  intended  by  the 
Legislature  when  obtaining  money  by  false  pretenses  was  made  punish- 
ishable  by  indictment. 

The  rest  of  the  court  concurring. 

Conviction  quashed. 


318 


FKAUU   AND   U'ALSE   I'ltETENSES. 


MONEY  —  "  FALSE  ,  OR 


FALSE      PRETENSES  —  OBTAINING 

checks  "  —  confidence  game 
Pierce  v.  People. 


BOGUS 


[81  111.  98.] 
In  the  Supreme  Court  of  Illinois,  1876. 

1.  A  Note  or  Order  Given  by*  Defendant  which  U  signed  by  hlmBelf  does  not  come 
wtlhin  the  n.eaning  „t  iho  words  "  false  or  bogus  .hock,"  as  u.od  ..,  the  Criminal  Code, 
defining  the  conOdence  pan.o,  as  It  Is  genuine.  Any  one  taking  either,  does  «o  upon  the 
faith  of  the  defendant's  signature  alone.  If  they  contain  forged  or  flotitlous  signatures 
or  indorsements,  a  different  question  would  be  presented. 

a  Where  a  Party  After  Having  obtained  money  and  credit  gives  his  note  for  the  sum 
due.  iind  afterwards  n  order  for  the  sum  he  owed,  It  can  not  be  said  he  obtained  money 
or  property  by  the  use  of  the  note  or  order. 

3  The  Exhibition  of  Letter  Heade  of  a  firm  with  which  defendant  is  connected,  business 
■    cards,  a  draft,  or  copy  of  one,  and  the  making  of  u  note,  payable  at  a  particular  bank,  ami 

the  drawing  of  an  order  for  money,  are  means  to  inspire  confidence  in  the  party  s  abll  ly 
to  pay,  precisely  as  declarations  of  IiIh  credit  and  standing,  and  are,  at  most,  but  false 
representations  of  his  solvency,  but  do  not  make  out  a  case  of  confidence  game. 

4  The  Laairuaire  of  the  Statute  does  not  expressly  extend  to  oases  of  property  or  money 

obtained  on  the  belief  of  the  ability  and  disposition  of  the  defendant  to  pay,  but  It  con- 
templates a  cransactlon  in  which  the  "  means  or  device,"  Instead  of  being  the  cause  of 
the  cause,  is  the  direct  and  proxii..ute  cause  of  obtaining  the  money  or  property. 

Writ  of  error  to  the  Circuit  Court  of  St.  Clair  County ;  the  lion. 
William  H.  Snydku,  Judge,  presiding. 

Messrs.  Koemer  &  Turner,  for  the  plaintiff  in  error. 
Mr.  Charles  P,  Knispel,  States  Attorney,  for  the  People. 
Mr.  Justice  Scholkiki.d  delivered  the  opinion  of  the  couit. 
Tlie  defendant  was  indicted  and,  on  trial,  convicted  and  sentenced  to 
the  penitentiaiy  for  one  year  for  obtaining  property  of  one  Phillips, 
"  by  the  confidence  game."     Pliilips  was  the  proprietor  of  a  hotel  in 
East  St.  Louis,  and  on  the  ith  of  August,  1875,  the  defendant  became 
a  guest    f  his— informing  his  clerk  that  he  wanted  a  room  for  a  few 
days,  and  other  accommodations  —  that  he  wanted  bis  meals  at  the  res- 
taurant, s(>  that  he  could  take  what  he  wanted  and  pay  for  it.    He  rep- 
resented himself  as  being  of  the  firm  of  D.  Pierce  &  Sons,  who  were 
merchants  doing  business  on  Broadway  and  Fifth  Streets  in  St.  Louis, 
Missouri,  and  had  letter-heads  and  cards  with  him  showing  the  firm 
name  and  place  of  business ;  and  the  hotel  clerk  swears  that,  on  this 
representation,  and  from  having  seen  the  letter-heads  and  cards,  and 
observing  that  he  had  to  write  letters  once  in  awhile,  he  gave  him  one 
of  the  best  rooms  in  the  house.    After  the  defendant  had  remained  at 
the  hotel  seven  days,  the  defendant  showed  the  hotel  clerk  what  the  lat- 
ter understood  to  be  a  draft  on  Taylor  &  Sons,  of  Newport,  Kentucky, 
for  $4,000,  and  informed  him  that  he  had  funds  in  the  haiids  of  Taylor 


^^M 


FIERCE  V.  PEOPLE. 


8id 


E  ^  OR     BOGUS 


imBClf  does  not  come 
in  the  Criminal  Code, 
;lier,  does  ao  upon  the 
r  flctitioua  signatures 

Ilia  note  tor  the  sum 
lid  he  obtained  inouey 

is  connected,  business 
a  particular  banit,  lunl 
10  in  the  party's  ability 
are,  at  most,  but  false 
ifldence  game. 
g  of  property  or  money 
iaiit  to  pay,  but  It  con- 
of  being  tlie  cause  of 
ey  or  property, 

Dounty ;  the  lion. 


r. 

eople. 
le  court. 

I  and  sentenced  to 
y  of  one  Phillips, 
etor  of  a  hotel  in 
defendant  became 
a  room  for  a  few 
is  meals  at  the  res- 
Eiy  for  it.    He  rep- 
!  &  Sons,  who  were 
treets  in  St.  Louis, 
1  showing  the  firm 
wears  that,  on  this 
ids  and  cards,  and 
e,  be  gave  him  one 
mt  had  remained  at 
il  clerk  what  the  lat- 
Newport,  Kentucky, 
the  bauds  of  Taylor 


&  Sons,  which  he  bad  ordered  them  to  forward  to  St.  Louis,  and  that 
tlie  draft  shown  was  for  tlie  funds.  But  the  clerk  says,  what  was  shown 
to  him  as  a  draft  afterwards  turned  out  to  be  ])Ut  a  copy  of  a  diaft. 
The  defendant  remained  at  the  liotel,  fjettiug  his  meals,  drinks,  etc., 
and  a  small  amount  of  monrv  from  tlie  clerk,  to  pay  the  barber  for 
shaving  him,  and'a  boy  to  gy.  i.o  the  post-ofllcc  for  his  letters,  until  his 
bill  amounted  to  some  $1«,  wlieu  the  clerk  demanded  payment.  The 
defendant  giive  his  promissory  note  for  $2."),  payable  at  the  bank  of  St. 
Louis,  Missouri,  one  diiy  after  date,  saying  tliat  he  wanted  to  stay  there 
a  few  days  longer,  and  would  make  the  note  large  enough  to  cover  the 
additional  charges.  He  also  observed  to  the  clerk,  that  he  could  give 
him  the  note,  but  tliat  be  bad  a  draft  on  Sherman  &  Co.,  of  New 
York,  who  had  failed,  and  be  did  not  know  whetlier  it  would  be  met, 
and  that  be  had  funds  at  the  bank  at  which  be  made  the  note  payable. 
The  note  was  dispos'  d  of  by  the  proprietor  of  the  hotel,  in  St.  Louis, 
for  goods ;  but  was  finally  returned  protested.  The  defendant  bad, 
meanwhile,  remained  at  the  hotel,  and  when  notified  of  the  protest  of 
his  note,  remarked  "  that  it  was  stiange,"  and  tliat  •'  there  ought  to  be 
money  there  in  the  bank."  He  tiien  gave  an  order  on  another  bank 
for  $50,  upon  whicli  nothing  was  received ;  and  upon  this  failing,  he 
gave  an  order  on  bis  son  William  for  $54. 15,  which  included  his  account 
and  the  costs  of  protesting  his  paper.  This  was  carried  to  the  place 
indicated  as  the  business  place  of  the  defendant's  firm,  of  which  bia 
son  was  represented  to  be  a  member,  and  it  was  found  that  it  was 
dosed,  and  that  bis  son  was  gone  and  could  not  be  found.  The  de- 
fendant then  gave  the  proprietor  of  the  hotel  an  order  on  the  Yeager 
Jlilling  Company  for  seven  barrels  of  flour,  which  was  not  honored,  and 
after  this  he  was  arrested. 

There  was  a  firm  of  D.  Pierce  &  Sons,  who  bad  been  doing  business 
on  Broadway  and  Fifth  Streets,  in  St.  Louis,  Missouri,  at  the  place  in- 
dicated by  the  defendant,  as  commission  merchants ;  and  there  is  no 
reason  to  doubt  but  that  the  defendant  was  the  senior  member  of  that 
firm.  When  it  ceased  to  do  business  does  not  appear  any  further  than 
that  it  was  closed  when  the  draft  was  taken  there  which  bad  been 
drawn  by  the  defendant  on  his  son  William.  The  firm  had,  also,  had 
transactions  with  tue  Yeager  Milling  Company,  but  that  company  gave 
as  a  reason  for  refusing  to  honor  the  draft  for  the  seven  barrels  of 
flour,  that  D.  Pierce  &  Sons  owed  them  $350,  and  they  bad  taken  their 
goods  out  of  their  store,  and  they  would  still  be  losers  by  at  least  $200. 

As  to  the  genuineness  of  the  draft  on  Taylor  &  Sons,  of  Newport, 
Kentucky,  or  the  other  matters  represented  by  the  defendant,  there  is 
no  evidence,  except  that  of  defendant,  which,  if  entitled  to  credit,  ex- 
onerates him  from  falsehood  in  that  respect. 


320 


FRAUIJ   AND   FALSK  PRETENSES. 


The  only  question  Is,  do  these  facts  inako  a  case  under  the  ninety. 
elKhth  section  of  tl.c  criminal  code,  entitled,  "  Confldenc.  Game? 

Timt  the  defendant  acted  fraudulently  may  be  conceded;  but  evety 
fraud  is  not  a  "  confidence  game  "  within  the  meaning  of  the  statute. 
The  language  of  the  statute  is:  "  Every  person  who  shall  obtain,  or  at- 
tempt  to  rl)tain  from  any  other  person  or  persons,  any  money  or  prop- 
erty, Iw  means  of  the  use  of  any  false  or  bogus  checks,  or  by  any  other 
means  or  device  commonly  called  the  confidence  game,  shall  be 
imprisoned  in  the  penitentiary  not  less  than  one  year  nor  more  than  ten 

^*The  position  that  the  note  and  orders  given  by  the  defendant,  cauie 
within  the  meaning  of  the  words  "  false  or  bogus  checks,"  as  used  in 
this  section,  can  not  be  niaintaineu.     Had  they  contained  forged  or  fie 
titious  Indorsements,  there  would  be  reason  for  calling  them  false  or 
bogus  -,  but  they  contained  no  indorsements,  whatever,  and  it  is  not  dis- 
puted the  defendant's  signature  to  them  was  genuine.     Any  one  taking 
them,  therefore,  would  necessarily  do  so  upon  the  faith  of  the  defend- 
ant's signature  alone,  and  of  however  little  value  they  were,  this  was 
solely  because  of  the  defendant's  insolvency,  and  not  because  of  any 
false  or  bo<rus  character  of  the  instruments.     Nor  can  it  be  said  money 
or  property  was  obtained  by  the  use  of  the  note  or  orders.     Money  and 
proi^erty  were  obtained  by  the  defendant,  on  tlio  belief  which  he  had 
inspired,  of  his  ability  and  disposition  to  pay,  and  the  note  and  orders 
were  given  by  him,  and  received  by  the  party  from  whom  the  money 
and  property  were  obtained,  as  an  evidence  of  the  Indebtedness,  and 
when  and  how  it  was  agreed  to  be  paid,  and  nothing  more.     The  whole 
case  in  our  opinion,  is  narrowed  down  to  this:  is  obtaining  credit,  by 
false  representations,  in  regard  to  the  party's  solvency,  within  the  con- 
templation  of  the  statute?    The  exhibition  of  the  letter-heads,  business 
cards,  draft,  or  copy  of  draft,  and  the  making  of  the  note,  payable  at 
a  particular  bank,  as  well  as  the  drawing  of  the  orders  on  the  different 
firms,  were  intended  to  inspire  belief  of  the  defendant's  ability  to  pay, 
I  rccisely  as  were  his  oral  declarations.    They  were,  at  most,  but  false 
representations,  designedly  made,  of  his  solvency,  for  the  purpose  of 
obtaining  credit.    Their  only  effect  was  to  inspire  confidence  in  bis  finan- 
cial integrity,  and  the  money  and  property  were  given  him,  not  simply 
because  of  these  documents  or  representations,  for  there  was  no  ex- 
changing of  the  one  for  the  other,  but  because  of  this  confidence  which 

he  had  inspired. 

Tlie  language  of  the  statute  does  not  expressly  extend  to  cases  of 
money  or  property,  obtained  on  the  belief  of  the  ability  and  disposition 


1  Kev.  StatB.l874,p. 


rtm 


PIEUCK   V.  PEOPLK. 


321 


tiderthe  nlnety- 
,c.  Game?"  i 
eded ;  but  eveiy 
g  of  the  statute, 
all  obtain,  or  at- 

money  or  prop- 
,  or  by  any  other 

game,  shall   be 
or  more  than  ten 

defendant,  came 
ckt,"  as  used  In 
ned  forged  or  fic- 
ig  them  false  or 
and  it  is  not  dis- 
Any  one  taking 
th  of  the  defend - 
ey  were,  this  was 
t  because  of  any 
1  it  be  said  money 
lers.     Money  and 
ilief  which  he  had 
!  note  and  orders 
whom  the  money 
indebtedness,  and 
more.     The  whole 
staining  credit,  by 
jy,  within  the  con- 
;er-heads,  business 
le  note,  payable  at 
rs  on  the  different 
nt's  ability  to  pay, 
at  most,  but  false 
)r  the  purpose  of 
fidencein  bisfinan- 
en  him,  not  simply 
r  there  was  no  ex- 
is  confidence  which 


of  tlio  party  to  thereafter  make  payment ;  but  it  contemplates  a  trans- 
action in  which  the  "  means  or  device  "  instead  of  being  tlie  cause  of 
tiie  cause,  is  the  direct  or  proximate  cause  of  obtaining  tiie  money  or 
property ;  and,  being  a  highly  penal  statute,  wo  are  not  authorized  to 
extend  its  meaning  by  implication.  Any  doubt  wliich  we  miglit  other- 
wise have  entertained,  as  to  the  correctness  of  this  construction,  is 
excluded  by  reference  to  other  legislation  on  the  same  subject.  By 
the  one  hundred  and  fifty-second  section  of  the  Criminal  Code,  as 
revised  in  ]84r»,'  it  was  enacted,  "  If  any  person,  by  false  representa- 
tions of  his  own  respectability,  wealth  or  mercantile  correspondence 
and  connections,  shall  obtain  a  credit  tliereby,  defraud  any  person  or 
persons  of  money,  goods,  chattels  or  any  valuable  tiling,  or  if  any  per- 
son shall  cause  or  procure  otliers  to  report  falsely  of  his  honesty,  wealth 
or  mercantile  character,  and  by  thus  imposing  upon  any  person  or  per- 
sons, obtain  credit,  and  thereby  fraudulently  get  into  possession  of 
goods,  wares,  or  merchandise,  or  any  valuable  thing,  every  such 
offender  shall  be  deemed  a  swindler,  and,  on  conviction,  shall  be  sen- 
tenced to  return  the  property  so  fraudulently  obtained,  if  it  can  be 
done,  and  shall  be  fined  not  exceeding  $1,000,  and  imprisoned  not 
exceeding  six  months."  In  consequence  of  abuses,  as  was  supposed, 
resulting  from  prosecutions  under  this  section,  the  General  Assembly, 
in  1857,  enacted  that  it  should  only  apply  to  representations  "  which 
shall  have  been  reduced  to  writing  and  signed  by  the  party  to  be 
charged  thereby,  prior  to  obtaining  such  credit."  ^  .\  id  in  the  revision 
of  1874,  the  main  features  of  the  section,  as  thus  amended,  are 
retained,  with  the  addition  to  the  penalty  of  allowing  the  fine  to  be 
$2,000,  instead  of  $1,000,  and  the  confinemen.  !n  the  county  iidi  one 
year  instead  of  six  months.  ^  In  our  opinion  if  any  par!  of  Ihe  criminal 
coae  ;,a  ;  been  violated  by  the  defendant,  it  is  this,  and  iiot  the  section 
relating  to  the  confidence  game. 
The  judgment  is  reversed,  and  the  defendant  discharged. 

Judgment  reversed. 


1  Rov.  stats.  1845,  p.  178. 
3  LawB  of  1837,  p.  103,  sec.  2. 

3  Defences. 


*  See  Rev.  Laws  of  1874,  p.  366,  sec.  97. 


21 


extend  to  cases  of 
lity  and  disposition 


322 


FRAUD   AND   FALSE  PRETENSES. 


FALSE  PRETENSES-ACT  MUST  WORK  PREJUDICE   TO   SOME   ONE. 

Pedple  v.  Galloway. 

[17  Wend.  5t0.] 
In  the  Supreme  Court  of  New  York,  1837. 

_    «  .  n        roit-Mr^  +h«  Statute  punishing  the  obtaining  of  the  signature  of  a 

nature,  or  of  some  other  person, 
o    *  r^^^A  ^OT  a«H-  \s^  a  Wife  conveying  real  estate  belonging  to  her  in  her  own  rjght. 

mode  prescribed  by  law  for  passing  the  estate  of  a  feme  eov*rt,  is  not  such  an  instrument 
as  is  contemplated  in  the  statute. 

Error  from  the  Wayne  General  Sessions. 

Archer  Galloway  was  indicted  for  having  obtained  the  Hignature  of 
his  wife,  Rosanna  Galloway,  to  a  deed  of  certain  lands  in  the  county 
of  Wayne,  in  this  State,  whereof  she  was  seized  in  her  own  right  in  fee, 
by  the  false  pretense  that  the  deed  to  which  he  desired  her  to  affix  her 
si-nature  was  a  deed  of  lands  belonging  to  him  in  the  State  of  Ehnois. 
The  deed  was  executed  by  the  wife,  but  was  uot  acknowledged  by  her 
before  any  officer  authorized  to  take  the  acknowledgment  of  deeds. 
The  deed  bore  date  November  25,  1834  ;  the  wife  died  August  7,  1835, 
and  September  12,  1836,  the  husband  was  indicted.     He  was  tried,  con- 
victed and  sentenced  to  three  years'  imprisonment  in  one  of  the  State 
prisons     A  bill  of  exceptions  was  tendered  and  signed,  and  a  writ  of 
error  was  sued  out,  which  brought  up  the  record  of  coaviction  and  the 
bill  of  exceptions.     The  case  was  argued  by, 
J.  M.  Holley,  for  the  prisoner. 
S.  Bearddey,  Attorney-General,  for  the  People. 
J3V  the  Court,  Bbonson,  J.     It  is  objected  that  the  indictment  is  in- 
sufficient because  it  does  not  allege  that  tlie  deed  was  acknowledged  by 
the  wife  at  or  after  the  time  that  her  signature  was  obtained.     At  the 
common  law  a  feme  covert  could  only  alien  her  lands  by  fine  or  com- 
mon  recovery ;  but  in  this  State  she  may  alien  by  deed,  acknowledged 
before  a  public  officer,  on  a  private  examination  apart  from  her  husband. 
The  statute  expressly  provides  that  no  estate  of  a  married  woman  shall 
pass  by  any  conveyance  not  so  acknowledged.^    That  an  instrument 
purporting  to  be  the  deed  of  feme  covert  is,  before  acknowledgment 
utterly  void,  has  been  repeatedly  adjudged.     It  is  not  her  deed.^ 


1  1  Rev.  Stats.  758,  t,ec.  10. 


2  Jackson   v.   Stevens,   16     Johns.    HO; 
Jackson  v.  Cairns.  20  Johns.  301. 


lA^M 


PKOPLE  V.   GALLOWAY. 


323 


E  TO  SOME  ONE. 


1837. 

ing  of  the  signature  of  a 
inient  must  be  of  such  a 
e  person  affixing  the  sig- 

ig  to  her  in  her  own  right, 
uband,  under  the  pretense 
rledged  by  the  wife  in  the 
is  not  such  an  instrument 


ned  the  Hignature  of 
I  lands  in  the  county 
her  own  right  in  fee, 
isired  her  to  affix  her 
tlie  State  of  Illinois, 
icknowledged  by  her 
n'ledgment  of  deeds, 
iied  August  7,  1835, 
.  He  was  tried,  cou- 
nt in  one  of  the  State 
signed,  and  a  writ  of 
if  coaviction  and  the 


t  the  indictment  is  in- 
was  acknowledged  by 
was  obtained.  At  the 
lands  by  fine  or  com- 
r  deed,  acknowledged 
part  from  her  husband. 
I  married  woman  shall 
That  an  instrument 
efore  acknowledgment 
3  not  her  deed.'* 


The  statute  under  which  the  defendant  was  indicted  provides  that 
every  person  who,  with  intent  to  cheat  or  defraud  another,  shall  de- 
signedly, by  color  of  any  false  token  or  writing,  or  by  any  other  false 
preteLse,  obtain  the  signature  of  any  person  to  any  written  instrument 
or  obtain  from  any  person  any  money,  persoiuil  propertv,  or  valuable 
thing,  ehall,  upon  conviction  thereof,  be  pimishod  by  imprisonment, 
etc.i  That  part  of  the  section  which  makes  it  an  offense  to  olitain  the 
signature  of  a  person  by  a  false  pretense,  is  a  new  provision,  and  the 
question  now  presented  has  never  been  considered  by  this  court.  Al- 
tiiough  the  language  is  general,  "  any  written  instrument "  the  writing 
to  which  the  signature  is  obtained  must,  I  think,  be  one  which  is  not 
utterly  worthless.  This  statute,  like  that  against  forgery,  was  made  to 
protect  men  in  the  enjoyment  of  their  property,  and  if  the  iuf^tniment 
obtained  can  by  no  possibility  prejudice  any  one  in  relation  to  his  es- 
tate, it  will  not  be  an  offense  within  the  fitatutc.  If  the  rule  were 
otherwise,  a  man  might  lie  punished  criminally  for  obtaining  the  signa- 
ture of  another  to  an  idle  letter,  ov  any  otiier  writing  of  legaHmportance. 
Although  it  is  not  necessary  to  tiie  offense  that  the  party  signing  should 
actually  suffer  loss  or  injury,'^  yet  the  instrument  signed  must  be  one 
which  could  work  an  injury  to  the  person  from  whom  it  is  obtained. 

In    prosecuting   for  forgery,   it  is    material  that  the    instrument 
siiould  not  upon  its  face  appear  to  be  illegal  or  void.     In  King  v. 
Moffat,^  the   defendant  was  indicted  for  forging  a  bill  of   exch:ino-e. 
The  instrument  was  not  drawn  or  attested  in  the  manner  prescribed  for 
bills  of  that  particular  description  ;  and  under  such  circumstances ''o 
statute  had  declared  the  instrument  void.     The  question  whether      j 
defendant    was    properly    convicted  of    the  forgery  having  been  re- 
served, the  unanimous  opinion  of  the  twelve  judges  was  delivered  by 
Mr.  J.  Aahurst,  that  the  bill  of  exchange,  if  real,  would  not  have  been 
valid  or  negotiable,  and,  therefore,  the  forging  of  it  was  not  a  capital 
offeude.    There  is  a  distinction  between  the  case  of  an  instrument  ap- 
parently void  and  one  where  the  invalidity  is  to  be  made  out  l>y  the  proof 
of  some  intrinsic  fact.     In  the  former  casv,  the  party  who  makes  the 
instrument  can  not,  in  general,  be  convicted  of  forgery,  but  in  the  latter 
he  may.     In  King  v.  Sterling,*  the  defendant  was  convicted  of  forging  a 
will,  although  the  supposed  testator  was  still  living,  aud  appeared  aa  a 
witness  on  the  trial.     Mr.   J.  Foster,  in  delivering  the  opinion  of  the 
jiulges,  says  that  an  instrument  may  be  the  subject  of  forgery,  although, 
in  fact,  it  should  appear  impossible  for  such  an  instrument  to  exisL,' 
provided  the  instrument  purports  on  the  face  of  it  to  be  good  and  valid] 
as  to  the  purposes  for  which   it  was  intended  to  be  made.     See,  also,' 


.   Stevens,  16    Johns, 
i-ns.  20  Johns.  301. 


110; 


'  2  Rot.  Stats.  677,  sec.  53. 
=  People  i».  Gcnung,  U  Wend. 


■1  2  Leach,  483  (case  190). 
*  1  Leach.  117  (oaoo  67). 


324 


FRAUD  AND  FALSE  PRETENSES. 


Rexx.  Cogan,'  and  Case  of  James  Mcintosh.^  In  the  case  of  Tliomas 
Wall  3  the  invalidity  of  the  instrument  was  apparent  upon  its  face.  The 
prisoner  was  convicted  of  forging  a  will  of  land,  attested  by  only  two  wit- 
nesses •  but  the  judsres  on  conference  held  the  conviction  wrong,  bo  a 
man  cJn  not  be  convicted  of  forging  a  note  or  bill  which  is  apparently 
incomplete  for  want  of  a  signature,  or  the  name  of  '^P'^.^f  •'  .^'j^'^^^ 
the  instrument  forged  is  apparently  void,  there  is  little  probability  tha 
any  one  can  be  defrauded,  but  it  is  otherwise  wliere  the  invalidity  of 
the  instrument  depends  on  some  collateral  fact  not  appearing  on  its 
face.    Tins  seems  to  be  the  reason  for  the  distinction  which  has  been 

""nthT  defendant  could  not  have  been  convicted  of  forgery  had  he 
affixed  the  name  of  his  wife  to  this  instrument  without  her  consent  1 
think  he  should  not  have  been  convicted  of  the  offense  of  obtaining  her 
signature  to  the  instrument  by  a  false  pretense.  As  the  indictment  is 
insufficient,  it  is  unnecessary  to  look  into  the  various  questions  which 

arose  on  the  trial.  _  , 

Judgment  reversed. 


FALSE  PRETENSES -INDICTMENT -EXISTING  AND  FUTURE  FACT. 
Commonwealth  v.  Stevenson. 

[127  Mass.  446.] 

In  the  Supreme  Judicial  Court  of  Massachusetts,  1879. 

,    .     r  ^i„4.™-«t  AllBBed  that  the  defendant  to  induce  M.  to  sign  a  lease  to  C.  lalsely 

TuZ  TZll^^^ulZTllZn  J.  or  a  representation  o.  .  material  f«,t; 
that  ihe  second  was  not ;  and  si.,U>U  that  the  third  was  not. 
„    .     T„Hi„tm««t  CharBluB  that  the  Defendant  FaLely  represented  to  A.  that  he 

ither  persons,  does  not  set  out  a  false  protease  within  the  statute. 

Indictment  on  the  General  Statute8,Mn  two  counts. 

The  first  count  charged  that  the  defendant  on  June  8,  1877,  at 
Boston,  "with  intent  to  cheat  and  defraud  one  Eliza  D.  Mayo,  and 
with  the  view  and  intent  to  obtain  the  signature  of  said  Mayo  to  a  cer- 
tain  written  instrument  and  lease  hereinafter  described,  and  to  induce 


1  a  Leach,  609  (case  197). 

I  2  East's  P.  O.  W2. 866. 

«  2  East's  P.  0.  953. 

♦  Bex  •.  Patemar.,  Buss  *  B.   465;  Rex 


V.   Richards  and  Bex  A  Randall,  lb.  193, 
195. 

'  ch.  161,  sec.  M. 


rtrfl 


COMMONWFALTH    V.  STEVENSON. 


325 


case  of  Hiomas 
n  its  face.  The 
by  only  two  wit- 
in  wrong.  So  a 
ch  is  apparently 
pa^ee.*  Where 
probability  that 
the  invalidity  of 
ippearing  on  its 
I  which  has  been 

f  forgery  had  he 
it  her  consent,  I 
of  obtaining  her 
the  indictment  is 
questions  which 

jment  reversed. 


FUTUBE  FACT. 


'is,  1879. 

gn  a  lease  to  C,  falsely 
I  B. ;  that  C.  was  a  man 
defendant  pointed  out 
tilon  of  a  material  (act; 

resented  to  A.  that  he 
moner  drawn  by  him  in 
ain  bills  due  from  A.  to 


June  8,  1877,  at 
lliza  D.  Mayo,  and 
lid  Mayo  to  a  cer- 
bed,  and  to  induce 

«z  ft  BandaU,  /6.  198. 


tlie  said  Mayo  to  lease,  demise,  and  let  then  and  there,  to  one 
T.  V.  Conlin,  under  and  according  to  the  piovisions  of  said  instru- 
ment, the  dwelling-house  belonging  to  said  Mayo,  situate  and  num- 
bered two  on  Dover  Street  in  said  Boston,  did  then  and  there, 
lUjlawfuUy,  knowingly  and  designedly,  falsely  pretend  and  represent  to 
said  Mayo,  that  said  T.  F.  Conlin,  was  then  and  there  a  liquor  dealer, 
tlieii  doing  business  as  such  dealer  in  Broad  Street  in  said  Boston,  and 
tliat  said  Conlin  was  tlieu  and  there  a  man  worth  ten  thousand  dollars, 
and  that  a  certain  person  whom  the  said  Stevenson  then  and  there 
pointed  out  and  designated  to  said  Mayo  was  then  and  there  the  said 
T.  F.  Conlin.  And  the  said  Stevenson  then  and  there  askeu  and 
requested  the  said  Mayo  to  then  and  there  put  and  sign  the  name  and 
signature  of  her,  the  said  Mayo,  to  the  said  written  instrument  and 
lease.  And  the  said  Mayo,  then  and  there  believing  the  said  false  pre- 
tenses and  representations,  so  made  as  aforesaid  by  the  said  Stevenson, 
and  being  deceived  thereby,  was  induced,  by  reason  of  the  false  pre- 
tenses and  representations,  so  made  as  aforesaid,  to  put  and  sign,  and 
(lid  then  and  there  put  and  sign,  the  name  and  signature  of  her,  the 
siiid  Mayo,  to  the  said  written  instrument  and  lease,  the  false  making 
whereof  would  be  punishable  as  forgery,  and  to  deliver,  and  did  then 
and  tliere  deliver  to  the  said  person  so  as  aforesaid  designated  by  the 
said  Stev.  "on  to  be  the  said  T.  F.  Conlin,  the  said  written  instrument 
and  lease,  with  the  signature  of  the  said  Mayo,  so  as  aforesaid  obtained 
and  affixed  thereto.  And  the  said  Stevenson  did  tlien  and  there  receive 
and  obtain  the  said  signature  of  said  Mayo  to  the  said  written  instru- 
ment and  lease  by  means  of  the  false  pretenses  and  representations 
aforesaid,  and  with  intent  to  cheat  and  defraud  the  said  Mayo."  The 
count  also  set  forth  the  lease ;  negatived  the  truth  of  the  representa- 
tions ;  and  concluded  in  the  usual  manner. 

The  second  count  charged  that  the  defendant,  on  June  8,  1877,  at 
Boston,  "  with  intent  to  cheat  and  defraud,  did  then  and  there,  unlaw- 
fully, knowingly  and  designedly,  falsely  pretend  and  represent  to  one 
Eliza  D.  Mayo,  that  he,  said  Stevenson,  tlien  and  there  had  in  his 
possession  a  check  and  order  for  the  payment  of  money,  for  a  large 
sum  of  money,  to  wit,  tlie  sum  of  thirteen  hundred  and  forty-three 
dollars ;  that  said  check  was  then  and  there  drawn  to  the  credit  of  her, 
said  Mayo,  by  him,  said  Stevenson ;  that  said  Stevenson  thv,n  intended 
to  immediately  pay  with  the  proceeds  o.f  said  clieck,  for  !,or,  said  Mayo, 
tertain bills  then  due,  and  to  be  paid  from  her,  said  Mayo,  to  wit  "  (set- 
ting forth  the  bills)  ;  that  "  said  Stevenson  then  and  there  asked  and 
requested  said  Mayo  to  sign,  seal  and  deliver  to  him,  said  Stevenson, 
among  other  papers,  a  certain  instrument,  to  wit,  a  deed  of  the  tenor 
following  "  (setting  it  forth).     "  And  the  said  Mayo,  then  and  there 


32(5 


FRAUD    AM)    FALHK   I'KKTENSES. 


believing  the  said  false  pretenses  and  representations  so  made  as  afore- 
said by°hiin,  tlie  said  Stevenson,  to  l)e  true,  and  being  deceived 
thereby,  was  induced,  by  reason  of  the  false  pretens-s  and  representa- 
tions 80  made  as  aforesaid,  to  sign,  seal  and  deliver,  and  did  then  and 
there  sign,  seal  and  deliver  to  the  said  Stevenson,  said  deed  herein- 
before 8°  t  forth.  And  the  sai.l  Stevenson  did  then  and  there  receive 
and  obtain  said  signature  of  the  said  Mayo  to  said  deed,  by  means  of 
the  false  pretenses  and  representations  aforesaid,  and  with  intent  to 
cluat  and  defraud."  Tlie  indictment  then  negatived  the  truth  of  the 
repiesentations ;  and  concluded  in  the  usual  manner. 

In  the  Superior  Court,  before  the  jury  were  impaneled,  the  defend- 
ant moved  to  quash  the  indictment  for  reasons  which  sufficiently 
appear  in  the  opinion.     Aldrich,  J.,  overruled  the  motion. 

The  defendant  was  then  tried ;  and  at  the  trial  offered  in  evidence 
for  the  purpose  of  affecting  the  credibility  of  Eliza  D.  Mayo  as  a  wit- 
ness the  record  of  a  proceeding  for  divorce  in  the  Supreme  Judicial 
Court,  in  which  she  was  found  by  the  jury  to  have  committed  adultery 
with  James  M.  llusc.  The  judge  excluded  the  evidence.  The  jury 
returned  a  verdict  of  guilty  on  both  counts;  and  the  defendant  alleged 
exceptions. 

C.  B.  Southard,  for  the  defendant. 
C.  R.  Train,  Attorney-General,  for  the  Commonwealth. 
MouTON,  J.     The  first  question  in  this  case  arises  upon  the  defend- 
ant's motion  to  quash.     Tlie  indictment  contains  two  counts,  setting 
forth  different  offenses.     As  to  the  first  count  we  «re  of  opinion  that 
the  motion  to  quash  was  rightly  overruled. 

A  false  pretense,  within  the  statute,  is  a  representation  of  a  material 
fact,  calculated  to  deceive,  which  is  not  true.i  Th»  first  count  alleges 
that,  in  order  to  induce  Mrs.  Mayo  to  sign  a  lease  to  Conlin,  the  de- 
fendant falsely  represented  that  said  ConUn  "  was  then  and  there  a 
liquor-dealer,  then  doing  business  as  such  dealer  in  Broad  Street  in 
said  Boston,  and  that  said  Conlin  was  then  a  man  worth  ten  thousand 
dollars,  and  that  a  certain  person  whom  the  said  Stevenson  then  and 
there  pointed  out  and  designated  to  said  Mayo  was  then  and  there  the 
saidT.  F.  Conlin." 

The  representation  that  Conlin  was  a  man  worth  ten  thousand  dollars 
might  have  b"en  intended  and  understood  as  the  expression  of  an  opinion 
or  Judgment,  and  not  as  the  representation  of  a  f  act.*  As  it  is  not  aided  by 
any  other  averments  in  the  indictment,  it  is  not  as  set  out  a  false  pretense 
within  the  statute.  So  the  pointing  out  of  a  person  as  Conlin  would  not 
seem  to  amount  to  the  representation  of  a  material  fact  which  was  cal- 


1  Com.  f.  Drew,  19  Pick.  179. 


J  Morso  r.  Shaw,  124  Mass.  69;  Homer  ti. 
Perklna,  124  Mass.  4;U. 


COMMONWEALTH  V.  STEVENSON. 


327 


)  made  as  afore- 
bciiig  deceived 
and  ropreseiita- 
Liul  did  tlien  and 
aid  deed  licreiu- 
nd  there  receive 
ed,  hy  means  of 
i  with  intent  to 
the  truth  of  the 

eled,  the  defend- 
liich  sufficiently 
»tion. 

Cered  in  evidence 
).  Mayo  as  a  wit- 
Supreme  Judicial 
ramitted  adultery 
lence.  The  jury 
defendant  alleged 


ealtb. 

upon  the  defend- 
ro  counts,  setting 
re  of  opinion  that 

,tion  of  a  material 
first  count  alleges 
to  Conlin,  the  de- 
then  and  there  a 
n  Broad  Street  in 
orth  ten  thousand 
tevenson  then  and 
then  and  there  the 

n  thousand  dollars 
!Ssion  of  an  opinion 
As  it  is  not  aided  by 
5ut  a  false  pretense 
IS  Conlin  would  not 
fact  which  was  cal- 


,  124  Mass.  S9;  Homer  v. 
;U. 


Ciliated  to  deceive  Mrs.  Mayo  and  induce  her  to  sign  a  lease  to  Conlin. 
I5iit  it  is  no  ground  for  quashing  an  indictment  for  obtaining  money  by 
false  i)rctenses,  that  it  contains  some  immaterial  allegations,  or  that 
some  of  the  pretenses  charged  may  not  be  properly  charged,  if  upon  its 
face  there  is  an  offense  stated  with  precision  and  formality,  i  A  ma- 
jority of  the  court  are  of  opinion  that  the  representation  that  "  Conlin 
was  then  and  there  a  liquor  dealer,  then  doing  business  as  such  dealer 
in  Broad  Street,  in  said  Boston,"  is  a  false  pretense  within  tiie  statute; 
and,  therefore,  that  the  first  count  is  sufHcicnt.  It  is  the  representa- 
tion of  a  fact  calculated  to  deceive.  It  imports  that  Conlin  was  estab- 
lished in  business  in  Boston,  a  fact  which,  if  belioved,  would  naturally 
be  influential  in  inducing  Mrs.  Mayo  to  make  the  lease  to  him.  The 
objection  tliat  the  false  pretense  is  not  alleged  to  be  in  writing  can  not 
prevail.  The  statute  does  «ot  require  that,  in  cases  like  this,  the  false 
pretense  should  be  in  writing.''^ 

As  to  the  second  count,  we  are  all  of  opinion  that  it  is  insufficient. 
Tiu'  only  allegation  in  that  count  is  that  the  defendant  falsely  repre- 
sented to  Mrs.  Mayo  that  he  had  then  and  there  in  his  possession  a 
check  for  the  payment  of  money  drawn  by  him  in  favor  of  Mrs.  Mayo, 
from  the  proceeds  of  wiiich  he  intended  to  pay  certain  bills  due  from 
her  to  other  persons.  There  is  no  allegation  that  he  had  or  pretended 
to  have  money  in  the  bank  on  which  the  check  was  drawn,  or  that  he 
showed  or  offered  the  check  to  her,  or  that  she  had  any  control  over  it. 
And  the  only  proper  legal  construction  of  all  the  allegations  is  that  the 
defendant  agreed  to  take  his  own  money  and  pay  the  bills  due  to  the 
several  persons  by  Mrs.  Mayo,  if  she  would  sign  tiie  deed.  This  was  a 
promise  to  do  something  in  the  future  with  no  representation  of  any  ex- 
isting material  fact.3  The  mere  representation  that  he  had  drawn  a  check, 
without  stating  that  he  had  money  in  the  bank,  was  iraraatcrial ;  and 
if  it  could  be  treated  as  a  representation  that  he  had  money  in  the  bank 
the  indictment  is  still  fatally  c'efective  In  not  negativing  that  fact.  For 
aught  that  appears,  he  may  have  had  the  money  subject  to  such  a  draft. 

The  only  other  exe  jption  is  to  the  exclusion  by  the  court  of  the  rec- 
ord of  the  divorce  proceedings  in  which  Mrs.  Mayo  was  a  party,  and  in 
which  the  jury  found  that  she  had  committed  adultery.  Such  record 
did  not  show  the  conviction  of  the  witness  of  any  crime,  which,  under 
the  statute,  would  be  admissible  to  effect  her  credibility.'" 

The  result  is  that  the  second  count  should  be  quashed,  and,  as  to  it, 
the  cxcoptions  are  sustained ;  but,  as  to  the  first  count,  the  exceptions 
are  overruled. 


1  Com.  V.  Parmcntur,  121  Mmb.  354. 

2  Gen.  Stats.,  ch.  Ifll,  sect.  64;   Com.  v. 
Pirraeter,  ubi  tupra. 


■1  Com.  1'.  Drew,  ubi  supra. 
«  Stnts.  1870,  ch.  393,  iec.  3. 


328 


FRAUD  AND  FALSE   PKETENSES. 


FALSE  PRETENSES  — "VALUABLE  SECURITY "  — PROPERTY  IN 

CHATTEL. 

R.  u.  Danoek. 


[Dears.  &  B.  307.] 
In  the  English  Court  for  Crown  Cases  Reserved,  1857, 


The  Prisoner  wa»  Convicted  upon  nn  indictment  founded  upon  section  M  of  7  and  8 
George  1V.»  for  obtaining  a  valuable  security  by  false  pretenses.  The  facts  were,  that 
the  prisoner  falsely  represented  to  the  prosecutor  that  a  third  person  was  baling  up  for 
him  a  quantity  of  leather  whicli  was  to  come  into  his  warehouse  that  afternoon,  and  the 
prosecutor,  relying  on  sucli  false  statement,  at  the  request  of  the  prisoner,  agreed  to 
purchase  the  leather,  and  to  accept  a  bill  for  the  amount  of  the  purchase-money.  The 
prisoner  shortly  afterwards  produced  and  handed  to  the  prosecutor  a  bill  duly  stamped, 
signed  by  himself  as  drawer,  addressed  to  the  prosecutor,  and  made  payable  to  the 
prisoner's  own  order;  and  the  prosecutor  accepted  the  bill  and  returned  it  to  the  pris- 
oner, who  subsequently  Indorsed  and  negotiated  it,  and  appropriated  the  proceeds  to 
his  own  use.  Held,  that  the  conviction  could  not  bo  supported,  as  the  bill,  whilst  in  the 
bands  of  the  prosecutor,  was  of  no  value  to  him  nor  to  any  one  else  unless  to  the  pris- 
oner ;  and  as  the  prosecutor  had  no  property  In  the  bill  as  a  security,  or  even  in  the  paper 
on  which  it  was  written. 

The  following  case  was  reserved  and  stated  for  the  consideration  and 
decision  of  the  Court  of  Criminal  Appeal  by  the  Re<  ^rder  of  Bristol. 

The  prisoner,  John  Danger,  was  tried  before  m'  at  the  Quarter  Ses- 
sions of  the  Peace  in  and  for  the  city  and  county  of  Bristol,  held  on 
the  7th  day  of  April,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  fifty-seven,  on  an  indictment  under  the  statute  7  and  8  George 
rV.2  for  obtaining  a  valuable  security  by  false  pretenses.  The  indict- 
ment contained  two  counts,  a  copy  of  which  is  annexed  to  this  case.^ 
The  false  pretenses  were  proved  as  alleged  in  the  indictment.  It  was 
also  proved,  that  Richard  Latham,  the  prosecutor,  relying  on  such  pre- 
tenses, agreed  to  become  the  purchaser  of  a  quantity  of  leather,  called 
butts,  of  and  from  the  prisoner  John  Danger,  at  the  price  of  one  hun- 
dred and  eighty-four  pounds  and  sixteen  sliillings ;  that  the  prisoner 
then  asked  Richard  Latham  to  accept  a  bill  of  exchange  for  the  amount 
of  the  purchase-money;  that  Richard  Latham  agreed  to  do  so;  that, 
soon  after,  the  prisoner  produced  a  bill  of  exchange  duly  stamped, 
signed  by  himself  as  drawer  under  the  name  of  John  7)cnger  &  Co., 
payable    to    the    drawer's    own    order,    and    addri;^:  >    iiichard 

Latham,  for  one  hundred  and  eighty-four  po'jn>-"^,  "noji  shil- 
lings, four  months  after  date,  and  handed  the  t;xf  lo  Richard 
Latham;  that  Richard  Latham  accepted  the  bill  by  \,  -Jiiig  his  name 
across  it,  and  made  it  payable  at  Messrs.  Stuckey's  Bank,  Bristol,  and 
then  delivered  the  same  so  accepted  to  the  prisoner ;  that  the  prisoner 


1  ch.  29. 


8  cb.  29,  see.  23. 


3  marlced  A. 


rt^t 


R.  V.   DANGER. 


329 


ROPERTY  IN 


I,  1857. 

section  M  of  7  and  8 
The  facta  were,  that 
ion  was  baling  up  for 
lat  afternoon,  and  the 
0  prisoner,  agreed  to 
irchase-money.  The 
r  a  bill  duly  stamped, 
made  payable  to  the 
itarned  it  to  the  prin- 
ated  the  proceeds  to 
the  bill,  whilst  in  the 
le  unless  to  the  pris- 
r,  or  even  in  the  paper 


onsideration  and 
Jer  of  Bristol, 
the  Quarter  Ses- 
Bristol,  held  on 
usand  eight  hun- 
e  7  and  8  George 
jes.  The  indict- 
ced  to  this  case.^ 
lictment.  It  was 
■ing  on  such  pro- 
of leather,  called 
irice  of  one  hun- 
that  the  prisoner 
re  for  the  amount 
I  to  do  so;  that, 
e  duly  stamped, 
lu  7)cnger  &  Co., 
,-  o  ii!  chard 
is,  ■  noji  shil- 
at-  ;,o  Richard 
\,  .ijiiig  his  name 
lank,  Bristol,  and 
that  the  prisoner 

3  marked  A. 


took  possession  of  tlio  bill,  and  afterwanls  indorsed  and  discounted  the 
same,  and  applied  tlio  proceeds  to  liis  own  use.  At  the  close  of  the 
case  for  the  prosecution,  it  was  objected  by  the  prisoner's  counsel  that 
there  was  no  evidence  that  the  prisoner  had  obtained  from  Richard 
Latham  a  valuable  security  within  the  meaning  of  the  statute  7  and  8 
George  IV.,'  so  as  to  sustain  either  count  of  the  indictment,  on  the 
ground  that  the  evidence  showed  that  the  prisoner  had  obtained  from 
Richard  Latham  either  an  acceptance  only,  or  an  instrument  which  was 
not  an  available  security  or  of  any  value  to  Richard  Latham.  I 
refused,  on  this  objection  to  direct  an  acquittal,  but  left  the  case  to  the 
jury,  who  found  the  prisoner  guilty ;  but  I  reserved  the  question  for 
the  opinion  of  the  Court  of  Criminal  Appeal,  whether  there  was  evi- 
dence that  the  prisoner  obtained  from  Richard  Latham  a  valuable  secur- 
ity 80  as  to  sustain  either  count  of  the  indictment.  After  the  verdict 
it  was  objected,  in  arrest  of  judgment,  that  each  count  of  the  indict- 
ment was  bad  for  not  alleging  tliat  the  valuable  security  obtained  by 
l)y  John  Danger  was  the  property  of  Richard  Latham,  and  the  case  of 
Regina  v.  Lill,^  was  cited.  I  also  reserved  that  question,  and  I  have  to 
request  the  opinion  of  the  Court  of  Criminal  Appeal  upon  the  above 
matters.  I  postponed  the  sentence,  and  admitted  the  prisoner  to  bail 
until  the  next  Quarter  Sessions  for  the  said  city  and  county  of  Bristol. 

John  A.  Kinglake, 
Recorder  of  the  City  and  County  of  BristoL 


CrrY  AND  CotTNTT  ^         The  jurors  for  our  Sovereign  lady  the  Qaeen, 
OF  BuiSTOL,       >   upon  their  oath  present  that  before  and  at  the 
TO  wit:  ^  time  of  the  committing  of  the  offense  hereinafter 

named  one  Richard  Latham  was  a  currier,  carrying  on  business  at  Red- 
cliff  Street  in  the  parish  of  Saint  Mary  Redcliff  in  the  city  and  county 
of  Bristol,  and  one  George  Jenkins,  was  a  tanner,  carrying  on  business 
at  that  part  of  tlie  parish  of  Bedminster  which  lies  within  the  city  and 
count}'  of  Bristol,  and  that  John  Danger,  late  of  the  parish  of  Saint 
Nicholas  in  the  city  and  county  aforesaid,  leather  factor,  on  the  27th 
day  of  December,  in  the  year  of  our  Lord,  1856,  being  an  evil-disposed 
person  and  contriving  and  intending  unlawfully,  fraudulently,  know- 
ingly and  designedly  to  cheat  and  defraud,  then  and  there,  to  wit,  on  the 
day  and  year  aforesaid  at  the  parish  last  aforesaid,  did  ask  the  said 
Richard  Latham  if  he  the  said  Richard  Latham  would  buy  some  of 
George  Jenkins'  (meaning  the  said  George  Jenkins)  butts,  whereupon 
the  said  Richard  Latham  then  and  there  told  the  said  John  Danger  that 


ch.  29,  sec.  53. 


a  Dears.  C.  f.  132. 


aso 


FRAUD    AM)    FAL8K    PUETEN8ES. 


he  the  said  Richard  Latliara  had  been  speaking  to  Mr.  Jenkins  (mean- 
ing tiie  said  George  Jenliins)  and  he  (meaning  the  said  George  Jenlvins) 
said  ho  iiad  no  l)iitts  to  sell,  and  ttie  said  Jolni  Danger  tliereupon 
unlawfully,  knowingly  and  designedly  did  falsely  pretend  and  say  to 
tiie  said  Richard  Latham:  You  (moaning  the  said  Richard  Latliam) 
don't  know  George  Jenkins  (meaning  the  said  George  Jonkins)  as  well 
as  I  do,  for  he  (meaning  the  said  George  Jenkins)  is  now  baling  up 
three  hundred  butts  for  me  (meaning  himself,  the  said  John  Danger)  to 
come  into  my  warehouse  (meaning  the  warehouse  of  the  said  John 
Danger)  this  afternoon,  and  that  he,  the  said  Rinhard  Latham,  should 
have  them  at  the  price  of  twenty-one  pence  per  pound,  and  that  the 
said  Richard  Latham  then  and  there  agreed  to  be  me  the  purchaser  of 
to  wit,  a  certain  part  of  the  said  butts  of  and  from  the  said  John  Dan- 
ger, at  that  price,  whereupon  the  said  John  Danger  asked  the  said 
Richard  Latham  to  accept  a  bill  for  £184  16s,  and  then  and  there  pro- 
duced a  bill  of  exchange  drawn  by  him  the  said  John  Danger  upon  him 
the  said  Richard  Latham  for  the  said  sum  of  £184  IGs,  and  the  said 
John  Danger  then  and  there  stated  to  the  said  Richard  Latham  that  he, 
the  said  Richard  I^atham,  should  have  the  worth  of  it  (meaning  the  said 
bill  of  exchange  for  £184  IGs)  in  these  butts  (meaning  the  said  butts 
which  the  said  John  Danger  had  as  aforesaid  unlawfully,  knowingly 
and  designedly  falsely  pretended  and  said  that  the  said  George  Jenkins 
was  baling  up  for  him,  the  said  John  Danger,  and  which  said  butts  were 
to  come  into  his,  the  said  John  Danger's,  warehouse  that  afternoon). 
By  which,  the  said  false  pretense,  he,  the  said  John  Danger,  on  the  day 
and  year  aforesaid  at  the  parish  of  Saint  Nicholas,  in  the  city  and  county 
aforesaid,  did  unlawfully  obtain  from  the  said  Richard  Latham  a  certain 
valuable  security,  to  wit,  the  said  bill  of  exchange  which  the  said  John 
Danger  had  so  drawn  upon  the  said  Richard  Latham  as  aforesaid  and 
which  the  said  Richard  Latham  then  and  there  accepted  for  the  said 
fium  of  £184  16s  and  of  the  value  of  £184  16s  with  intent  to  cheat  and 
defraud.  Whereas  in  truth  and  in  fact  the  said  George  Jenkins  was  not, 
on  the  said  27th  day  of  December,  in  the  year  of  our  Lord,  1856,  in  the 
possession  of  three  hundred  butts  or  any  butts  the  property  of  the  said 
John  Danger,  nor  was  the  said  George  Jenkins  on  the  27th  day  of 
December,  1856,  baling  up  three  hundred  butts  or  any  butts  for  the 
said  John  Danger,  against  the  form  of  the  statute  in  such  case  made 
and  provided  and  against  the  peace  of  our  said  lady,  the  Queen,  her 
Crown  and  dignity. 

2d  Count.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present  that  the  said  John  Danger  on  the  day  and  year  aforesaid, 
in  the  parish  of  Saint  Nicholas,  in  the  city  and  county  aforesaid,  unlaw- 
fully, knowingly  and  designedly  did  falsely  pretend  to  the  said  Richard 


R.  V.  nANOER. 


331 


■.  Jenkins  (mean- 
I  George  Jenkins) 
)aiigcr  thereupon 
etcnJ  and  say  to 
Ricliard  Latliam) 
3  Jtjniiins)  ns  well 
is  now  baling  up 
I  Jolin  Danger)  to 
of  the  said  John 
i  Latham,  shouki 
and,  and  that  tlie 
!  the  purchaser  of 
ic  said  John  Dan- 
r  asked  tiie  said 
en  and  there  pro- 
Danger  upon  bim 
IGs,  and  the  said 
i  Latham  that  be, 
^meaning  the  said 
ing  the  said  butts 
(vfully,  knowingly 
d  George  Jenkins 
icb  said  butts  were 
B  that  afternoon), 
anger,  on  the  day 
tie  city  and  county 
I  Latham  a  certain 
licb  the  said  John 
I  as  aforesaid  and 
epted  for  the  said 
itent  to  cheat  and 
e  Jenkins  was  not, 
Lord,  1856,  in  the 
operty  of  the  said 
the  27th  day  of 
any  butts  for  the 
in  such  case  made 
y,  the  Queen,  her 

I  aforesaid,  do  fur- 
ad  year  aforesaid, 
aforesaid,  unlaw- 
0  the  said  Richard 


Latliam  that  one  .George  Jenkins  'had  sold  to  and  was  then  baling  up 
for  him  the  said  John  Danger,  three  hundred  butts  of  leather,  and  which 
the  said  John  Danger  then  and  there  unlawfully,  knowingly  and  design- 
edly falsely  pretended  and  stated  to  the  said  Richard  Latham  were  to 
(■(line  into  his,  llic  said  Jolin  Danger's,  wareiiouse  on  the  afternoon  of  the 
s:ii(l  day  and  that  he  the  said  John  Danger  could  and  would  then  sell 
lliu  same  or  any  part  thereof  to  the  said  Richard  Latham  at  a  certain 
price,  to  wit,  the  prire  of  twenty-one  pence  p  ^r  pound.  By  means  of 
wiiich  said  false  pretenHcs  the  said  John  Danger  did  then  and  there  uii 
lawfully  obtain  from  the  said  Richard  Latham  a  certain  valuable  secu- 
rity to  wit  a  bill  of  exchange  for  the  sum  of  £'1H4  Kjs  and  of  the  value 
of  £181  168  of  and  from  the  said  Riciiard  Latham  ns  and  for  the  sum  to 
lie  paid  by  him  iH  payment  for  certain  of  the  said  three  hundred  butts 
aforesaid,  with  intent  then  and  there  to  cheat  and  defraud  tiic  said 
IJithard  Latham  of  the  same.  Whereas  in  truth  and  in  fact  the  said 
George  Jenkins  had  not  sold  to  the  said  John  Danger,  nor  was  the  said 
George  Jenkins  then  bailing  up  for  him,  the  said  John  Danger,  three 
hundred  butts  of  leather  or  any  butts  of  leather  whatsoever,  nor  were 
the  said  three  hundred  butts  to  come  into  his  the  said  John  Danger's 
warehouse  on  the  afternoon  of  the  said  day,  nor  could  the  said  John 
Danger  then  sell  the  same  or  any  part  thereof  to  the  said  Richard  Latham, 
against  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  of  our  said  lady  the  Queen,  her  Crown  and  dignity. 

This  case  was  argued  on  30th  Ma}',  1857,  before  Lord  Campbell,  C. 
C,  EuLE,  J.,  Williams,  Crowder,  J.,  andBRAMWELL,  B. 

//.  T.  Cole,  appeared  for  the  Crown,  and  C.  G.  Pridmux,  for  the 
prisoner. 

C.  O.  Pridcaux,  for  the  prisoner.  First,  the  indictment  is  bad  in  ar- 
rest of  judgment.  The  second  count  is  not  distinguishable  from  those 
in  Lill  V.  Queen  in  error ;  ^  it  will  only  be  necessary,  therefore,  to  con- 
sider the  first,  which  is  open  to  the  same  objection,  and  is,  I  contend, 
also  bad,  because  it  does  not  allege  the  valuable  security  to  have  been 
the  property  of  the  prosecutor.     This  defect  is  clearly  fatal.^ 

Lord  Campbell,  C.  J.  There  has  been  no  subsequent  statute  altering 
the  law. 

Prideaux.  No.  The  case  of  LUl  v.  Queen  was  decided  after  the 
passing  of  the  14  and  15  yictoria,^  audit  was  held  that  the  defect  was 
not  a  formal  one,  and  was  not  caused  by  that  statute. 

Secondly.  The  evidence  does  not  disclose  any  offense  within  section 
53  of  7  and  8  George  IV. '    First.  I  contend  that  upon  the  facts  proved 


>  Dears.  0.  O.  182,  «.  c.  1  EI.  A  Bl.  653. 
-  Keg.  V.  Martin    8  Ad.  A  E.  481 ;  Reg 
r.  Parker,  ,1  Q.  B.  Bep.  392 ;  LIU  v.  Queen 


in  Error,  Dears  C.  C. 
553. 

»  ch.  100. 

<  ch.  29. 


132;  I.  c.l  El.  A  Bl. 


332 


FRAUD  AND  FALSE  PRETENSES. 


the  bill  never  was  tlie  property  of  the  prosecutor,  and  never  was  In  his 
possession ;  ami  secondly,  I  submit,  that  it  was  not  a  valuable  security 
within  the  meaning  of  the  statute. 

Krlk,  J.    The  same  question  is  raised  upon  the  merits  and  upon  the 
indictment,  as  the  facts  are  correctly  stated  in  the  first  count. 

Prideanx.     Yes.     The  paper  on  which  the  bill  was  written  was  tlie 
property  of  the  prisoner  —  the  stamp  was  his  —  and  no  property  was 
acquired  by  the  prosecutor  ])y  reason  of  his  writing  his  name  as  ac- 
ceptor.   The  bill  was  handed  to  the  prosecutor  merely  for  the  purpose  of 
his  so  writing  his  name,  and  when  that  was  done  the  property  and  rigiit 
of  possession  were  in  the  prisoner,  and  the  prosecutor  had  no  right  to 
detain  it.     When  the  acceptance  is  complete,  the  bill  becomes  the  prop- 
erty of  the  drawer,  even  if  not  so  before,  and  if  the  acceptor  improp- 
erly detains  the  bill  in    his  hands  after  acceptance,  the  drawer  may 
nevei'tlieless  sue    him  on  it  and  give  him    notice   to  produce  it,  or 
on  his  default  give  parol  evidence    Df    it.*      That  case  goes   almost 
the     whole     length    of    supporting    my  position.     In     Johnson    v. 
WincUej^  a  promissory  note  delivered  by  defendant  to  plaintiff,  payable 
to  the  plaintiff's  order,  was  stolen  from  plaintiff  by  his  clerk,  who,  after 
forging  plaintiff's  indorsement,  obtained  payment  of  the   defendant's 
banker,  and  the  banker  handed  the  note  to  the  defendant ;  and  the 
court  held  that  the  plaintiff  was  entitled  to  recover  the  amount  at  the 
hands  of  the  defendant  in  an  action  of  trover,  notwithstanding  six 
weeks  had  elapsed  before  the  plaintiff  discovered  and  gave  the  defend- 
ant notice  of  the  loss  of  the  note.     I  refer  to  this  case  mainly  to  call 
attention  to  the  language  of  Bosanquet,  J.,  who  said:  "  This  instru- 
ment on  the  face  of  it  was  marked  as  the  property  of  the  plaintiff." 
So  in  this  case,  the  bill  when  accepted  was  marked  as  the  property  of 
the  prisoner,  and  the  prosecutor  had  no  property  therein. 

In  Morrison  &  Oray  v.  Buchanan,^  by  the  negligence  of  a  clerk  of 
the  drawer  of  a  bill,  it  was  delivered  out  by  a  banker  after  acceptance 
to  a  wrong  person;  and  Littledale,  J.,  held,  that  under  those  circum- 
stances the  drawer  could  not  maintain  trover  for  the  bill  against  the 
party  who  so  delivered  it  out ;  but  it  was  not  disputed  that  the  bill  was, 
after  acceptance,  the  property  of  the  drawer ;  and,  although  in  Evam 
V.  Kymer*  the  property  in  a  bill  was  held  to  be  in  the  acceptor,  the 
ground  of  the  decision  was  that  the  bill  had  been  deposited  with  the 
drawer  to  hold  for  the  acceptor's  use. 

Here  the  prosecutor  never  had  such  a  possession  of  the  bill  as  would 
have  v^nabled  him  to  maintain  trespass.     All  the  cases  show  that  de  facto 


1  Smith  v.MoClure,  5  East,  476. 
a  3  Binjt,  N.  C.  225. 


3  6  C.  &  P.  18. 


f  ',^^Tl»!tWS!-^  J'^,* 


iMl 


K.  V.  DANOKK. 


833 


nd  never  was  in  bis 
a  valuable  security 

lerits  and  upon  the 
rst  count. 
vuH  written  was  tlic 
nd  no  property  was 
igbis  name  as  rc- 
y  for  the  purpose  of 
1  property  and  rigiit 
itOT  bad  no  right  to 
I  becomes  the  prop- 
le  acceptor  improp- 
e,  the  drawer  may 
to  produce  it,  or 
t  case  goes   almost 
In     Johnson    v. 
to  plaintiff,  payable 
his  clerk,  who,  after 
of  the   defendant's 
k'fendant;  and  the 
;r  the  amount  at  the 
notwithstanding  six 
nd  gave  the  defend- 
}  case  mainly  to  call 
said:  "  Tliis  instru- 
ty  of  the  plaintiff." 
d  as  the  property  of 
lerein. 

igenco  of  a  clerk  of 
ker  after  acceptance 
under  those  circum- 
the  bill  against  the 
;ed  that  the  bill  was, 
,  although  in  Evans 
in  the  acceptor,  the 
1  deposited  with  the 

of  the  bill  as  would 
es  show  that  de  facto 


possession  is  not  sufficient.  In  Regina  v.  John  Smith,^  the  prisoner 
iiaviiig  led  the  prosecutor  to  believe  that  he  was  about  to  pay  him  a  debt 
due  to  him  from  a  third  person,  took  out  of  his  pocket  a  piece  of  blank 
paper  stamped  with  a  six-i)cnny  stamp  and  put  it  upon  the  table,  and 
then  took  out  some  silver  in  bis  band  and  mentioned  the  amount  for 
wliieli  the  prosecutor  was  to  give  a  receipt.  The  prosecutor  wrote  and 
sijyied  a  receipt  for  that  sum  on  the  stamped  paper,  and  the  i)ri9onor 
tlicii  took  it  up  and  went  out  and  never  paid  the  money ;  and  the  court 
held  that  the  prisoner  could  not  be  fionvicted  of  larceny,  because  the 
prosecutor  never  had  such  a  possession  >.f  the  paper  as  would  have  en- 
abled bim  to  maintain  trespass.  It  seePiS  mpossible  in  principle  to  dis- 
tinguish that  from  the  present  case ;  en*',  the  reasons  given  by  Parke, 
B. ,  apply  equally  here.  His  Lordship  said :  ' '  The  stamped  paper  never 
was  in  the  prosecutor' 8  possession,  and  the  prisoner  can  not  be  convicted 
of  stealing  it,  unless  the  prosecutor  had  such  a  possession  of  it  as  would 
enal)le  him  to  maintain  trespass.  It  was  merely  handed  over  for  bim 
to  write  upon  it." 

Bkamwell,  B.  If  the  prosecutor,  after  he  bad  written  the  accept- 
ance, had  discovered  the  fraud  and  refused  to  part  with  it,  and  the 
prisoner  had  snatched  it  way  from  him,  could  the  prosecutor  have 
maintained  trespass? 

Prideaux.     No,  I  apprehend  he  could  not. 

Lord  Campbell,  C.  J.  Suppose  the  prosecutor,  having  discovered 
the  fraud,  had  refused  to  deliver  the  acceptance  to  the  prisoner,  and 
tiie  prisoner  had  brought  detinue  to  recover  it,  would  not  the  prosecutor 
have  had  a  good  defence  ? 

Williams,  J.  Under  such  circumstances  would  not  the  prosecutor 
at  all  events,  have  had  a  right  to  retain  the  acceptance  till  he  had  erased 
his  name  from  it  ? 

Erle,  J.  Suppose  the  prosecutor,  after  having  written  the  accept- 
ance, bad  put  the  instrument  away  till  the  following  day,  and  in  the 
meantime  received  information  of  the  fraud,  which  would  have  induced 
him  to  cancel  it;  but  the  drawer,  during  the  interval,  stole  it?  As  at 
present  advised,  I  think  the  drawer  might  be  indicted  for  larceny. 

Prideaux.  There  are  two  cases  referred  to  in  Regina  v.  Johii  Smith, 
vhich  also  appear  in  point.  One  is  Rex  v.  Minter  Hart,^  where  the 
prosecutor  was,  by  fraud,  induced  to  write  acceptances  upon  ten  blank 
bill  sumps  provided  by  the  prisoner,  which  were  afterwards  filled  up 
by  iiioi  as  bills  for  £500  each,  and  put  into  circulation ;  and  it  was 
held  that  a  charge  of  larceny  against  the  prisoner  for  stealing  the  paper 
on  which  the  stamps  were,  could  not  be  sustained,  because  the  prose- 


1  2  Den.  C.  C.  449. 


S  6  q.  A  P.  106. 


334 


FRAUD   AND    FALSI',    PKETRN8E8. 


cutor  nover  had  oitlicr  tlio  property  or  tlie  possession  of  papers  so  as  lo 
make  the  tuking  of  tlicm  l)v  a  prisoner  n  larceny.  In  tbt.t  case,  iis 
here,  tliero  hud  been  a  de  fmio  possession  by  tlie  prosecutor,  l)iit  iw. 
such  possession  as  wouUl  have  enabled  him  to  maintain  trespass  against 
the  prisoner  for  taking  the  bills. 

Lord  C.vMrHKLL,  C.  J.  Could  not  the  prosecutor  in  this  case  havu 
maintained  trespass  against  a  stranger  who  had  taken  the  bill?  , 

J*n'demt.e.  I'ossjbly  he  might  against  a  stranger;  but  not  against 
the  i»risoner.  In  Mrs.  PJn'iioc's  C'(.tf%'  where  the  prosecutor  was  com- 
pelled by  duress  of  hia  person  to  sign  a  |)ronii88ory  note  previously  pre- 
pared ]>y  tiie  defendant,  who  ijrotluced  it  for  the  puri)08e,  and  took  it 
away  as  soon  as  it  was  signed,  it  was  held  that  the  case  was  not  witliiu 
section  .'5  of  2  George  11.,'^  because  the  instrument  was  of  no  value  to 
the  prosecutor,  and  l)ecau8e  the  note  never  was  the  property  nor  in  the 
possession  of  the  prosecutor. 

Thirdly.  Tlio  instrument  was  not  a  valuable  security  within  the 
meaning  of  the  statute. 

Some  of  tiio  eases  previously  referred  to  are  also  important  on  this 
point.  In  Minter  Hart's  Case,  it  was  decided  that  the  stamps  filled  up, 
as  before  mentioned,  were  neither  bills  of  exchange,  orders  for  the 
payment  of  money, 'nor  securities  for  money,  anil  in  Mrs.  Phipot's 
Case,  the  promissory  note,  which  the  prosecutor  was  compelled  by 
duress  to  sign,  was  held  to  be  of  no  value  wlnle  in  tlie  hands  of  tiie 
prosecutor.  In  order  to  make  the  instrument  a  valuable  security  within 
the  meaning  of  the  statute,  it  must  be  effectual  as  a  security  when  ob- 
tained, in  other  words  it  must  at  thac  time  be  of  value  to  some  person 
other  than  the  prisoner. 

The  bill  was  not  a  valuable  security  while  in  the  hands  of  the  prose- 
cutor, because  the  acceptance  was  not  complete  until  delivery.  This  is 
settled  by  Cox  v.  Troy,^  where  the  defendant,  having  written  his  ac- 
ceptance with  the  intention  of  accepting  a  bill,  afterwards  cimnged  his 
mind,  and  before  communicating  to  the  holder  or  delivering  the  bill 
back  to  him,  obliterated  his  acceptance,  and  it  was  held  that  he  was  not 
bound  as  accjeptor. 

Lord  Campbell,  C.  J.  There  must  be  eitlier  a  delivery  or  a  com- 
munication to  bind  the  acceptor. 

EuLE,  J.     Tlie  animus  accipiendi  notified. 

Lord  Campbell,  C.  J.  Was  not  that  done  when  the  prosecutor,  in 
the  presence  of  the  prisoner,  wrote  his  name  with  the  intention  of  ac- 
cepting the  bill  ? 


1  2  Leach)  C.  C.  643;  2  Kast  P.  C.  599.  a  ch.  25. 

And  see  Rex  v.  Edwards,  i>  C.  &  P.  HI.  3  5  b.  &  A.  474. 


Ml 


n.  V.  i)AX(fi;i{. 


885 


on  of  i)ai)cr9  so  as  lo 
y.  In  thr.t  case,  !i- 
e  prostit'utor,  but  ik, 
itain  trespass  agaiutit 

or  in  this  case  Imvu 
ccn  the  bill?  , 

;er ;  but  not  against 
prosecutor  was  coin- 
note  previously  pre. 
piu'[)ose,  and  took  it 
'  case  was  not  within 
t  was  of  no  value  to 
!  property  nor  in  the 

security  within   the 

so  important  on  this 
the  stamps  filled  up, 
ange,  orders  for  the 
lul  in  Mrs.  Phipo^'s 
)r  was  compelled  by 
I  in  the  hands  of  the 
luablc  security  within 
i  a  security  when  ob- 
value  to  some  person 

e  hands  of  the  prose- 
itil  delivery.  This  is 
uing  written  his  ac- 
'terwards  cliangcd  his 
or  delivering  the  bill 
i  held  that  he  wa.s  not 

a  delivery  or  a  corn- 


en  the  prosecutor,  in 
h  the  intention  of  ac- 


IJk.vmwki.i.,  n.  In  the  ordinary  course  of  banking  business,  a  l>ill  is 
left  lU  till'  itiiiik  for  acceptance  for  twi'uty-four  hours  ;  but  t'  -e  nuiny 
cDiisideratious  may  intervene  which  do  not  take  \Aavv.  iicrc,  where  the 
l)iirt()nor  and  the  prosecutor  are  together  in  tiie  presence  of  the  |)ai)cr. 

I'l-ideuHX.  The  prisoner  had  all  the  time  an  absolute  property  in  the 
bill;  neither  the  indictment  nor  the  evidence  shows  an  unqualified 
iicc('ptan(!e  until  the  delivery  of  the  bill. 

The  bill  being  of  no  value  to  the  prosecutor  was  of  no  value  to  any 
person  other  than  the  prisoner  at  the  time  when  it  was  obtained  ;  be- 
cause until  indorsed  it  could  not  be  of  any  value  to  any  one  excei)t  the 
prisoner  himself. 

In  Miater  Hart's  Case,  as  here,  there  was  no  doubt  a  gross  fraud  had 
been  committed ;  but  the  court  held  that  they  must  look  at  the  docu- 
ment as  it  was  when  obtained  by  the  prisoner,  and  must  see  whether  at 
the  time  when  obtained  it  was  n  "alual)le  security.  In  Downe  v.  Rich- 
ariho)!,^  it  was  held  that  an  accommodation  bill  is  not  issued  until  it  is  in 
the  hands  of  some  person  who  is  entitled  to  treat  it  as  a  security  availa- 
ble in  law. 

CiiowuEn,  J.,  referred  to  Stoeaaiyer  v.  The  Southeastern  li/yilway 
Company J 

Pri<1ea.nx.  There  C,  being  indebted  to  G.,  framed  a  document 
directed  to  himself  ordering  himself,  three  months  after  date,  to  "  pay 
to  my  order  "  the  amount.  The  document  had  the  stamp  proper  for  a 
bill  of  exchange  of  that  amount  and  length  of  time,  and  was  in  all  re- 
spects like  a  bill  of  exchange,  except  that  there  was  no  drawer's  name. 
C.  wrote  on  it  his  acceptance,  and  caused  it  to  be  forwarded,  in  a  par- 
cel directed  to  G.,  by  a  common  carrier,  in  order  that  G.  might  add  his 
name  as  drawer;  and,  in  an  action  against  the  carrier,  it  was  held  that 
the  instrument  was  not  at  the  time  of  its  delivery  to  the  carrier  a 
l)ill,  order,  note,  security  for  payment  of  money,  nor  writing  of  any 
value. 

The  prisoner  in  this  case,  obtained  no  security  of  value  to  the  prose- 
cutor. He  drew  his  bill  of  <.xchange  and  delivered  it  to  the  prosecutor, 
and  the  prosecutor  by  acceptance  and  delivery  promised  to  pay  It ;  and 
thus,  according  to  the  custom  of  merchants,  it  became  the  property  of 
the  prisoner  if  not  so  before.  Everyttjing  previously  to  the  delivery  was 
the  prisoner's,  except  the  promise  to  pay ;  and  a  promise  to  pay  is  not 
the  sut)ject  of  larceny.  Before  the  statute  1  and  2  George,  IV  ,3  it  was 
not  necessary  that  the  acceptance  of  an  inland  bill  should  be  in  writing; 
an  acceptance  by  parol  was  sufficient  at  common  law. 


S  R.  &  A.  fl74. 
■  '.  Kl.  &  Bl.  ,->4'). 


■1  ch.  7S,  sec.  2. 


336 


FRAUD  AND  FALSE  PRETEN8K8. 


Lord  Campbell,  C.  J.  A  promise  to  paj'  is  something  not  material  j 
it  is  something  aerial ;  but  here  you  have  tlie  written  acceptance. 

EiiLE,  J.  In  every  valuable  instrument  the  value  lies  in  the  words 
apart  from  the  ink  with  which  they  are  written. 

Prideaux.  Abstracting  from  tlie  bill  the  promise  to  pay,  all  that  was 
material  was  the  ink  and  the  paper,  and  they  unquestionably  belonged 
to  the  prisoner. 

BuAJiWELL,  B.  You  say  the  chattel  belonged  to  the  prisoner,  and 
that  all  he  got  was  the  evidence  of  the  promise. 

Prideaux.  And  independent  of  that,  the  moment  it  was  an  accept- 
ance it  became  the  property  of  the  prisoner,  according  to  the  custom  of 
merchants  ;  and  that  the  only  person  to  whom  the  bill  could  be  of  the 
slightest  value  being  the  prisoner  himself,  it  was  in  fact  of  no  value  to 
him,  because,  by  reason  of  his  fraud,  he  could  not  have  maintained  an 
action  upon  it. 

I  therefore  contend,  first,  that  the  indictment  is  bad  in  arrest  of 
judgment. 

Lord  Campbell,  C.  J.  The  indictment  gives  a  full,  faithful  and 
complete  history  of  the  whole  transaction. 

Prideaux.  It  does.  Secondly,  I  contend  that  the  prosecutor  had  no 
sufficient  property  in  or  possession  of  the  instrument ;  and  thirdly,  that 
it  was  not  a  valuable  security  within  the  meaning  of  the  statute.  It 
was  of  no  value  while  in  the  hands  of  the  prosecutor ;  when  it  got  into 
the  hands  of  the  prisoner  it  was  of  no  value,  not  being  indorsed  to  any 
person,  except  to  the  prisoner  himself ;  and  in  fact  it  was  of  no  value  to 
him,  because  of  tlie  fraud.  I  submit,  therefore,  that  both  upon  the  in- 
dictment and  upon  the  facts,  I  am  entitled  to  your  judgment. 

H.  T.  Cole,  for  the  Crown.  First,  the  prosecutor  had  a  sufficient 
qualified  prop*!rty  in  the  bill  at  the  time  when  it  was  obtained  by  the  pris- 
oner. He  had  such  a  possession  of  it,  as  would  have  enabled  him  to 
maintain  trespass.  Tlie  prisoner  presented  a  piece  of  stamped  paper 
to  the  prosecutor ;  it  was  not  a  bill  till  accepted. 

Lord  Campbell,  C.  J.     It  was  an  unaccepted  bill. 

Cole.  After  signing  it  the  prosecutor  might,  if  he  had  chosen,  have 
erased  his  acceptance. 

Lord  Campbell,  C.  J.  You  say  he  had  a  right  of  possession  for  that 
purpose.  If  the  prisoner  had  taken  the  bill  from  the  prosecutor  malo 
animo,  with  the  intention  of  preventing  him  from  erasing  his  acceptance, 
would  that  have  been  a  larceny? 

Williams,  J.  It  would  be  difficult  to  say  so,  if  Regina  v.  Smith 
was  well  decided. 

Bramwbll,  B.     You  argue  that  the  prosecutor  had  a  right  of  posses- 


^^ 


KS. 


R.  V.  DANGER. 


837 


mething  not  material ; 

ten  acceptance. 

ilue  lies  in  the  words 

se  to  pay,  all  that  was 
questionably  belonged 

to  the  prisoner,  and 

lent  it  was  an  accept- 
rding  to  the  custom  of 
le  bill  could  be  of  tlie 
in  fact  of  no  value  to 
t  have  maintained  an 

t  is  bad  in  arrest  of 

I  a  full,  faithful  and 

the  prosecutor  had  no 
ent ;  and  thirdly,  that 
J  of  the  statute.  It 
jtor ;  when  it  got  into 
beina:  indorsed  to  any 
t  it  was  ot  no  value  to 
that  both  upon  the  in- 
r  judgment, 
utor  had  a  sufficient 
i  obtained  by  the  pris- 
have  enabled  him  to 
ece  of  stamped  paper 

ill. 

'  he  had  chosen,  have 

of  possession  for  that 
I  the  prosecutor  malo 
rasing  his  acceptance, 

,  if  Regina  v.  Smith 

had  a  right  of  posses- 


sion because  he  had  a  right  of  cancellation ;  but  they  are  not  identical. 
You  can  not  say  that  because  he  had  right  of  cancellation,  he  bad  a 
riglit  of  possession. 

Cole.  Evans  v.  Kymer  shows  that  if  the  prosecutor,  after  accepting 
the  bill,  had  delivered  it  to  the  prisoner  to  hold  for  him,  he  might  have 
maintained  trover  for  it. 

S'"'  ndly,  the  objection  that  the  instrument  was  not  a  valuable  secu- 
rity will  not  be  maintained,  if  the  court  can  see  that  in  any  way  it  can 
be  so  regarded,  and,  I  contend,  that  it  is  quite  suflicient,  if  the  accep- 
tance was  valuable  to  the  prisoner ;  and  no  doubt  it  was,  for  l)y  indors- 
ing it  away,  he  obtained  money  upon  it.  In  Regina  v.  Bolton,^  it  was 
lield  that  a  railway  ticket,  entitling  a  passenger  to  travel  on  tlie  line  of 
railwaj',  was  a  chattel  of  value ;  although  the  ticket  was  not  of  value  to 
the  person  from  whom  it  Was  obtained,  but  only  to  the  person  obtain- 
ing it. 

WiiJiAMS,  J.     It  was  decided  that  it  was  a  "  chattel." 

Cole.  Section  5  of  the  statute  gives  the  rule  of  interpretation  which 
is,  that  "  each  of  the  several  documents  hereinbefore  enumerated  shall 
throiigliout  this  act  be  deemed  for  every  purpose  to  be  included  under 
and  denoted  by  the  words  '  valuable  security.'  "  The  documents  be- 
fore enumerated  include  any  "  bill,  note,  warrant,  order,  or  other 
recurity  whatso'j\  er,  for  money  or  for  the  payment  of  money ;  ' '  and  I 
submit  that  the  instrument  in  this  case  clearly  comes  within  this  defini- 
tion of  a  valuable  security.  Regina  v.  Smith,^  was  not  the  case  of  a 
valuable  security,  but  of  a  receipt.  In  Regina  v.  Oreenhalgh,^  an  order 
upon  the  treasurer  of  a  burial  society,  for  payment  of  money  to 
bearer,  was  obtained  by  the  prisoner  from  the  president  by  a  false 
pretense  that  a  death  had  occurred,  and  that  order  was  held  to  be  a  val- 
uable security  within  section  63,  as  explained  by  section  5  of  the 
statute ;  although  there  the  order  was  of  no  value  to  the  person  from 
ffhoni  it  was  obtained.  That  decision,  I  submit,  entirely  cuts  away 
tills  branch  of  the  argume'^*  for  the  prisoner.  With  regard  to  the  in- 
dictment, the  whole  facts  appear  upon  it. 

Lord  Campbell,  C.  J.  If  the  offense  be  indictable,  of  which  I  give 
no  opinion,  I  think  the  first  count  is  sufficient. 

Cole.  The  rule  of  law  as  to  what  constitutes  a  complete  acceptance, 
is  thus  laid  down  in  Biles  on  Bills  :*  — 

"  The  liability  of  the  acceptor,  though  irrevocable  when  complete, 
does  not  attach  by  merely  writing  his  name,  but  upon  the  subsequent 


1  1  Den.  0.  C.  608. 
■  2  Den.  C.  C.  449. 

3  Defences 


3  Dears.  C.  C.  267. 
*  7th  ed,,  p.  167. 


82 


■S 


388 


TRAUD  AND  FALSE  PHETENSES. 


delivery  of  the  bill  or  upon  communication  to  some  person  interested 
in  ilie  bill,  that  it  has  been  so  accepted."  Here  the  latter  alternative 
is  satisfied,  and  the  acceptance  was  clearly  complete  before  delivery, 
the  prosecutor  having  written  the  acceptance  in  the  presence  of  the 
prisoner,  and  thereby  communicating  it  to  the  person  interested, 
namely,  to  the  prisoner ;  and  tlie  bill  was  therefore  a  valuable  security 
when  in  the  hands  of  the  |)rosecutor. 

I  therefore  contend,  first,  that  the  prosecutor  had  a  sufficient  quali- 
fied property  in  and  possession  of  the  bill  to  support  tlie  indictment. 
Secondly,  that  in  order  to  make  the  instrument  a  valuable  security 
within  the  meaning  of  the  statute,  it  is  sutficient  if  it  be  of  value  to 
the  person  obtaining  it ;  in  other  words,  if  j^ou  obtain  an  acceptance 
from  me,  whicii  is  of  value  to  you,  you  obtain  a  valuable  security. 

Prideaux,  in  rei)ly.  The  result  of  the  doctrine  laid  down  in  the 
passage  cited  from  Byles  on  Bills  '  is  thus  stated  by  the  learned 
author : — 

"  Hence  it  follows  that  if  the  drawer  has  written  Lis  name  on  the  bill 
with  the  intention  to  accept,  he  is  at  liberty  to  cancel  his  acceptance 
at  any  time  before  the  bill  is  delivered,  or  at  least  before  the  fact  of 
acceptance  is  communicated  to  the  holder."  But,  assuming  that  the 
acceptance  was  complete,  as  contended,  the  bill  thereupon  became  the 
property  of  the  prisoner,  even  if  not  so  before.  Regina  v.  Boulton  ^ 
does  not  apply ;  since,  in  that  case,  the  decision  was  simply  that  a 
printed  ticket  of  the  railway  company  was  a  chattel  within  the  meaning 
of  the  statute. 

In  Regina  v.  Greenhalgh,  the  order  was  payable  to  bearer,  and  was 
therefore  a  valuable  security  to  any  person  into  whose  hands  it  came ; 
but  here  the  instrument  was  of  no  value  to  any  one  except  to  the  pris- 
oner, although  it  might,  after  indorsement,  become  valuable  to  other 
persons.  The  question  is,  was  it  a  valuable  security  to  any  person, 
other  than  the  prisoner  when  obtained  ?3 

When  a  man  delivers  a  bill  of  exchange  to  the  drawee  for  the  purpose 
of  being  accepted,  the  drawee  holds  it  for  that  purpose  alone,  and  i\m 
does  not  in  any  way  change  the  propei'ty  in  the  bill ;  nor  does  it  pre- 
vent the  drawer,  where  there  are  no  other  parties  to  the  bill,  from  de- 
manding it  back  if  he  chooses ;  and  if  left  at  a  bank  for  acceptance 
there  is  nothing  to  prevent  him  from  demanding  it,  even  within  the 
twenty-four  hours  allowed  for  acceptance. 

Cur.  adv.  vult. 


1  7th  ed.,  p.  167. 

2  1  Den.  C.  C.  608. 

3  Bex  V,  Pooley.,  Rusb.  &  Ry.  12 ;  Rex  v. 


Clark,  Ibid.  181 ;  Hex  v.  Binglev,  5  0.  A  P 
602;  Rex  r.  Vyse,  1  Moo.  0.  0.  218;  Reg.  f 
Perry,  1  Den.  C.  C.  69. 


IWHaW***!*  fe«'T*-«>^«a«>s  '■i'^7'..'  ■- 


^^i 


PEOrLK   V.  BLANCIIARD. 


339 


person  interested 

latter  alternative 

before  delivery, 

presence  of  the 

erson   interested, 

valuable  security 

a  sufficient  quali- 
ft  tlie  indictment, 
valuable  security 
it  be  of  value  to 
Eiin  an  acceptance 
ble  security, 
aid  down  in  the 
1   by  the  learned 

name  on  the  bill 
;el  his  acceptance 
jefore  the  fact  of 
ssuming  that  the 
upon  became  the 
gina  v.  Boulton  ^ 
as  simply  that  a 
ithin  the  meaning 

bearer,  and  was 
3  hands  it  came ; 
ccept  to  the  pris- 
'aUiable  to  other 
y  to  any  person, 

e  for  the  purpose 
le  alone,  and  this 
nor  does  it  pn- 
the  bill,  from  de- 
ik  for  acceptance 
,  even  within  the 


V.  Binglev,  5  0.  A  P 
90.  0.  0.  218;  Reg.  *- 


The  judgment  of  the  court  was  delivered  on  I8th  June,  1857,  by 
Lord  Campbell,  C.  J.  We  are  of  opinion  that  the  offense  charged  and 
proved  in  this  case  does  not  come  within  7  and  8  George  IV. ^  The 
"chattel,  money,  or  valuable  security,"  the  obtaining  of  which  by  a 
false  pretense  may  be  made  the  subject  of  an  indictment  within  this 
statute,  must,  we  conceive,  have  been  the  property  of  some  one  other 
than  the  prisoner.  Here  there  is  great  difficulty  in  saying  that,  as 
against  the  prisoner,  the  prosecutor  had  any  property  in  the  document 
as  a  security,  or  even  in  the  paper  on  wliich  the  acceptance  was  written. 
In  no  one  else  could  tiie  property  be  l&id.  We  should  not  have  given 
weight  to  the  argument  that,  even  in  the  prisoner's  hands,  it  was  not  a 
valuable  security  by  reason  of  the  fraud,  which  would  prevent  him 
from  enforcing  it,  but  we  apprehend  that,  to  support  the  indictment, 
the  document  must  have  been  a  valuable  security  while  in  the  hands  of 
the  prosecutor.  While  it  was  in  the  hands  of  the  prosecutor  it  was  of 
no  value  to  him,  nor  to  any  one  else  unless  to  the  prisoner.  In  obtain- 
ing it  the  prisoner  was  guilty  of  a  gross  fraud  ;  but  we  think  not  of  a 
fraud  contemplated  by  this  act  of  Parliament. 

Judgment  reversed. 


FALSE  PRETENSES  — FALSE  STATEMENT  AS  TO  INTENTION  — 

future  fact. 
People  v.  Blanchard. 

[«J0  N.  Y.  314.] 
In  the  Court  of  Appeals  of  Neto  York,  1882. 

■  (Tpon  the  Trial  of  an  Indictment  for  obtaining  goods  by  means  of  false  representa- 
tions, it  is  not  necessary  tbat  the  prosecution  shoald  prove  all  the  false  representations 
alleged  in  the  indictment. 

Where  the  Bepreaentations  set  forth  in  the  indictment  are  prored,  the  sense  In  which 
they  were  used  and  what  was  designed  to  be  and  was  understood  from  them  are  ques- 
tions for  the  jurv. 

An  Indictment  for  Falae  Pretenaea  may  not  be  founded  upon  an  assertion  of  an 
existing  intention  although  it  did  not  In  fact  exist;  there  must  be  a  false  representation 
as  to  an  existing  fact. 

•  On  the  Trial  of  an  Indictment  for  obtaining  n  number  of  cattle  by  false  pretenses,  it 
appeared  that  the  vendor  sold  the  cattle  to  the  prisoner  at  BuiTnlo  and  received  his 
check  post-dated  for  the  purchase  price,  upon  his  representation  that  he  was  buying  and 
wanted  the  cattle  for  G.  who  lived  at  Utica ;  that  they  were  for  G.,  who  would  remit  the 


>  ch.  21).  sec.  53. 


340 


FRAUD   AND   FALSK   PRETENSES. 


price  in  time  to  meet  tlie  check ;  tlio  prisoner  had  been  in  the  habit  of  purchasing  cattle 
to  supply  G.  as  a  customer  and  of  selling  them  to  him  and  had  general  authority  so  to 
buy  whenever  cattle  were  low ;  tw&  days  before  the  purchase  G.  had  written  to  the  pris- 
oner, stating  that  he  wanted  a  choice  lot  of  cattle  and  requesting  him  to  send  on  a  car 
load.  The  prisoner,  however,  instead  of  sending  the  cattle  to  G.  shipped  them  to  Albany, 
sold  them  at  a  reduced  price  and  did  not  pay  the  check.  Held,  that  a  conviction  was 
error;  that  while  there  might  have  been  a  fraud, there  were  no  false  pretenses,a8  the 
vendor  was  cheated  not  by  any  false  statement  of  facts  on  the  part  of  the  vendee,  but  by 
reliance  upon  a  promise  not  meant  to  be  fulfilled,  and  a  false  statemeut  as  to  intention. 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court  of 
Buffalo,  entered  upon  an  order  made  May  15,  1882,  which  affirmed  a 
judgment  entered  upon  a  vei-dict  convicting  the  defendant  of  the  crime 
of  obtaining  property  by  false  pretenses. 

The  indittmeiit  charged  that  defendant  on  the  10th  day  of  Februarj', 
1880,  at  the  city  of  Buffalo,  with  the  intent  to  cheat  and  defraud  John 
Thompson,  did  unlawfully,  knowingly  and  designedlj'-,  falsely  pretend 
and  represent  unto  the  said  John  Thompson  that  he,  the  said  John  H. . 
Blanohard,  was  agent  for  Otto  Gulick,  of  Utica,  and  that  Otto  Gulick, 
of  Utica,  wanted  him  to  buy  for  him  and  send  him  eighteen  cattle,  and 
that  he  had  a  contract  with  Otto  Gulick,  of  Utica,  for  buying  cattle  for 
said  Gulick,  and  that  said  Gulick  had  agreed  to  pay  him  one  dollar  a 
head  for  buying  cattle  foi-  him ;  and  the  said  John  Thompson  then  and 
there  lielieving  the  false  pretenses  and  representations  so  made  as 
aforesaid  by  the  said  John  H.  Blanchard,  and  being  deceived  thereby 
was  induced,  by  reason  of  the  false  pretenses  and  representations  so 
made  as  aforesaid,  to  deliver,  and  did  then  and  there  deliver  to  tUo 
said  John  H.  Blanchard  eighteen  cattle  of  the  value  of  81,157.07. 

The  material  facts  appear  in  the  opinion. 

Samuel  Hand,  for  appellant. 

Tracey  C.  Becker,  for  respondent. 

Finch,  J.  The  defendant  was  indicted  for  obtaining  property  under 
false  pretenses.  The  representations  alleged  to  be  false  were  stated  in 
the  indictment  to  have  been  that  the  accused  "was  agent  for  Otto 
Gulick,  of  Utica,  and  that  he  wanted  io  buy  eighteen  cattle  for  Otto 
Gulick,  of  Utica ;  and  that  Otto  Gulick,  of  Utica,  wanted  him  to  buy  for 
him  and  send  him  eighteen  cattle ;  and  that  he  had  a  contract  with 
Otto  Gulick,  of  Utica,  for  buying  cattle  for  said  Gulick,  and  that  said 
Gulick  had  agreed  to  pay  him  one  dollar  a  head  for  buying  cattle  for 
him."  Taking  this  accusation  as  a  whole,  and  construing  it  in  the  or- 
dinary sense  and  acceptation  of  the  language  used,  it  charges  a  false 
representation  or  agency  in  tiie  purchase  of  the  cattle  for  Gulick.  It 
begins  with  that  dirtct  assertion,  and  everything  added  is  on  its  face, 
not  only  consistent  with  it  but  tends  to  strengthen  and  corroborate 
such  averment.     Representing  himself  to  be  Gulick' s  agent  he  says 


*-.3FiiUJI»li»|l)|Jkll 


^^M 


J'EOPLE   V.  ULAN'CUAUD. 


841 


t  of  purchasing  cattle 
eneral  authority  so  to 
id  written  to  the  pris- 
him  to  send  on  a  cor 
ipped  them  to  Albany, 
that  a  conviction  was 
false  pretenses,  as  the 
i  of  the  vendee,  but  by 
erne  lit  as  to  intention. 

Superior  Court  of 
which  affirmed  a 
dant  of  the  crime 

Jay  of  Februarj', 
tnd  defraud  John 
Y,  falsely  pretend 
the  said  John  H. . 
that  Otto  Gulick, 
[hteen  cattle,  and 
buying  cattle  for 
him  one  dollar  a 
ompson  then  and 
lons  so  made  as 
deceived  thereby 
epresentations  so 
sre  deliver  to  the 
•f  81,157.07. 


ig  property  under 
.Ise  were  stated  in 
is  agent  for  Otto 
en  cattle  for  Otto 
;ed  him  to  buy  for 
A  a  contract  with 
ck,  and  that  said 
buying  cattle  for 
ruing  it  in  the  or- 
it  charges  a  false 
ie  for  Gulick.  It 
ed  is  on  its  face, 
and  corroborate 
c's  agent  he  says 


that  ho  wants  to  Duy  eighteen  cattle  for  him ;  that  is,  he  as  Gulick's 
iii^ent,  which  he  claims  to  be,  desires  to  buy  tiie  property  for  his  priiici- 
[Kil.  He  adds  that  Gulick  wants  him  "to  buy  for  him  "  the  eigliteen 
cuttle ;  that  is,  the  principal  desires  the  agent  to  make  that  particular 
purchase  in  hie  behalf.  The  accused  adds  Anally  that  he  has  a  contract 
witii  Gulick  for  making  such  purchases  by  tlie  terms  of  wlilcli  he,  the 
a<rent,  receives  one  dollar  a  head  for  the  cattle  boiit>lit.  It  is  imi)0ssi- 
l)le  to  misuntlerstand  the  tenor  of  tliese  representations  taken  together. 
Tliey  import  an  agency  existing,  action  desired  and  intended  under  such 
aofcney,  and  a  compensation  of  one  dollar  a  head  as  the  reward  for  tlie 
service  rendered.  If  precisely  the  representations  stated  in  tlie  indict- 
ment had  actually  been  made  to  the  vendor  of  the  cattle,  he  would 
have  understood  and  been  justified  in  undei-standing  that  he  was  selling 
his  cattle  to  Gulick  through  Blanchard  as  his  agent,  and  that  the  sole 
interest  of  the  latter  in  the  transaction  was  to  perform  his  duty  and  earn 
his  commission  as  agent.  If  they  are  to  be  thiis  understood  and  taken 
as  a  whole,  there  was  a  total  failui-e  of  proof,  for  it  was  conceded  that 
Blanchard  did  not  at  all  profess  or  pretend  to  be  Gulick's  agent,  or  to 
be  buying  for  him  as  principal  for  a  commission  payable  to  the  agent. 
The  vendor  sold  to  Blanchui.i  with  no  riglits  or  recourse  against  Gu- 
lick, and  took  the  former's  individual  cheek  for  his  pay,  so  tliat  tlie 
representations  alleged  in  the  indictment  taken  as  a  whole  were  un- 
proved in  tlieir  entire  scope  and  meaning. 

But  they  were  not  so  taken  and  construed.  While  the  indictment 
must  show  what  the  false  pretenses  were,  and  state  tliem  with  reason- 
able certainty  and  precision,'  it  is  not  necessary  tha\  the  prosecution 
should  prove  them  all.'  A  conviction  was  had  in  the  present  case, 
founded  upon  a  part  only  of  the  representations  stated  in  the  indict- 
ment, which  was  permissible,  but  those  claimed  to  be  established 
were  taken  out  of  and  separated  from  tlieir  context,  and  clothed  with  a 
now  and  different  meaning,  and  this  presents  what  there  is  of  the  first 
point  argued  on  belialf  of  the  appellant.  Disregarding  entirely  the 
alleged  claim  of  agency  two  statements  were  culled  from  the  repre=enta- 
tions  recited  in  the  indictment  and  made  the  sole  basis  of  the  convic- 
tion. These  are  that  Blanchard  said  "he  wanted  to  buy  eighteen 
cattle  for  Otto  Gulick,"  and  "  that  Otto  Gulick  wanted  him  to  buy 
for  him  and  send  eighteen  cattle;  "  and  the  meaning  attached  by  the 
court  and  jury  to  these  words,  was  that  Blanchard  represented  that  he 
wanted  to  buy  in  his  own  name  and  on  his  own  responsibility  for 


1  Hex  ti.  Mason,  1  Leach  C.  C.  487 ;  Reg.  v. 
Ilenshaw,  L  A  C.  444. 


:  .State  v.  MUls,  17  Me.  211 ;  Rex  v.  Hill,  B. 
B.  C.  C.  190. 


343 


FRAUD   AND   FALSE   PUETEN8E8. 


Otto  Gulick  as  a  customer  of  his,  and  that  Giilick  stood  ready  as  such 
customer  to  make  the  purchase  and  take  the  property. 

It  is  now  said  that  the  accused  was  indicted  for  one  thing  and  con- 
victed of  another ;  that  he  was  charged  with  a  representation  of  agency 
and  convicted  on  a  representation  which  imported  tlie  exact  contrary ; 
that  the  final  construction  put  upon  the  words  selected  out  makes  them 
inconsistent  with  and  repugnant  to  the  other  representations  alleged, 
and  introduces  contradiction  into  the  indictment ;  and  that  therefore 
tlie  words  relied  on  can  not  bear  the  new  sense  given  to  them,  and  must 
still  be  read  in  tlie  light  of  their  context. 

The  argument  in  this  direction  is  not  without  force.     The  evil  it  points 
out  is  that  the  accused  may  have  been  mislead  ;  ihat  coming  prepartid 
to  meet  an  accusation  that  he  falsely  represented  himself  to  be  Gulick's 
agent  and  to  be  purchasing  as  such,  he  is  suddenly  confronted  with  a 
charge  that  he  claimed  to  be  buying  for  Gulick  as  a  customer  ready  to 
take  the  property  by  purchase  from  the  defendant  as  owner  and 
vendor.     It  was  held  in  King  v.  Stevens,''  that  "  every  indictment  must 
contain  a  complete  description  of  such  facts  and  circumstances  as  con- 
stitnte  the  crime   without  inconsistency  or  repugnanCy;"  and  Lord 
Ellenborougli  said  that  if  the  language  be  clearly  capable  of  different 
meanings  it  does  not  appear  to  clash  with  any  rule  of  construction  ap- 
plied  even  to  criminal  proceedings,  to  construe  it  in  that  sense  in  which 
the  party  framing  tlie  criminal  charge  must  be  understood  to  have  used 
it  if  he  intended  that  his  charge  should  be  consistenfwith  itself." 
■      We  should  be  impressed  with  the  force  of  this  argument  but  for  two 
considerations.     The  representations  relied  on  were  proved  almost  liter- 
ally as  they  stand  in  the  indictment,  and  in  such  case  it  appears  to  be 
the  rule  that  the  sense  in  which  they  were  used,  the  meaning  they  were 
intended  to  bear,  and  what  was  assigned  to  be  and  was  understood 
from  them,  is  a  question  for  the  jury.'^     And  besides,  we  are  unable  to 
see  how  the  question  of  variance  was  fairly  raised.     The  representations 
proved  were  received  without  objection  that  they  were  not  pleaded. 
The  motion  to  direct  a  verdict  for  the  defendant  went  upon  no  such 
distinct  and  definite  ground,  and  none  of  the  exceptions  to  the  charge 
present  the  question.     It  is  best,  therefore,  to  consider  the  main  ques- 
tion  argued  at  the  bar.     Objections  were  taken  which  go  to  the  founda- 
tion of  the  criminal  accusation,  and  which  raise  the  inquiry  whether 
any  false  pretenses  were  established.     Those  recited  in  the  indictment 
and  proved  upon  the  trial  resolve  themselves  into  two  elements:  first, 
the  assertion  as  an  existing  fact  of  a  present  business  relation  between 


I  5  East,  244. 


«  Uex  V.  Archer,  6  Cox,  618. 


■riHMMMM 


BSBesMimasnwi 


BS. 


PEOPLE  V.  BLANCH ARD. 


343 


c  stood  ready  as  such 
perty. 

or  one  thing  and  con- 
)resentation  of  agencj' 
d  the  exact  contrary ; 
lectod  out  makes  thorn 
presentations  alleged, 
it ;  and  that  therefore 
ven  to  them,  and  must 

ce.     The  evil  It  points 
ihat  coming  prepartid 
himself  to  be  Gulick's 
enly  confronted  with  a 
IS  a  customer  ready  to 
jndant  as  owner  and 
every  indictment  must 
circumstances  as  con- 
ugnanCy;  "  and  Lord 
ly  capable  of  different 
iile  of  construction  ap- 
,  in  that  sense  in  which 
iiderstood  to  have  used 
tent 'with  itself." 
I  argument  but  for  two 
?re  proved  almost  liter- 
i  case  it  appears  to  be 
the  meaning  they  were 
e  and  was  understood 
sides,  we  are  unable  to 
,     The  representations 
dey  were  not  pleaded. 
,nt  went  upon  no  such 
tceptions  to  the  charge 
consider  the  main  qucs- 
vhich  go  to  the  founda- 
se  the  inquiry  whether 
icited  in  the  indictment 
ito  two  elements :  first, 
isiness  relation  between 

:her,  6  Cox,  SIS. 


IJlanchard  and  Gulick,  and  second,  the  expression  of  an  intention  to 
act  upon  and  in  accordance  with  such  relation.     The  accused  declared 
that  he  was  buying  the  cattle  for  Gulick ;  that  he  couldn't  make  a  draft 
on  him,  for  he  wouldn't  allow  him  to  draw;  that  he  wanted  the  cattle 
for  Otto,  because  they  would  suit  him  ;  that  they  were  for  Gulick,  who 
would  remit  the  price  in  time  to  meet  the  defendant's  post-dated  check. 
Tiiere  is  here  clearly  asserted  an  existing  business  arrangement  between 
Blanchard  and  Gulick,  calculated,  if  truly  stated,  to  influence  the  pur- 
chaser.    It  imported  that  Gulick  at  that  time  desired  to  purchase  of 
of  Blanchard  eighteen  cattle,  selected  by  the  latter,  and  stood  ready  to 
take  them  and  pay  for  them.     That  was  a  representation  of  an  existing 
fact.     It  imported  also  that  Blanchard  was  buying  with  reference  to 
this  fact,  and  with  intent  to  resell  to  Gulick,  and  with  the  means  thus 
obtained  meet  his  post-dated  check.     Tiiat  was  a  representation  of  an 
existing  intention  and  promissory  in  its  nature.     By  a  false  assertion  of 
the  existing  business  relation  Thompson  could  be  deceived ;  by  a  false 
assertion  of  Blanchard's  purpose  and  intention,  ho  could  not  be.     As 
to  tliat  he  was  forced  to  rely  upon  the  defendant's  honesty  and  integrity 
and  necessarily  took  that  risk. 

It  is  now  claimed  that  the  representations  of  fact,  the  assertion  of  an 
existing  business  relation  between  Blanchard  and  Gulick,  were  not  shown 
to  be  false,  and  were  proved  to  be  true.  If  the  jury  were  not  author- 
ized to  conclude  that  Gulick's  letter  to  Blanchard,  dated  February  9th, 
reached  him  on  the  morning  of  the  10th,  before  he  arrived  at  the  cattle 
yards  iu  East  Buffalo,  that  contention  was  correct.  In  his  letter  o* 
February  8th  Gulick  told  Blanchard  that  he  wanted  a  choice  lot  of 
cattle,  and  requested  him  to  send  on  a  car  load.  He  testified,  also, 
that  Blanchard  had  a  general  authority  to  buy  for  him,  as  a  customer, 
whenever  cattle  were  low ;  and  had  made  purchases  for  him  under  both 
general  and  special  authorities  for  a  long  time  and  to  a  large  amount ; 
and  that  while  he  had  never  forbidden  drafts  on  himself,  he  had  re- 
quested Blanchard  not  to  draw,  but  to  allow  him  to  remit.  Disregard- 
ing for  the  present  the  letter  of  the  9th,  and  the  fact  appears  to  be  that 
whe!\  Blanchard  bought  these  cattle  Gulick  did  want  them ;  he  did  de. 
sire  defendant  to  buy  them  for  him  as  a  customer ;  he  did  stand  ready 
to  take  them  and  pay  for  them,  and  desired  to  remit  the  price,  and  not 
be  drawn  upon  for  it.  When,  therefore,  Blanchard  made  the  represen- 
tation stated  in  the  indictment  that  Gulick  wanted  him  to  buy  for  him 
eighteen  head  of  cattle,  he  told  the  truth.  The  business  relation  alleged 
to  exist  did  exist,  and  the  facts  concerning  it  were  not  misstated,  unless, 
as  we  have  before  intimated,  the  jury  were  warranted  in  finding  that  the 
letter  of  the  9th  reached  Blanchard  before  his  purchase  on  the  10th. 


344 


FRAUD   AND   FALSE    PKETENSES. 


Tlic  letter  itself  is  open  to  tlae  criticism  that  it  does  not  countermand 
tlie  Older  of  tlie  day  before.     It  shows  that  (iulici«  still  wants  the  load 
of  cattle,  still  (lesircs  Blanchard  to  buy  them  for  him  as  a  customer,  but 
says  :   "  I  can  not  tonvcniontly  use  any  cattle  this  week."     "  I  prefer 
to  have  you  wait  until  next  week,  when  I  hope  to  be  ready."     But  giv- 
ing to  tliis  rather  mild  expression  of  a  wish  the  full  force-  claimed  for  it 
by  the  prosecution,  tlio  question  reniiiins  wiietlier  there  was  evidence 
from  which  tlie  jury  were  entitled  to  infer  its  receipt  before  the  purchase 
of  the  cattle.     Gulick  says  he  mailed  it  on  the  ilth,  but  can  not  tell  at 
what  hour  of  tlio  day ;  that  his  custom  was  to  mail  such  letters  at  the 
close  of  business  f,)r  the  day  at  about  six  or  seven  o'clock.     We  may 
therefore  presume  that  this  letter  was  so  mailed.     It  was  proven  that 
the  mail  in  which  tlie  letter  would  naturally  go  west  left  Utica  at  1 :  20 
the  next  morning  and  reached  Buffalo  at  eight  o'clock.     A  previous 
mail  arriving  at  about  midnight  was  regularly  distributed  i«  the  morn- 
ing, and  the  carriers  for  its  free  delivery  left  the  office  at  eight  o'clock. 
They  left,  therefore,  and  started  on  their  routes  just  as  the  later  mail 
arrived,  and  before  it  could  be  distributed.     The  carrier  on  Blanchard's 
route  who  left  the  post-otlice  at  eight  o'clock  in  the  morning  can  not  be 
presumed  to  have  had  the  letter  in  question.     When  the  carrier  again 
went  over  that  loute  we  do  not  know.     So  far  we  can  presume  from  the 
ordinary  course  of  business  tliat  the  letter  was  in  the  Buffalo  office  at 
eight  o'clock,  and  must  also  presume  that  it  remained  there  until  the 
carrier  who  started  out  at  eight  o'clock  had  completed  his  route,  re- 
turned to  the  office  and  started  out  again  for  a  second  delivery.     How 
many  such  deliveries  there  are  in  a  day  at  Buffalo,  and  at  what  hours 
we  do  not  know.     We  iiave  no  facts  on  which  to  found  a  further  pre- 
sumption, and  as  it  is  conceded  that  Blanchard  was  at  the  cattle  yards 
making  his  purchases  between  nine  and  ten  o'clock  in  the  morning,  and 
came  two  miles  and  a  half  in  a  cutter  from  his  home,  it  is  scarcely  pos- 
sible that  he  could  have  had  this  letter  before  leaving.     The  facts, 
therefore,  do  not  warrant  such  an  inference.     On  the  contrary,  the  nat- 
ural and  just  presumption  to  be  drawn  from  them  is  that  the  letter  did 
not  reacl^  defendant  until  after  his  purchase.     To  this  must  be  added  in 
a  criminal  case,  the  presumption  of  innocence  not  to  be  overcome  by  a 
mere  chance  or  possibility,  and  the  further  fact  of  defendant's  oath 
that  he  did  not  find  the  letter  when  he  returned  home  after  the  purchase. 
We  are  of  opinion,  therefore,  that  the  representations  of  fact  as  to  the 
business  relations  existing  between  Gulick  and  the  accused,  and  the 
statement  that  Gulick  wanted  him  to  buy  eighteen  cattle  for  him,  were 
proved  to  be  true. 
But  his  further  statement  that  he  "  wanted  to  buy  eighteen  cattle  for 


itmwmwMgaaa 


^ya 


PEOPLE   V.  ULANCHARO. 


345 


not  countermand 
till  wants  the  load 
la  a  customer,  but 
Jck."     "I  prefer 
•eatly."     But  giv- 
)rot-  claimed  for  it 
lere  was  evidence 
jfore  the  purchase 
)ut  can  not  tell  at 
luch  letters  at  the 
I'cdock.     We  may 
t  was  proven  that 
eft  Utica  at  1 :  20 
ock.     A  previous 
itcd  i«  the  morn- 
!  at  eight  o'clock. 
}  as  the  later  mail 
eron  Blanchard's 
arning  can  not  be 
the  carrier  again 
presume  from  the 
I  Buffalo  office  at 
Sfl  there  until  the 
ted  his  route,  re- 
l  delivery.     How 
nd  at  what  hours 
md  a  further  pre- 
k  the  cattle  yards 
the  morning,  and 
it  is  scarcely  pos- 
ing.    The  facts, 
iontrary,  the  nat- 
lat  the  letter  did 
must  be  added  in 
)e  overcome  by  a 
defendant's  oath 
'ter  the  purchase, 
of  fact  as  to  the 
accused,  and  the 
;le  for  him,  were 

ghteen  cattle  for 


Gulick;"  that  he  was  "  buying  them  for  Otto  Oulick ;"  and  that  with 
tiie  proceeds  of  such  sale,  he  would  meet  and  pay  his  post-dated  check, 
was  shown  to  be  false ;  for  he  sent  the  cattle  at  once  to  Albany,  sold 
thcra  there  at  a  reduced  price,  and  never  paid  his  check  given  for  the 
purpose.  This  brings  us  to  the  final  question  of  the  nature  of  this 
representation.  It  declares  an  intention  and  involves  a  promise.  It 
states  a  present  purpose,  and  design  to  sell  the  cattle  when  bought  to 
(Juliek,  and  a  promise  to  apply  the  proceeds  resulting  from  such  sale, 
to  tiie  payment  of  the  post-dated  check.  "  I  am  buying  for  Gulick," 
"I  want  these  cattle  for  Otto;"  could  mean  only  tiiat  the  defendant 
bought  them  with  a  then  present  intention  of  sending  them  t(»  Gulick. 
It  Mas  a  statement  of  the  design,  and  notice  of  the  accused,  in  making 
the  purchase.  It  represented  what  was  at  the  time  in  his  mind,  and 
constituted  his  intention  and  so  far  as  it  tended  to  affect  or  intliience 
tlie  seller,  it  was  essentially  a  promise  and  related  to  the  future.  It 
was  as  if  be  had  saitl,  after  relating  the  truth,  that  Gulick  wanted  the 
cattle,  and  stood  ready  to  take  and  pay  for  them,  that  he  would  ship 
tliein  to  Gulick,  and  on  receiving  the  price  appropriate  it  to  the  pay- 
ment of  the  check.  So  far  as  this  intention  and  promise  were  con- 
cerned, the  seller  necessarily  took  the  risk  of  its  fulfillment.  He  had 
to  rely  alone  upon  the  supposed  honesty  and  integrity  of  the  defend- 
ant, and  he  was  cheated  not  b}'  any  false  statement  of  facts,  but  by  re- 
liance upon  a  promise  and  intention  not  meant  to  be  fulfilled.  If  one 
sells  property  on  credit,  induced  to  do  so  by  the  purchiiscr's  represen- 
tation that  he  has  a  debt  due  him  from  a  responsible  debtor  which  will 
be  paid  before  the  expiration  of  the  credit,  and  which  the  purchaser 
will  use  to  pay  the  seller,  the  latter  consciously  takes  upon  himself  the 
risk  of  the  promise,  although  the  facts  stated  are  true.  The  debt  re- 
ferred to  may  exist  and  be  paid  in  time,  so  that  the  purchaser  has  the 
very  expected  means  of  payment,  but  does  not  pay  and  never  meant 
to.  Here  may  have  been  a  fraud,  but  certainly  no  false  pretense.  In 
the  present  case  the  vendor  put  his  confidence  in  two  things ;  in  the 
facts  which  made  it  possible  for  the  buyer  to  get  the  means,  and  then 
appropriate  them  to  discharge  his  debt.  Such  protection  as  the  facts 
could  give,  the  vendor  got.  The  asserted  means  of  procuring  the 
money  to  meet  the  check  in  fact  existed,  but  the  promise  to  use  and 
tben  to  pay,  was  broken,  and  the  vendor  suffered  precisely  at  the  point 
when  he  had  to  take  the  risk  if  he  gave  credit  at  alL  We  have  found 
no  case  which  holds  that  an  indictment  for  false  pretenses  can  be 
founded  upon  an  assertion  of  an  existing  intention,  although  it  did  not 
in  fact  exist.     Pollock,  C.  B.,  in  Archer's  Case,^  describes  the  present 

1  Dears.  C.  C.  453. 


346 


rUAUD  AND  FALSE  PRETENSES. 


case  very  nearly  in  bis  statement  tliat  "  if  a  man  says :  '  I  want  goods 
for  a  certain  lioiise,  and  I  mean  to  send  them  to  that  liousi' ;  soil  tlu'in 
to  me,'  that  would  not  be  a  representation  of  an  existing  fact."  Other 
authorities  lead  to  the  same  conclusion.' 

The  prosecutor  relies  somewhat  in  the   case  of  Lesser  v.  People,' 
but  there  a  fact  was  falsely  represented  that  the  aiaker  of  the  post- 
dated check  offered  in  payment,  has  a  business,  and  the  check  was 
good.     Here  as  we  have  seen  the  fa  ts  stated  were  true,  and  only  tin- 
intention  and  promise  were  false,     it  is  sought  to  give  these  the  ap- 
pearance  and  force  of  a  fact  misrepresented  by  saying  that  Blanchard 
falsely  asserted  an  existing  stalm,  a  present  relation ;  or  that  he  was 
then  and  there  acting  ui)on  such  business  relation,  whereas,  in  truth 
and  in  fact,  he  was  not  so  acting.     But  tl»e  intent  with  which  he  acted, 
is  agidn  the  necessary  test.     If  that  was  as  he  stated,  there  was  iw 
falseliood  anywhere ;  if  it  was  not,  that  became  the  sole  and  only  un- 
truth, since  whether  he  was  acting  upon  the  relation  or  outside  of  it, 
depended  upon  nothing  at  the  moment  of  the  purchase,  except  his  then 
present  intention.     With  either  design  in  his  mind,  his  action  and  con- 
duct up  to  the  closing  of  the  contract  would  have  been  the  same,  ^ith 
no  external  or  tangible  difference.     By  an  existing  status  or  relation, 
the  prosecutor  must  necessarily  mean  one  which  is  compounded  of  tin 
true  facts  and  the  false  intention,  and  mingle  the  two  in  order  to  con- 
struct a  representation  of  fact.     But  the  falsity  and  the  fraud  are  still 
in  the  intention  alone,  and  a  conviction  can  rest  upon  nothing  else,  k- 
cause  every  thing  else  was  proved  to  be  true.    And  this,  we  think,  must 
become  very  evident  when  we  consider  upon  what  the  vendor  neces- 
sarily relied  in  giving  credit.     There  were  two  risks  apparent.     Blan- 
chard miglit  be  unable  to  pay  or  unwilling  to  pay.     He  might  fail  to 
find  a  purchaser  of  the  cattle,  or  sell  to  one  who  was  irresponsible,  tn  d 
80  fail  to  pay  for  want  of  means.     Against  this  risk  the  seller  guardeil 
himself  by  saying,  "I  want  to  know  to  whom  the  cattle  are  goinu'?" 
When  told  that  it  is  Gulick  who  staisds  ready  to  take  them,  the  scljor 
was  satisfied  that  the  purchaser  need  not  fail  in  payment  for  lack  of 
ability  to  pay.     But  he  took  also  another  risk.     He  knew  that  tlie 
moment  the  sale  was  complete,   Blanchard  could    sell  to  whom  he 
pleased,  and  might  with  the  money  in  his  pocket  refuse  to  pay.     That 
was  the  risk  of  future  action.     It  respected  not  an  existing  fact,  but 
one  yet  to  arise,  and  as  to  that  he  was  compelled  to  trust,  and  did  trust 
wholly  to  Blanchard's  promise  and  his  character  as  the  sole  guaranty 


1  2  Whart.  sec.  2118 ;  West's  Cnse,  1  D.  4 
B.  C.  C.  87S ;  Banner  v.  People,  22  N.  Y.  417 ; 
Reg.  t>.  Bates,  3  Cox,  C.  C.  201,  203 ;  Beg.  v. 
Jennison,  9  Id.  158;  Rex  v.  GoodhaU,  Rusb. 


A  Ry.  461;  People  n.  Tompkins,  1  ParfcCr.  | 
238. 

8  73  N.  Y.  78, 


%iij"CJ- 


^^m 


SES. 


11.  V.  OAnriKTT. 


847 


n  says :  '  I  want  goods 
I  tliat  lidusi' ;  soil  tlu'in 
uxistiug  fact."     Other 

of  Lesser  v.  People,' 
lie  iuaker  of  the  jjost- 
a,  and  the  check  wsj 
vcre  true,  ami  only  tlif 
it  to  give  these  the  ap- 

saying  that  Blanchanl 
ilation ;  or  that  he  was 
■tion,  whereas,  in  truth 
at  with  which  he  acted, 
0  stated,  tliere  was  iiu 
e  the  sole  and  only  iin- 
elation  or  outside  of  it, 
ircbase,  except  his  then 
ind,  his  action  and  coii- 
ive  been  the  same,  whh 
sting  status  or  relation, 
li  is  compounded  of  tin 
the  two  in  order  to  con- 
Y  and  the  fraud  are  still 
t  upon  nothing  else,  he- 
ind  this,  we  think,  must 
what  the  A'endor  neces- 
» risks  apparent.     Blan- 

pay.     He  might  fail  to 

0  was  irresponsible,  ;ti  d 
i  risk  the  seller  guarded 

1  the  cattle  are  goinir?" 
to  take  them,  the  sollor 

1  in  payment  for  lack  of  I 
sk.  He  knew  that  tlie 
ould  sell  to  whom  he 
et  refuse  to  pay.  That 
lot  an  existing  fact,  but 
d  to  trust,  and  did  trust 
iter  as  the  sole  guaranty 

lople  p.  Tompkins,  1  Park.Cr.  | 

8, 


of  its  fulfillment.  The  vendor  as  wo  have  said,  was  cheated  precisely 
at  that  point;  not  bj'  a  false  pretense,  but  Ity  a  broken  and  fraudulent 
promise.  We  are  of  tlio  opinion,  therefore,  that  the  conviction  of  the 
dcfcndtint  upon  the  facts  developed  on  the  trial,  can  not  be  sustiiined. 

The  judgment  of  the  General  Term  and  of  tlit!  Criminal  Term  of  the 
Superior  Court  of  Buffalo,  should  be  reversed  and  a  now  trial  granted. 

All  concur  except  Asukews,  C.  J.,  and  Tuacy,  J.,  not  voting. 

Judgment  reoemed 


FALSE  PRETENSES  — PRISONER  MUST  BE  BENEFITED  BY  ACT. 

R.  V.  Gauuett. 
[Dears.  C.  C.  232.] 
In  the  English  Court  for  Crown  Cases  Reserved,  J.^5,?. 

I  The  Defendant  was  Indicted  in  England  for  a  misdemeanor  In  attempting  to  obtaiit 
moneys  from  1^.  &Co.,  by  fiiise  pretences.  Tlio  defendant,  iiad  ii  circular  letter  of  credit 
i-'Tkod  No»  41,  from  I).  ^.  &  Co.,  of  New  York,  for  £210,  with  autliority  to  draw  on  L.  & 
Co.  In  London,  in  favor  of  any  of  the  lists  of  correspondents  of  the  bank  in  different 
parts  of  the  world,  for  all  or  such  sums  as  he  might  require  of  the  £120.  The  circul.ir 
letters  of  credit  of  D.  S,  &  Co.  were  each  numbered  with  distinctive  nambers,  and  It 
na8  tht)  practice  of  the  correspondent  on  whom  the  draft  was  drawn,  after  giving  cash 
on  Huch  draft,  to  Indorse  the  amount  on  the  circular  letter;  and  when  the  whole  sum 
was  advanced,  the  Inst  person  making  such  advance  retain'^d  the  circular  letter  of 
credit.  The  defendant  having  procured  from  D.  S.  &  Co.,  of  New  York,  a  circular  letter 
of  credit  for  £210,  No.  41,  came  to  England,  and  drew  drafts  in  favor  of  the  named  cor- 
respondents there  in  ditfcront  sums,  in  the  whole  less  than  £210,  retaining  the  circular 
letter,  the  sums  so  advanced  being  Indorsed  on  the  letter.  He  then  went  to  St.  Peters- 
burg, and  there  exhibited  the  letter  of  credit  to  W.  &  Co.  of  that  place,  a  Arm  mentioned 
in  the  list  of  correspondents,  the  letter  hoving  first  been  altered  by  him,  by  tho  addition 
of  the  figure  S  to  210,  so  converting  It  into  a  letter  of  credit  for  £5,210.  He  obtained  from 
tliat  house  several  sums,  and  finally  a  sum  of  £1,200,  and  another  of  £2,500,  on  drafts  for 
those  amounts  on  L.  &  Co.  W.  ft  Co.  forwarded  these  drafts  to  their  house  in  London,  who 
prcseiitej  the  draft  for  £1,200  on  L.  A  Co.,  and  required  payment  of  it.  L.  A  Co.  having 
been  advised  of  the  draft.  So.  41,  by  D.  S  A  Co.,  as  a  draft  for  £210  only,  discovered  the 
fraud  and  refused  to  pay  it.  The  defendant  being  afterwards  found  in  England 
was  t.iken  into  custody  and  indicted,  as  before  stated.  Tim  jury  found  tho  prisoner 
guilty,  and  in  reply  to  a  question  put  by  the  learned  baron  as  to  whether,  although  the 
defciulunt's  Immediate  object  was  to  cheat  W.  &  Co.  at  St.  Petersburg,  by  means  of  the 
forged  letter  of  credit,  he  did  not  also  mean  that  they  or  their  correspondents,  or  tho 
iiKiorsecs  from  them  should  present  the  draft  and  obtain  payment  of  it  from  L.  &  Co., 
and  the  jury  further  found  that  he  did.  Held,  that  it  L.  &  Co.  had  paid  one  of  the  drafts 
the  defendant  could  not  in  law  have  been  found  guilty  of  the  statntoi-y  misdemeanor; 
aiul,  conseqaently,  that  he  could  not  be  found  guilty  of  attempting  to  commit  the  com- 
mon-law misdemeanor. 

The  prisoner  was  tried  before  me  at  the  July  Sessions  at  the  Old 

I  Bailey  for  a  misdemeanor.     The  indictment  contained  several  counts. 

I  The  seventh  count  stated,  "  that  heretofore  and  before  and  at  the  time 

of  the  committing  of  the  offense  hereinafter    mentioned.   Sir  Peter 


348 


KUAUU   AM)    KALSK   !'IIKTENSE8. 


Laiirip,  Knij^lit,  and  others  curried  on  tho  business  of  banlters  at  tlio 
parisli  of  St.  Mildred,  the  Virgin,  in  London,  and  witliin  tins  jurisdic- 
tion, etc.,  and  undiT  the  name  or  style  of  tlut  Union  Hank  of  London. 
"  Tliat  tlie  said  Sir  Peter  Laurie  and  olliera  as  sucli  tianlters  as  afore- 
said luid  been  and  were  tl»e  eorrespondents  in  London  of  Alexander 
Duncan  and  others  wlio  carried  on  business  at  New  Yorii  in  the  United 
States  of  Norlli  America,  under  the  style  or  firm  of  Duncan,  Sherman 
&  Co. 

*'  Tliat  the  said  ^Slessrs.  Duncan,  Sherman  &  Co.  had  been  and  were 
accustomed  to  give  to  audi  persons  as  sliould  apply  to  them  for  the 
same  authority  to  dem.nnd  from  the  said  Sir  Peter  Laurie  and  ethers, 
as  such  bankers  and  correspondents  as  aforesaid,  payment  of  divers 
sums  of  money  for  account  a  I  on  the  behalf  of  the  said  Messrs.  Dun- 
can, Sherman  &  Co. 

•'  That  the  said  Sir  Peter  Laurie  and  others,  as  such  bankers  and  cor- 
respondents as  aforesaid,  had  Iteen  and  were  accustomed  to  pay  to  the 
persons  so  authorized  as  aforesaid,  tlie  sums  of  money  demanded  by 
them  in  i)ursuance  of  such  authority,  for  the  account  and  on  the  behalf 
of  the  said  Messrs.  Duncan,  Slierman  «&  Co. 

"That  tho  prisoner  Gabriel  Sans  Garrett,  well  knowing  the  premises 
and  being  an  evil-disposed  person,  and  devising  and  designing,  etc.,  on 
the  8d  March,  18.')3,  at  the  parish,  etc.,  witliin  tlie  jurisdiction,  etc., 
did  demand  payment  for  the  account  and  on  the  behalf  of  the  said 
Messrs.  Duncan,  Sherman  &  Co.,  from  the  said  Sir  Peter  Laurie  and 
others,  as  such  bankers  and  correspondents  of  the  said  Messrs.  Dun- 
can, Slierman  &  C  ).;  as  aforesaid  of  the  sum  of  £1,200  and  did  then 
and  there  unlawfully  and  falsely  pretend  to  the  said  Sir  Peter  Laurie 
and  otliers  that  he  the  said  Gabriel  Sans  Garrett  had  been  and  was  then 
duly  autho    '.ed  by  the  said  Messrs.  Duncan,  Sherman  &  Co.  for  their 
account  and  on  their  behalf,  the  payment  of  the  said  sum  of  £1,200 
from  the  said  Sir  Peter  Laurie  and  others,  as  such  bankers  and  corre- 
spondents of  the  said  Messrs.  Duncan,  Sherman  &  Co.  as  aforesaid, 
with  intent,  etc.,  uiiia\^fully,  etc.,  to  obtain  from  the  said  Sir  Peter 
Laurie  and  other  diverse  moneys  to  a  large  amount,  to  wit,  £1,200  of 
the  moneys  and  pr  >w  i-ty  of  the  said  Sir  Pet^r  Laurie  and  others,  to 
cheat,  and  defraud,  them  of  the  same. 

"  Whereas  the  said  Gabriel  Sans  Garrett,  had  not  at  any  time  been, 
and  was  not  then,  or  at  any  time  duly  or  at  all  authorized  by  the 
said  Messrs.  Duncan,  Sherman  &  Co.  to  demand  for  their  account, 
or  on  their  behalf  or  otherwise,  from  the  said  Sir  Peter  Laurie  and 
others,  as  such  bankers  and  correspondents  of  the  said  Messrs.  Dun- 
can, Sherman  &  Co.,  as  aforesaid  or  otherwise,  the  payment  of  the  said 
sum  of  £1,200  or  any  part  thereof,  which  said  false  pretense  the  pri8- 


:  .M»-wfttf.ifctV>t^iaiMftaga 


v/i^  ti^ai'MWMfcv." 


B.  V.  OAKKETT. 


349 


of  bankers  at  tlie 
itliin  tlio  jiiriHilio- 
IJank  of  Lomlon. 
1  hankern  as  nforc- 
ulon  of  AlexaiickT 
Vork  In  the  United 
Duncan,  Sherman 

lad  been  and  were 
ly  to  tljem  for  the 
Laurie  and  ethers, 
payment  of  divers 
said  Messrs.  Dun- 

h  bankers  and  cor- 
oraed  to  pay  to  the 
aney  demanded  by 
t  and  on  the  behalf 

jwing  the  premises 
designing,  etc.,  on 
B  jurisdiction,  etc., 
beiialf  of  the  said 
•  Peter  Laurie  and 
!  said  Messrs.  Dun- 
1,200  and  did  tlien 
iid  Sir  Peter  Laurie 
I  been  and  was  then 
man  &  Co.  for  their 
said  sum  of  £1,200 

bankers  and  corre- 
fc  Co.  as  aforesaid, 

the  said  Sir  Peter 
It,  to  wit,  £1,200  of 
aurie  and  others,  to 

)t  at  any  time  been, 
authorized  by  the 
for  their  account, 
r  Peter  Laurie  and 
8  said  Messrs.  Dun- 
payment  of  the  said 
se  pretense  the  pris- 


oner at  the  time,  etc.,  knew  to  be  false.  And  so  the  Jury  say,  that  the 
Gabriel  Sans  Garrett  by  means  of  the  said  false  pretenses  on  the  day, 
etc.,  at  the  parisli,  etc.,  did  attempt  and  endeavor  unlawfully,  etc., 
to  obtain  from  llie  said  Sir  Peter  Laurie  and  others,  such  money  as 
aforesaid,  then  being  their  property,  and  to  cheat  and  defraud  them 
thereof." 

The  eighth  count  stated  the  pretense  to  have  been  made  to  Thomas 
Druitt,  then  being  clerk  to  Sir  Peter  Laurie  and  others,  and  was  in 
other  respects  the  saiuu  as  the  seventh. 

The  fifteenth  count  charged,  that  on  the  same  d.ay  and  year,  he  did 
unlawfully,  etc.,  pretend  to  Sir  I'eter  Laurie  and  others,  that  he  had 
been,  and  then  was  duly  authori>!od  by  Alexander  Duncan  and  others, 
then  carrying  on  business  in  New  York,  in  the  United  States  of  Amer- 
ica, under  the  style  or  firm  of  Afessrs.  Duncan,  Sherman  &  Co., 
to  (leman<l  payment  for  their  account,  and  on  their  behalf  of  the  sum 
£1,200  from  the  said  Sir  Peter  Laurie  and  others,  with  intent,  etc.,  un- 
lawfully, to  obtain  from  the  said  Sir  Peter  Laurie  and  others,  £1,200 
of  the  money  and  property  of  the  said  Sir  Peter  Laurie  and  others,  and 
to  cheat  and  defraud  them  of  the  same  ;  whereas  the  said  prisoner  had 
not  at  any  time  been,  and  was  not  then  or  at  any  time  duly  or  at  all 
authorized  by  the  said  Alexander  Duncan  and  others,  to  demand  for  their 
account  or  on  their  behalf  or  otherwise,  from  the  said  Sir  Peter  Laurie 
and  others,  the  payment  of  the  said  sum  of  £1,200  or  any  part  thereof, 
which  said  false  pretense  at  the  time,  etc. ,  the  prisBner  knew  to  be  false. 
And  so  the  juiy  say  that  the  prisoner  by  means  of  the  said  last  men- 
tioned faUe  pretense,  on  the  day  and  year,  etc. ,  at  the  parish,  etc.,  and 
within  the  jurisdiction,  etc.,  did  attempt  and  endeavor  unlawfully,  etc., 
to  obtain  from  the  said  Sir  Peter  Laurie  and  others,  such  moneys  as 
aforesaid,  then  being  their  property,  and  to  cheat  and  defraud  them 
thereof. 

The  sixteenth  count  is  similar  in  form  and  substance  to  the  ninth 
count,  but  alleges  that  the  pretense  was  made  to  one  Thomas  Druitt, 
then  being  clerk  to  Sir  Peter  Laurie  and  others. 

The  prisoner  was  convicted  on  these  counts  only,  and  it  is  unneces- 
sary to  state  the  others. 

On  the  trial  it  appeared  that  Messrs.  Duncan,  Sherman  &  Co.,  of 
New  York,  the  correspondents  of  the  Union  Bank  in  London,  in  which 
Sir  Peter  Laurie  and  others  were  partners,  were  in  the  habit  of  issuing 
circular  letters  of  cjredit  for  certain  suras,  with  a  list  of  correspondents 
in  different  parts  of  the  world,  authorizing:  the  person  to  whom  letters 
of  credit  were  given  to  draw  in  favor  of  one  of  those  correspondents, 
for  such  part  as  he  might  require  of  the  stipulated  sum  for  which  the 


t^^i'T" 


350 


FRAUD  AND  FALSE  PRETF\8E8. 


letters  of  credit  were  given.  The  Union  Bank  correspondent,  on  giving 
casli  on  sucli  draft,  was  to  indorse  the  amount  on  the  circular,  and 
when  the  wliole  was  advanced,  the  last  person  making  an  advance,  re- 
tained the  circular.  The  circular  letters  of  credit  were  each  numbered 
witn  distinctive  numbers.  The  prisoner  having  i)rocured  such  a  circu- 
lar from  Messrs.  Duncan,  Sherman  &  Co.,  at  New  York,  for  £210,  Ko. 
•il,  '^ame  to  England,  and  there  drew  drafts  in  favor  of  the  named  cor- 
respondents there  to  the  amount  in  different  sums  of  less  than  ^210, 
and  consequently  retained  the  circular  letter  of  credit,  those  sums 
being  indorsed  on  it.  He  then  went  to  St.  Petersburg,  and  there  exhi- 
bited the  letter  of  credit  to  Wilson  &  Co.,  of  that  place,  one  of  tlie 
firms  mentioned  in  the  list  of  correspondents,  it  having  been  then  al- 
tered by  him,  by  the  addition  of  the  figure  5  to  £210,  and  converted 
into  a  letter  of  credit  for  £5,210,  No.  41.  He  obtained  <'rom  that 
house  several  sums,  and  finally  a  sum  of  £1,200,  and  another  of  £2..')00 
on  drafts  for  those  amounts  on  the  Union  Bank,  drawn  by  the  prisoner 
in  favor  of  their  firm  in  London,  all  of  which  were  indorsed  on  the 
back  of  the  letter  of  credit. 

Wilson  &  Co.,  on  receiving  those  drafts,  forwarded  them  to  their 
house  in  London,  and  they  duly  presented  the  draft  for  £1,200  on  the 
Union  Bank,  and  required  payment  of  it. 

It  becomes  unnecessary  to  state  the  circumstances  as  to  any  other 
draft,  the  proof  of  one  case  being  sufficient  to  raise  the  point  made  for 
the  defendant.  ThefUnion  Bank  having  been  advised  of  the  draft.  No. 
41,  by  Sherman  &  Co.,  a  draft  for  £210  only  and  so  discovering  the 
fraud,  refused  to  pay  the  £1,200,  and  the  defendant  being  afterwards 
found  in  England  was  taken  in  custody,  and  then  the  indictment  in 
question  was  preferred  against  him. 

Robinson,  the  prisoner's  counsel,  contended — 

1.  That  the  prisoner  had  committed  no  offense  in  London. 

2.  That  he  had  not  committed  the  offense  charged  in  the  indict- 
ment. 

I  thought  a  person,  though  personally  abroad,  might  commit  a  crime 
in  England,  and  be  afterwards  punished  here ;  as,  for  instance,  if  he  by 
a  third  person  sent  poisoned  food  to  one  in  lingland,  meaning  to  kill 
him,  he  would  be  guilty  of  murder  if  death  ensued,  although  he  could 
not  be  amenable  to  justice  till  he  was  personally'  within  the  jurisdiction 
and  I  thought  it  was  a  question  for  the  jury  whether,  although  the 
prisoner's  immediate  object  was  to  cheat  Wilson  &  Co.,  at  St.  Peters- 
burg, by  means  of  the  forged  letter  of  credit,  he  did  not  also  mean  so 
that  they  or  their  correspondents  or  the  indorsees  from  them  should  pre- 
sent the  draft  which  was  unauthorized  by  the  true  letter  of  credit,  and 


-Trriii —  innw  ii-fiiirrr "i — -*' '     r'""-^-    -^■— -^-- 


i^iJb 


5E8. 


n.  V.  GARRETT. 


351 


rrespondent,  on  giving 
it  on  the  circular,  and 
naking  an  advance,  re- 
lit were  each  nnmbeied 
l)rocurecl  such  a  circu- 
!W  York,  for  £210,  Ko. 
avor  of  the  named  coi- 
ims  of  less  than  £210, 
3f    credit,  those  sums 
rsburg,  and  there  exhi- 
that  place,  one  of  tlie 
it  having  been  then  al- 
o  £210,  and  converted 
le  obtained   ^'rom  that 
and  another  of  £2.500 
drawn  by  the  prisoner 
were  indorsed  on  the 

rwarded  them  to  their 
draft  for  £1,200  on  the 

tances  as  to  any  other 
aise  the  point  made  for 
Ivised  of  the  draft.  No. 
and  so  discovering  the 
ndant  being  afterwards 
then  the  indictment  iu 


!  in  London. 

charged  in  the  indict- 

,  might  commit  a  crime 
3,  for  instance,  if  he  by 
Ingland,  meaning  to  kill 
sued,  although  he  could 
y  within  the  jurisdiction 
'  whether,  although  the 
jn  &  Co. ,  at  St.  Peters- 
lie  did  not  also  mean  so 
3  from  them  should  pre- 
rue  letter  of  credit,  and 


obtain  payment  of  it  from  the  Union  Bank  in  London  by  presenting  it 
as  a  true  one,  and  I  left  the  question  to  the  jury  whether  he  did  so  in- 
tend, and  the  jury  found  that  he  did. 

The  prisoner's  counsel  also  contended  that  that  if  he  did  so  mean  and 
could  be  considered  as  making  Wilson  &  Co.,  of  London,  his  innocent 
tigents  to  present  the  unauthorized  cheque,  that  he  did  not  mean  to  ob- 
tain the  amount  of  the  cheque  from  the  Union  Bank  in  the  sense  of 
that  word  in  tlie  indictment,  which  it  was  contended  meant  an  obtaining 
for  himself,  but  that  he  only  meant  to  enable  Wilson  &  Co.,  of  London, 
to  obtain  it  for  tlieraselves.     Jiex  v.  Wavell,^  was  cited. 

I  thought  it  right  not  to  pass  sentence  on  the  prisoner,  but  to  respite 
judgment  until  the  opinion  of  the  judges  could  be  taken  upon  both  these 
points. 

I  accordingly  request  their  opinion. 

J.  Parke, 

The  case  was  argued  on  19th  November,  1853,  comm  Jervis,C.  J., 
Pollock,  C.  B.,  Paske,  B.,  Coleridge,  J.,  Williams,  J.,  and  Cromp- 
TON,  J.,  and  reargued  November  25th,  1853,  coram  Lord  Campbell,  C. 
J.,  Parke,  B.,  Coleridge,  J.,  Maule,  J.,  Platt,  B.,  Wiulums,  J.,  Tal- 
ForuD,  J.,  and  Crompton,  J. 

Byles,   Serjeant  (with  him  Robinson). 

1.  The  defendant  did  iiot  intend  or  tttempt  to  defraud  the  Union 
Bank  at  all  in  contemplation  of  law. 

2.  When  the  draft  was  presented  by  Wilson  &  Co. ,  he  had  committed 
no  offense  in  England,  and  would  not  if  it  had  been  paid. 

3.  He  did  not  intend  to  obtain  any  "  chattel,  money  or  valuable  se- 
curity "  within  the  meaning  of  7  and  8  George  IV.' 

Upon  the  last  point  we  contend  that  even  if  money  had  been  parted 
from  by  the  Union  Bank,  yet  the  defendant  would  not  have  obtained 
any  "chattel,  money  or  valuable  security."  Wilson  &  Co.,  would 
indeed  have  obtained  the  money,  but  for  their  own  benefit,  and  they 
would  not  have  been  bound  to  account  to  the  defendant.  He  would  only 
have  obtained  credit  in  account  with  the  Union  Bank  by  overdrawing 
bis  account.  This  is,  however,  scarcely  an  open  question,  as  it  seems 
to  have  been  decided  in  Rex  v.  Wavell.^  There  the  defendant  obtained 
credit  in  account  from  his  own  bankers  by  lodging  with  them  a  ficti- 
tious bill  of  exchange,  and  it  is  held  that  although  the  bankers  paid 
money  for  him  in  consequence,  by  honoring  his  cheques  drawn  in  favor 
of  other  persons,  yet  it  waa  not  a  case  within  the  statute.  Lord  Ten- 
tcrden  saying  "  he  only  obtains  credit  in  account,  somebody  else  re- 
ceives the  money."    That  casd  can  not  be  distinguished  from  the  pres- 


1  1  Moo.  C.  0. 
'  ch.  29,  leo.  fiS. 


8  1  Moo.  C.  C.  224. 


352 


FRAUD  AND  FALSE  PRETENSES. 


ent.  Suppose  a  man  utters  a  £5  note,  knowing  it  to  be  forged.  As 
between  himself  and  the  person  to  whom  he  utters,  he  might,  supposing 
the  misdemeanor  did  not  merge  in  the  felony,  be  guilty  of  obtaining 
money  by  false  pretenses,  but  if  the  note  subsequently  passe**  through 
the  hands  of  fifty  other  persons  it  can  not  be  said  that  every  time  it 
changed  hands  there  would  be  an  obtaining  money  l»y  false  pre- 
tenses. 

Lord  Campbell,  C.  J.  After  he  once  had  the  money  he  would  have 
no  further  interest  in  the  matter. 

Byles,  Serjeant.  So  here  it  was  a  matter  of  indifference  to  the  defendant 
whether  the  draft  were  paid  or  not.  If  a  man  draws  a  cheque  upon  a 
banker  with  whom  he  has  no  account,  or  to  an  amount  beyound  his  ac- 
count,  that  is  a  fraudulent  pretense  to  whom  it  is  presented  but  not  to 
the  banker.* 

Huddleston  (with  him  Dearsly),  in  support  of  the  conviction,  was 
then  heard  upon  this  point.  It  is  not  necessary  to  constitute  an  offense 
within  the  act  of  Parliament,  that  there  should  be  a  getting  of  money 
from  the  party  himself,  or  its  use,  but  the  inducing  another  to  part  with 
his  money  under  such  circumstances  as  amount  to  cheating  is  sufficient. 
The  words  of  the  statute  are,  "  obtain  from  any  other  person. "  Sup- 
pose a  man  intending  to  ruin  another  induces  him,  by  a  false  pretense, 
to  part  with  a  large  sum  of  money  to  a  third  party,  would  it  not  be  ob- 
taining money  under  false  pretenses? 

Maulk,  J.  You  say  it  is  sufficient  if  a  man,  by  false  pretense,  in- 
duces another  to  spend  his  money  ? 

Huddleston.     There  must  be  the  intent  to  cheat  or  defraud. 
MuALE,  J.    The  word  "  obtain  "  means  the  same  as  the  word  "  get" 
in  its  sense  of  "  acquire." 

Coleridge,  J.  You  must  consider  the  word  with  reference  to  its  use 
in  the  statute,  which  draws  a  distinction  between  larceny  and  false  pre- 
tenses. 

Huddleston.  The  statute  does  not  contemplate  the  benefit  of  tbe 
the  party  defrauding,  but  the  injury  to  the  party  defrauded.'  Here 
there  was  an  acquinng  to  the  use  of  the  defendant.  It  is  not  necessary 
that  the  party  from  whom  the  money  is  obtained  should  actually  hand 
it  over  to  the  person  making  the  false  pretense.  This  case  is  dis- 
tinguishable from  that  put  on  the  other  side  of  the  £5  forged  note. 
The  jury  have  found,  that  defendant  meant  that  Wilsoa  &  Co.,  in 
St.  Petersburg,  or  their  correspondents  or  indorsers,  should  present  a 
draft,  and  obtain  payment  of  it  from  the  Union  Bank.  Thus  Wilson  & 
Co.  are  the  agents  pointed  out  and  mentioned  by  the  defendant  himself, 


I  Rexv.lAra.BT.  B.S6S. 


9  Ueg.  V.  Jones,  1  Den.  C.  C.  188. 


^•tmoii^imit-xui'  .tiiMt . 


^^ 


R.  V.  GAKKETT. 


353 


>  be  forged.  As 
naight,  supposing 
ilty  of  obtaining 
y  passec*  through 
tliat  every  time  it 
jT  by  false  pre- 

ey  he  would  have 

e  to  the  defendant 
i  a  cheque  upon  a 
t  beyound  his  ac- 
isented  but  not  to 

!  conviction,  was 
nstitute  an  offense 
getting  of  money 
lother  to  part  with 
ating  is  sufficient, 
if  person."     Sup- 

7  a  false  pretense, 
ould  it  not  be  ob- 

!alse  pretense,  in- 

lefraud. 

8  the  word  "get" 

eference  to  its  use 
eny  and  false  pre- 

the  benefit  of  the 
lefraudfcd.'  Here 
It  is  not  necessary 
3uld  actually  hand 
This  case  is  dis* 
18  £5  forged  note. 
Wilsoa  &  Co.,  in 
,  should  present  a 
.  Thus  Wilson  & 
defendant  himself, 

Den.  C.  C.  1S8. 


as  the  persons  to  whom  the  Union  bank,  with  wliom  he  falsely  assorts 
ho  has  credit,  should  pay  the  moucy.  They  are  the  persons  to  receive 
it. 

Lord  Camp  bell,  C.  J.  AVhat  were  they  to  do  with  the  money  when 
received  ? 

Huddleston.  They  were  to  apply  it  to  his  own  use.  An  actual  re- 
duction of  t!he  money  into  the  possession  of  the  defendant  can  not  be 
necessary.  WaveU's  Case  is  distinguishable,  the  decision  being,  that 
no  specific  sum  was  obtained,  but  credit  in  account. 

Coleridge,  J.  How  is  the  false  pretense  made  out?  He  had  the 
circular  letter  of  credit  in  his  possession.  Tlie  cheque  imported  only 
that  he  had  funds. 

Pauke,  B.  Tlie  check  itself  represented  that  it  was  authorized  bj'  the 
letter  of  credit.  It  referred  to  it  by  the  figures  41.  But  that  point  is 
not  reserved. 

Huddleston.  If  the  bankers  had  paid  the  money,  they  ihight  have 
sued  defendant  for  money  jiaid  to  his  use.  Their  payment  to  Wilson  & 
Co.  would  have  been  a  good  payment  to  him. 

Byles,  iSerjeant,  replied. 

The  court  then  gave  judgment,  with  argument  upon  the  first  two 
points  as  follows :  — 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  the  conviction  can  not 
be  supported.  The  question  is,  wliether,  supposing  the  Union  Bank 
lionored  the  defendant's  draft  upon  them,  he  could  then  have  been  in- 
dicted under  this  act  of  Parliament,  for  obtaining  any  chattel,  money,  or 
vahiable  security.  I  am  clearly  of  opinion  he  could  not.  I  do  not  pro- 
ceed upon  the  ground  that  the  offense  was  committed  beyond  the  juris- 
diction of  the  court,  for  if  a  man  employ  a  conscious  or  unconscious 
agent  in  this  country,  he  may  be  amenable  to  the  laws  of  England,  al- 
though at  the  time  he  was  living  beyond  the  jurisdiction ;  but  I  think 
tiiis  would  not  have  been  an  obtaining  of  money  within  the  meaning  of 
the  act  of  Parliament,  which  contemplates  the  money  being  obtained 
according  to  the  wish  and  for  the  advantage,  or  at  all  events,  to  gain 
some  object  of  the  party  who  makes  the  false  pretense.  Here  it  was 
not  to  gain  any  object,  and  it  was  not  according  to  ims  wish.  He  would 
derive  no  benefit  from  the  cheque  being  honored.  1^'e  had  obtained  his 
full  object  in  St.  Petersburg,  and  had  the  monej'  in  his  pocket,  and  it 
would  have  been  for  the  advantage  of  the  defendant  if  the  draft  had 
been  burnt  or  sent  to  the  bottom  of  the  sea.  The  statute  was  intended 
to  meet  a  failure  of  justice  arising  from  the  distinction  betweea  larceny 
ami  fraud.  But  with  regard  to  larceny,  wo  must  see  whether  there  is 
not  some  advantage  to  be  gained,  not  necessarily  a  pecuniary  advan- 
tage, but  some  wish  gratified  by  the  taking  and  conversion,  otherwise  it 
3  Defences.  38 


854 


FRAUD   AND   FALSK    I'RETKNSES. 


would  not  be  birceny.  Then  we  are  pressed  by  the  lindins  of  the 
jury,  but  they  nierelv  meant  to  suy  that  tbc  defendant  foresaw  that 
the  cheque  would  be  presented  to  the  Union  Bank,  and  not  that 
he  wished  it.  In  one  sense  it  may  be  said,  that  he  meant  it  accoid- 
in.'  to  the  maxim,  that  cveryl)ody  must  be  piesun.ed  to  meau 
or" intend  the  natural  conse.iuences  of  his  act,  but  it  is  imposs.l.le 
to  say  that  it  was  the  real  wish  of  the  party  when  he  drew  the  che.iu., 
that  it  should  be  presented  and  honore.l.  A  iiross  fraud  has  been  com- 
mitted, but  not  an  ol)taining  m..ney  umler  false  pretenses  withm  the 

statute.  . 

Paukk,  B.     The  word  "obtain"   as  used  in  the  statute,  seems  to 
mean  not  so  much  a  defrauding  .)r  depriving  another  of  his  property,  as 
the  obtaining  some  benelit  to  tlie  party  making  the  false  pretense.     In 
Wavell's  Case,  there  was  a  false  prt-tense,  with  the  view  of  obtainmg  a 
specified  sum  of  monev,  and  it  appears  to  have  been  decided  upon  the 
ground  th'at  no  chattel  or  valuable  secuiity  was  obtained  by  mean.*  of 
that  false  pretense.     T'lie  difficulty  I  have  had  supposing  it  to  be  the 
law,  that  this  is  not  a  ease  in  which  the  party  may  be  considered  as 
having  obtained  some  benelit,  but  I  do  not  feel  so  strongly  upon  tins 
point  as  to  compel  me  to  differ  in  opinion  from  my  lord.     It  is  not 
shown  that  he  would  have  obtained  the  money  if  the  draft  had  been 
honored  and  the  money  paid.     I  think,  therefore,  this  conviction  fails. 
Coi-EKimiK,  J.     Upon  the  question  of  construction,  the  p<.int  to  be 
considered  is,  whether  if  the  money  had  been  obtained,  this  would  be  a 
case  witliin  the  fifty-third  section  of  the  act.     It  is  quite  clear  it  can 
not  be  said  the  defendant  actually  obtained  the  money  himself,  nor  do 
I  think  he  obtained  it  by  means  of  any  agent.     The  obtaining  must  be 
either  by  the  party's  desire  or  intention,  or  for  his  benefit,  but  there  is 
no  foundation  for  saying  that  the  money  would  have  been  obtained  in 
this  case  either  in  one  of  these  ways  or  the  other.     The  defendant  did 
not  desire  it,  he  could  not  have  intended  it,  for  he  knew  perfectly  well 
that  the  payment  was  out  of  the  question.     The  finding  of  the  jury 
only  means,  that  the  defendant  contem (dated  it  as  aprobable  thing, 
that  Wilson  &  Co.  would  present  the  draft. 

Maii.k,  J.  I  think  all  the  defendant  did  with  respect  to  the  matter 
in  hand  was  done  at  St.  Petersburg,  and  no  part  of  it  in  London.  That 
which  was  done  in  London  by  Wilson  &  Co.,  is  sought  to  be  brought 
home  to  the  defendant  as  an  act  of  his,  when  it  is  clear  he  would  desire 
that  that  very  act  should  not  be  done.  It  Is  quite  clear  the  jury  never 
intended  to  say  (if  they  did  it  is  quite  contrary  to  the  facts  of  the  case). 
that  he  requested,  desired  or  ordered  or  made  Wilson  &  Co.  his  agents 
to  present  the  draft,  but  they  must  have  meant  that  he  considered  that 
would  take  place  which  would  naturally  take  place. 


■iiJIIH—l 


^i^B 


FIIAUD   AND   r.VLSK   PUKTENSES. 


3')  5 


\Q  tinding  of  the 
hint  foresiiw  tliat 
Ilk,  ami   uot  tliiit 

ineiuit  it  lu-coril- 
sumcil  to  imau 
t  it  is  impossihle 

drew  tlie  chetiue, 
ukI  has  been  ooni- 
jtenses  within  the 

statute,  seems  to 
of  his  property,  as 
iilse  pretense.  In 
ew  of  obtaining  a 

decided  upf)n  the 
lined  by  means  of 
posing  it  to  be  the 

])e  considered  as 
strongly  upon  tliis 
ny  lord.  It  is  not 
the  draft  liad  been 
lis  conviction  fails. 
in,  the  point  to  be 
?d,  this  would  he  a 
is  quite  clear  it  can 
ttey  himself,  nor  do 
2  obtaining  must  be 
benefit,  but  there  is 
re  been  obtained  in 
The  defendant  did 
knew  perfectly  well 
inding  of  the  jury 
19  aprobable  thing, 

^spect  to  the  matter 
t  in  London.  That 
ught  to  be  brought 
lear  he  would  desire 
clear  the  jury  never 
e  facts  of  the  case), 
ion  &  Co.  his  agents 
t  he  considered  that 


If  a  man  uttered  a  forgeil  note  with  intent  to  defraud  tlie  Bank  of 
England,  if  the  Viank  pay  the  note,  they  woiihl  l»c  defrundetl,  and  he 
must  be  responsible  for  his  act.  The  question  theie  (h-pends  upon  the 
manner  or  mode  in  which  tiie  bank  jiarts  with  the  nuuiey  ami  not  upon 
who  gets  it.  By  flie  cireuni^taiices  under  wliicii  tho  bank  is  elicated 
out  of  their  money,  they  are  defrauded.  But  wlu-tlier  nio'iey  is  ob- 
tained or  not  by  false  pretenses  does  not  depend  upon  the  mode  in 
which  it  is  obtained,  but  upon  the  person  and  manner  by  whom  and  in 
wiiiili  it  is  received.  Mere  the  money  wouhl  have  been  ol)tained  by 
some  persons  whom  he  foresaw  would  iiresiiit  the  draft.  They  did  not 
mean  to  apply  the  money  to  his  iiurposes,  liut  tlieir  own.  I  am,  there- 
fore, of  opinion  that  the  prisoner  is  not  criminally  responsible  for  what 
toi)k  ))lace  in  London.  He  did  not  onler  it  to  be  done.  It  was  no  act 
of  his.  And  for  the  prisoner's  own  act  in  St.  Petersburg,  he  is  not  re- 
sponsible in  London. 

I'l.ATT,  B.  The  matter  was  complete  as  far  as  the  defendant  was 
concerned  when  the  parties  at  St.  Petersburg  were  deluded  into  giving 
him  money  upon  the  cheque.  It  can  not  be  said  that  a  party  who  pre- 
sents a  cheque  for  his  own  benefit  is  the  agent  of  another  who  receives 
no  benefits  whatever. 

The  other  members  of  the  court  concurred. 

Conviction  quu/ihed. 


NOTES. 

§  441.  Fraud  to  be  Indictable  at  Common  Law  Must  Injure  Public  — A 
mere  private  fraud  was  not  indictable  ut  comniou  law.'  In  R.  v.  Briinn,^  the 
defendant  came  to  a  mercer,  and  afllrmed  that  slie  was  a  servant  to  the  Count- 
ess of  romfret,  and  was  sent  by  her  to  fetch  some  silks  for  the  queen,  eiideav- 
oring  thereby  to  defraud  the  mercer;  whereas,  in  fact,  she  was  no  servant  of 
the  countess,  and  was  not  sent  ujion  tlie  queen's  account.  After  verdict  for 
the  Khig,  it  was  moved  in  arrest  of  judgment,  that  there  being  no  false  tokens 
or  any  actual  fraud  committed,  there  was  no  offense  indictable.  Reeve, 
contra,  cited  a  case  from  Veiitrls  of  an  indictment  for  a  conspiracy  to  chariie  ii 
man  with  a  bastard  child,  where  there  really  was  no  child,  so  that  the  party 
could  not  suffer.  The  court  said,  there  the  conspiracy  was  the  crime,  and  an 
indictment  will  He  for  that,  though  it  be  to  do  a  lawful  act.  This  is  no  more 
than  telling  a  lie,  and  no  custom  being  shown  to  maintain  It,  the  judgment 
must  be  arrested.    In  B.  v.  Pinkney,  tlie  defendant  was  indicted  for  selling  a 

'  R.  V.  Wheatly,  2  Burr.  1125 ;  1  W.  HI.  273  HIckey,  2  Par*.  317  (1843) ;  Nlven's  Case,  6 

(1761).   And  Bee  liennett  and  Hoard's  note  City  H.  Kec.  79  (1820). 
to  this  caee,  1  B.  A  II.  Ld.  Cr. Cas.  « ;  Com.  s  2  Str.  866. 

V.  Woodrun,  4  Clarke,  362    (1832) ;  Com  v. 


■MM 


350  rUAUD  AND  FALSE  PRETENSES. 

sack  of  corn  at  Rlppon  market,  which  he  falsely  affirmed  to  contain  a  Winches- 

ZXZ:uU  rZa  et  in  facto  ,lur,nur.  '^^<^^^'<^^'^^ Z^T^^^Z 
auashed  upon  motion.    /  nd  in  the  same  case  it  was  said,  that  if  a  shopkeeper 
who  deals  in  cloth  pretends  ^,o  sell  ten  yards  of  cloth,  but  Instead  of  ten  ya  de 
Ch  onl.  delivers  only  six.  yet  the  buyer  can  not  i"f '^^  ^  "^^f^^^^^^^^ 
onlv  six  because  he  might  have  measured  it,  and  seen  wlfbther  it  held  out  as  1 
ouKh    to  do  or  not.    In  It.  v.  mcKolson,  before  Lord  Raymond,  the  defendaut 
being  ind4cted  for  selling  six  chaldrons  of  coal,  which  ought  to  cou  ain  thir  y. 
six  bushels  e.ich  and  delivering  six  bushels  short.  Lord  Raymond  ordered  him 
to  be  acm  S     The  same  decision  was  made  in  B.  v.  D««n«,«  >  and  in  B.  v 
0«ftor«    ou   vear  afterwards,  in  the  same  court.    Mr.  Justice  Ashton  ti»o„ght 
Tt  ids  selling  short  measu;e  instead  of  full  measure,  was  worthy  the  at  ten- 
10.    o    the  Leg  slature,  although  It  might  not  be  indictable  at  common  law 
unless  cmr.'edo  be  bi  false  measure;  and  Wilmot.  J.,  added:  .'The  reason 
w^w  tlds  "■'uot  indlctabie,  is,  because  it  is  in  everybody's  power  to  prevent 
Th 'sortonmpo  U  In,  wh;re;s  a  false  measure  is  a  general  i-PO^'tJon  "pon 
he  public  which  can  not  well  be  discovered."    In  B.  v.  ^'"»«"^»«'' »»»;  «**• 
la^^w's  charged  with  having  delivered  to  Susan  Farmer  two  hundred  an 
.  -     ty7our   gallons  of  strong  beer,  when  he  ought  to  have  delivered  two 
, V  ired  and  eigl^tv-eigl.t  gallons,  as  was  agreed  and  paid  for.    It  was  moved  to 
auasrthirinEmenl  as  this  was  a  fraud  of  a  private  nature,  for  which  an 
action  ipon  hecase  for  a  deceit  was  the  proper  remedy,  and  here  was  no  charge 
at  th  ndant  sold  by  false  measure.    This  was  held  a  mere  action  <>«d«; 

cli  '  th'  hu.:.ctment  was  quashed.'  So,  it  is  not  an  Indictable  cheat 
ohtc  .  "oods  ou  a  promise  to  send  the  money  for  them  by  the  servant  who 
should  brln.'  them."  And  in  Hartn^nn  v.  Co..nonv,ealik,^  it  was  held  that  o  - 
iTulng  a  false  credit  otherwise  than  by  false  tokens,  or  the  removal  and  secret- 
^g  of  goods  with  intent  to  defraud  creditors,  are  not  indictable  at  commo 
law  And  this  was  held  in  Rex  v.  Lara,*  where  tl.e  defendant,  in  payment  lor 
iods  pliased,  fraudulently  gave  a  check  on  a  bank  where  he  knew  he  ha  «o 
funds  Lord  Kenyon  said :  "  What  the  defendant  did  was  immora  and  hishj: 
repreheuslble.  but  as  he  used  no  false  token  to  accomplish  his  deceit,  the  judg- 

"t  Tex  ^'ZenUhl  defendant  was  found  guilty  of  .•  knowingly  exposing 
for  sale  and  selling  a  gold  chain,  uuder  the  sterling  alloy,  as  and  for  gold  of  the 
true  standard  weight  "    On  motion  in  arrest  of  judgment.  Lord  Mansfl  d 
la"l  ..  Th^que^  ion  is.  whether  the  exposing  wrought  gold  to  sale  under     e 
sJlndard  is  indictable  It  common  law?    It  Is  clearly  an  ^^^-'''^^^"^^'J^ 
cUne  to  think  it  is  one  of  those  frauds  only  which  a  man's  own  commo 
ilce  ought  o  be  sufficient  to  guard  him  against,  and  which  therefore  is  no 
fnrt.7fahl  but  the  party  injured  is  left  to  his  civil  remedy."    In  B.  v.  IhiffitW 
hf  defenlnTtas  indl^^^^     for  a  cheat  in  delivering  less  -al  than  ^s  pr- 
chased  but  the  indictment  was  quashed.    In  Betrina  v.  Jon««,nhe  defendan 
came  t;>  A    pretending  that  he  was  sent  by  B.  to  receive  £20,  and  he  received 
it  Whereas  rcUdnlt'send  him.    Being  indicted  therefor,  .he  indictment .« 


1  3  Burr.  1130. 
s  1  WllB.  301. 

•  See,  nl»o,  Bex  v.  Ueed,  7  C.  *  P.  848. 
4  Rex  V.  Goodhall.  B.  *  K.  O.  O.  461. 

•  BBarr.eO. 


•  6  T.  R.  565. 

I  1  Cowp.  323. 
»  Say.  146. 

•  lS8lk.379;6Mod.  lOB. 


^ya 


FRAUD   NOT   INDICTABLE   AT   COMMON   LAW. 


357 


contain  a  Winclies- 
the  indictment  was 
tliat  if  a  slioplieepcr 
Instead  of  ten  yards 
ct  him  fcr  delivering 
•ther  it  held  out  as  it 
mond,  tlie  defendaut 
;ht  to  contain  thirty, 
uymond  ordered  him 
imnage,^  and  In  li.  v. 
stice  Ashton  thouglit 
as  worthy  the  atten- 
ibie  at  common  law 
added:  «'The  reason 
's  power  to  prevent 
eral  Imposition  upon 
'.  Combrune,*  the  de- 
ner  two  hundred  and 
>  have  delivered  two 
Eor.    It  was  moved  to 
nature,  for  which  an 
nd  here  was  no  charge 
a  mere  action  of  de- 
a.  Indictable  cheat,  to 
a  by  the  servant  who 
,» it  was  held  that  ob- 
he  removal  and  secrct- 
indictabie  at  common 
ndaut,  in  payment  lor 
lere  he  knew  he  had  no 
is  Immoral  and  hislily 
(h  his  deceit,  the  judg- 

[ «'  knowinp;ly  exposing 
,  as  and  for  gold  of  tiie 
;ment,  Lord  Mansfleid 
gold  to  sale  under  the 
n  imposition,  but  I  in- 
a  man's  own  common 
1  which  therefore  is  not 
dy."  InB.  V.  I>i<^«Wi' 
ess  coal  than  was  pur- 
Y.  Jones,*  tiie  defendant 
ire  £20,  and  he  received 
for,  the  indictment  wu 


quashed,  the  court  saying:  "It  is  not  Indictable  unless  he  came  with  false 
tokens.  We  are  not  to  indict  one  man  for  makiut;  a  fool  of  another.  Let  him 
bring  his  action."  • 

In  Bex  V.  Channel,^  an  indictment  was  against  the  defendant  for  ♦•  that  he 
lieeplug  a  common  grist-iiilll  and  boy  employed  by  W.  B.  to  grind  three  bushels 
of  wheat,  did  vi  ctarmh,  iUicite  take  and  detain  forty-two  pounds  weight  of  the 
wliciit."  Upon  a  demurrer,  judgment  was  given  for  the  defendant,  there  being 
no  actual  force  laid,  and  tills  a  matter  of  a  private  nature,  for  which  an  action 
would  lie. 

In  Hex  v.  Haynes*  it  was  held  not  Indictable  for  a  miller,  who  received 
good  barley  at  his  mill  to  grind,  to  delivii-  a  mixture  of  oatmeal  and  bar- 
ley meal  in  return.  The  meal  given  in  exchange  in  this  case  was  in  fact  musiy 
and  unwholesome,  but  as  the  indictment  was  Insulllcient  in  its  allegations  to 
convict  upon  that  point  alone,  the  judgment  was  reversed.  Lord  ElleuborougU 
said:  "As  to  the  point,  tliat  this  is  not  an  indictable  offense,  because  it  respects 
a  matter  transacted  In  the  course  of  trade,  and  where  no  tokens  were  exhib- 
ited by  which  the  party  acquired  any  greater  degree  of  credit,  if  the  case  had 
been  tiiat  this  miller  was  owner  of  a  soke  mill,  to  which  the  inliabitants  of  the 
vicinage  were  bound  to  resort  in  order  to  got  their  corn  ground,  and  that  the 
miller's  abusing  the  conlldence  of  tliis,  his  situation,  had  made  it  a  color  for 
practicing  a  fraud,  this  might  have  presented  a  different  aspect;  but  as  It  now 
is,  it  does  seem  to  be  no  more  than  the  case  of  a  common  tradesman  who  is 
guilty  of  a  fraud  In  a  matter  of  trade  or  dealing,  such  as  is  adverted  to  in  Jiex 
V.  Wheatly,  and  the  other  cases,  as  not  being  indictable.  These  objections, 
therefore,  and  one  is  sufBcient,  seem  to  be  fatal." 

In  Commonwealth  v.  Warren,*  Warren  was  indicted  for  contriving  and  Intend- 
ing to  deceive,  cheat,  and  defraud  one  Adams,  by  falsely  pretending  and  afflrm- 
ing  to  him  that  his  name  was  Waterman,  that  be  lived  in  Salem,  and  there  kept 
a  grocery  store,  and  that  he  wished  to  purchase  goods  on  credit,  giving  his 
own  note  as  security  therefor;  and  Adams,  conlldlng  In  such  false  pretenses  and 
afflrmatlons,  sold  him  the  goods,  and  took  his  note,  which  he  subscribed  with 
the  name  of  Waterman.  This  was  held  no  crime.  Parsons,  C.  J.,  cald :  "  We 
sie  here  no  conspiracy,  for  the  defendant  was  alone  in  the  fraud,  and  no  false 
tokens  to  induce  a  credit;  and  as  for  false  weights  and  measures,  there  is  no 
pretense.  We  can  not,  therefore,  consider  tlie  facts  stated  in  the  indictment 
(however  injurious  they  were  to  Adams),  as  constituting  a  public  indictable  of- 
finse."  It  was  held  no  crime,  but  only  a  private  wrong,  for  the  grantee  of  a 
died,  lodged  with  a  third  person  as  an  escrow  fraudulently  to  obtain  posses- 
sion of  the  deed  from  such  a  depositary.*  In  People  v.  Babcock,^  A.,  having  a 
jiulgraent  against  B.,  the  latter  said  he  would  settle  It  by  paying  money  in  part, 
and  giving  his  note  for  tlie  residue ;  on  wliich  A.  drew  a  receipt  in  full  discharge 
of  the  judgment,  and  B.  obtained  tlie  receipt  without  paying  the  money  or  giv- 
ing the  note;  upon  which  he  was  Indicted  for  having  obtained  the  receipt 
"falsely,  fraudulently,  and  deceitfully,  and  under  false  colors,  acts  and  pre. 
texts,"  etc.  It  was  held  there  was  no  common-law  offense,  no  cheating  by  any 
false  token,  and  nothing  but  a  false  assertion,  which  common  prudence  would 
have  guarded  against,  and ,  therefore,  that  no  Indictment  would  lie.    In  People 


Mod.  lOB. 


1  2  Ld.  Raym.  1013. 
a  i  Sir.  793. 
»  4  M.  &  8.  2U. 


'I  6  Mass.  72. 

^  Com.  f.  Ilearsey,  1  Mass.  137. 

■!  7  Johns.  201. 


35.S 


FUAUI)   AND   I'ALi^K    I'IMCTEXSKS. 


V.  Millfi;'  where  llic  deft'iulant  obtained  possession  of  a  promissory  note  by  pre- 
teniiin^  tluit,  he  wislud  to  look  iit  It,  and  then  carried  It  away,  and  rcfusid  to 
deliver  it  to  tlie  owner;  It  was  hehl  th-it  tliis  was  merely  a  private  fraud,  ami 
not  pnnishable  criminally,  lu  iSKUe  v.  WiUon,-  it  was  hehl  not  an  Indictable 
cheat  to  sell  a  girl  as  u  slave  who  was  not  known  to  be  free,  and  lae  prlnciplf  of 
the  English  diiisions  was  approved.  Neither  is  it  an  indictable  cheat  to  put  a 
large  stone  int .  one  roll  of  butter,  with  Mii,.nt  to  defraud  the  buyer.' 

So  a  bare  lie  Is  not  indictable,*  as  obtainini:  a  quart  of  whisky  by  falsely 
pretending  to  be  sent  by  iiuothor  for  it.* 

In  Vomnwiiweiillh  v.  l!ukc;<^  the  prisoner  falsely  represented  to  a  lady  that  her 
husband  hud  just  bein  arrested  and  was  about  to  be  sent  to  prison,  but  for 
*+0  he  could  jjut  l»l">  ^'"*^.  " l'^^"  **•"'  '"^  "'"^''^  f-''*^'^' '''"'  '^''^'  money.  In  charging 
the  jury  Allison,  J.,  said  that  in  order  to  convict  of  false  pretenses  the  re|)rt- 
sentation  must  be  such  as  to  cause  the  party  deceived  to  believe  the  defendant 
responsible  for  the  credit  given.  A  mere  naked  lie,  void  of  such  representation 
of  proi)erty  responsibility  was  not  sullleient. 

But  by  many  statutes  both  in  Kngland  and  the  United  States  the  fraudulent 
disposition  of  goods  and  obtaining  goods  by  fraud  or  "false  pretenses"  is 
Indictable. 

§  441'.  Fraud  — Selling  MortfiragedProperty  —  I'nder  the  Texas  statute,  the 
mortgage  must  be  iu  wrilln;:  and  the  party  injured  must  be  the  holder  of  tlie 
lien.'  To  convict  of  fraudulently  disposing  of  mortgaged  property,  the  mort- 
gage must  be  subsisting,  valid,  and  uivjiaid  at  the  time."  A  growing  crop  is 
uoi,  "  personal  or  movable  property"  within  the  Texas  Code." 

§  4i;j,.  Removing  Goods  with  Intent  to  Defraud  —  Befuaal  to  Sur- 
render Not. —To  constitute  the  offense  of  fraudulently  removing  goo<l8  With 
intent  to  defraud  creditors  there  nuist  bean  actual  secreting  or  couveyiug  ol 
them  away.     A  mere  refusal  to  surrender  them  Is  not  enough." 

§  443a.  Fraudulent  Intent.  —  So  there  must  be  an  Intent  to  prevent  the 

property  from  being  made  1'  v')le  for  the  payment  of  debts.'" 

§  443/,. Persons  with  Debts  not  Due  not  <•  Creditors."— Creditors  whose 

debts  are  not  due  are  not  protected  by  tlie  statute.  So  a  debtor  may  lawfully 
prefer  a  creditor  whose  claim  is  not  due."  Under  the  statute  punishing  the 
selling  of  mortgaged  chattels,  tiu;  prisoner  must  do  so  intending  to  defraud  the 
mcirtg'^igee  thereof  —  it  is  not  sufficient  that  he  intended  to  defraud  some  third 
person. 1' 

§  443,.,  Removlngr  Property  with  Intent  to  Prevent  a  Levy.  —  It  Is  a 

good  defence  to  this  charge  that  the  defendant's  removal  consisted  only  of » 


1  14  Johns.  371. 

■.:  2  Constit.  1:I5. 

;i  Weircrback  ».  Trone,  8  W.  A  S.  408. 

■t  State  r.  Simpson, ;!  Hawks.  t'i20  (1S2.')). 

'  Chainnanr.  state, 3  HeiiU,  iW  (1858). 

'8  1'hila.  fil3(18:i). 

'  Moyev.  State,  a  Tex.  (App.)  88  (1880). 


8  Satchell  V.  State,  1  Tex.  (App.)  4M 
(1876). 

»  Hardeman  v.  State,  16  Tex.  :App.)  1 
(1881). 

I"  Com.  V.  Smith,  1  Brewst.  347  (1867). 

n  Cdm.  r.  Smith,  1  Hrcw»l.  »48  (18ti7). 

la  Com.  r.  Smith,  1  Brewst.  348  (1867). 

1'  State  V.  Buhuke,  27  Minu.  310  (1880). 


■■».'• 


.■*ft4«e-,i^''-^- 


;s. 

Iiromlssory  note  by  pre- 
t,  away,  and  rcfusid  to 
L-ly  a  private  fraud,  umi 
I  held  not  an  indictable 
'cc,  and  tae  principlf  of 
dictable  cheat  to  put  i 
id  the  buyer.' 
irt  of  whisky  by  falsi-ly 

nented  to  a  lady  that  her 
sent  to  prison,  but  lor 
lie  money.  In  charging 
Ise  pretenses  the  reprt- 
[o  l)elievc  the  defendant 
1  of  such  representation 

d  States  the  fraudulent 
ir  "false  pretenses"  Is 


;r  the  Texas  statute,  the 
ist  be  the  holder  of  tlie 
^ed  i)roperty,  the  mort- 
ine."  A  growing  crop  is 
Code  .9 

raud — Ret\isal  to  Sur- 
ly r»  inoving  goods  Willi 
icritiug  or  couveyiug ol 
lough.i" 

I  an  Intent  to  prevent  the 
its.i' 

tora."— Creditors  whose 
to  a  debtor  may  lawfully 
e  statute  punishing  the 
intending  to  defraud  the 
id  to  defraud  some  third 


•event  a  Levy.  —  It  Is  a 
loval  consisted  only  ol  a 

state,  1  Tex.   (App.)  4M 

V.  State,  IS  Tex.   :App.)  I 

ith.lBrewst.  347  (1867). 
ith,  1  BrcwBl.  348  (18t>7). 
1th,  1  Brewst.  348  (18(i7). 
Iiuke,  37  Minu.  310  (1880). 


UKKACH   OF   rONTUACT  —  M.\TTEl{.«t   OK   OPINION. 


359 


,  linage  of  residence  of  himself  and  family  wliidi  lie  had  communicated  to  others, 
tvca  though  the  creditors  did  not  hear  of  it.' 

ji  444.  Removlnir  Nuisance.  —  A  mortgager  who  removes  a  building 

Miiiaied  upon  mortgaged  premises  which  is  so  ruinous  as  to  be  a  i)ul)lic  nuisance, 
for  tlie  purpose  of  abating  the  nuisance  does  not  thereby  Incur  the  penalty  of 
a  vtatutc  prohII)ltlng  the  removal  of  a  building  "  with  the  intent  to  impair  or 
.,  -sen  the  value  of  the  mortgage. "- 

ti  44:i.  False  Pretenses  —  Breach  of  Contract  not  Indictable.— This  is  laid 
diiwa  in  a  numl)er  of  early  cases.  In  /.'.  v .  nninluim,'  there  was  an  indictment  for 
;ii:it  A.  liorrowed  £3  of  the  i>risoner,  and  pawned  gold  rings  to  secure  the  pay- 
ment; and  at  the  day,  A.  tendered  the  money,  but  the  prisoner  refused  to  de- 
;ivcr  up  the  rings;  l)ut  this  was  considered  only  a  breach  of  civil  contract,  and 
imt  Indictable.  In  L'.  v.  Bradford,*  a  physician  was  iuilicted  for  not  curing  his 
patient  In  three  weeks,  as  he  liad  promised  to  do,  but  the  indictment  was 
<|inished  as  being  only  a  l)reacli  of  contract.  And  where  the  ju.stices  had  made 
;iii  or.ler  that  A.  should  pay  his  tailor  i7  for  work  done,  which,  lie  refusing  to 
ilu,  was  indicted ;  the  indictment  was  subsequently  quashed,  for  it  was  a  matter 
ii.)t  indictable.*  In  R.  v.  Xehvff*  the  defendant  had  borrowed  £000,  and  prom- 
ised to  send  the  lender  flue  cloth  and  gold  dust  as  a  pledge ;  but  In  fact  he  .«ent 
i;o  gold  dust,  but  only  some  coarse  cloth,  worth  little  or  nothing.  The  court 
>ui(l  that  was  not  a  matter  criminal,  for  It  was  the  prosecutor's  fault  to  repose 
Mich  confidence  in  the  defendant. 

5  440.  Puffins  Ooods.  — Opinion.  —  The   mere  puffing  or  exaggeration 

if  the  quality  of  goods  Is  not  a  false  pretense.'  The  law  does  not  extend  to 
iiiiic  "tricks  of  trade,"  as  they  are  familiarly  called,  by  wlilch  a  nuin  puffs  his 
Hares  and  deceives  no  one,  as  this  Is  an  excellent  piece  of  cloth,  or  this  Is  the 
bi  St  horse  in  the  world,"  Or  where  a  seller  says  that  a  lot  Is  of  a  certain  value, 
I  r  is  "  nicely  located," "  or  that  certain  spoons  arc  as  good  as  a  noted  manufac- 

turfr's.w 

la  a  prosecution  for  false  pretenses  in  the  sale  of  a  mortgage,  if  the  prop- 
I  rty  is  worth  the  mortgage  It  Is  Immaterial  that  the  prisoner  represented  It  to 
be  worth  more." 

In  Wallace  v.  State,"  S.  had  W.'s  note  for  «150,  and  agreed  with  him  If  be 
would  purchase  land  of  N.  he  would  credit  his  note  for  that  amount,  and  W. 
imrcliased  the  land  at  J|130,  l)ut  represented  to  S.  that  N.  had  raised  the  price 
to  $150,  and  S.  agreed  to  take  it  at  that  price  if  W.  could  not  get  It  for  less.  N. 
loiiveyed  the  land  as  S.  directed,  and  S.  gave  up  the  note  to  W.  ««S.,"  said 
the  court,  "  knew  the  land  as  well  as  W.  did.  He  got  the  title  to  the  land  for 
which  he  contracted  and  paid  only  the  price  he  agreed  to  pay.  He  was  deceived 
only  as  to  the  price  W.  bad  paid  for  the  property,  but  not  as  to  the  ownership, 
the  title  or  the  value  of  it.  It  was  not,  therefore,  a  false  pretense  in  Its  legal 
.<iuse." 


1  Thomas  V.  People,  10  Wend.  4S0  (1838). 

■'  Uhuto  V.  St»tc,  1!>  Mlun.  271  (1872). 

'  1  Salk.  379. 

'  2  L.  Raym.  360. 

'  II.  t'.  Brown,  3  Salk.  189. 

'  1  Salk.  151. 

"  It.  V.  Boed,  -CAP.  848  (1837). 


»  State  V.  Phlfer,  es  N.  C.  325  (1871) ;  State 
,  Young,  76  N.  C.  258  (1877). 
>  People  t'.  JaoobB,  35  Mich.  SB. 
i»  B.  V.  Bryan,  Dears.  &  B.«t5  (1857). 
II  Keller  t'.  State,  61  Ind.  111. 
>!11  Lea,  S43  (1883). 


mum.' 


3(J0 


TRAUD   AMI   FALSE   I'UKTKNSKS. 


Ill  II.  V.  A«e,'  the  prisoners,  Osciir  and  Joseph  Leo,  were  Inflicted  for  endtav. 
orlnK  to  obtain  iiSs  of  Kdward  Hye  by  fiilse  pretenses.  There  was  a  sccoud 
count  for  a  consplrucy  to  obtiiln  money  by  divers  false  pretenses. 

The  evidence  showed  that  Joseph  Lee  had  gone  Into  the  shop  of  the  prose. 
cutor,  a  pawnbroker,  and  offered  an  All)ert  chain  in  pledge.  He  asked  iiis 
for  it,  representin-;  that  It  was  gold;  that  he  liad  bo\iglit  it  in  Oxford  Streit, 
and  had  given  £3  lOs.  for  It.  It  was  tested  and  found  to  bo  little  better  thau 
brass.  There  was  a  very  small  portion  of  gold,  together  with  a  little  silver,  the 
chain  being  of  the  value  of  li's.  A  policeman  was  sent  for,  but  before  he  ar- 
rived an  Inspector  brought  into  the  shop  Oscar  Lee,  who  had  lieen  waiting  ouU 
side.  lie  said  it  is  my  brother;  wo  are  dealers;  you  can  do  nothing  with  us: 
they  are  nine  carat  gold  chains ;  we  bought  them  at  l)el)enham  &  Storr's. 

F.  JI.  Lewis  (for  the  defendants) ,  submitted  that  there  was  no  case  to  go  to 
the  jury.  The  statements  which  were  made  by  Oscar  I.ee  in  the  presence  of  his 
brother,  after  he  was  brought  In  by  the  inspector,  can  not  bo  taken  into  ac- 
count, as  they  ^,cre  made,  not  for  the  purpose  of  obtaining  money,  but  in  order 
to  induce  the  prosecutor  not  to  give  hi ii  into  custody.  With  respect  to  the 
representation  made  that  the  cliain  was  gold,  that  would  not  be  a  false  pretense 
within  the  statute.  In  Jteginn  v.  linjan,^  it  was  held  that  a  similar  representa- 
tion would  not  support  an  indictment.  There  the  defendant  had  falsely  staled 
that  certain  forks  wldch  he  offered  in  pledge  were  equal  to  Elklngton's  (Elklng- 
ton's  plate  being  an  article  of  well  known  and  recognized  value  in  the  trade), 
but  the  court  held  that  such  a  misrepresentation  was  not  within  the  act,  It 
being  With  respect  to  ([uality  only,  and  not  as  to  the  description  of  the  thing 
Itself.  Then  the  article  is  clearly  of  some  value,  and  the  best  gold  chains  are 
not  made  of  fine  gold,  they  all  have  alloy  mixed  with  the  more  valuable  metal; 
and  in  this  case  the  cliain  contains  some  gold,  although  in  a  very  small 
quantity. 

Sleigh  (for  the  prosecution).  The  case  is  within  the  statute.  The  question 
for  tlie  jury  will  be  whether  this  is  a  gold  chain  within  the  recognized  meaning 
of  that  term.  If  the  contention  on  the  otlier  side  is  correct,  then  the  most 
minute  fraction  of  gold  introduced  into  a  chain  of  brass  would  constitute  the 
brass  chain  a  gold  one.  In  Begina  v.  Bryan  the  false  statement  was  simply 
with  regard  to  quality;  here  it  is  made  with  reference  to  the  thing  itself.'  At 
all  events  there  is  evidence  on  the  count  for  conspiracy. 

Lewis  (in  reply)  The  two  cases  cited  were  fully  considered  in  Begina  v. 
Bryan,  and  the  same  arguments  were  used.  As  to  the  count  for  conspiracy, 
that  must  fail,  as  the  conspiracy  is  alleged  to  be  by  false  pretenses  to  obtain, 
etc. 

Thk  Common  Serjeant.  I  think  there  is  no  evidence  to  go  to  the  jury.  It 
is  the  constant  practice  for  the  seller  to  exaggerate  the  value  of  his  goods  and 
for  the  buyer  to  depreciate  it  without  coming  within  the  charge  of  "false 
pretenses,"  as  meant  by  the  statute.  If  because  a  man  represents  an  article  to 
be  equal  in  quality  to  something  which  it  is  not  equal  to,  he  is  liable  to  be  in- 
dicted, charges  of  this  kind  would  be  multiplied  to  an  alarming  extent.    I  think 

the  prisoner  must  be  acquitted. 

Not  guiUy. 


1  8  Cox,  i233  (1869). 

2  7  Cox's  Cr.  Cas.  812, 


s  Reg.  V.  Roebuck,  7  Cox,  126;  Reg.  v. 
Sherwood,  7  Cox,  270. 


i^ilta 


<K8. 

vero  iiKllctvd  for  endvaT' 
CH.    There  was  a  sucoiul 
preton8e8. 

to  the  8hup  of  the  prostt' 
II  pledge,  lie  aMked  ItSs 
light  It  In  Oxforil  Streit, 
d  to  bo  little  better  tbau 
ler  with  a  little  hIIvlt,  the 
ent  for,  but  before  he  ar- 
i\\o  had  been  waiting  out- 
1  can  do  nothing  with  us: 
cbeuham  &  Storr's. 
here  wan  no  case  to  go  to 
I.ee  ill  the  preNence  of  his 
un  not  bo  taken  into  ac- 
iiiiiig  money,  but  in  order 
dy.  With  respect  to  the 
lid  not  be  a  false  pretense 
tiiiit  a  similar  reprcsenta- 
feiuhint  had  falsely  stated 
al  to  Eiklngton's  (Elking- 
[lized  value  in  the  trade), 
as  not  within  the  act,  it 
description  of  the  thing 
the  best  gold  chains  are 
the  more  valuable  metal; 
Ithough  in  a  very  small 

tie  statute.  The  question 
in  the  recognized  meauiug 
is  correct,  then  the  most 
rass  would  constitute  tlie 
Ise  statement  was  simply 
:e  to  the  thing  itself.'   At 

r  considered  in  Begina  v. 
the  count  for  conspiracy, 
false  pretenses  to  obtain, 

snce  to  go  to  the  jury.  It 
he  value  of  his  goods  and 
[in  the  charge  of  "false 
in  represents  an  article  to 
1  to,  he  is  liable  to  be  in- 
alarming  extent.    I  tbinlt 

Not  guiltii. 

loebuck,  7  Cox,  126;  Reg.  v. 
!ox,  270. 


MATTERS   OF   OPINION  —  I'UFFINO   00008. 


361 


In  B.  v.  Levinc,^  the  prisoner  and  ono  Wood  were  indicted  for  unlawfully  ob- 
taining money  by  false  pretenses,  and  in  a  second  count  they  were  cliarged  with 
a  conspiracy  to  defruiid. 
Metculje  and  M.  \ViUinm»  prosecuted. 
Oppfnheim  defended  Levlne.     Jifsley  defended  Wood. 

It  appeared  that,  on  the  13lli  of  De<:ember,  Clinrles  Baron,  a  gentleman  living 
in  Hertfordshire,  was  in    Lmlgate  IIIll,  and  had  his  attention  called  to  some 
auction  rooms  at  No.  43.     lie  w(!iit  in,   and  saw  there   Le\iiie,   Wood,   two 
Iciimles,  and  another  man.    I/viiie  was  in  the  rostrum,  and  Wood  was  on  his 
riglit  hand.     A  man  came  round  and  showed  some  goods  on  a  waiter,  which 
were  then  put  up  for  sale   by  T.nvlne,  Wood  generally  making  the  llrst  bid. 
About  half  a  dozen  lots  were  kuoi    jd  down  to  Wood,  but  no  money  was  seen  to 
pugs.    Some  salt  cellars  were  then  put  up  and  bought  by  Miss  Levlne.     The 
joods  wo.ie  apparently  electroplated.    A  »ea  and  coffee  service  was  then  put  up, 
ind  Wood  bid  for  it.    It  was  started  at  £(>  and  knocked  down  for  £7.    Baron 
(lid  not  bid  for  It.    Before  It  was  knocked  down  Levlne  said  he  would  warrant 
tlitm  the  best  silver  genuine  electroplate,  and  lined  with  gold,  and  the  cost 
price  would  be  £20.    When  it  was  knocked  down  Wood  said  It  was  worth  more 
than  £7.    Levlne  went  up  and  asked  for  Baron's  name  and  address,  which  was 
given  to  him.    He  said  to  Baron,  "The  lot  was  knocked  down  to  you."    Baron 
said  it  was  not.    Previous  to  that.  Wood  had  wanted  to  know  whether  it  was 
knocked  down  to  him,  a"d  I  jvlne  said,  "  No,  it  was  knocked  down  to  that  gen- 
tleman," pointing  to  Baron.    He  said,  "  You  need  only  pay  a  deposit."    Baron 
Slid,  "  No,  I  will  pay  the  full  amount."    Baron  told  Levlne  several  limes  that 
he  did  not  bid  for  them,  and  that  they  were  of  no  use  to  him,  but  the  latior  said 
they  were  worth  more  money,  and  he  would  warrant  them.    Baron  said  if  they 
were  knocked  down  to  him  he  would  pay  for  thum,  and  eventually  did  so,  on 
tlie  representation  of  Levlne,  that  they  were  the  best  silver  electroplate  lined 
with  gold.    Baron  afterwards  bought  a  liqueur  stand  for  22s,  on  a  similar  repre- 
sentation, although  he  had  never  bid  for  it.    While  Baron  was  in  the  shop,  no 
other  money  was  paid  to  Levlne  except  what  he  paid. 

Charles  Thomas  Clements,  an  auctioneer's  assistant,  said  he  had  known 
Levine  all  his  life,  and  had  been  in  his  employment  about  tnree  weeks  previous 
tottie  sale  of  these  goods.  Levlne  carried  on  the  business  of  an  auctioneer  at 
(3  Ludgate  Hill.  His  sister  used  to  be  there  and  bid  for  small  goods  and  pre- 
tend to  buy  them.  Wood's  duty  was  to  hid  for  goods,  and  persuade  people  to 
buy  them.  Wood  never  used  to  pay  for  the  i^ts  he  bought.  Clement's  duty  was 
to  run  up  the  goods  to  a  certain  price,  and  th>>n  if  a  stranger  in  the  room  bid  a 
shilling  or  two  more,  to  discontinue  bidding. 

Henry  Wright  Atkins,  an  electrophte  manufacturer,  said  that  the  tea  and 
coffee  service  were  of  Britannia  metal,  covered  with  a  transparent  film  of  silver, 
it  was,  in  fact,  the  very  worst  electroplate.  The  Hqtieur  stand  was  of  the  same 
description.  The  wholesale  price  of  the  tea  service  would  be  21  s  or  223  at 
the  outside.  The  witness'  firm  had  made  such  goods,  not  for  the  shops,  but  to 
see  If  they  could  get  a  trade  of  that  kind.  The  retail  price  of  the  service  would 
be  about  30s.  The  liqtimr  stand  would  be  very  dear  at  20s.  The  best  electro- 
plate is  plated  on  nickel  silver.  • 
Oppenheim,  for  Levine,  submitted  tliat  this  case  was  governed  by  the  decision 
of  the  Court  for  Crown  Cases  Reserved,  iu  Begina  v.  Bnjan,^  where  it  was  held 


1  10  Cox.  374(1867). 


2  7  Cox,  C.  C.  313. 


•5«)2 


FIUI'I)    AM)    I'AI.SK    I'UKTKNSKS. 


by  ten  of  tlio  jiulKfN  (.Wllles  iiiul  Bniinwell  dinaentieiUHi.  h),  I'lat  roprosfuttttlniis 
*'  thill  curtain  Mpdons  wcro  of  the  best  «iuality,  iinil  ecimil  to  h'kintjton's  A,  tlmt 
tlie  founilutlon  WII8  of  the  best  material,  and  tliat  they  Iiud  ah  niiich  Hllver  as 
Klklntston's  A,"  tlioiijjh  fiilsi',  amounted  to  a  mere  miHreprecentutloa  of  thf 
<|iuility  of  a  commodity,  wldch  was  not  tlie  proper  sulijectof  an  indictmont.  In 
tids  case  tliere  was  not  even  nucIi  a  detlnlle  standard  of  quality  &h  Elkin^tonN 
A  mentioned,  and  therefore  there  was  Icmh  ground  for  holdiuj^;  the  offense  in- 
dictable. 

Ilfnlf'i,  for  Wood,  in  support  of  the  some  objection,  quoted  '  Ion  ot 

Bramwell    H.,  at    the  Warwick  Assizes,  in  Uegina  v.  llidgneaij  lolhrr,^ 

defining  the  offense  within  these  narrow  limits,  tliat  If  In  selling  coals  by  weight 
the  Heller  falsely  represented  the  ciuantlty,  the  offense  would  be  committed, 
wliereos,  If  he  were  selling  for  a  lump  sum,  and  made  the  same  misrepresenta- 
tion the  offense  would  not  be  committed.  He  also  quotfd  Hegitia  v.  Lee- 
where  iu  this  court  It  was  held  that  the  reprcstation  of  a  chain  as  gold  whicli 
was  a  compound  of  brass,  silver,  and  gold,  was  not  a  false  pretense  within 
the  statute.  He  further  submitted  that  tliere  was  no  evidence  of  Wood's  'Glar- 
ing any  pretense  at  all  until  after  the  bargain  was  concluded  for  £7,  when  he 
said  the  tea  Sirvice  was  worth  more  money.  As  to  conspiracy  the  count  wa; 
bad  upon  the  face  of  It,  for  not  alleging  by  what  means  the  prosecutor  was  to 
be  cheated.  Such  a  count  in  itii/dscrffv.  Qiiei'ii,^  hud  been  held  good  upon  a 
writ  of  error,  but  it  hud  never  been  held  .so  before  verdict.  Another  objection 
was  that  there  was  no  evidence  of  conspiracy,  and  laiitly,  that  If  there  was  any 
que.silon  of  conspiracy.  It  could  only  be  to  obtain  the  prosecutor's  money  by 
representations  which,  on  the  authority  of  liegina  v.  Bnjan,  were  perfectly 
lawful. 

Metcalfe,  for  the  prosecution,  contended  that  if  Begina  v.  Br  overned 
the  counts  for  false  pretenses,  it  had  no  application  to  the  charge  piracy, 

as  what  was  lawful  for  one  person  to  do  ml;;bt  be  unlawful  for  >,..  .o  agree 
to  do. 

The  Common  .Srkgeant.    As  for  iustaiifp,  hi.'.sing  an  actor. 

Metcalfe.  Or  buying  goods  ut  an  auction,  and  afterwards  dividing  them  at  a 
"knockout."  Any  person  might  buy  at  as  low  a  price  as  he  could,  but  he  roust 
not  agree  with  other  persons  not  to  bid  against  them. 

The  Co.M.M()>j  Skiukant,  after  consulting  the  Recorder,  said:  The  counts 
for  false  pretenses  alleged  that  the  defendants  falsely  pretended  that  the  goods 
were  electroplated,  and  lined  with  gold,  und  the  evidence  proves  that  those 
pretenses  were  literally  true.  Those  counts,  therefore,  fall,  and  it  is  only 
necessary  to  determine  wliethcr  this  cr.se  Is  governed  by  Begina  v.  Bryan,  for 
the  purpose  of  seeing  whether  the  counts  for  conspiracy  can  be  maintained. 
It  is  most  Important  not  to  bring  within  the  criminal  law  the  ordinary  enhanc- 
ing of  value  and  quality  by  the  seller  of  goods.  There  Is  always  a  conflict  of 
knowledge  and  skill  between  a  buyer  and  seller,  the  one  wishing  to  buy  as  ad- 
vantageously, and  the  other  to  sell  as  advantageously  as  he  possibly  can,  and  it 
would  be  very  dangerous  to  extend  the  criminal  law  to  such  cases. 

At  present  the  line  Is  flxed,  and  there  must  be  a  false  representation  of  an 
existing  fact,  operating  upon  the  mind  of  a  buyer,  and  deceiving  him  in  such  a 
manner  that  he  can  not  protect  himself  against  it.    The  only  means  suggested 


1  3  F.  &  F.  858.  • 


«  8  Cox,  c.  c.  %a. 


»  11  Q.  U.  248. 


««MIMi 


ia« 


SiXK&- 


Arfi 


t'lat  roproseutiiUnii, 
L>  h'kint(tot)'H  A,  tliut 
nl  «h  iiiucli  HllvtT  as 
■preccntiitloa  of  tlu' 
i>t  ui I  indictment.  In 
iiuUty  aH  ElldnKtonN 
>l(1iii;;  the  offense  iii- 

luoted  '  ion  oJ 

gnoai/  tothi-r,' 

•lllng  coals  by  welgiit 
ouitl  l>i'  commlttfd, 
HUtne  mlsrcprcsentu- 
iiotfcl  Regina  v.  Lf.f- 
chain  UH  ({oUi  which 
Use  pretense  within 
I'lico  of  Wood's  '^lar 
iiled  for  £7,  wlitu  lie 
liracy  the  count  v/d.'. 
ic  prosecutor  was  to 
u  held  good  upon  a 
.  Another  objection 
ihat  if  there  was  any 
•osecutor's  money  by 
•yan,  were  perfectly 


I  V,  Br 
charge 
ful  foi 


■overned 

piracy, 

.0  agree 


tor. 

is  dividing  them  at  a 

le  could,  but  he  roust 

',  said:  The  couDtii 
inded  that  the  goods 
:e  proves  that  those 
fail,  and  it  is  only 
Itegina  v.  Bryan,  for 
I  can  be  maintained, 
the  ordinary  eubanc- 
I  always  a  conflict  of 
fishing  to  buy  as  ad- 
3  possibly  can,  and  it 
li  cases. 

representation  of  an 
:elving  him  in  such  a 
uly  means  suggested 

•1  u  g.  B.  Hi. 


OPINIONS  —  VALITK   OF    IHMINEaS. 


868 


upon  this  evidence  as  the  means  by  which  the  defendants  agreed  to  obtain  the 
prosecutor's  money  are  means  whlcli  upon  the  authority  of  Ilryinn  v.  linjun  are 
not  unlawful.  There  is,  therefore,  no  conspiracy  and  no  case  for  the  jury  to 
consider. 

Nut  guilty 

§447.  Value  of  BiiBlness.  -In   R.  v.  WUliammn,^  the   prisoner   was 

Indicted  fur  obtalninu  money  from  one  S.  by  means  <»f  false  pretenses,  the  false 
pretenses  laid  beliij;.  (1)  that  tlie  prisoner  was  then  doing  a  good  buHlness; 
(L')  that  he  said  that  he  had  sold  a  good  business  for  £;tO0;  (I!)  that  it  was 
necessary  for  his  safely,  If  he  engaged  >S.  a:-  his  Hs^istant,  that  he  should  have 
froinhiui  a  deposit  of  £60. 

There  was  a  second  indictment  charging  tliat  the  prisoner  obtained  money 
from  one  \V.,  by  falsely  pretending,  (I)  th  -f  he  was  then  doing  a  business  with 
returns  of  £100  a  week;   (li)  that  he  had  •    nl  a  business  for  £300. 
.     Lilhy,  for  the  prosecution.     OppenUeim,  for  the  prisoner. 

On  the  tirst  Indictment  the  prosecutor,  S.,  who  liad  been  engaged  by  the 
prUoner  as  assistant,  was  called  to  jirove  the  representations,  and  to  show  that 
upon  the  faith  of  the  representation  he  entered  into  an  engagement  with  the 
prisoner  for  a  sniail  salary  and  half  profits,  and  also  deposited  £'10  as  a  security,  ' 
whereas  in  truth  the  business  was  worthless,  and  the  prisoner  a  bankrtipt.  He 
stated  tliat  he  had  deposited  the  money  in  the  belief  that  the  prisoner  "had  a 
good  business." 

BvLEs,  J.  (to  the  counsel  for  the  prosecution).  On  which  of  the  pretenses 
do  you  rely?  It  is  like  tlie  case  of  a  sale  of  a  business,  llh  exaggerated  repre 
sentations  of  its  value,  upon  which,  though  fraudulent,  an  indictment  will  not 
lie. 

LiUey  said  he  relied  on  the  prisoner's  representations  that  he  was  doing  a 
good  business,  and  that  he  had  sold  a  business  for  £300. 

BvLES,  J.  The  latter  is  too  remote.  Yon  might  as  well  go  back  to  any  for- 
mer transaction  of  which  he  had  given  a  rei)resentation  —  that  is  too  remote. 
As  to  the  other,  have  you  any  case  In  whicit  it  has  been  held  that  on  the  sale  of  a 
business  —  the  vendor  saying  it  was  a  good  busiuess  —  lie  has  been  thus 
indicted?     (No  such  case  was  cited. )2 

This  appears  to  be  rather  matter  for  an  action  for  false  representation  than 
for  a  criminal  prosecution. 

Lilley  urged  that  here  the  prctcn,sc  was  more  entirely  false  than  in  any  pre- 
vious case,  for  the  man  was  a  bankrupt. 

Byles,  J.  There  is  no  pretense  laid  that  lie  was  not  a  bankrupt.  The  pre- 
tense laid  Is  that  he  had  a  good  business.  It  is  like  the  case  of  a  sale  of  a  busi- 
ness upon  such  a  representation.  No  doubt  if  the  business  was  worthless, 
there  was  a  gross  exaggeration,  probably  fraudulent;  but  Is  it  a  case  for  an 
indictment  for  obtaining  money  by  means  of  false  pretenses?  If  so,  an  indict- 
ment would  lie  in  every  case  of  a  false  and  fraudulent  representation  of  the 
value  of  a  business.  Unless  some  authority  to  the  contrary  can  be  cited,  I 
must  rule  against  the  prosecutor. 

No  cas?  being  cited, 

Byles,  J.,  directed  the  jury  to  acquit  the  prisoner,  on  the  ground  tii.-.t  such  a 


1  11  Cos,  328  (1869). 


'  And,  sec.  Reg.  v.  Wataon,  20  L.  J.  18,  M. 
0..  contra. 


J 


364 


FRAU1>   AND   FALSE   PRETENSES. 


representation,  although  grossly  fraudulent,  was  not  the  subject  of         .aiiual 

proceeding. 

Not  guilty. 
No  evidence  was  offered  on  the  other  indictment. 

§  448.  False  Warranty  Not. —  A  false  warranty  of  the  soundness  of  a 

horse  is  not  Indictable.'    So  selling  a  blind  horse  as  a  sound  one.^ 

In  State  v.  Holmes,^  the  prisoner  falsely  represented  that  a  horse  in  his  pos- 
session was  sound  and  healthy,  knowing  this  to  be  not  so,  whereby  he  obtained 
a  sum  of  money.  This  was  he'd  not  false  pretenses.  "If  such  a  falsehood 
were  Indictable,"  Siiid  the  court  "then  instead  of  all  the  actions  which  have 
been  brought  for  deceits  and  false  warranties  the  defendants  should  have  been 
Indicted  for  obtaining  goods  or  property  liy  false  pretenses." 

In  B.y.  Pratt,*  the  prisoner  was  indicted  for  falsely  pretending  that  a  certain 
mattress  was  stuffed  with  wool,  whereas  in  truth  and  in  fact  it  was  stuffed 
with  flock,  by  means  of  which  said  faLse  pretense  she  did  unlawfully  obtain, 
etc.,  with  intent,  etc. 

Leigh,  for  the  prosecution. 

It  was  proved  on  the  pan  of  the  prosecution  that  the  prisoner  contracted 
with  the  prosecutrix  to  make  for  her  a  mattress  to  be  stuffed  with  best  wool  at 
an  agreed  price.  The  mattress  was  made  and  delivered  by  the  prisoner,  and 
paid  for  at  the  agreed  price.  Being  found  to  be  hard  and  knotty  in  parts,  it 
was  opened  about  two  months  afterwards,  and  tlien  It  vas  discovered  that,  in- 
stead of  being  stuffed  with  wool  as  agreed,  seventy  pounds  weight  of  a  very 
inferior  and  different  material  called  flock  had  been  substituted. 

M.vRTix,  B.,  said  he  felt  much  doubt  whether  this  was  anything  more  than  a 
breach  of  conti-act  or  of  warranty,  for  which  there  was  a  civil  remedy. 

Leigh  referred  to  the  cases  of  Begina  v.  Goss  and  Begina  v.  liagg^  and  the 
cases  there  cited,  in  which  it  had  been  held  by  the  Court  of  Criminal  Appeal 
that  where  a  seller  represented  coal  to  be  of  a  certain  weight,  when  it  was  not 
so,  and  cheese  to  be  of  a  certain  quality  by  the  maneuver  of  passing  oft  tasters 
as  if  extracted  from  the  cheese  offered  for  sale,  whereas  it  was  not,  were  in- 
dictable false  pretenses. 

Martin,  B.,  said  thai  on  the  authority  of  these  cases  he  would  send  the  case 
to  the  jury,  but  he  had  some  doubt  whether  the  present  case  was  anything  more 
than  a  breach  of  Avarranty,  and  if  the  prisoner  was  convicted  he  should  reserve 
the  point  for  the  consideration  of  the  Court  of  Criminal  Appeal. 

Verdict,  not  guilty. 

In  State  v.  Chuiin,^  it  was  held  that  selling  a  slave  :vlth  a  covenant  of  title, 
the  vendor  knowing  that  he  had  no  such  title  was  not  a  criminal  false  pre- 
tense. 

In  B.  v.  Codrington,^  the  defendant  was  indicted  for  obtaining  mone>  by  false 
pretenses.  This  indictment  (which  was  extremely  long)  charged  that  the  de- 
fendant obtained  the  sum  of  £29,  3s,  by  falsely  pretending  to  a  person  named 
Varlow,  that  he  was  entitled  to  a  reversionary  Interest  in  one-seventh  share  of 
a  sum  of  money  left  by  his  grandfather,  whose  name  was  Wlckes ;  whereas  in 


1  R.  V.  Pywell,  1  Stark.  402  (18W). 

2  state  V.  Delyon,  1  Bay,  363  (I'H). 

3  82  N.  C.  «0Y(1880). 

4  8CO.X,  334  (18liO), 


0  8  Cox,  262. 

«  19  Mo.  233  (1853). 

'  1  C.  4  r.  m. 


C.M-'»i'*liM*^^^i' 


SES. 

the  subject  of         .aiiual 
Not  guilty. 


ttty  of  the  soundness  of  a 
I  a  sound  one.' 

I  thut  a  horse  in  his  pes- 
t  so,  whereby  he  obtained 
3.     "If  such  a  falsehood 

II  the  actions  which  have 
endants  should  have  been 
;enses." 

pretending  that  a  certiin 
nd  in  fact  it  was  stuffed 
le  did  unlawfully  obtiiin, 


t  the  prisoner  contracted 
stuffed  with  best  wool  at 
ered  by  the  prisoner,  and 
rcl  and  knotty  in  parts,  it 
t  vas  discovered  that, in- 
pounds  weight  of  a  very 
substituted. 

kvas  anything  more  than  a 
as  a  civil  remedy. 
1  Begina  v.  liagg^  and  the 
3ourt  of  Criminal  Appeal 
n  weight,  when  it  was  not 
ver  of  passing  oft  tasters 
lereas  it  was  not,  were  In- 

es  he  would  send  the  case 
at  case  was  anything  more 
)nvicted  he  should  reserve 
lal  Appeul. 

Verdict,  not  guilty. 
?  'vith  a  covenant  of  title, 
not  a  criminal  false  pre- 

r  obtaining  monej  by  false 
)ng)  charged  that  the  de- 
ending  to  a  person  named 
it  in  one-seventh  share  of 
!  was  Wickes ;  whereas  in 


(1853). 
Hi. 


PRETENSE   MUST   BE   FALSE. 


365 


fact  he  war,  not  entitled  to  any  interest  in  any  share,  etc.,  negativing  the  pre- 
tenses.   Plea,  not  guilty. 

It  was  opened  that  the  defendant  pretended  that  he  was  entitled  to  the  re- 
versionary Interest  mentioned  in  the  indictment,  and  thereby  induced  Varlow,  the 
prosecutor,  to  purchase  it  on  the  22d  of  December,  1824,  at  the  price  of  £29,  3s, 
the  defendant  having  in  fact  sold  all  his  inteiest  in  it  to  a  person  named  Pick,' 
on  the  18th  of  Septamber,  1824. 

To  prove  the  pretense,  a  deed  dated  December  22,  1824,  assigning  the  defend- 
ant's interest  in  his  one-seventh  share  of  the  money  to  Varlow,  was  put  in,  and 
in  this  deed  there  was  the  usual  covenant  for  title. 

Ludlow,  objected,  that  this  deed  was  no  evidence  of  any  false  pretense,  for 
if  it  was,  every  breach  of  every  covenant  would  be  indictable. 

LiTTLEDALK,  J.  Certainly  a  covenant  in  a  deed  can  not  be  taken  to  be  a  false 
pretense. 

The  prosecutor  was  then  called,  and  he  proved  that  the  defendant  asked  him 
to  purchase  a  seventh  share  of  some  money  that  he  would  be  entitled  to  under 
his  grandfather's  will  on  the  death  of  one  of  his  relatives,  and  tliat  he  agreed 
to  purchase  it,  and  got  a  deed  of  assignment  executed  to  him,  and  he  there- 
upon paid  the  defendant  the  purchase-money.  To  prove  the  falsehood  of  the 
pretense,  the  previous  assignment  by  the  defendant  to  Pick  was  put  in. 

Ludlov  -objected,  that  the  prosecutor  did  not  advance  the  money  in  conse- 
qnence  ..  ...3  verbal  pretense  used  by  the  defendant,  but  took  the  covenant  as 
security.  Wnat  passed  between  the  parties  by  parol  was  afterwards  embodied 
in  the  deed ;  it  was  a  mere  breach  of  covenant. 

Palmer,  contra.  This  indictment  charges  that  the  defendant  obtained  the 
money  by  pretending  that  he  was  entitled  to  this  reversionary  interest  This 
pretense  we  prove  to  be  false;  and  yet  It  is  contended  that  because  he  reiterated 
that  pretense  in  a  deed  it  becomes  no  offense. 

Ltidlow,  in  reply.  It  is  not  everything  which  is  untruly  stated  at  the  time  of 
a  bargain  which  is  an  indictable  false  pretense.  If  A.  B.  sold  a  horse,  and  war- 
ranted him  Ave  years  old,  and  it  were  proved  to  his  knowledge  he  was  but  four 
he  might  be  Indicted  for  swindling;  or,  to  come  nearer  this  case,  if  a  man  sold 
apiece  of  land  as  one  hundred  acres,  without  saving  "be  the  same  more  or 
less,"  and  in  fact  the  land  was  only  ninety-nine  acres  and  a  half,  he  might  be 
transported;  this  is  really  only  a  breach  of  covenant. 

LiTTi.EDALE,  J.  The  doctrine  contended  for  on  the  part  of  the  prosecution 
would  make  every  breach  of  warranty  or  false  assertion  at  the  time  of  a  bargain 
a  transportable  offense.  Here  the  party  bought  the  property,  and  took  as  his 
security  a  covenant  that  the  vendor  had  a  good  title.  If  he  now  finds  that  the 
vendor  has  not  a  good  title,  he  must  resort  to  the  covenant.  This  is  only  a 
ground  for  a  civil  action. 

Verdict,  not  guilty. 

§  449.  Pretense  Mtwt  be  False.  — It  is  indispensably  necessary  that  the 

pretense  be  false.^ 


§  460.  False  Pretense  Tumlngr  out  True. 

held  no  crime  is  committed.^ 

1 


-In  this  uase  it  has  been 


1  Tyler  v.  State,  2  Humph.  298  (1840), 


2  Re  Snyder,  17  Kas.  842;  Keller  v.  State, 
61  Ind.  Ill ;  Scott ».  People,  62  Barb.  63  (1878). 


366 


FRAUD   AM)   FALSK   PKETKNSE8. 


§  4S1 .  Prisoner  'Must  Know  that  Pretense  Is  False. 

must  know  the  preteUHe  to  be  false. • 


-The  prisoner 


§  462.  Representation  must  be  Relied  on.  —  The  prosecutor  must  have 

relied  on  tlie  false  representation. 2 

In  Commonwealth  v.  Drew,^  tlie  prisoner  having  opened  an  account  with  a 
banli  and  drawn  a  check  under  a  (ietitious  name,  subsequently  drew  a  check  when 
he  had  no  money  on  deposit,  presented  it  himself  and  was  paid.  He  was  held 
not  guilty  of  false  pretenses.  Morto.n,  J.,  delivering  the  following  opinion: 
"These  indictments  are  founded  upon  tiie  statute  of  1815.«  The  first  section 
provides  •  that  all  persons  who  knowingly  and  designedly,  by  false  pretense  or 
pretenses,  shall  obtain  from  any  person  or  persons,  money,  goods,  wares,  mer- 
chandise or  other  things,  with  Intent  to  cheat  or  defraud  any  person  or  persons 
of  the  same,  shall,  on  conviction,'  be  punished,  etc.,  as  therein  specided.  This 
section,  which  is  a  copy  of  statute  iiO  George  II. ,*  Is  revised  and  combined  with 
some  provisions  In  relation  to  other  similar  offenses  in  the  Revised  Statutes.* 

"To  constitute  the  offense  described  in  the  statute  and  set  forth  in  these  in- 
dictments lour  things  must  concur,   and  four  distinct  averments  must   be 
proved : — 
"1.  There  must  be  an  intent  to  defraud. 
"2.  There  must  l)c  an  actual  fraud  committed. 

"3.  False  pretenses  must  be  used  for  the  purpose  of  perpetrating  the  fraud; 
and 

"4.  .The  fraud  must  be  accomplished  by  means  of  the  false  pretences  made  use 
of  for  the  purpose,  viz.,  they  must  be  the  cause  which  Induced  the  owner  to 
part  with  his  property. 

"  It  is  very  obvious  that  three  of  the  four  ingredients  of  the  crime  exist  in  the 
present  case.  The  fraudulent  Intent,  the  actual  pcrpretation  of  the  fraud,  and 
tlie  fact  that  some  of  the  pretenses  used  were  the  means  by  which  it  was  ac- 
complished, are  established  by  the  jury.  And  although  the  prisoner's  counsel 
has  objected  to  the  suflleieucyof  the  evidence,  yet  we  see  no  reason  to  question 
the  correctness  of  their  decision.  It  only  remains  for  us  to  inquire,  whether 
the  artitices  and  deceptions  practiced  by  the  defendant  and  by  means  of  which 
he  obtained  the  money,  are  the  false  pretenses  contemplated  by  the  statute. 

The  pretenses  described  in  the  indictments  and  alleged  and  shown  to  be 
false,  are :  — 

"  1.  That  the  defendant  assumed  the  name  of  Charles  Adams. 
"  2.  That  he  pretended  that  he  wished  to  open  un  honest  and  fair  account  with 
the  Hancock  Bank  and  to  deposit  and  draw  for  money  In  the  usual  manner  and 
ordinary  course  of  business. 

"3.  That  he  pretended  that  the  checks  were  good,  and  that  he  had  in  deposit 
the  amount  for  which  they  were  drawn. 

"  The  first  Is  clearly  a  false  pretense  within  the  meaning  of  the  statute.  And 
had  the  money  been  obtained  by  means  of  the  assumption  of  this  fictitious 
name,  there  could  be  no  doubt  of  the  legal  guilt  of  the  defendant.    The  eminent 


1  Maranda  v.  State,  44  Tex.  442  (18TU) ; 
Hirech  v.  State,  1  Tex.  (App.)  378  (1876) :  K. 
r.  Burrows,  11  Cox,  358  (ISdB). 

2  People  t'.  TompkiiiN,  I  Park.  C.  C.  224 
(1851);  Jones  V.  State, sdlnil. 47:1;  Tliernsi-un 


I).  People,  88  N.  Y.  238  (1880) ;  Fay  v.  Com.,  28 
Gratt.  012. 

»    uV'-'^.  17!)  (18;}-). 

*  ch.  136. 

''  ch.  24,  sec.  1. 

«  ch.  126,  sec.  »2. 


"  *- 


IMCPUESKNTATION    MUST   «E    ItKMED   ON. 


3H7 


■The  prisoner 


cutor  must  have 

I  account  with  a 
ew  aclieck  when 
(1.  He  was  held 
lowing  opinion: 
riie  first  section 
'alse  pretense  or 
jfls,  wares,  mer- 
•rson  or  persons 
specitied.  This 
1  combined  with 
sed  Statutes.* 
Drth  in  these  in- 
mcnts  must  be 


ating  the  fraud ; 

;ences  made  use 
ed  the  owner  to 

'imc  exist  in  the 
the  fraud,  and 
ifhich  it  was  ac- 
souer's  counsel 
son  to  question 
iiquirc,  whether 
means  of  which 
the  statute, 
d  shown  to  be 


ir  account  with 
nal  manner  and 

liad  in  deposit 

e  statute.  And 
f  this  fictitious 
.    The  eminent 

) ;  Fay  v.  Com.,  28 


lawyer  who  fllled  the  office  of  Mayor  of  Now  Yorl<  wlicn  the  adjudication  rc- 
ftired  to  by  the  defendant's  counsel  wms  made,  says,  the  false  i)retenses  must 
he  the  sole  inducement  which  cuised  the  owner  to  part  with  his  property.' 
'I'lils  point  is  doubtless  stated  too  strongly;  and  it  would  l)e  more  correct  to 
say,  that  Mie  iiretenscs,  either  willi  or  without  the  co-operation  of  other  causes, 
had  a  decisive  influence  upon  the  niinci  of  the  owner,  so  that  without  their 
weight,  he  would  not  Inive  parted  with  liis  properly. 2  But  in  this  case  the  iis- 
sunied  name,  so  far  from  being  the  sole  or  decisive  inducement,  is  clearly 
shown  to  iiave  had  no  influence  whatever.  Tlie  l)anl<  otlicers  did  not  confound  t  he 
defendant  witli  Charles  Adams,  and  it  does  not  api>ear  that  the  defendant  iiuew 
tlmttlierc  was  any  other  person  by  that  name.  lie  never  eiaimed  any  credit  on 
aeeount  of  ids  name,  and  tlie  coincidence  might  liave  bedn  accidental.  At  any 
rate  it  had  no  Influence  upon  the  credit  of  either,  nor  any  effect  upon  their  ac- 
counts or  the  payment  of  their  checks. 

"  'J.  The  opening  and  keeping  an  account  with  the,  Hancock  Bank  might  liave 
been,  and  doubtless  was,  a  part  of  a  cunning  stratagem,  l)y  wliich  the  defendant 
intended  to  practice  a  fraud  tipon  that  bank.  But  the  business  was  done  and 
the  account  kept  in  tiie  usual  numner.  The  defendant  made  his  deposits  and 
drew  his  checks  like  other  customers  of  the  bank.  He  made  no  representation 
(if  the  course  he  intended  to  pursue  and  gave  no  assurance  of  integrity  and  fair 
dealing.  And  we  can  see  nothing  in  tiie  course  of  this  business,  constituting  it 
a  false  pretense,  which  would  not  involve  the  account  of  any  depositor,  who 
overdrew  in  the  same  category. 

"3.  The  pretense,  if  any  sucli  there  were,  that  tlie  check  was  good,  or  that  the 
defendant  had  funds  in  the  bank  for  winch  he  iiad  a  right  to  draw  was  false. 
He  had  no  such  funds.  Did  the  defendant  make  any  such  i)retense?  He  made 
no  statement  or  declaration  to  the  oflicers  of  the  i)arik.  He  merely  drew  and 
presented  his  cliecks  and  they  were  paid.  This  was  done  in  the  usual  manner. 
If  then  he  made  any  pretense,  it  must  result  from  the  acts  themselves.  What  is  a 
false  pretense  within  the  meaning  of  the  statute?  It  m.-iy  be  defined  to  be  a  repre- 
sentation of  some  fact  or  circumstance  calculated  to  mislead,  which  is  not  true. 
To  give  It  a  criminal  character  there  must  be  a  scienter  and  a  fraudulent  Intent. 
.\lthough  the  language  of  the  statute  is  very  broad,  and  in  a  loose  and  general 
sense,  would  extend,  to  every  misrepresentation,  however  absurd  or  irrational 
or  however  easily  detected;  yet  we  think  of  the  true  principles  of  construction 
render  some  restriction  indispensable  to  its  proper  application  to  the  principles 
of  criminal  law  and  to  the  advantageous  execution  of  the  statute.  We  lio  not 
mean  to  say  tiiat  it  is  limited  to  cases  against  which  ordinary  skill  and  diligence 
can  not  guard ;  for  one  of  its  principal  objects  is  to  protect  the  weak  and  cred- 
ulous from  the  wiles  and  stratagems  of  tiie  artful  and  cuuning;  but  there  must 
be  some  limit,  and  it  would  seem  to  be  unreasonable  to  extend  it  to  those  who, 
having  the  means  in  their  own  hands,  neglect  to  protect  tliemselves.  It  may  lie 
difficult  to  draw  a  preci.sc  line  of  discrimination  applicable  to  every  possible 
contingency,  and  we  tliink  it  safer  to  leave  it  to  be  fixed  in  each  case  as  it  may 
occur.' 

"  It  is  not  the  policy  of  the  law  to  punish  criminally  mere  private  wrongs. 
And  the  statute  may  not  regard  naked  lies  as  false  pretences.    It  requires  some 


'  reople  V.  Conger,  1  Wlieel.  Cr.  Cas.  448 ; 
People  r.  Dnitoii,  2  tb.  Itll. 

2  People  V.  Haynes,  U  Wend.  .UT. 


•  2  East's  C.  P.  H28;  Voung  r.  King,  3  T. 


R.  9H. 


3()8 


FRAUD  AND  FALSK  PKETENSES. 


artifice,  some  deceptive  contrivance,  which  will  be  likely  to  mislead  a  person  or 
throw  him  off  his  guard.  He  may  be  weak  and  confiding  and  his  very  imbecility 
and  credulity  should  receive  all  practical  protection;  But  it  would  be  inexpe- 
dlent  and  unwise  to  regard  every  private  fraud  as  a  legal  crime.  It  would  be 
better  for  society  to  leave  them  to  civil  remedies.^ 

"The  pretense  must  relate  to  past  events.  Any  representation  or  assurance  in 
relation  to  a  future  transaction,  may  be  a  promise  or  covenant  or  warranty,  but 
can  not  amount  to  a  statutory  false  pretense.  Tliey  afford  an  opportunity  for 
Inquiring  into  their  truth,  and  there  is  a  remedy  for  their  breach,  but  it  is  not 
by  a  criminal  prosecution.*  The  only  case,'  which  has  been  supposed  to  con- 
flict with  the  doctrine,  clearly  supports  it.  The  false  pretense  alleged  was, 
that  a  bet  had  been  made  upon  a  race  which  was  to  be  run.  The  contingency 
which  was  to  decide  the  bet  was  future.  But  the  making  of  the  bet  was  past. 
The  representation  which  turned  out  to  be  false  was,  not  that  a  race  would  be 
run,  but  that  a  bet  had  been  made.  The  false  pretense,  therefore.  In  this  case 
related  to  an  event  already  completed  and  certain,  and  not  to  one  which  was 
thereafter  to  happen  and  consequently  uncertain,  and  the  decision  was  per- 
fectly consistent  with  the  doctrine  and  law  here  laid  down. 

"A  falf  9  pretense,  being  a  misrepresentation,  may  be  made  in  any  of  the  ways 
in  which  Ideas  may  be  communicated  from  one  person  to  another.  It  is  true 
that  the  eminent  jurist  before  referred  to  in  the  cases  cited  held  that  It  could  be 
made  only  by  verbal  communications,  either  written  or  oral.  If  this  be  correct, 
no  acts  or  gestures,  however  significant  or  Impressive,  could  come  within  tlie 
statute.  And  brutes,  though  capable  of  conveying  their  ideas  and  intentions  iu 
the  most  clear  and  forcible  manner,  could  hardly  be  brought  within  its  prohibi- 
tion. Can  it  make  any  difference  in  law  or  conscience,  whether  a  false  repre- 
sentation be  made  by  words  or  by  the  expressive  motions  of  the  dumb?  Each 
is  a  language.  Words  are  but  the  signs  of  ideas.  And  if  the  ideas  are  con- 
veyed, the  channel  of  communication  or  the  garb  in  which  they  are  clothed  Is 
but  of  secondary  Importance,  and  we  feel  bound  to  dissent  from  this  part 
of  these  decisions.    In  this  we  are  supported  by  the  English  cases.* 

"  The  representation  is  inferred  from  the  act,  and  the  pretense  may  be  made  by 
Implication  as  well  as  by  verbal  declaration.  In  the  case  at  bar  the  defendant 
presented  his  own  checks  4«i  a  bank  with  which  he  had  an  account.  What  did 
this  imply?  Not  necessarily  that  he  had  funds  there.  Overdrafts  are  too  fre- 
quent to  be  classed  with  false  pretenses.  A  check,  like  an  order  on  an  individ- 
ual. Is  a  mere  request  to  pay.  And  the  most  that  can  be  inferred  from  passing 
it  Is,  that  It  win  be  paid  when  presented,  or  In  other  words  that  the  drawer  has 
in  the  hands  of  the  drawee  either  funds  or  credit.  If  a  drawer  passes  a  check 
to  a  third  person,  the  language  of  the  act  is,  tiiat  It  is  good  and  will  be  duly 
honored.  And  in  such  case,  if  he  knew  that  he  had  neither  funds  nor  credit,  It 
would  probably  be  holden  a  false  pretense. 

•«  In  the  case  of  Stuyvesant,'  it  was  decided  that  the  drawing  and  passing  a 
check  was  not  a  false  pretense.  But  In  Bex  v.  Jackson,*  it  was  ruled  that 
the  drawing  and  passing  a  check  on  a  banker  with  whom  the  drawer  had  no  ac- 


1  Bote.  Or.  Et.  (2d.  ed.)419;  Goodball's 
Case,  R,  A  R.  461. 

3  Stuyvetant's  Case,  4  City  Hall  Rec.  1B6 ; 
Rose.  onCr.  Ev.  (23  ed.)  4«;  Bex.  r.  Ood- 
rlDgton,  1  C.  A  P.  661. 


•  Toung  V.  King,  3  T.  R.  98. 

•  Rex  V.  Story,  R.  *  R.  81;  Bex  v.Freetli. 
lb.  127. 

<>  4  City  Hall  Rec.  150, 

•  S  Camp.  370. 


^^m 


REPRESENTATION   MUST   BE    RELIED   ON. 


300 


(lead  a  person  or 
s  very  imbecility 
rvould  be  inexpe- 
ae.    It  would  be 

nor  assurance  in 
or  warranty,  but 
I  opportunity  for 
ach,  but  it  ia  not 
supposed  to  con- 
nse  alleged  was, 
The  contingency 
tlie  bet  was  past, 
a  race  would  be 
'ore,  in  this  case 

0  one  which  was 
lecision  was  per< 

a  any  ol  the  ways 
other.  It  is  true 
d  that  it  could  be 
[f  this  be  correct, 
.  come  within  the 
and  intentions  iu 
vithin  its  prohibi- 
ther  a  false  repre- 
the  dumb?  Each 
the  ideas  are  con- 
iey  are  clothed  is 
it  from  this  part 
lases.* 

se  may  be  made  by 
bar  the  defendant 
count.  What  did 
drafts  are  too  f re- 
der  on  an  Individ* 
rred  from  passing 
at  the  drawer  has 
'cr  passes  a  check 

1  and  will  be  duly 
iinds  nor  credit,  it 

ing  and  passing  a 
It  was  ruled  that 
drawer  had  no  ac- 


'.  R.  98. 

R.  81;  Rex  v.Freetli. 


count  and  which  he  knew  would  not  be  paid,  was  a  false  pretense  within  the 
statute.  This  doctrine  appears  to  be  approved  by  all  the  text-writers,  and  we 
are  disposed  to  adopt  it.* 

"  lint  to  bring  these  cases  within  the  statute,  it  must  be  shown  that  the 
drawer  and  uttercr  knew  that  the  check  would  notice  paid,  and  in  the  cases  cited 
It  appeared  that  that  he  had  no  account  with  the  banker.  In  these  respects  the 
case  at  bar  is  very  distinguishable  from  the  cases  cited.  If  the  checks  in 
question  had  been  passed  to  a  third  person,  it  could  not  be  said  that  the  de- 
fentliiut  knew  that  they  would  not  be  paid.  On  tlie  contrary,  he  had  au  open 
account  with  the  bunk,  and  although  he  knew  tliure  was  nothing  due  to  him, 
yet  he  might  suppose  that  they  would  be  paid.  And  the  fact  that  he  presented 
them  himself,  shows  that  he  did  not  know  that  they  would  be  refused. 

"  The  defendant  presented  tlie  checks  himself  at  the  counter  of  the  bank.  They 
were  reque"-ts  to  pay  the  amount  named  in  them,  couched  in  the  appropriate  and 
only  language  known  there ;  and  addressed  to  the  person  whose  peculiar  province 
and  iluty  it  was  to  know  whether  they  ought  to  be  paid  or  not.  He  compiled 
with  the  requests,  and  charged  the  sums  paid,  to  the  defendant,  and  thus  created 
a  contract  between  the  parties.  Upon  this  contract  the  bank  must  rely  for 
redress. 

"  Th.  jasc  lacks  the  elements  of  the  English  decisions.  And  we  think  it  would 
be  an  unwise  and  dangerous  construction  of  the  statute  to  extend  it  to  transac- 
tions like  this.  This  case  comes  pretty  near  the  line  which  divides  private 
frauds  from  indictable  offenses ;  and  at  flrst  we  were  in  doubt  on  which  bide  it 
would  fall.  But,  upon  a  careful  examination,  we  are  well  satisfied  that  it  can 
not  properly  be  brought  within  the  statute. 

•'  Verdict  set  aside  and  new  trial  granted." 
In  People  v.  McAllister,^  the  pretense  charged  was  that  the  prisoner  owned  a 
house  and  lot  in  a  certain  locality,  and  was  building  an  addition  to  it,  and 
wished  to  buy  the  articles  for  use  in  the  building.  "The  information,"  said 
Campbell,  J.,  "does  not  show,  and  the  testimony  throws  no  more  light,  how 
•this  pretense  operated  as  a  fraud,  or  what  good  the  truth  of  the  statement  said 
to  have  been  made  would  have  done  the  complaining  witness.  It  was  entirely 
compatible  with  the  averment  that  respondent  may  have  owned  other  property, 
or  that  the  house  might  be  a  homestead,  and  in  no  way  subject  to  legal  process, 
or  incumbered  to  its  value.  It  does  not  appear  that  respondent  was  given  to 
understand  that  the  question  asked  him  about  his  building  was  put  for  the  pur- 
pose of  ascertaining  whether  it  was  safe  to  trust  him.  He  made  no  representa- 
tions at  all  when  he  asked  for  credit  for  this  small  bill  until  an  inquiry  was 
made,  and  the  only  question  asked  him  was  the  single  one  whether  he  was 
building.  This  contained  no  intimation  that  he  was  expected  to  give  informa- 
tion concerning  the  ownership  or  value  of  property,  or  that  his  credit  would 
depend  upon  his  answer.  There  can  be  no  offense  under  the  statute,  unless  the 
party  knows,  or  has  reason  to  believe,  that  his  representations  are  relied  on  as 
the  grounds  of  credit.  And  there  is  nothing  in  the  testimony  indicating  this; 
neither  does  the  information  point  out  how  any  fraud  could  result  from  such 
statements  standing  alone  and  unexplained. 

"  On  the  trial  the  claim  was  that  the  seller  of  the  goods  expected  to  have  a 
mechanic's  lien.    But  he  asked  and  he  obtained  no  information  whatever  that 


1  Rose.  Cr.  Ev.  (2d  ed.)  419. 
3  Defencks. 


■i  40  Mich.  12  (1882). 


84 


■'tot'ttsitti  iSiiPfe-;-siSw  i:i.>B<i«*iA*iA  «■■ .« 


'  -Ki^.  i::^ti^~^   -r^-*il^,-\*.:^^J^»-.i, 


370 


FRAUD   AND    FALSE   PRETENSES. 


had  any  tendency  to  show  that  «uch  a  Hen  7"'^'  -'-' "[^^^f^  Z 
value     While  we  need  not  refer  to  it  to  make  out  erroi,  it  apptars  vei>  cn> 
tinctly  that   Lpondent  had  just  such  property  a«  he  claimed  to  have,  and  th.  . 
"  otiiuTto  indicate  that  thl  trifling  di«erence  in  location  -^e;- ^  ^^^J^^'  ;; 
made    any  difference  In  the  honesty  of  the  transaction.    The  couit,  ere.      . 
TmUting^any  testimony  under  the' infomation  and  '"  ^^-'^'/^^rd  " 
There  was  nothing  which  had  any  le«al  force  to  prove  '^if^^^''^^^'^^^^.^^^ 
In  Woodburu  v.  State,^  the  false  statement  made  a  ground  of  the  prosecution 
wi   as  to  thfpr  soner's  place  of  residence.    He  was  convicted  and  appealed 
r; false  pcte„«e."  said  Bk.ckk,.,..  C.  J.,  "  to  be  Indictable,  must  be  calcula^.-.! 
to  d  celve  and  defraud.    As  of  an  actionable  ^-^^^^^rTrllZrTL^^ 
material  fact  on  which  the  party  to  whom  it  is  made  has  the  right  to  n  ly ,  not 
The  m  ;   expreL7orof  an  opinion,  and  not  of  facts  open  to  his  present  observu- 
tfonandTn  reference  to  which.  If  he  observed,  he  could  obtain  correct  ".^w^ 
irr  Wither  the  prosecutor  could  have  avoided  imposition  ""om  tie  fa  so 
prftensrHe  l,ad  exercised  ordinary  prudence  and  discretion  to  detect  it. 
falsTtris  not  a  material  Inquiry.    As  a  general  rule.  If  the  pretense  is  no   of  1 
lefabsurd  or  irrational,  or  if  he  had  not  at  the  very  time  it  was  made  and 
Tcted  on  tlte  means  at  hand  of  detecting  its  falsehood.  If  he  was  really  Impo  ed 
on  his  want  of  prudence  Is  not  a  defence.*    If  the  residence  of  the  accused  at 
rDartirrr  locality  was  a  material  fact  in  the  transaction  between  him  and  the 
nrosecutor  •  If.  with  the  Intent  to  defraud  the  prosecutor,  the  prisoner  «.  s  ep- 
?e3eTthe  loci  ty  of  his  residence,  and  by  means  of  the  "'^-^^P-^-^^   '  ' 
SZied   he  sewing  machine,  the  misrepresentation  being  a  controlling  in    .cc^ 
men  wltl    th^^  V^otocniov  to  part  with  his  property.  It  Is  not  a  defence   1  U  if 
Tetlcutor  Jad  U.en  the  precaution  to  inquire  at  the  P^;  i-Ur  -m^^^^^^^^ 
ooiild  have  found  it  was  not  the  residence  of  the  "'  r,  ana  wouia  noi,  uu 

been  declUd  and  defrauded.  The  prosecutor  h.c  ..Ut  to  rely  on  the  re  pro. 
se'mlo?,  and  there  was  no  obligation  or  duty  to  ^ne  P'i--;  ^  ^"p  ^t  fe 
its  truth  or  whether  he  was  dealing  fairly  and  honestly.  The  ^^Ise  pretense 
m^,«t  not  only  be  however,  of  a  material  factbut  It  must  have  been,  not  the  sole, 
Tt  excluswe  or  decisive  cause,  a  controlling  Inducement  with  the  prosecutor 
Lr  the  r^sfer  of  the  money  or  property.  Other  considerations  may  m  ngle 
with  tlSe  prepense.  hav.Jg  an  Influence  upon  the  mind  and  conduct  <>f  he 
Prosecutor;  yet  If  In  the  absence  of  the  false  pretense  he  would  not  have 
nirted  with  m  property,  the  offense  is  complete.*  But  If  without  the  false 
Sri  lie  would'  have  J;rted  with  his  property -if  that  is  -t  an  opera  iv, 
moving  cause  of  the  transfer-lf  he  did  rely  and  act  upon  It.  there  ma,   be 

'rrvt;""rvider:r^^^^^ 

If  It  Is  not  a  positive  afllrmatlon.  that  the  misrepresentation  of  the  locality  o 
his  residence  imputed  to  the  accused  had  no  influence  with  him  In  causing  or 
J^ducTng  M™  o  part  with  the  sewing  machine,  the  Instructions  given  te 
Sry  seem  to  us  erroneous.  If  to  this  phase  of  t.e  case  they  can  be  regarded  o^. 
d"^ctinTthe  attention  and  consideration  of  the  jury  It  is  only  by  the  con  ruc- 
Inwrncrcounsei.  accustomed  to  a  close  exanlnation  of  legal  propositions 
wouirplace  upoft  tU.    As  a  general  rule.  If  aHrmatlve  charges  assert  correct 

■■>  People  V.  llaynes,  11  Wend.  657;  28  Am. 
ncc.  530. 

*  2  WUart.  Ev.,  sees.  2120-23. 


l«0Ala.B15a881). 

s  2  Whart.  Cr.  L.,  sec.  2128. 


^^m 


INTENT  MUST   BE   FELONIOUS. 


a7i 


would  be  ol  any 
,  appears  very  cU>- 
to  have, and  tluix- 
ide,  or  could  huvi- 
he  court,  erred  in 
ig  any  conviction, 
me  alleged." 
)f  the  prosecution 
;ted  and  appealed, 
must  be  calculatud 
ion  It  roust  be  of  a 
!  right  to  rely ;  not 
Is  present  observa- 
»in  correct  knowl- 
;lon  from  the  lal.^e 
atlon  to  detect  its 
retense  Is  not  of  it. 
e  it  was  made  and 
was  really  Impo.sed 
3  of  the  accused  at 
stween  him  and  the 
le  prisoner  inlsrep- 
I  misrepresentation 

controlling  induce 
lot  a  defence  that  If 
rtlcular  locality,  he 
and  would  not  have 

0  rely  on  the  repro- 
oner  to  inquire  into 
The  false  pretense 
e  been,  not  the  sole, 
with  the  prosecutor 
iratious  may  mingle 

1  and  conduct  of  the 
he  would  not  have 
if  without  the  false 
is  not  an  operative, 

on  it,  there  may  be 

;ly  to  the  conclusion, 
on  of  the  locality  of 
h  him  in  causing  or 
jtructlons  given  the 
sy  can  be  regarded  as 
jnlyby  the  construc- 
f  legal  propositions, 
tiarges  assert  correct 

98,11  Wend.  657;  28  Am. 
ics.  2120-23. 


legal  propositions,  their  generality,  obscurity  or  ambiguity  must  be  obviated  l)y  a 
request  for  more  specific  instructions.  But  If  the  imniediate,  direct  tendency  nf 
such  instructions  is  to  mLsIead  the  jury,  diverting  their  attcniion  from  material 
evidence  and  from  the  consideration  of  controlling  hniuirics,  or  creating  tlie 
impression  that  they  are  authorized  to  exclude  evidence  they  ought  to  conshlir, 
such  instructions  are  erroneous  and  must  operate  a  reversal  of  a  judgment 
they  have  induced. 

"  These  instructions,  omitting  all  proper  reference  to  the  evidence  of  the  pros- 
ecutor, tending  to  show  that  he  was  not  influenced  in  parting  with  tlie  machine 
by  the  representation  of  the  accused,  that  his  residence  was  at  a  i)articular 
locality,  in  effect  excluding  that  evidence  from  the  consideration  of  the  jury, 
had  an  immediate  tendency  to  mislead  them.  It  was  tlie  duty  of  the  court  to  in- 
■nstruct  the  jury  that  if  the  misrepresentation  was  not  an  inducing  controlling 
motive  with  the  prosecutor  to  part  with  the  machine,  there  should  not  he  a 
conviction  of  the  accused  upon  either  of  the  counts  for  false  pretenses.'  It  is 
not  necessary  to  pass  upon  the  other  exceptions  as  this  view  will  probably  be 
decisive  of  the  case  on  another  trial." 

§  463.  Falae  Pretenses —  Intent  Must  be  to  Deprive  Owner  of  Property.  — 
It  is  essential  not  only  that  the  pretense  was  false  and  the  property  obtained 
thereby,  but  also  that  the  prisoner  at  tlie  time  intended  to  defraud.^ 

In  B.  V.  Kilham,'  the  prisoner,  by  falsely  pretending  to  be  a  livery  man,  and 
that  he  was  sent  by  another  person  to  hire  a  horse  for  him,  for  a  drive,  obtained 
the  horse.  He  returned  it  the  same  evening,  but  did  not  pay  for  the  hire.  This 
was  held  not  the  obtaining  of  a  chattel  by  false  pretenses  with  Intent  to  defraud. 

In  People  v.  Oetchell,\  the  defendant  was  iiulicted  for  false  pretenses  in 
procuring  the  indorsement  by  the  prosecutor  of  a  promissory  note  by  the  false- 
hood that  a  similar  former  note  was  destroyed.  On  the  trial,  after  proof  of  the 
facts  charged,  the  defendant  offered  to  show  in  defuucc  that  he  was  a  partner 
of  the  prosecutor;  that  the  latter  was  bound  by  agreement  to  Indorse  for  him 
to  amount  larger  than  the  two  notes,  but  had  refused  to  do  so,  and  that  the 
money  obtained  in  the  notes  was  used  in  the  business  for  their  joint  benctlt. 
The  exciusior  of  this  evidence  was  held  error  on  appeal.  "  Tlie  indictment," 
said  Martin,  C.  J.,  "  charges  that  on  the  11th  of  December,  1858,  he  by  means 
of  false  pretenses,  obtained  the  indorsement  of  Strong  to  a  note  of  one  hundred 
and  fifty  dollars  made  by  himself.  The  statute  under  which  the  indictment 
was  found,  provides  that  'every  person  who,  with  intent  to  defraud  or  cheat 
another,  shall  designedly,  by  color  of  any  false  token  or  writing,  or  by  any 
other  false  pretense,  obtain  the  signature  of  any  person  to  any  written  instru- 
ment, the  making  whereof  would  be  punishable  as  forgery,  or  obtain  from  any 
person,  any  money,  personal  property  or  valuable  thing,  shall  be  punished,'  etc.* 

"The  object  of  the  defence  in  this  case  in  offering  the  rejected  evidence,  was 
to  show  that  there  was  no  intent  to  cheat  or  defraud ;  the  untruth  of  the  pre- 
tense being  admitted.    A  falsehood  does  not  necessarily  imply  an  intent  to  de- 


1  Com.  V.  Davidson,  1  Cash.  33. 

2  O'Connor  v.  State,  30  Ala.  i  (18.57) ; 
Brown  v.  People,  IB  Hun,  535  (1879) ;  Stale  v. 
Norton,  7S  Mo.  ISO  (1884) ;  People  v.  Kaker, 
96  N.  Y. 340  (1884) ;  Fay  t?.  Com.,  28  Uratt.  912. 


'  11  Cox,  .561(1870). 
*  6  Mich.  490  (1850). 
'  2  Comp.  L.,  sec.  6783. 


t)^,.: 


,5-^ 


372 


FlSAl'D   AM)   FALSE   I'RETENSES. 


fraud,  for  It  mny  l)c  uttered  to  secure  a  right,  and  however  much  and  severely 
It  may  be  reprobated  In  ctliUs,  the  law  does  not  assume  to  punish  mere  delin- 
fluencies  as  such.    To  defraud,  is  to  deprive  another  of  a  right  of  property,  or 
money,  and  tills  may  be  accomplished  by  falsehood,  by  withholdlna;  the  right, 
or  property,  or  by  force,    lu  the  present  case  the  prosecutor  insista  that  he 
was  defrauded,  because  he  was  Induced  to  indorse  a  note  by  the  false  repre- 
sentation of  the  defendant,  that  a  prior  note  for  the  same  amount,  Indorsed  by 
liim  was  defective,  and  had  been  destroyed;  that  ho  was  thereby  Induced  to 
lend  his  name  for  double  the  amount  he  otherwise  would.    The  simple  fact  of 
procuring  by  falsehood  the  indorsement,  was  not  an  offense  within  the  statute; 
it  must  have  been  procured  with  the  Intent  to  defraud,  and  when  an  intent  Is 
made  the  gist  of  an  offense,  that  Intent  must  be  shown  by  such  evidence  as,  uncon- 
tradicted, will  fairly  authorize  it  lo  be  presumed  beyond  a  reasonble  doubt.    It  is 
true  that  a  man  is  presumed  to  intend  the  natural  consequences  of  his  acts, 
but  under  the  statute,  it  Is  not  the  consequence,  but  the  Intention,  which  fixes 
the  crime.    There  are  no  natural  consequences,  strictly  speaking  to  this  act. 
It  is  in  Itself  an  indifferent  act,  as  the  consequences  will  depend  upon  wliat  he 
.Iocs  with  the  paper,  and  this  will  depend  upon  his  will,  in  other  words,  his 
intent.    It  was,  tnerefore,  necessary  for  the  prosecutor   to  siiow  something 
more  than  the  application,  the  falsehood,  and  the  Indorsement,  before  he  could 
aslc  a  conviction;  he  should  have  shown  those  facts  which,  in  the  absence  of  all 
other  proof,  would  warrant  the  jury  in  finding  an  intent  to  defraud;  unless 
such  intent  Is  fairly  lo  be  Inferred  from  the  circumstances  attending  the  act 
"itself     If  the  fact  of  negotiating  both  notes  would  justify  such  a  finding,  yet 
the  presumption  thus  raised  might  be  repelled  by  the  defendant  by  exhibiting 
in  evidence  such  a  state  of  facts  as  would  show  that  fraud  was  not  designed, 
or  could  not  have  resulted.    This  he  attempted  to  do  by  showing  the  relations 
of  himself  and  Strong,  the  obligation  of  Strong  to  indorse  his  paper,  his  refusal 
to  do  so,  notwithstanding  his  contract,  the  necessity  f  or  t  he  money  for  their  joint 
benefit,  and  the  appropriation  of  the  avails  of  the  note  lu  their  business,  and 
according  to  the  terms  of  their  agreement.    All  this  was  refused,  and  the  evi- 
dence offered  for  that  purpose  ruled  out. 

"  We  think  this  evidence  would  legitimately  tend  to  disprove  the  presumption 
of  an  intent  to  defraud,  and  should  have  l)een  allowed  to  go  to  the  jury  to 
nable  them  to  determine  quo  animo  the  Indorsement  was  procured. 
•'These  considerations  render  an  examination  of  the  other  errors  assigned 

unnecessary. 

A  new  trial  should  be  granted. 

Chkistiancv  and  Ca.mpbkli.,  JJ.,  concurred. 

Manning,  J.  When  by  false  pretenses,  the  signature  of  a  person  is  obtained 
to  a  written  instrument,  where  the  signing  of  the  name  by  a  third  person  to 
auch  Instrument  would  be  punishable  as  forgery,  the  law  implies  an  intent  to 
cheat  or  defraud,  and  nothing  more  need  be  shown  to  warrant  a  conviction. 
But  the  fraudulent  Intent  Implied  from  the  act  Itself,  is  not  conclusive  on  the 
party.    He  may  show  there  was  in  fact  no  Intention  to  defraud. 

The  Recorder  seems  to  have  erred  in  supposing  the  implication  of  law  was 
conciusive,  and  not  prima  facie  evidence  only  of  the  criminal  intent.  In  this  I 

think  he  erred.  ,         .  ,     ^     j 

Nexo  trial  orderea. 


^^m 


PROPERTY   MUST   HR    OBTAINED. 


373 


luch  and  severely 
UDisb  mere  delin- 
It  of  property,  or 
olding;  the  right, 
)r  iDflistu  that  be 
y  the  false  repre- 
ount,  Indorsed  by 
ereby  Induced  to 
?he  simple  fact  of 
Ithin  the  statute; 
when  an  intent  is 
vldence  as,  uncon- 
inble  doubt.    It  is 
lences  of  his  acts, 
ntiun,  which  fixes 
aking  to  tills  net. 
tend  upon  what  he 
I  other  words,  his 
I  show  something 
It,  before  he  could 
the  absence  of  all 
o  defraud;  unless 
attending  the  act 
such  a  flndinjr,  yet 
idant  by  exhibiting 
was  not  designed, 
(Wing  the  relations 
i  paper,  his  refusal 
louey  for  their  joint 
their  business,  and 
ifused,  and  the  evi- 

ve  the  presumption 
go  to  the  jury  to 
ocured. 
her  errors  assigned 


I  person  Is  obtained 
)y  a  third  person  to 
implies  an  intent  to 
,rrant  a  conviction. 
ot  conclusive  on  the 
aud. 

jlication  of  law  was 
inal  Intent.  In  this  I 

New  trial  ordered. 


§  454.  Money  or  Property  Must  be  Obtained.  —  In  Regina  v.  Crogbi/,* 

the  prisoner  having  entered  into  an  agreement  to  act  as  captain  of  a  certain 
vessel  belonging  to  the  prosecutor,  upon  receiving  two-thirds  of  the  net  prollts 
of  tl)*!  vessel  delivered  in  a  bill  for  repairs  to  a  larger  amount  than  he  had 
actually  paid,  and  was  allowed  the  amount  In  the  settlement  of  accounis. 
Mailk,  J.,  directed  an  acquittal,  saying:  "  How  can  It  l)e  said  that  the  prisoner 
obtained  any  money  by  this  false  pretense.  I  have  no  doubt  at  oil  about  the 
pretense  or  the  falsity  of  it;  but  my  difllculty  is,  that  he  obtained  no  money  by 
it,  but  only  credit  on  actount;  it  is  only  a  mere  payment  of  the  (amount  over- 
charged).    It  is  lilie  WaveVs  CaseV^ 

So  obtaining  by  false  representations,  a  note  from  a  minor,  is  not  false  pre- 
tences, as  tlie  minor  is  not  bound  by  law  to  pay  it  to  any  one.' 

In  lieginit  v.  Martin,*  the  indictment  charged  that  the  prisoner  by  falsely  pre- 
tcndm;^tooncCloke,  thathe  was  authorized  by  F.,  obtained  from  the  said  Cloke, 
corlain  hop-poles,  the  property  of,  and  with  intent  to  defraud,  the  said  Cloke. 

Tlie  prisoner  hearing  that  one  F.,  who  lived  at  M.,  wanted  hoj).poles,  went 
to  hhn  and  agreed  to  sell  him  a  number  at  Kis  !id  per  hundred,  to  be  deluered 
at  M.  Station.  He  then  went  to  Cloke  who  had  hop-poles,  and  said  he  was 
commissioned  by  F.  to  buy  them,  promising  that  F.  would  send  a  cheque  for 
the  price.  A  cheque  was  sent;  it  did  noi  appear  by  whom.  Cloke  sent  the  poles  to 
tlie  stal  ion  (with  his  own  team)  consigned  to  F.  The  hill  was  made  out  to  F.,  wlio 
paid  the  carriage  and  got  the  i)oles.  Then  the  prisoner  got  the  money  for  him. 
llouprll  for  tlic  prisoner.  The  piisoner,  never  got  the  poles.  He  pretended  to 
sell,  or  sold  goods  he  had  not.  Cloke  ratified  the  contract  between  F.  and  the 
prisoner;  and  if  the  prisoner  was  indictable  at  all,  it  was  for  obtaining  money 
from  F.,  not  goods  from  Cloke. 

WiGiiTMAN',  J.,  , so  held  and  directed  an  acquittal. 

An  indictment  for  obtaining  by  false  pretenses,  the  signature  of  [a  person 
to  a  deed  of  land,  must  show  that  the  prosecutor  owned  or  had  an  interest 
iu  the  property  or  that  the  deed  contained  covenants  on  which  he  would  be  liable 
in  an  action.' 

Obtaining  credit  on  account  from  a  party's  own  banker  by  drawing  a  bill 
without  authority  on  another  person  is  not  within  the  .statute,  although  the 
banker  pays  money  for  him  in  consequence  thereof  to  an  extent  he  would  not 
otherwise  have  done.* 

§  455. Obtaininer  Satisfaction  of  Debt —  "  Money  or  Property  "  must  be 

Obtained.  —  In  Jamison  v.  State'  the  defendant  owing  one  Thompson  and  Thomp- 
son being  indebted  to  one  Mattingly  in  the  same  amount  and  having  the 
money  to  pay  him,  by  false  pretenses  induced  Mattingly  to  satisfy  Thomp- 
son's claim  against  defendant  by  giving  Thompson  credit  for  the  amount  and 
taking  from  the  defendant  a  worthless  mortgage  to  secure  it  —  no  money  pass- 
ing between  the  parties.  This  was  held  not  Indictable  as  false  pretenses. 
"The  money,"  said  the  court,  "must  have  been  actually  and  not  merely  im- 
pliedly or  constructively  obtained,  and  must  have  come  into  the  defendant's 


1  1  Cox,  10  (1843). 

2  1  SIoo.  224. 

»  Com.  t'.  Lancaster,  Thatch.  Or.  Cae.  420 

(1835). 


*  F.  &  F.  501  (1869). 

•  Dord  t'.  People,  9  Barb.  671  (1851). 
«  R.  r.  Wavell,  1  Moody  224  (1829). 

:  37  Ark.  445  (1881). 


874 


FUAUU  ANU   FALSE  PKETENSES. 


possession."    Aud  so  as  to  obulnlng  consent  to  enter  a  juUgment  by  false 
represeiitiitlons.' 

§  45.1   Representations  made  Subwxiuently.-Tlierefore  a  false  repre- 

Hfiitiitlon  made  after  the  property  Is  obtained  Is  not  a  "false  pretense." 

§  457. Obtaining  Charitable  Donation..  -  This,  though  obtained  by 

false  representallous,  has  been  held  not  within  the  statute.' 

^  458 Property  must  be^  Obtained  by  Means  of  Pretenao.  — In  B.  v. 

B>-'ook8,*  the  Indictment  charged  that  the  prisoner  by  falsely  pretendlna  to  C.  & 
Co.,  that  he  was  sent  by  one  W.  for  nine  gallons  of  ale,  obtained  the  property  of 
C.  &  Co.,  with  Intent  to  defraud  them. 

The  prisoner,  wiio  was  a  carrier,  and  dealt  with  the  prosecutor,  who  was  a 
brewer,  went  to  him  and  said,  "  1  want  a  cask  of  XX  ale;  I  will  call  on  ray  way 
back  "    Then  ho  came  again  and  said,  "  Is  my  beer  ready?"  C.  said,  •'  Yes, 
and  the  prisoner  took  It  up,  saying,  "  It  is  for  W.,"  which  It  was  not. 

Denman  objected  that  the  prisoner  did  not  obtain  the  ale  by  means  of  the 
alleged  false  pretense;  the  order  originally  given  was  for  himself,  and  not  until 
he  had  got  possession  of  the  ale  did  he  say  anything  of  W.;  and  it  might  be 
that  even  then,  C.  thought  that  the  prisoner  intended  to  sell  to  W. 

WKiiiTMAN,  J.,  was  of  that  oplnlou,  and  directed  that  the  prisoner  should  be 

acquitted.  .  ,     *  .    1 

In  E  V  mimeiv  tiie  prisoner  was  convicted  of  obtaining  a  mare  by  falsely 
pretending  that  he  was  the  servant  of  A.  It  appeared  that  the  prisoner  so  pre- 
tended  at  ttrst,  but  when  the  prosecutor  confounded  A.  with  B.,  the  prisoner 
availed  himself  of  the  mistake  to  obtain  the  mare  which  the  prosecutor  parted 
with  in  the  belief  that  the  prisoner  was  tiie  servant  of  B.  It  was  held  that  the 
conviction  was  wrong. 

i  459 Pretense  Must  be  Made  with  Design  ot  Obtalnlngf  Property.— 

In  "uowder  v.  Slate,'  the  defendant  was  charged  with  having  defrauded  the 
clerk  of  the  Colored  Baptist  Church  out  of  money  by  pretending  that  he  was  a 
Baptist  minister  in  good  standing.    In  reversing  the  case  the  Supreme  Court 
8.,vs-    "The    false  pretense  must    be  made  with  the  design  to  obtain  the 
monev     •    *    *    The  evidence  for  the  State  satisfies  us  that  the  pretenses  re- 
lied on,  whether  they  were  true  or  false,  were  not  made  with  any  design  to  ob- 
tain the  monev  or  even  to  procure  an  employment  as  pastor  of  the  church. 
The  accused  did  not  .cek  the  place.    Tlie  congregation  or  their  representatives, 
the  deacons  as  the  proof  shows,  sought  him,  and  invited  him  to  become  their 
nistor     He  stated  his  terms,  and  left  them  to  reflect  upon  the  8ul)ject  and  to 
write  'o  him  their  eonclusions.    No  doubt  he  had  represented  himself  to  be  a 
minister,  and  if  they  had  not  believed  him  to  be  one,  they  would  not  have  called 
him     Whether  he  was  so  or  not,  we  do  not  undertake  to  decide.    But  so  far 
as  Ihe  proof  shows  he  did  not  take  any  steps  or  use  any  means  to  Induce  the 
prosecutor  to  employ  liim." 


1  Com.  V.  Harking,  128  Mass.  79. 

2  Stuyvesant'8  Case,  4  (Mty  Hall  Roc.  156 
(1818) ;  People  f.  Haines,  U  Wond.  54(!  {isjfl). 

3  People  f.  Clough,  17  Wend.  351  (1837). 


*  1  F.  &F.  ."MK  (18.W). 
6  I..  AC.  477  (1804). 
«  41  Miss.  670  (1867). 


PRETENSE   MUST   BE   OF   EXISTING   FACT. 


375 


juUgmeat  by  falae 


§  4(iO.  Owner  Must  Intend  to  Part  Wltb  his  Property.  —  The  owner 

tutiHt  iiiteail  to  part  with  Ills  property  In  the  goods.' 


refore  a  false  repre- 
j  pretense." « 

,hoiigh  obtained  by 


•retense.  —  In  B.  v. 

pretendiuii  to  C.  & 

ined  the  property  of 

)8ecutor,  who  was  a 

will  call  on  ray  way 

r?"C.  said,  "Yea," 

.  It  was  not. 

ile  by  means  of  the 

imself ,  and  not  until 

v.;  and  it  might  be 

uU  to  W. 

0  prisoner  should  be 

ng  a  mare  by  falsely 
t  the  prisoner  so  pre- 
vith  B.,  the  prisoner 
he  prosecutor  parted 
It  was  held  that  the 


italnlner  Property.— 
iiviug  defrauded  the 
ending  that  he  was  a 
e  the  Supreme  Court 
leslgn  to  obtain  the 
that  the  pretenses  re- 
ith  any  design  to  ob- 
3astor  of  the  church, 
their  representatives, 
him  to  become  their 
on  the  subject  and  to 
ented  himself  to  be  a 
would  not  have  called 
;o  decide.  But  so  far 
'  means  to  Induce  the 


18.19). 

M). 

867). 


§  401.  Prisoner  must  bave  Received  Property. 

received  by  a  third  person  will  not  do.' 


Proof  that  it  was 


§  4(>2. Object  of  Pretense  Must  be  as  Charged.  —  In  R.  v.  Stone,"  the 

inilictment  charged  that  the  prisoner  being  a  member  of  a  building  society,  ob- 
tained from  the  society  the  sum  of  £30  by  means  of  a  false  pretense  that  he  had 
completed  two  houses  which  he  hu<l  to  erect  before  ho  was  entitled  to  receive 
the  money.  The  counsel  for  the  prosecution,  In  opening  the  case,  said  that  the 
prisoner  by  the  rules  would  have  forfeited  the  houses  in  case  they  were  not 
completed  by  the  time  ho  made  the  pretense;  and  that  the  certificate  of  a  sur- 
veyor was  necessary  to  be  obtained  before  the  money  could  be  received;  and 
this  i)'  ing  so  the  object  of  the  false  pretense  might  be  to  avoid  the  forfeiture. 
He,  therefore,  thought  the  charge  not  sustainable  to  whlchMKLLOR,  J.,  assented. 

» 

§  4(!3.  Pretense  Must  be  of  Bxlstinff  faot,  not  Future  Event.  —  It  Is 

will  settled  that  to  be  criminal,  the  pretense  must  be  as  to  an  existing  event,  and 
not  of  a  future  fact.* 

Therefore  a  promise  that  one  will  on  demand  repay  a  loan  is  not  a  false  pre- 
tense,' nor  is  it  where  A.  advances  J'JO  to  a  laborer  on  the  latter's  promise  to 
work  it  out,  which  he  afterwards  refuses  to  do.*  So  obtaining  money  by  thf 
false  representations  tliat  the  prisoner  will  give  the  party  employment  at  a  cer- 
in  compensation  Is  not  false  pretenses.'  Where  a  person  got  possession  of  a 
promissory  note,  by  pretending  that  lie  wished  to  look  at  it,  and  carried  it  away 
and  refused  to  nWe  it  back,  the  crime  was  held  not  committed."  So  for  B.  to 
obtain  the  property  of  A.  by  prLt'-Hlug  to  him  that  B  's  goods  and  chattels  are 
about  to  be  attached  Is  not  w  ithin  the  law.»  So  in  another  case,  the  false  pre- 
tense charged  was  that  M.  would  assign  to  B.  a  certain  note  which  he  had 
already  for  value  sold  to  B.,  and  thereby  he  obtained  the  note  and  failed  to  assign 
or  return  It,  for  the  purpo.se  of  cheating  B.  This  was  held  Insufficient.'*  So, 
also,  where  one  obtained  money  on  the  false  statement  that  he  had  to  pay  his 
lint."  So  giving  a  check  on  a  bank  in  which  tlie  party  has  p'<  funds  is  not  false 
pretenses  as  he  may  intend  or  his  implied  promise  may  be  to  put  funds  In  to 
meet  it—  It  is  otherwise,  of  course,  if  he  make  an  express  representation  that 
he  has  funds  In  the  bank.'*  To  obtain  a  pair  of  pants  from  a  tailor  on  the  rep- 
resentation that  the  party  would  pay  for  them  after  ho  had  tried  them  on  Is 
not  false  pretenses."    Where  A.  promised  to  pay  B.  fifty  cents  for  four  Ush  if  B. 


1  Canter  v.  State,?  Loa,  %'>0  (1881) ;  State 
i'.  Vickery,  19  Tex.  363  (1857) ;  White  v. 
.state.  11  Tex.  769(1854). 

2  Willis  V.  People,  19  Hun,  84  (1879). 
M  F.  *  F.  311  (1858). 

<  Dillingham  v.  State,  5  Ohio  St.  280  (1856) ; 
Johnson  v.  State,  41  Tex.  65  (1874) ;  Keller  v. 
.state,  51  Ind.  Ill ;  State  v.  Evers,  49  Mo.  S42 
(1W2) ;  Colly  v.  State,  55  Ala.  84  (1876) ;  R.  v. 
Rertles,  13  V.  C.  C.  P.  607;  11.  r.  Gemmell,2« 
V  C.  Q.  B.  313;  K.  r.  Uenshaw,  L.  &  C.  444 


(1864) ;  Com.  v.  Moore,  99  Pa.  St.  f 70  (1882) ; 
Allen  V.  State,  16  Tex.  (App.)  150  (1884). 

i  State  V.  Magee,  11  Ind.  154  (1838). 

'  Ryan  v  .  State,  45  Ga.  128  (1872). 

'  Banncy  v.  People,  22  N.  Y.  413  (1860), 

>  People  V.  Miller,  14  Johns.  371  (1817). 

»  Burrow  v.  State,  2  Ark.  U.J  (1851). 

10  Mckenzie  v.  State,  11  Aik.  5!U  (1851). 

n  R.  r.  Lee,  U  &  C.  809  (18(«). 

12  Stuyvesant'a  Case,  4  City  Hall  Uec.  156 
(1S08). 

1^:  Canter  r.  State,  7  Lea,  35U  (1881). 


37t) 


FRAUD    AM)   FALSK   IMIETKNSES. 


would  deliver  tlicm  ut  A.'s  house,  uiul  H.  dellvvrud  thcni,  but  A.  would  nut  pay 
hliii,  tliLs  wa8  held  not  swindling. > 

Ir.  Jl.  V.  Gomllidll,''  the  prosecutor,  Thomas  Perks,  wns  a  butcher  at  Wolver- 
lianiptoi),  and  on  the  17lli  of  AugUHl,  Ih.m,  (iii>  prisoner  came  to  hiM  shop  to 
purchaHO  thno  HJiuip  and  two  lejr.s  of  veal;  on  being  told  by  the  prosecutor 
that  ho  would  not  trust  him,  ho  promlsc<l  the  prosecutor  If  ho  would  soiul  the 
sheep  and  veal  In  good  time  on  tlio  following  morning,  he  would  rendt  the 
money  liacit  by  the  liearer.  Tlio  meat  was  accordingly  sent  on  the  18th  of 
AuL'ust,  by  the  prosecutor,  and  delivered  to  the  prisoner  by  the  prosecutor's 
servant,  wiio  asi(ed  hiui  for  the  money;  and  said.  If  he  did  not  give  it  him,  he 
must  take  the  meat  back  again.  Tiie  \  rlsoner  replied,  "Aye,  sure!  "  and  wrote 
a  note;  and  told  tlie  prosecutor's  servant  to  take  it  to  his  master,  and  It  would 
satisfy  1dm.  This  note  (of  wlitch  the  following  is  a  copy)  was  delivered  to  the 
prosecutor  by  hi:-'  servant:  — 

«*  Mr.  Porks  — 

"Silt:  I  have  a  bill  of  Walsall  Bank,  which  Is  a  very  good  one.  If  you  will 
send  me  the  cliflugc,  or  I'll  see  you  on  Wednesday  certain. 

"Yours,  M,  G." 

The  jury  found  the  prisoner  fiullty ;  and  said,  they  were  of  opinion,  that  at 
the  time  the  prisoner  applied  to  IVrks,  he  knew  Perks  wouid  not  part  witli  the 
meat  without  the  money;  and  tliat  he  promised  to  send  back  the  money,  to  ob- 
tain the  goods.  The  jury  also  found,  that  at  the  time  he  applied  for  the  meat, 
and  promised  to  send  back  the  money,  he  did  not  intend  to  return  the  money; 
but  by  that  means  to  obtain  tlie  meat  and  cheat  the  prosecutor. 

The  learned  judge  respited  the  judgment,  making  an  order  that  the  prisoner 
might  be  delivered  on  lliuling  ball,  to  appear  at  the  then  next  assizes. 

In  Michaelmas  Term,  1821,  the  judges  met  and  considered  this  case.  They 
held  the  conviction  wrong;  being  of  opinion,  that  this  was  not  a  pretense  withiu 
the  meaning  of  the  statute.  It  was  merely  a  promise  for  future  conduct,  and 
common  prudence  and  caution  would  have  prevented  any  injury  arising  from 
the  breach  of  It. 

In  Ji.  V.  Walne,^  the  prosecutor  agreed  to  sell  a  mare,  warranted  sound,  to 
prisoner  for  £20  10s.  Prisoner  came  and  took  the  mare  away  on  a  Thursday, 
giving  a  banker's  check  for  the  price,  which  at  the  request  of  the  prisoner 
the  prosecutor  agreed  not  to  cash  till  Saturday.  Prosecutor,  however,  paid 
this  check  to  his  l)ankers  on  the  .same  Thursday;  they  returned  it  to  him  on 
the  Saturday  indorsed  "no  account."  It  was  proved  that  the  prisoner  had  no 
effects  at  the  bank  on  which  the  check  was  drawn  on  the  Saturday,  or  on  any 
day  lor  a  long  time  previously.  For  the  prisoner,  B.,  a  witness,  proved  that  he 
had  vecjuested  prisoner  to  buy  a  horse  for  him  (B.),  and  that  prisoner  had  told 
B.  that  he  thought  he  knew  of  a  mare  that  would  suit,  and  asked  r  for  a 
check  which,  B.  did  not  give,  as  he  had  not  his  checkbook  w  i  hlni,  Uiut 
the  prisoner  on  the  Monday  after  the  said  Saturday  told  n  had  bought 
a  horse  for  him,  for  £20  10s,  and  that  2.  sent  a  clieck  a  the  followin 

day  for  the  amount.    On  the  Wednesday  the  'iiare  was  uack  to  the  pro 

cutor,  with  a  veterinary  certificate  that  she  was  not  soi,        a  summons  against 
the  prisoner  having  been  taken  out  l)y  the  prosecutor  and  lilt  at  t!     prisonei'a 


1  Allen  V.  state,  16  Tex.  (App.)  150  (1884). 
>  R.  &R.  4l!l  (1831). 


3  11  Cox,  647  (1870). 


rt^M 


IMtKTENSR    MUST    HR   OF   EXISTIN(f   FACT. 


377 


A.  would  not  pay 

utcher  at  Wolver- 
lu  to  hiM  Hliop  to 
by  the  prosecutor 
le  would  send  the 
would  reudt  the 
ut  on  the  18th  of 
f  the  proHucutor'8 
lot  {{Ivo  it  him,  lie 
jure!  "  and  wrote 
liter,  and  it  would 
9  dellver<;d  to  the 


1  one.  If  you  will 

M,  G." 

i  opinion,  that  at 
not  part  with  the 
Lhe  money,  to  ob- 
lied  for  the  meat, 
eturn  the  money ; 

that  the  prisoner 
assizes. 

this  case.  They 
n  pretense  within 
ture  conduct,  and 
jury  arising  from 

rranted  sound,  to 
y  on  a  Thursday, 
t  of  the  prisoner 
»r,  however,  paid 
rned  it  to  him  on 
c  prisoner  had  no 
turday,  or  on  any 
ss,  proved  that  he 
prisoner  had  told 
Jd  asked  T'  fnr  M 
\i  ^'  a  him,  uiat 
had  bought 
.1  the  followin 
lack  to  the  pro 
summ'-ns  against 
at  t!     prisonei's 


house  on  the  previous  Monday.  At  the  close  of  the  evidence  prisoner's  counsel 
contended  that  the  prisoner  ought  to  bo  aei|ultted,  tlrst,  because,  the  prosecutor 
liuvlug  broken  the  contract,  the  charge  of  false  pretense  could  not  be  main- 
tdliicd ;  secondly,  because  there  was  no  false  pretense  of  an  existing  fact,  m 
the  prisoner  did  not  allege  he  had  funds  at  the  bank  at  the  time  he  drew  the 
clit'ckj  thirdly,  because  upon  B.'s  evidence  the  prisoner  liad  reasonable  cause 
to  believe  that  the  check  would  be  paid  on  Saturday. 

The  court  overruled  the  oi»jectlons,  and  directeti  the  jury  that  If  they  bu- 
lieved  that  the  prisoner  knew  he  had  no  funds  at  the  bank,  at  the  time  he  gave 
the  check,  and  that  the  prosecutor  had  parted  with  the  mare  upon  the  belief  that 
tlio  check  was  a  good  and  valid  one,  they  must  llnd  tin-  prisoner  guilty.  The 
jury  thereupon  found  the  prisoner  guilty.  Held,  that  the  direction  to  the  jury 
was  wrong,  and  that  the  ease  ought  not  to  have  been  left  to  them,  and  that  tiie 
conviction  ought  to  be  quashed. 

Ill  People  V.  Jiicharda,*  an  indictment  for  conspiracy  charged  that  defendant 
had  falsely  pretended  that  one  F.  was  about  to  prosecute  A.  for  an  attempt  to 
commit  a  rape  on  his  infant  daughter,  and  that  by  the  testimony  of  the  girl  he 
would  bo  sent  to  prison  whereby  he  was  Induced  to  convey  to  them  property, 
etc.  It  was  held,  that  the  charges  were  not  of  existing  facts  but  of  things 
which  a  third  person  had  threatened  to  do  — upon  which  no  Indictment  for 
false  pretenses  could  be  predicated. 

lu  CummomoeaUh  v.  Stevenson,^  the  defendant  falsely  represented  to  A.  that 
he  had  then  in  his  possession  a  check  for  the  payment  of  money  drawn  by  him 
in  favor  of  A.  from  the  proceeds  of  which  lie  intended  to  pay  certain  l)ills  due 
from  A.  to  certain  persons.  "This,"  said  the  court,  "was  a  promise  to  do 
something  in  the  future  witli  no  representation  of  any  existing,  material 
fact." 

§  4()4.  False  Representation  of  Bxlatlner  Fact  Essential  —  Assertion 

of  Existing  Intention  Insufficient.  —  In  People  v.  lilanchard,^  the  prisoner 
was  convicted  of  obtaining  a  number  of  cattle  by  false  pretenses.  The  facts 
wuie  as  follows:  The  vendor  sold  the  cattle  to  the  prisoner  at  Buffalo,  New 
York,  and  received  his  check  postdated  for  the  purchase  price,  upon  his 
representation  that  he  was  buying  and  wanted  the  cattle  for  G.  who  lived  at 
Ulica,  and  who  would  remit  the  funds  in  time  to  meet  the  check.  The  prisoner 
had  been  in  tlie  habit  of  purchasing  cattle  to  supply  G.  as  a  customer  and  of 
selling  them  to  him  and  had  general  authority  so  to  buy  whenever  cattle  were 
low;  ten  days  before  the  purchase,  G.  had  written  to  the  prisoner  stating  that 
he  wanted  a  choice  lot  of  cattle  and  requesting  him  to  send  a  car  load.  The 
prisoner,  however,  instead  of  sending  the  cattle  to  G.  shipped  them  to  Albany, 
.sold  them  at a;reduced  price  anddid  not  pay  tlie  check.  Onappeal  the  conviction 
was  held  error;  because  while  there  might  have  been  a  fraud  there  was  lo 
false  pretenses  as  the  vendor  was  cheated  not  by  any  false  statement  of  facts 
on  which  he  relied,  but  by  reliance  on  a  promise  not  meant  to  be  fuilfllled  and 
a  false  statement  of  intention. 

In  a.  V,  JohnatvH,*  it  was  held  that  obtaining  money  from  a  woman  under 
the  false  pretense  that  the  prisoner  intended  to  marry  her  and  wanted  the 
money  to  pay  for  a  wedding  suit  he  had  purchased  was  not  within  the  statute. 


I  I  Mich.  21(!  (1849). 
■  127  Mass.  446  (1879). 


3  90  N.  Y.  314  (1882). 
*  2  Moody,  :i25  (1842). 


iSWiiiHl'-' 


378 


FRAUD  AND  FALSE  PUETENSE8. 


On  the  trial  it  was  proved  tliat  the  prisoner  paid  his  addresses  to  one  Hannah  G. 
Hutchinson  and  tlmt  the  banns  were  regularly  published  in  church  with  his 
sanction  on  the  23d  and  30th  January,  and  6th  February.  It  was  further  proved 
that  after  the  first  publication  of  the  banns,  the  prisoner  met  the  said  H.  G. 
Hutchinson  at  a  draper's  shop  by  appointment,  in  order  that  he  might  there  buy 
a  suit  of  clothes  for  the  wedding;  that  he  accordingly  bought  c  suit  of  clothes 
for  £4,  and  asked  her  for  £4  to  enable  him  to  pay  for  them  That  she  accord- 
ingly gave  him  £4  for  that  purpose. 

It  was  further  proved,  that  on  the  3(t  of  February,  the  prisoner  told  the  eald 
H  G  Hutchinson,  that  he  had  asl^ed  his  n^aster  to  lend  him  a  cart  to  go  to  New. 
castle,  to  get  the  furniture  for  them  to  put  into  a  liouse  for  which  they  were  in 
treaty,  and  in  which  they  proposed  to  live  after  the  marriage,  and  that  his  mas- 
ter had  agreed  to  lend  him  the  cart;  accordingly  on  the  next  day,  the  pris- 
oner applied  to  the  said  H.  G.  Hutchinson  for  the  money  to  enable  him  to 
purchase  the  furniture.  The  said  H.  G.  Hutchinson,  after  some  discussion  as 
to  the  amount  required  at  last  gave  him  sevemeen  sovereigns  and  a  £5  note  to 
enable  him  to  get  the  furniture,  which  the  prisoner  said  he  would  procure  on 
the  next  day  (Uie  •(>).  On  the  next  day,  he  told  the  saidH.  G.  Hutchinson 
that  his  master  could  not  let  him  have  the  cart  till  the  following  Monday  (the 
7th),  and  on  that  same  day,  the  4th,  the  prisoner  and  the  said  H.  G.  Hutchinson 
went  together  to  the  landlady  of  the  house  for  which  they  had  been  in  treaty, 
and  finally  agreed  to  hire  it,  and  paid  Id  by  way  of  earnest;  no  application 
had  ever  been,  in  fact,  made  for  the  cart.  On  the  next  day,  the  5tli,  the  prisoner 
went  off  and  soon  afterwards  was  apprehended  in  Scotland,  having  spent  the 
whole  of  the  money.  . 

The  jury  found  tl  prisoner  guilty  on  both  counts,  but  the  learnad  judge 
entertained  great  doubt  whetlier  the  evide.ice  warranted  a  conviction  on  the 
first  count,  as  the  house  was  not  hired  until  after  the  prisoner  had  got  the 
money;  and,  as  to  the  second  count,  he  doubted  whether  tlie  pretense  stated 
v,as  one  on  which  a  conviction  could  tal;e  place,  and  the  learned  judge,  there- 
fore, respited  tlie  judpnent  till  the  foUowing  assizes,  in  order  to  have  the 
advice  of  the  judges  A  both  points. 

The  prisoner  entered  into  a  recognizance  with  two  sureties,  to  appear  at  the 
next  assizes  to  receive  judgment. 

This  case  was  considered  at  a  meeting  of  the  judges  in  Easter  Term,  184^ 
and  they  held  the  conviction  wrong. 

§465.  Remotenesa   of   Pretense.  —  The    pretense    must  not  be    too 

remote  .1  A  pretense  to  i  -arlsh  officer,  as  an  excuse  for  not  working,  that  the 
party  liL  no  clothes  whei.  be  really  has,  tliough  it  induces  the  officer  to  give  hlra 
clothes,  is  not  obtaining  money  by  false  pretenses.* 

InB.  v.  linjan,^  the  prisoner  was  indicted  for  having,  on  the  7th  of  January, 
at  Sunderland,  by  falsely  pretending  that  he  was  a  member  of  the  naval 
reserve,  and  entitled  to  receive  30s  for  a  quarter's  payment  next  day,  obtaineil 
from  Arthur  Calvert,  of  Sunderland,  board  and  lodgings,  at  14s  per  week,  and 
6d  in  money.  Tlie  prisoner  pleaded  not  guilty.  It  appeared  from  the  opening 
staf-ment  of  the  counsel  for  the  prosecution  that  the  prisoner  went  to  a  'odg- 


1  B.  V.  Carpenter,  11  Cox,  COO  (1870) ;  B.  r. 
Gprdnor,  Dearb.  &  B.  40  (1856) ;  Morgan  v. 
State,  12  Ark.  131  (1883). 


2  B.  V.  Wnkeling,  B.  &  B.  604  (1823) 

3  2F.  4  F.  867(1861). 


ES. 


REMOTENESS   OF   PRETENSE. 


379 


Ircsses  to  one  Hannah  G. 
shed  in  church  with  his 
J.  It  was  further  proved 
soner  met  the  said  H.  G. 
r  that  he  might  there  buy 
•  bought  c  suit  of  clothes 
them     That  she  accord- 

the  prisoner  told  the  eaid 
I  him  a  cart  to  go  to  New. 
}e  for  which  they  were  In 
irriage,  and  that  his  mas- 
i  the  next  day,  the  pris- 
money  to  enable  him  to 
,  after  some  discussion  as 
verelgns  and  a  £5  note  to 
said  he  would  procure  on 
he  saidH.  G.  Hutchinson 
lie  following  Monday  (the 
ihe  said  H.  G.  Hutchinson 
h  they  had  been  in  treaty, 
E  earnest;  no  application 
D  day,  the  5th,  the  prisoner 
Gotland,  having  spent  the 

is,  but  the  learnad  judge 
anted  a  conviction  on  the 
the  prisoner  had  got  the 
iether  the  pretense  stated 
J  the  learned  judge,  there- 
[zes,  in  order  to  have  the 

i  sureties,  to  appear  at  the 

Iges  in  Easter  Term,  1842, 


ctense  must  not  be  too 
u  for  not  working,  that  the 
luces  the  officer  to  give  him 

ing,  on  the  7th  of  January, 
a  member  of  the  naval 
layment  next  day,  obtaineil 
;lngs,  at  Us  per  week,  and 
appeared  from  the  opening 
le  prhoner  went  to  a  lodg- 

kcling,  R.  &  R.  SOI  (1823) 

667  (ISCl). 


iiig-house  in  Sunderland,  kept  by  the  prosecutor,  Arthur  Calvert,  and  there 
represented  that  he  was  a  member  of  the  naval  reservt-,  and  was  entitled  next 
d.iy  to  receive  80s  for  a  quarter's  payment.  Believing  this  representation,  the 
prosecutor  agreed  to  let  him  have  board  and  lodgings  for  a  week  for  14s.  The 
prisoner  then  said  he  was  short  of  cash,  and  asked  the  prosecutor  to  lend  him 
(id  which  he  did.  The  prisoner  remained  some  days  at  the  prosecutor's,  and 
it  was  then  discovered  that  he  was  not  a  member  of  the  naval  reserve,  nor 
eutitled  to  receive  any  pay  as  such,  and  that  he  had  no  means  of  paying  for  his 
board  and  lodgings. 

Hill,  J.    How  do  you  distinguish  this  case  from  Regina  v.  Oardner. 

Meynell,  for  the  prosecution.  In  this  case  money  was  obtained  by  reason  of 
the  false  pretense,  in  addition  to  board  and  lodgings. 

Hill,  J.  I  can  not  distinguish  this  case  from  Regina  v.  Gardner.  (To  the 
jury.)  You  will  return  a  verdict  of  not  guilty,  because  although  the  prisoner 
obtained  money  or  goods  from  the  prosecutor,  he  did  it  by  means  of  a  contract, 
and  h  j  obtained  the  contract  only  by  means  of  the  false  pretenses.  It  is  too 
remote  to  say  that  he  obtained  the  goods  or  money  by  the  false  pretenses.  The 
point  is  decided  and  I  am  bound  by  that  decision. 

The  prisoner  was  then  found  not  guilty,  and  ordered  to  be  discharg'  '. 

In  B.  V.  Larner,^  it  appeared  that  on  the  23d  day  of  August,  a  swinnning  handi- 
cap took  place  at  the  Surrey  County  Baths.  Entries  were  to  be  made  previously 
to  Alfred  Endin,  ^sq.,  and  competitors  to  be  handicapped  by  qualifled  persons. 
A  competitor's  ticket  was  issued  by  Mr.  Endin  to  each  accepted  entry.  The 
length  of  the  course  was  one  hundred  yards,  and  there  being  a  good  many  en- 
tries  tlie  race  was  swum  in  heats. 

A  programme  was  printed  and  circulated,  containing,  amongst  other  matters, 
the  names  of  the  competitors,  and  arrangement  of  the  various  heats,  and  on 
that  programme  appeared  the  name  of  W.  Larner,  to  whom  a  start  of  twenty 
seconds  had  been  assigned. 

Some  few  days  before  the  issuing  the  programme,  Mr  Endiu  received  the  fol- 
lowing letter; — 

Nelson  Club,  90  Deax  Street,  i 

Oxford  Street,  August  19,  1880.     > 
Sir:  I  enclose  entrance  fee  for  another  entry  for  your  100  yards  handicap. 
W.  Larner  (Middleton  Swimming  and  Athletic  Club)  In  club  races  receives 
twenty-five  seconds  from  scratch  —  I  remain,  sir,  yours,  respectfully. 

H.  Gbekn,  Hon.  Sec. 

Another  letter  of  the  same  kind  had  been  received  by  Mr.  Endin  entering  one 
Binns  for  the  same  race.  The  leti  '•s  were  received  in  the  usual  course  through 
the  post-office.  The  two  entries  <  I  Larner  and  BInna  were  accepted,  and  tlie 
entrance  fee  of  2s  6d  each  paid.  Mr.  Endin  stated  that  he  knew  nothing  about 
Larner  or  his  accomplishments  as  a  swimmer;  that  he  received  his  entry  in  con- 
sequence of  the  representations  contained  in  the  letter,  and  that  the  start  of 
twenty  seconds  was  apportioned  to  him  for  the  like  reason.  He  further  stated 
that  he  handed  Larner  a  competitor's  ticket;  that  Larner  swam  in  the  com- 
petition, and  after  being  second  in  his  own  heat  won  the  final  easily.  It  was 
believed  that  Lamer  could  have  won  the  race  from  a  scratch. 

For  the  prisoner  it  was  objected  that  the  false  pretenses  were  too  remote,  that 
if  he  obtained  anything  thereby  it  was  the  competitor's  ticket  and  not  the  cup ; 

1  U  Cox,  498  (1380). 


'"-"^mmmm^mm 


iisvmw^^-^ 


i^ii!»llHjPy*l'f"iJ'IJ.'l 


380 


FRAUD  AND  FALSE  PRETENSES. 


that  the  cap  was  obtained  by  his  own  bodily  activity ;  and  that  the  case  fell 
within  Beg.  v.  Gardner,^  in  which  case  the  prisoner  had  at  first  obtained  lodg- 
ings only  by  a  false  representation,  and  after  he  had  occupied  the  lodgings  for  a 
week  he  obtaltied  board;  and  it  was-  ueld  that  the  false  pretenses  were  ex- 
hausted by  the  contract  of  1 'dgi^j-,  the  obtaining  board  not  having  apparently 
been  in  contemplation  when  the  false  pretense  was  made. 

For  the  prosecution  it  was  urged  that  the  false  pretense  was  a  continuing 
one,  that  the  winning  of  the  cup  was  clearly  in  the  contemplation  of  the  i)ris- 
oner  when  he  entered  for  the  race,  and  that  the  judgment  of  WiUes,  J.,  in  Reg. 
V.  Gardner,  citing  Keg.  v.  Ahbott  and  Reg.  v.  Burgess,  was  an  authority  the  other 
way.    They  also  cited  Beg.  v.  Martin.^ 

Held  by  the  Common  Serjeant,  after  conferring  with  Stephen,  J.,  In  the  Old 
Court,  that  the  objection  must  prevail  as  the  false  pretenses  were  too  remote. 
The  prisoner  was  afterwards  tried,  for  uttering  the  letter  knowing  it  to  be 
forged,  and  convicted. 

In  B.  V.  Woodmnn,''  the  Indictment  charged  one  Gregory  with  having  obtained 
£30  from  prosecutor  Woodman  on  tlie  false  pretense  that  he  the  said  Gregory 
tlien  wauted  the  loan  of  £30  to  enable  him  to  take  a  public  house  at  Melksham; 
by  means  of  which  said  false  pretense  the  said  Gregory  did  then  unlawfully  and 
fraudulently  obtain  the  said  sum  from  the  said  Samuel  Woodman  with  Intent  to 
defraud.  Whereas  the  said  Gregory  was  not  then  going  to  take  a  public  house 
at  Melksham  *  *  *  as  he  the  said  Gregory  well  knew.  And  whereas  the 
said  Gregory  did  not  then  want  a  loan  of  £30  or  any  money  to  enable  him  to 
take  the  suld  house. 
At  the  close  of  the  prosecutor's  evidence  — 

Meli.ok,  J.  It  .seems  tome  that  the  real  motive  and  inducement  was  this; 
the  prisoner  says,  "I  am  going  to  take  a  public  house;  if  you  will  let  --.e 
have  £30  I  will  do  so."  The  Inducement  for  all  was,  "  I  shall  be  able  to  re- 
turn you  the  £30  while  I  carry  on  business  at  Melksham."  It  was,  therefore,  the 
expectation  of  being  paid  out  of  the  prollts  of  the  business  at  Melksham.  The 
old  rule  Is,  there  must  be  a  false  representation  of  that  being  alleged  to  be  a 
fact  which  Is  not  a  fact. 

BaveiiJiill,  for  the  prosecution,  suggested  that  here  the  existing  fact  was  the 
Intention  of  prisoner. 

Mellor,  J.  How  can  you  define  a  man's  mind?  It  is  a  mere  promissory 
false  pretense. 

Bavenhill  proposed  to  show  that  prisoner  was  not  able,  at  the  time  of  making 
the  pretense,  to  take  a  public  house. 

Mkllok,  J.  That  is  too  far  a  field.  In  criminal  matters  we  must  take  the 
immediate  result.  This  is  one  of  those  cases  in  which  the  prosecutor  was  too 
credulous.  [After  having  conferred  with  Denman,  J.,  the  learned  judge  con- 
tinued] :  My  brother  Denman  is  clear  that  there  is  not  enough  evidence  to 
leave  to  the  jury  of  any  existing  false  pretense.  We  both  think  that,  :iad  the 
whole  circumstances  been  known  earlier,  something  might  have  been  made  of  a 
statement  by  the  prisoner  that  he  had  £30  at  home  and  that  he  could  then  take 
the  house. 

§  466.  Direct  Promise  Must  be  Proved.  —In  B.  v.  Masterson,*  the  pris- 
oner wrote  to  two  different  traders,  enclosing  to  each  a  half  of  the  same  $5 


1  1  Dears.  &  B.  C.  0. 40 ;  7  Cox,  C.  C.  136. 
>L.R.  ICC.  0.56;  10  Cox,  U.  C.  333. 


3  U  Cox,  179(1879). 
•  2  Cox,  100  (18i6). 


PRETENSE   MUST    BE   PUO\  ED. 


381 


hat  tbe  case  fell 
8t  obtained  lodg- 
l;he  lodsiings  for  a 
jtenses  were  ex- 
laviDg  apparently 

was  a  continuing 
ation  of  the  i)rifi- 
SViUes,  J.,  in  Reg. 
athorlty  the  other 

EN,  J.,  In  the  Old 
were  too  remote, 
knowing  It  to  be 

h  having  obtained 
!  the  said  Gregory 
use  at  Melksham ; 
en  unlawfully  and 
lan  with  intent  to 
ike  a  public  house 
And  whereas  the 
to  enable  him  to 


ucement  was  this : 
f  you  will  let  "ie 
lall  be  able  to  re- 
was,  therefore,  the 
t  Melksham.  The 
ng  alleged  to  be  a 

isting  fact  was  the 

mere  promissory 

the  time  of  making 

we  must  take  the 
jrosecutor  was  too 
earned  judge  con- 
lough  evidence  to 
:.hink  that,  :iad  the 
ive  been  made  of  a 
he  could  then  take 

Patterson,*  the  prls- 
,lf  of  the  same  95 


note,  and  requested  goods  to  be  forwarded  to  him,  which  was  accordingly  done. 
The  court  held  that  an  indictment  would  not  lie  as  the  prisoner  had  not  re- 
ceived the  goods  under  a  false  pretense,  though  such  might  be  iwiplied  from 
each  half  of  the  uote  being  sent  to  a  different  person  on  the  same  day;  but 
there  was  no  direct  promi  e  in  either  of  the  letters  which  had  been  sent  to  the 
traders  that  the  other  lial*  would  be  forwarded  to  him. 

§  4C7.  Pretense  Must  be  Proved — Inference  of  Pretense  from  Con- 
duct.—  In  R.  V.  Partridge,^  the  London  and  Brighton  Railway  Company  were  in 
tiie  habit  of  advancin;;  small  sums  of  money  to  persons  sending  goods  to  be 
carried  by  their  railway  on  the  faith  of  receiving  such  suras  from  the  consignee 
on  the  delivery  of  the  goods  to  him.  The  defendant  went  to  the  principal  rail- 
way station,  and  gave  to  a  clerk  there  a  card,  on  which  was  written,  "  Cxse  to 
Brighton,  lis  iid  to  pay,"  at  the  same  time  requesting  that  the  case  might  be 
sent  for  to  a  certain  tavern,  and  forwarded  to  its  destination.  The  wird  was, 
in  the  ordinary  course  of  business,  sent  to  the  goods  station  of  the  company 
with  the  message  left  by  the  defendant,  and  the  manager  there  directed  a  car- 
man to  fetch  tlie  case  from  the  tavern  and  to  pay  the  Us  9d.  This  was  done. 
The  case  was  sent  to  Brighton,  but  the  address  written  upon  it  was  found  to  be 
a  llctitious  one,  and,  on  opening  the  case,  it  was  found  to  contain  nothing  but 
brickbats  and  other  rubbish. 

It  was  held  that  these  facts  did  not  support  an  allegation  of  a  false  pretense  that 
the  box  contained  certain  valuable  articles. 

Lilleii  (for  the  defendant)  contended  that  on  this  state  of  facts  the  defendant 
could  not  be  convicted.  Tliere  was  no  '-.Ise  pretense  within  the  statute.  The 
pretense  in  the  indictment  was,  that  the  box  contained  valuable  property,  but 
no  such  statement  was  made  by  the  defendant,  nor  could  it  be  inferred,  from 
anything  that  he  had  said  or  done.  Again,  the  pretense,  if  any,  was  not 
made  to  the  person  advancing  the  money.  Neither  of  the  clei'ts  at  the  dif- 
ferent stations  saw  the  case  at  all.  The  second  clerk  who  directed  the  carman 
to  pay  the  money  did  not  even  see  the  defendant;  he  saw  nothing  but  the  card, 
itud  what  was  written  upon  It  certainly  did  not  amount  to  the  pretense 
alleged. 

Robinson  (for  the  prosecutor)  submitted  that  the  pretense  stated  in  the  in- 
tlictment  was  not  made  by  the  defendant  in  so  many  words ;  but  that  was  Im- 
material. It  was  sufficient  if  the  defendant,  from  his  conduct,  fraudulently 
led  the  prosecutor  or  his  agent  to  believe  in  a  particular  state  of  facts,  although 
he  did  not  assert  their  existence.  That  was  established  by  the  well  known 
case  of  R.  v.  Barnard,^  where  tl">  defendant,  who  was  not  a  member  of  the 
university,  went  into  a  tradesman'  ,^hop  at  Oxford  in  a  cap  and  gown,  and  ob- 
tained goods  from  him;  this  was  held  to  be  a  false  pretense  that  he  was  a  mem- 
ber of  the  university  although  he  did  not  say  so. 

Lilley.  In  that  case  the  defendant  did  represent  in  terms  that  he  was  a 
member  of  the  university. 

Robinson  (on  referring  to  the  case)  admitted  that  was  so,  but  in  the  judg- 
ment that  was  unnoticed,  and  it  was  expressly  stated  by  the  learned  judge  that, 
even  without  such  a  declaration  the  pretense  would  have  been  made  out,  and 
in  all  the  text-books  the  decision  was  so  treated.    Story^a  Case  ^  was  also  in 


1  0  Cox,  183(1853). 
»  7  0.  ft  P.  784. 


3  R.  ft  R.  81. 


l^-i^i'-- 


382 


FKAUD  AND  FALSE  PRETENSES. 


point.    The  circumstance  ol  the  person  advancing  the  money  not  having  seen 
the  box,  was  immaterial.     It  was  proved  that  the  company  only   advance.1 
money  under  such  circumstances  upon  property  tlmt  was  of  value,  and  it 
would  be  a  question  for  the  jury,  whether  tlie  defendant  was  not  aware  of  that 
practice,  and  whether  by  his  conduct  he  did  not  seeic  to  represent  :o  them  that 
the  box  contained  valuable  articles.    The  clerk  at  the  principal  station  received 
his  directions  from  tlie  prisoner  himself,  who  must  have  intended  him  to  be- 
lieve  what  alone  would  procure  the  advance  of  lis  'Jd,  and  although  this  clerii 
did  not  himself  pay  tlie  money,  he  did  it  through  his  agent,  for  he  gave  instruc- 
tions to  the  clerk  at  the  goods  station,  who  gave  orders  to  the.carman  advanc- 
ing the  money.    So  tlmt  In  contemplation  of  law  it  was  the  first  clerk  who  paid 
the  amount,  and  it  was  paid  on  the  false  representation  of  the  prisoner.    The 
case  was  similar  to  tliose  of  the  presentation  of  a  false  cheque,  where  nothin-^' 
was  said  about  its  validity,  but  where  on  its  production  cliange  was  given  for 
it  on  the  faith  of  its  being  good.    There  were  several  cases  showing  that  the 
merely  uttering  such  an  instrument  was  equivalent  to  a  statement  that  the 
cheque  was  a  valid  one.' 

The  Common  Skrjbant  (after  consulting  Jervis,  C.  J.,  and  Colkuidgb,  J. 
who  were  In  the  adjoining  court).  I  am  of  opmion,  and  the  learned  judges 
whom  I  have  consulted  agree  with  me,  that  the  evidence  does  not  sup- 
port the  indictment.  This  is  not  like  the  case  suggested  of  presenting  a  false 
cheque,  because  there  the  check  was  shown  by  the  defendant  to  the  person 
paying  the  money,  and  he  immediately  acted  upon  it.  Nor  is  it  like  that  of  the 
pretended  collegian,  for  there  the  cap  and  gown  were  seen  upon  the  person. 
In  the  present  case,  the  person  from  whom  the  money  was  obtained,  never  saw 
the  box  at  all.  Moreover,  I  do  not  think  that  the  pretense  alleged  In  the  in- 
dictment can  be  inferred  from  what  the  defendant  Is  proved  to  have  do-e. 
The  merely  representing  that  there  would  be  lis  9d  to  pay  does  not  necessarily 
involve  the  assertion  that  the  box  was  of  value,  because  the  money  might  l)e 
payable  on  the  box  reaching  its  destination,  although  tlie  box  itself  was  of  no 
value  whatever.  Then  if  it  is  said  that  the  prisoner  meant  the  clerk  to  infer 
that  the  Us  9d  would  be  paid  at  Brighton,  which  he  knew  to  be  untrue,  this  is 
a  pretense  with  regard  to  something  future,  and,  therefore,  not  within  the 

statute.  „  .      ... . 

Not  guilty. 

§  407a.  Protection  Afforded  only  to  HoneBty— Property  Blven  to  Induce 
Compromise  of  Alleged  Crime.  —  In  McCord  v.  People,*  the  prisoner  repre- 
sented tliat  he  had  a  warrant  against  M.  and  thereby  induced  him  to  give  him  a 
watch  and  diamoni?  ring.  It  was  held  on  appeal  that  as  the  property  was  parted 
with  to  induce  an  otficer  to  violate  his  duties,  the  indictment  could  not  be  sus- 
tained. "  If  the  prosecutor,"  said  the  court,  "  parted  with  his  property  upon 
the  representations  set  forth  In  the  Indictment,  it  must  have  been  for  some  un- 
lawful purpose,  a  purpose  not  warranted  by  law.  There  was  no  legitimate 
purpose  to  be  attained  by  delivering  the  goods  to  the  accused,  upon  the  state- 
ments made  and  alleged  as  an  Inducement  to  the  act.  What  action  by  the  plain- 
tiff in  error  was  promised  or  expected  In  return  for  the  property  given  is  not 
disclosed.    But  whatever  It  .vas  It  was  necessarily  Inconsistent  with  his  duties 


1  Jackson's  Case.S  Camp.  370;  Freetly's 
Cat)e,liu8B.  ARy.  127. 


2  40  N.  Y.  470(1871). 


CRIMINAL   INTENT   ESSENTIAL. 


383 


jney  not  having  seen 
puny  only  advanced 
as  of  value,  and  it 
as  not  aware  of  thut 
present  :o  them  thut 
sipal  station  received 
!  intended  lilm  to  be- 
id  although  this  clerk 
,  for  he  gave  Instruc- 
9  tlie.carman  advanc- 
e  first  clerk  who  paid 
>f  the  prisoner.  The 
teque,  where  nothin-j; 
cliange  was  given  for 
ases  showing  that  the 
El  statement  that  the 

.,  and  CoLRRiDOE,  J. 
lid  the  learned  judges 
lence  does  not  sup- 
1  of  presenting  a  false 
iendant  to  the  person 
ir  is  it  like  that  of  the 
seen  upon  the  person. 
s  obtained,  never  saw 
inse  alleged  in  the  iu- 
proved  to  have  done, 
y  does  not  necessarily 
!e  the  money  might  l)e 
3  box  itself  was  of  uo 
eant  the  clerk  to  infer 
V  to  be  untrue,  this  is 
efore,  not  within  the 

Not  guilty. 

lerty  slven  to  Induce 
,*  the  prisoner  repri- 
ced him  to  give  him  a 
iC  property  was  parted 
nent  could  not  be  sus- 
1th  his  property  upon 
ive  been  for  some  un- 
ire  was  no  legitimatu 
sused,  upon  the  state- 
lat  action  by  the  plain- 
property  given  Is  not 
sistent  with  his  duties 

871). 


as  an  otilcer,  having  a  criminal  warrant  for  the  arrest  of  the  prosecutor,  which 
was  the  character  he  assumed.  The  false  representation  of  the  accused  was 
that  lie  was  a  oflicer  and  had  a  criminal  warrant  for  the  prosecutor.  There 
was  no  pretense  of  any  agency  for,  or  connection  with  any  person,  or 
of  any  authority  to  do  any  act,  save  such  as  his  duty  as  such  pretended 
officer  demanded.  The  prosecutor  parted  with  his  property  as  an  induce- 
ment to  a  supposed  officer  to  violate  the  law  and  his  duties;  and  If 
in  attempting  to  do  this  he  had  been  defrauded,  the  law  will  not  punish  his 
confederate,  although  such  confederate  may  have  been  instrumental  in  inducing 
the  commission  of  the  offense.  Neither  the  law  or  public  policy  designs  the 
protection  of  rogues  in  their  dealings  with  each  other,  or  to  insure  fair  dealing 
and  truthfulness  as  between  each  other  in  their  dishonest  practices.  The  de- 
sign of  the  law  is  to  protect  those  who  for  some  honest  purpose  are  induced, 
upon  false  and  fraudulent  representations,  to  give  credit  or  part  with  their 
property  to  another,  and  not  to  protect  those  who,  for  unworthy  or  illegal  pur- 
poses, part  with  their  goods.^  The  judgment  of  the  Supreme  Court  and  of  the 
Sessions  must  be  reversed,  and  judgment  for  the  defendant." 

§  408.  Merely  Obtainine  One*B  Own,  Not.  —  False  representations  to 

induce  a  man  to  pay  a  debt  are  not  criminal. >  As  where  a  constable  by  means 
of  false  representations  collected  the  amount  of  a  judgment  from  a  person 
against  wlioni  it  had  been  rendered.' 

In  R.  v.  Williams,*  A.  owed  B.  a  debt  of  which  B.  could  not  get  payment.  C, 
a  servant  of  B.,  went  to  A.'s  wife  and  obti'-ied  two  sacks  of  malt,  saying  that 
B.  had  bought  them  of  A.  C.  knew  this  to  bo  false,  but  took  the  sacks  to  B.  to 
enable  him  to  pay  his  debt.  It  was  held  that  C.  was  not  guilty  of  false  pre- 
tenses. «'  It  is  not  sufHclent,"  said  Coleridgk,  J.,  «•  that  the  person  knowingly 
stated  that  which  was  false,  and  thereby  obtained  the  malt;  you  must  be  satis- 
lied  that  tlie  prisoner  at  the  time  intended  to  defraud  A." 

In  State  v.  Hurat,^  It  was  held  that  a  person  who  by  means  of  false  pretenses 
induces  another  to  pay  a  debt  already  due,  is  not  guilty  of  obtaining  money 
under  false  pretenses,  with  intent  to  defraud ;  and  so  when  the  prisoner,  by 
means  of  false  pretenses,  obtained  $138,  of  which  $144  was  due  from  the  pros- 
ecutor to  the  prisoner,  the  prisoner  is  not  guilty  o'i  obtaining  the  whole  $158 
by  means  of  false  pretenses  within  the  statute,  but  only  the  814  excess  over 
what  he  was  bound  to  pay.  "  This,"  said  the  court,  "  involves  the  question 
whether  a  person  can  be  indicted  for  procuring  money  by  false  pretenses,  who, 
by  false  pretenses  has  induced  another  to  pay  him  a  debt  already  due.  Bishop, 
in  ills  Criminal  Law,*  states  the  law  to  be,  that  an  Indictment  in  such  a  case 
will  not  lie.  The  oldest  decision  on  this  question,  which  I  And  is  a  case  decided 
in  183G,  by  Colekidge,  J.,  In  the  case  of  li.  v.  Williams.^  The  prosecutor 
owed  the  prisoner's  master  a  sum  of  money  which  he  would  not  pay;  the  pris- 
oner, to  secure  hismarterthe  means  of  paying,  himself  went  to  the  prosecutor's 
wife  and  falsely  pretended  that  his  master  had  bought  of  her  husband  two 


•  People  V.  Williams,  4  Hill,  9 ;  People  v. 
^tcifion,  4  Barb.  161. 

'  People  V.  Thomas,  3  Hill,  1C!>  (1842) ; 
Com.  V.  McDuffy,  126  Mass.  467  (1879). 

"  Com.  f.  Thompaon,  2  Clark  (Pa.)  33 
as«:)). 


*  70.  4  P.  (1836). 

s  11  W.  Va.  84. 

'  vol.  2,  sec.  442  (3d  ed.) 

7  7  C.  *  P.  354. 


884 


FKAl  1)    AND   FALSE    PRETENSES. 


sacks  of  malt  and  had  sent  him  to  fetch  them  away,  and  she  thereupon  gave 
them  to  him,  and  he  carried  them  to  his  master.    Judge  Coleridge  cliarged 
the  jury,  '  tliat  If  Ihey  were  satisfied  that  the  prisoner  did  not  Intend  to  defraud 
the  prosecutor,  but  only  to  put  it  in  his  master's  power  to  compel  him  to  pay  a 
just  debt,  It  will  be  your  duty  to  find  hiin  not  guilty.    It  is  not  su  Jlcient  that 
tlie  prisoner  knowingly  stated  what  was  false,  and  thereby  obtained  the  malt. 
You  must  be  satisfied  that  the  prisoner  Intended  at  tlie  tlm-,  to  defraud  tlie 
prosecutor.'    The  case  of  Commonwealth  v.  TJiompson,^  it  is  said  In  the  case  of 
Communwealth  v.  Henry,^  to  have  been  a  case  In  which  the  prisoner,  by  falsely 
pretending  he  had  a  warrant  of  arrest  against  the  prosecutor,  procured  the  pay- 
ment of  au  honest  debt.    It  was  held  that  he  was  not  liable  to  be  Indicted  for 
procuring  money  by  false  pretenses.    This  case  Is  cited  approvingly  in  the  case 
of  Commonwealth  y.llem-y,   and  the  court  adds:    'A  false  representation  by 
which  a  man  is  cheated  into  the  performance  of  a  duty.  Is  not  within  the  stat- 
ute.'   In  the  case  of  People  v.  Thomas,"  the  court  in  rendering  Its  decision  uses 
precisely  the  same  language  as  was  used  by  the  Supreme  Court  of  Pennsylvania, 
in  the  case  of  Commonwealth  v.  Henry,  thougli  an  exar;>lnatlon  of  the  case  shows 
that  the  decision  of  this  principle  was  not  involved  in  the  case  before  the  court. 
These  are  the  only  decisions  or  dicta  to  which  I  have  been  referred,  or  which  I 
have  found  bearing  on  the  subject  directly.    Other  cases  have  been  relied  on  In 
wliich  the  question  discussed  was  the  criminal  intent  or  absence  of  such  intent 
In  common-law  ofEenses ;  but  they  seem  to  me  to  throw  but  little  light  upon  the 
subject.    Tlie  true  question  involved  is,  what  is  the  proper  construction  of  the 
twenty-third  section  of  chapter  U5  of  tlie  code  of  West  Virginia?    Its  language 
Is :  'If  a  person  obtain  by  any  false  pretenses  from  any  person,  with  intent  to 
defraud  money,  etc.,  he  shall  be  deemed  guilty  of  larceny.'    The  words,  false 
pretenees,  used  in  this  statute  are  very  comprehensive,  yet  the  courts,  lookine*'" 
the  purposes  of  the  legislature,  have  often  held  that  every  false  representation 
or  statement  ought  not  to  be  held  a  false  pretense,  and  have  put  a  limited 
meaning  on  these  broad  words  which  they  have  attempted  to  define  with  such 
accuracy  as  the  nature  of  the  case  would  permit.    In  the  same  spirit,  I  think, 
the  words,  '  with  intent  to  defraud,'  should  be  interpreted.     It  is  doubtless 
immoral  for  a  person  by  false  pretenses  to  obtain  the  payment  of  a  just  debt. 
The  end  sought  may  be  just,  but  such  end  will  not,  by  a  correct  code  of  morals, 
justify  the  use  of  improper  means;  but  the  law  does  not,  in  many  instances, 
attempt  the  enforcement  of  good  morals,  and  the  question  is,  whether  the  use 
of  false  pretenses,  to  obtain  a  claim  justly  due,  is  within  the  true  meaning  of 
this  criminal  statute  a  fraud.    To  so  construe  this  statute,  would,  in  my  judg- 
ment, consign  to  the  penitentiary  as  thieves  many  persons  who  can  not  be 
classed  with  common  thieves,  without  breaking  down  all  our  ideas  of  distinc- 
tion in  degrees  of  immorality.    I  think,  therefore,  that  within  the  true  meaning 
of  this  statute,  a  man  can  not  be  held  guilty  of  procuring  money  by  false  pre- 
tenses, with  Intent  to  defraud,  who  has  merely  collected  a  debt  justly  due  him, 
though  in  making  the  collection  he  has  used  false  pretenses.    The  authorities  I 
have  cited,  though  not  entitled  to  much  weight  in  themselves,  sustain  this 
view;  and  I  have  seen  no  authority  which  sustains  the  contrary  view." 


I  Reported  in  3  Pa.  Law  Jour.,  and  com-  ^  2i  Pa.  St.  256. 

mented  on  in  Lejvis'  U.  S.  Cr.  L.  197.  '  3  Hill,  ll!9. 


ORDINARY  PRUDENCE   ESSENTIAL. 


385 


she  thereupon  gave 
Coleridge  charged 
ot  intend  to  defraud 
;ompel  him  to  pay  a 
s  not  su  Ilcient  that 
obtained  the  malt. 
:iin<.  to  defraud  the 

said  in  the  case  of 
prisoner,  by  falselj- 
r,  procured  the  pay- 
e  to  be  indicted  for 
rovingly  in  tlie  case 
B  representation  by 
not  within  the  stat- 
ing its  decision  uses 
urt  of  Pennsylvania, 
)n  of  the  case  shows 
ise  before  the  court, 
referred,  or  which  I 
ive  been  relied  on  in 
lence  of  such  intent 
little  light  upon  the 
construction  of  the 
;inin?  Its  langui'ge 
rson,  with  intent  to 
'  The  words,  false 
lie  courts,  lookine  t.^ 
false  representation 

have  put  a  limited 

to  define  with  such 
same  spirit,  I  think, 
d.  It  Is  doubtless 
tnent  of  a  just  debt, 
rect  code  of  morals, 
,  in  many  instances, 

is,  whether  the  use 
the  true  meaning  of 
,  would,  in  my  judg- 
ns  who  can  not  be 
>ur  ideas  of  distinc- 
liin  the  true  meaning 

money  by  false  pre- 
lebt  justly  due  him, 
I.  The  authorities  I 
iselves,  sustain  this 
trary  view." 


§  4(11). Person  Deceived  Must  Have  Used  Ordinary  Prudence.  —  It  is 

settled  that  ordinary  prudence  and  common  caution  are  recjulred  of  the  prose- 
cutor.* 

Ill  Lcobalil  V.  State,"  the  court  doubted  whether  a  representation  made  by  one 
that  he  is  the  owner  of  an  extensive  maiuifacturing  establishment  in  a  city  In 
another  State,  '.s  .such  a  pretense  as  would  induce  a  person  of  ordinary  caution 
to  loan  tlie  person  ten  dollars. 

"  It  was  not  the  intention  of  the  statute  to  convert  every  fraud  which  might 
fall  within  llie  cognizance  of  a  court  of  equity  into  a  criminal  ofEense,  and  to 
protect  every  individual  from  the  consequences  of  his  own  credulity,  impru- 
dence  or  folly,  I)ut  it  was  designed  to  exiend  no  f  urtlier  than  to  embrace  such 
representations  as  were  accompanied  with  circumstances  fitted  to  deceive  a 
person  of  common  sagacity  and  exercising  ordinary  caution."  '■' 

In  People  V.  Babcock,*  the  prisoner  by  false  pretenses  got  from  one  of  the 
firm  of  B.&  I),  a  release  of  a  judgment  against  him  on  the  promise  that  he  would 
pay  part  of  it  and  give  his  note  for  the  Iwilance.  It  was  held  that  this  was  not 
ludlctable.  •'  There  was  nothing,"  said  the  court,  "  beyond  the  defendant's  false 
as.scrtion  that  he  was  ready  to  pay  the  judgment.  There  was  not  even  the  pro- 
duction of  cither  note  orinouey  and  common  prudence  would  have  dictated  the 
withholding  of  the  receipt  until  the  money  was  paid  and  the  note  drawn." 

In  Slaie  wDellnrt,^  ih*i  defendant  purchased  goods  falsely  representing  that 
he  had  in  his  odice  a  certain  quantity  of  property  liable  to  his  debt.  "  If," 
said  tlie  court  "the  only  foundation  for  his  credit  was  the  existence  of  the 
property  of  the  defendant  in  his  office  as  alleged,  common  prudence  and  cau- 
tioii  upon  the  part  of  the  prosecutor  should  have  required  him  to  re-sort  to 
other  Information  as  to  this  fact.  The  defendant's  conduct,  if  as  alleged,  was 
higiily  reprehensible,  but  we  tiiinli  it  is  not  a  case  of  felony  under  the  statute." 

Ill  People  v.  Williams,''  the  conviction  of  the  defendant  was  reversed  on  ap- 
peal.  He  had  been  convicted  for  obtaining  by  false  pretenses  the  signature  of 
one  Van  Guilder  to  a  deed  of  lands.  At  tlie  trial  the  defendant's  counsel  re- 
quested the  court  to  charge  that  tlie  pretenses  laid  in  the  Indictment  were  not 
sueli  as  could  be  made  the  subject  of  a  criminal  prosecution,  but  the  court  re- 
fused and  held  the  contrary,  the  other  facts  appear  from  the  opinion. 

Ihj  the  Court.  It  Is  Impossible  to  sustain  this  indictment  without  extending  the 
statute  to  every  false  pretense,  howe\er  absurd  or  irrational  on  the  face  of  it. 
T!ie  charge  is  of  falsely  representing  to  Van  Guilder  that  he  was  about  being 
proceeded  against  for  u  debt  due  from  him,  and  that  by  means  of  the  represen- 
tation, his  signature  was  obtained  to  a  deed  of  lands.  How  such  a  result  was 
made  to  follow  from  means  apparently  so  inadequate,  wc  are  left  to  conjecture; 
Looiilng  to  the  case  made  by  the  indictment  Van  Guilder's  only  ground  of  com- 
plaint would  seem  to  be,  that  in  attempting  to  defraud  another,  he  had  himself 
been  defrauded.  But  whatever  the  fact  is  in  this  particular  there  can  be  no 
doubt  that  an  exercise  of  common  prudence  and  caution  on  his  part  would  have 
eiialjled  him  to  avoid  being  imposed  upon  by  the  pretenses  alleged ;  audit  so 
the  case  is  not  within  the  statute.^ 

New  trial  ordered. 

1  Com. nllaughey,.'? Mote. 22;l (1800);  Com.  «  OBaxt.  222  (1873). 

V.  tirudv,  1.3  nusli,  288.  o  4  inn,  g  (1843,, 

2:i3ImI.484  (1870).  7  sco  Goodlisll'a  Case,  Buss.  4ny.461,- 

nunow  V.  State,  12  Ark.  K,  (1S51).  llosc.  Cr.  Ev.  862. 

'  7  Johns.  201 ;  5  Am.  Dec.  256  (1810). 

3  Dekkncks.  35 


wm» 


386  FKAUl)   AND   FALSK   I'lMrrKN.SKS. 

in  People  v  Stetson,^  th«  defendant  represented  to  the  prosecutor  that  ho 
J.  rZ  abl  and  had  a  warrant  against  hi.n  issued  by  a  justice  o  the  peac. 
Tor  the  erlme  of  rape,  hut  if  he  would  «ive  him  his  watch  ho  would  s  ttlc  . 
Tli8  was  held  not  to  be  punishable.  '•  It  Is,"  said  Mavnauu,  V.  J.,  a  >v  U 
ItUed  m^  tional  rule  that  the  false  pretenses  in  order  to  sustain  an  ndiet- 
meat  mTs  be  such  that,  li  true,  they  would  naturally,  and  uccor.ling  to  the 
Zalormtlonof  motives  upon  the  minds  of  persons  of  ordinary  prudence, 

"X^^^^^^  -»^^-.  - '"  «^'--  T'''  ^n^e^Tsr;;;;;!  'dt  c'tiyTn- 

lefrauded  must  be  such  as  the  apparent  exl-eucy  of  the  case  would  ^'Irectiy   n 
ucTan  honest  and  ordinarily  prudent  person  to  do,  if  the  P'-ctenses  we  e  true 
Annlvhi"  this  rule  to  the  case  In  hand,  it  will,  I  think,  ai.pear  that  the  fals.. 
nrcten  e"  even   f  believed  to  be  true,  could  not  by  any  course  of  reasoning,  have 
fnduc^l  aS  Pe    o.    o  do  what  the  prosecutor  did.    No  n.an  could  suppose  tha 
':e::XZ::::^  discharge  from  a  warnu.t  for  J^'-y  '^y  ^'^^^^^^^^^^^^^^^^^^ 
goods  to  the  omcer  holding  the  warrant.    The  pretense  i''"^^'  '''*•;;  ^J^^f  J 
warrant  and  pretending  it  to  be  true;  there  is  no  allegation  that  the  accu^ea 
Tsert  rtha^^^^^^^  had  authority  to  settle  it  by  receiving  money  or  goods,  he 
Tfl"  ed  to  do  80.  and  the  prosecutor  accepted  his  proposal,  and  delivered  h- 
IT   it  w«s  the  offer  to  settle  the  warrant  which  naturally  produced  the 
Sfandnorthesuppoed  warrant.    The  conduct  of  the  accused  was  in  the 
h^hit  degree  immoal  and  reprehensible,  but  there  seems  to  be  no  law  to 
Srh  mTnder  this  IndicUnent.    lie  may  be  indictable  for  forging  the  pro- 
Jended  warrant,  if  in  truth  he  had  such  an  one  as  the  indictment  seems  to  sup- 
pose."   Sbldbn,  J.,  concurred.  judgment  for  defendant. 


C470    Passing  counterfeit  Money. -Passing  counterfeit  bank-notes  m 

navment  of  goods  is  not  obtaining  money  by  false  pretenses.^  ,,„„„*  .^ 

In -si^e  V  .i;/mV'the  prisoner  sold  to  the  prosecutor  a  pair  of  shoes  fo 
SI  ii  ani  reclv^I  «l-0,and  paid  him  the  ten  cents  change  in  counterfeit 
mon  y  t  wafheld  that'he  was  not  guilty  ot  obtaining  the  ten  cents  by  false 
nretenses  «'The  money  of  the  prosecutor,"  said  the  court,  "  wa«  "ot  obta  ned 
by  any  fnvudulent  representation  or  practice  by  which  he  was  induced  to  part 
with  it." 

8  471  __  passing  Bant-note  of  Banlcrupt  Banlc.  -  In  B.  v.  Spencer*  the 
nrlner  was  indicted  for  false  pretenses  in  passing,  in  payment  for  meat  pui- 
Sase  I  by  h  -ra  t^^^^^  -te  the  note  of  a  bank  that  had  stopped  payment 
The  pier  knew  tLt  the  bank  had  stopped  payment,  but  o.,e  of  the  partn 

CZl-n  not  Ly\hat  tke  prisoner  was  guilty  of  afraud  in  pa.ssingit  aw 

S  472    —  V-»t  not  False  Pretenses  -  mustratione.  -  Selling  a  promis- 

sory  no^e  which  has  been  paid  as  a  due  one  Is  not  ^^^^^^^^H  ScTp 
law.'  nor  is  inducing  one  to  sign  a  deed  on  pretense  that  it  Is  a  mere  receipt. 


1  4  Barb.  1.51(1818). 

2  Cheek  v.  Slate,   1   Coldw.   172  (laW); 
Bobcrts  f.  State,  3  Head,  501  (1839). 

8  84  N.C.  741(1881). 


*  3C.&  P.  420(1828). 

i>  Middleton  v.  State,  Dudl.  275  (1838). 

«  Slate  V.  Justice,  2  Dev.  200  (1829). 


CONSTRUCTION   OF   PARTICULAR   OKFKNSKS. 


H87 


irosccutor  Unit  ho 
isllcc  of  the  peauu 
10  would  settle  It. 
Rij,  1".  J.,  "  a  will 
)  sustain  an  liulkt- 

acconling  to  tliu 
jrdtniiry  prudence, 
done  by  the  person 

would  directly  in- 
rcteiiai's  were  true, 
pear  that  the  lalsf 
I  of  reasoninsJ!,  have 
could  suppose  that 
lellverlng  money  or 
exliiliiting  a  forged 
n  that  the  accused 
loney  or  goods;  he 
1,  and  delivered  his 
iirally  produced  the 

accused  was  in  the 
1118  to  be  no  law  to 
or  forging  the  prc- 
tmeut  seems  to  sup- 

nent  for  defendant. 

erfelt  bank-notes  in 
s.» 

a  pair  of  shoes  for 
langc  in  counterfeit 
le  ten  cents  by  false 
i, «'  was  not  obtained 
kvas  induced  to  part 


I  B.  V.  Spencer,*  the 
lyment  for  meat  pur- 
,d  stopped  payment. 
It  one  of  the  partners 
d  Gasklek,  J.,  "the 
note  may  ultimately 
din  passing  it  away." 

i.  —  Selling  a  promis- 
)reten9es  at  common 
,  it  is  a  mere  receipt.* 


S8). 

tiite,  Dudl.  275  (1838). 

!,2Dev.200(1829). 


Obtaining  goo'is  on  a  forged  order  for  their  delivery  Is  not  false  pretenses  in 
Kngland,'  nor  is  ii  nien-  fraudulent  overcharge  for  work,  done.- 

A  surveyor  of  higliways,  having  authority  to  order  gravel  for  roads,  ordering 
gravel  which  he  applies  to  his  own  use,  is  not  guilty  of  olitaiuliig  It  by  false 
pretenses.'' 

§  *7i5.  Partnership  Affairs  —  Statute  Not   Applicable  to.'  — In  R.    v. 

l-Jvans,:-  I'oi.i.ocK,  C.  H.,  said:  "  In  this  case  the  defendant  was  tried  ai,  the 
t'liester  Sessions  on  an  indictment  which  clmrLted  him  wiih  obtaining  luon.y 
under  fal.se  pretenses.  The  facts  are  that  the  .lefemlant  entered  into  partner- 
sld|)  with  two  other  persons,  "iid  afterward.«,  i)y  a  verbal  agreement,  it  was 
arranged  that  he  should  become  the  agent  of  IIr  partnership  for  a  particular 
purpose,  that  his  traveling  and  other  expenses  as  such  a-ent  should  be  lirst 
paid  out  of  the  capital  funds  of  the  partner.ship.  He  was  indicted  for  obtaining 
money  by  maliing  charges  again>t  those  funds  for  which  there  was  no  founda- 
tion. Now,  inasmuch  as  before  there  could  be  any  division  of  prollts,  those 
(■.\|)enses  would  h.ave  to  be  jiaid  out  of  the  capital  fund,  those  chariies  would  be 
matter  of  nccount  between  the  parties.  If  there  was  a  real  foundation  for  these 
ilmrges,  they  would  come  into  the  account,  and  be  deducted  from  the  nrollts  of 
the  partnership,  The  act  of  the  defendant  .vas  no  more  than  a  misiepsenta- 
tion,  wlileh  would  be  overhauled  when  the  accounts  were  gone  into.  It  was 
not  an  obtaining  of  money  by  false  pretenses  within  the  meaning  of  the 
statute. 

"Si)eaking  for  myself  only,  I  may  add  that  in  my  opinion  the  statute  a-ain.st 
obtaining  money  by  false  pretenses  was  never  intended  to  meddle  with  the  real 
business  of  commerce.  It  was  not  to  control  comnvrcial  proceedings,  unles.s 
where  there  was  re;\lly  and  truly  a  piece  of  swindling,  nor  to  apply  to  frauds 
committed  In  the  course  of  a  commercial  transaction.  In  my  opinion— and  I 
am  giving  tliis  as  my  opinion  only,  and  not  that  of  the  courts  —  it  would  be 
very  rai.schievous  to  make  every  knavish  transaction  the  subject  of  an  indiet- 
'"'-'"'•  Conviction  quashed.'" 

§  474.  "False  Token  or  Writing"  —  Pulse  Use  of  Oenuino  Writ- 
ing.—A  false  use  of  a  genuine  writing  is  not  the  use  of  a  "  false  token  or 
writing"  within  the  Indiana  statute.  Thus  where  A.  under  a  letter  of  author- 
ity  sold  B.'s  corn  and  afterwards  by  the  use  of  the  same  letter  sold  the  same 
corn  to  another  purchaser,  this  was  held  not  within  the  statute." 

§  475.  "False  Writing."  — To  constitute  a  "false  writing"  within 

the  statute  the  document  must  be  one  false  in  fact  but  purporting  to  be  signed 
oy  some  person,  and  to  be  his  act,  and  so  framed  as  to  have  more  weight 
and  influence  in  effecting  fraud  than  a  mere  naked  assertion  of  the  par'iy 
Therefore  a  document  in  the  form  of  a  bond,  but  having  no  signature  attached 
to  it,  is  not  "  a  false  writing."  ' 

§  47fi. «  Fraudulent.Swlndllng  or  Deceitful  Practices."—  In  Vermont, 

in  1838,  under  a  statute  punishing  the  obtaining  of  money,  goods  or  chattels  by 


1  R.  V.  Evans,  5  O.  4  P.  liSS  (1833). 
-  n.  V.  Oales,  6  Cox,  540  (1855), 

K  I'.  Richardson,  1  F.  &  F.  488  (1859). 
^  See  U.  t'.  Watson,  Dears,  ft  B.  348  (1857) ; 
Ii.  t'.  Kvans,  9  Cox,  238  (18(i2). 


'  L.  AC.  256  (1862). 

0  Shaffer  v.  .State,  82  Ind.  223  (1882). 

"  People  V.  Gates,  13  Wend.  311  (1835). 


;i88 


rnAUl)   AND    lALSE   PltKTKXSES. 


falHo  tokciiB,  messugps,  h-tters  or  by  "  otli.r  frau(Uileut,  swindling  or  deceitful 
practices,"  it  was  held  tliat  to  olitaiii  floiHls  hy  a  fal,-*e  and  frauduleut  declara- 
tion as  to  cue's  state  and  circumstances  was  uot  Indictable.' 

J  477.  "Money."  — Ol)taining  a  certlflcate  of  deposit  o(  a  bank  is  not 

obtaining  "  a  sum  of  money."  - 

§  478.  "Money.  Goods  or  other  Property." —  Obtaining  an  Indorse- 
ment npon  a  promissory  note  by  false  prcten.ses  is  not  obtaining  "  money,  goods 
or  other  property."  ^ 

§  479.  False  Pretenaes- "  Valuable  Security."— An  unstamped  order  for  the 
payment  of  money  which  ought  to  be  stamped  to  be  legal  is  not  a  ♦'  valuable 
security  "  '  To  support  a  conviction  for  obtaining  a  valuable  security  "  by  a 
false  pretense,"  the  security  must  be  the  property  of,  and  of  value  to  some  one 
oihcr  than  the  prisoner.' 

§  480    "  Written  Instrument  •'—  Must  work  Prejudice  to  th#  Property 

of  .ome  one.  -  If  the  instrument  be  one  that  could  not  prejudice  any  one  as  to 
his  estate  It  U  not  a  "written  instrument"  within  the  statute  as  to  obtaining 
signatures  to  such  documents  by  false  pretenses. 

So  It  was  held  in  People  v.  Galloway,''  thata  deed  of  land  by  a  wife  conveying 
real  estate  belonging  to  her  In  her  own  rlf;ht,  executed  by  her  with  her  husband 
fltthe  solicitation  of  the  husband,  under  the  pretense  that  it  was  a  deed  of  lauds 
Inlonglng  to  him,  but  not  acknowledged  l)y  her  as  required  by  law,  is  not  wlthm 
the  statute.  , 

I  481 .  swindling  and  Theft  under  Texas  Code.  —  In  Pitts  v.  State,''  the 

distinction  between  theft  and  swindling  is  tlius  pointed  out  by  Ector,  P.  J.: 
"The  appellant,  J.  B.  I'ltts,  was  indicted,  tried,  and  convicted  by  the  District 
Court  of  McLennan  County  for  the  theft  of  a  bay  gelding,  the  property  of  one 
J  Robinson  The  evidence,  as  shown  by  tlie  statement  of  facts  Is  substantially 
as  follows:  J.  B.  Nixon,  on  December  !»,  1870,  took  up  on  his  place.  In  McLen- 
nan County,  a  certain  black  gelding,  which  he  estrayed.  After  having  complied 
with  the  requirements  of  the  statute  In  regard  to  advertising  said  estray 
Nixon  loaned  the  estray  gelding  to  appellant,  to  be  worked  by  appellant  on  his 
(Nixon's-)  farm,  until  the  time  came  for  Nixon  to  sell  said  animal.  In  April  or 
May  1877,  Pitts  disappeared  from  the  neighborhood,  carrying  with  him  the 
black  gelding.  He  went  to  the  store  of  one  J.  Robinson,  a  witness  for  the 
State,  In  the  city  of  Waco,  McLennan  County,  and  proposed  to  trade  him  the 


1  state  V.  Sumiior,  10  VI.  587;  .S3  Am. 
Dec.  219  (1838). 

2  Com.  f.  Howe,  l.fS  Mass.  250  (1882) ;  as 
to  the  construction  of  "  money,  goorls  and 
merchandise,"  and  "effects,"  see  Schlcsin- 
ger  «.  Slate.  11  Ohio  f<t.66n  (1860).  and "  order 
for  money  "  see  B.  v.  Cartwight.  R.  &  R.  107 
(1806).  Dogs  are  not "  chattels."  K.  r.  Rob- 
inson. 8  Cox,  115  (IS-W).  "Procure"  and 
•'  obtain  "  are  construed  in  Kennedy  v.  State* 
34  Ohio  St.  310  (1877) ;  Baker  v.  Staie,  34  Ohio 
St.  314  (1877). 


.■)  State  V.  Moore.  15  Iowa,  413  (1863). 
Land  is  not  within  the  phrase,  "  money, 
goods,  property  or  other  things  ot  value." 
State  V.  Burrows.  11  Ired.  477  (1850). 

4  B.  V.  Yates.  1  Moody,  170,  (1827).  This 
phrase  is  construed  in  R.  v.  Brady.  20  U.  C. 
Q.  B.  13. 

6  R.  V.  Danger,  Dears.  &  B.  307  (18.57). 

f'  17  Wend.  541  (1837). 

•  6  Tex.  (App.)  122  (1878).  And  see  Mat 
thews  V.  State,  33  Tex.  102  (1870). 


"  *- 


SWINDLINO   AND   THEFT   IX   TKXA8. 


389 


idling  or  deceitful 
rauduleut  declara- 


t  of  a  bank  la  not 


lining  an  Indorse- 
ing  "  money,  goods 


imped  order  tor  the 

la  not  a  ♦'  valuable 

ble  security  "  by  a 

!  value  to  some  oue 


ce  to  th*  Property 

udice  any  one  as  to 
ute  as  to  obtaining 

ly  a  wife  conveying 
;r  with  her  husband 
was  a  deed  of  lauels 
)V  law,  is  not  within 


I  Pitts  v.  State,''  the 
it  by  KcTOR,  P.  J.: 
:ted  by  the  District 
the  property  of  one 
acts  Is  substantially 
lis  place,  in  McLen- 
ter  having  complied 
ertising  said  estray 
1  by  appellant  on  his 
animal.  In  April  or 
•rylug  with  him  the 
a,  a  witness  for  the 
sed  to  trade  him  the 


,  15  Iowa,  413  (1863). 
I  the  pliraae,  "  money, 
other  things  of  value." 

Ired.477  (1850). 
iloody,  170,  (1827).    This 

inK.  f.  Brady,  20  U.C. 

ears.  &  B.  307  (1857). 

!37). 

!2  (1878).    And  see  Mat 

iX.  102  (1870). 


black  gelding,  which  lie  (Pitts)  then  had  with  him,  representing  that  the  animal 
was  his  property,  and  that  he  had  worked  said  black  gelding  in  making  his 
(Top  of  the  previous  year.  Robinson  traded  with  appellant  for  the  black  geld- 
ing', giving  Pitts  a  bay  gilding  (the  one  named  In  the  Indictment)  and  9'JQ  In 
money  for  the  black  gelding.  Appellant  traded  the  black  gelding  to  Robinson 
without  the  knowledge  or  con.sent  of  Nixon.  Soon  after  appellant  carried  off 
the  black  gelding,  Nixon,  finding  the  animal  In  the  possession  of  Robinson, 
proved  this  animal  and  got  possession  of  him  from  Robinson.  Appellant,  on 
the  same  day  he  traded  with  Robinson,  sold  the  bay  gelding  in  the  city  of  Waco. 
IJoblnson  testified  that  the  buy  gelding  was  his  property,  which  ho  traded  to 
appellant,  and  that  he  would  not  have  given  his  bay  horse  and  920,  or  anything 
»lse,  to  Pitts,  but  for  the  representation  made  liy  Pitts  to  him  at  the  time  of  the 
trade  In  regard  to  the  black  gelding,  and  that  he  has  never  seen  the  bay  gelding 
(traded  by  him  to  appellant)  since  the  day  of  the  trade.  We  believe  that  the 
fnits  proven  in  this  case  do  not,  In  law,  constitute  the  offense  of  thelt,  but  of 
swindling.  It  is  clear  from  the  evidence  that  Robinson  intended^to  part  with 
Ills  property,  the  bay  gelding  mentioned  In  the  Indictment,  when  he  traded  him 
to  Pitts.  The  authorities,  In  drawing  the  distinction  between  the  offenses  of 
swindling  and  of  theft,  all  seem  to  rest  such  distinction  upon  the  fact  as  to 
whether  the  owner  of  the  property,  at  the  tlmaof  parting  with  it,  Intended  to 
part  with  the  title,  or  merely  the  i)Ossession  of  the  property.  When  the  title  Is 
parted  with  by  the  owner,  on  false  representations  to  induce  the  owner  to  sell, 
the  crime  Is  swindling;  and,  on  the  other  hand,  when  the  owner  does  not  agree 
to  part  with  the  title,  but  on'y  the  possession  of  the  property,  the  subsequent 
appropriation  Is  theft.  In  the  one  case  the  owner,  by  means  of  false  pretenses, 
has  been  Induced  to  part,  not  only  with  the  possession,  but  with  his  right  of 
possession  In  the  property  Itself;  and  In  the  other  case  the  owner  intended  to 
part  only  with  the  possession  of  the  property  for  temporary  uses,  without  ever 
intending  to  part  with  the  property  itself.  This  distinction  is  clearly  drawn  be- 
wcen  the  offenses  of  swindling  and  theft,  by  the  following  authorities:  White 
V.  Slate,^  Cline  v.  State,-  Wilson  v.  State,'  Boss  v.  People.* 

§  482 Swindling  Under  Texas  Code.  —  In   several  cases  in  the  Court 

of  Apiieals  of  Texas,  the  evidence  was  held  Insulllcieut  to  convict  the  prisoner 
of  swindling.*  In  Popinaux  v.  State^  a  conviction  was  reversed,  Hurt,  J., 
'Iclivering  the  following  opinion:  Aus.  Popinaux  was  convicted  of  swindling, 
tlic  amount  acquired  being  of  the  value  of  three  dollars.  The  offense  Is  a  mis- 
demeanor. The  evidence  upon  wliich  defendant  was  convicted  is  as  follows : 
J.  II.  Howry,  the  prosecutor,  testilied:  "  I  was  then  engaged  in  a  small  retail 
Inisiiiess,  including  the  sale  of  cigars.  I  am  acquainted  with  defendant,  Ans. 
Popinau.\.  On  the  18th  day  of  February,  1881,  he  came  into  my  room,  and  lie 
and  John  Skaggs  got  into  a  game  of  dice.  They  threw  dice  for  the  cigars, 
•fohn  Skaggs  won  twenty-five  cents'  worth  of  cigars  of  defendant  and  de- 
fendant paid  me  for  the  cigars.  They  played  again  and  John  Skaggs  won 
twenty-live    cents'    worth  of  cigar.s    of    defendant;  defendant    paid  me    for 


1  U  Tex.  770. 

2  43  Tex.  494. 
■  1  Port.  196. 
*  6  Hill,  294. 


"  Lutton  V.  State,  14  Tex.  <App.)  .">1S 
(lS8;i) ;  ChllUers  v.  State,  1«  Tex.  (App.)  .W5 
(1884) ;  Baker   v.  State,  14  Tex.  (App.)  332 

(I8s:!). 

«  12  Tox.  (App.)  UO  (1882). 


»»SvO^, 


:i!io 


rUAUl)    AND    I"AI>i;    I'lJKTKNHKH. 


tluMT,.  T„.v  i.layocl  a«uln,  unlU  SkugRs  won  Ufty  cents'  worth  of  cl«u.«  of 
i  fculant.  ■  I  tol  I  .h.fen.lani  I  wouUI  liko  for  Mm  to  pay  up  for  1..,,,,  before 
*j  ;;«  Ino...  1.0  n..na,Ue..  that  i  n.....  not  ho  ahu-n.o...  ^'-\»; '^  ,  -^^J^; 
topayfor-thon..  an.l  that  ho  was  Roinj;  i^  cont.nno  the  Ran.o  """l>'^  ''f  fj 
vhS  ho  ha.l  la  his  po..kol,  an.l  that  ho  NVonUl  pay  fur  thorn  before  he  loft  the 

00  Defen.lanl  Jt  f.on>  n.o  .Ix.y  clears,  worth  live  cents  aplocc.    Whou  1  o 

1  "d  until  ho  lo.t  »:.  ho  .,ult  the  pune.  1  thon  .loM.an.U-a  .ny  rnoney  Ih- 
f..n,hint  Hil.l  ho  (ll.l  not  have  it,  l)Ut  wouhl  go  homo  and  {lot  U.  Ho  went  off, 
>       d   1     .     c^u      hack  that  ovcnlng.     I  sent  No.l.  llond,ry  to  hln.  ,o  «et   ho 

on  y  11  at  ovonln..  but  did  not  «ot  it.    I  .lied  an  aflldavlt  aga  nst  hlu.  that 
c  e^v-'    Co.H.o;an.lno.i.     '«  D.fondant  an,.   Ska,,.HWorc  «>•;'>"'« '^Z  "Bame 
od  color  tho  cifiars ;  the  undorstandin^  was  that  the  loser  would  pay  fo    the  n. 
fi:r:tood  t,.tt  while   defendant  an,.  «Ua«.H  were  thr<jwi.^  d  co     hat   1. 
canio  was  llmlto.l  to  $:i,  and  that  the  l,.ser  would  i.ay  for  the  cigars;  that  was 
rcu  to.        1  know  tho  ga,no  was  limited  to  »..     (Hero  witness  said  tha   ho 
:,  g  t  hunscif  into  a  tan.ie,  an..  ha,l  tohl  it  wron.)     That  ho  was  ex,,octhn; 
Aus     PopinauK   to  pay  for  the  »;i  worth  of  cigars;  that  ho  rclle.l   upon  dt- 
e^lant'i  Itonu.nt'  that  ho  ha.,  tho  money  and  w..n...  '-^    '-^''.^l^^-.f ,  .^ 
the  lionso      If  I  had  not  believe.,  his  statement,  I  would  not  liaNC  lot .  Im  have 
!r  L^  r."rt..  of  c  .-ars      •     •    *     Defendant  ca.ne  to   mo  next  morning  and 
In  0.:     .     .    o  p"y  n.o  for  'the  cigars,  au..  sai,.  somethlug  about  .,e.ng  too 
^         I    .  d  him  tl,a   ho  was  too  late,  that  he  conld  not  pay  for  them  then;   I 
.^ad"co  nn>onco,l  a  pros-cution  against  him.     Ho  .11.1  not  tender  me  the  rnoney 
Pa  t  ,?       vd  be..n  throwing  die  in  n.y  room  before  defendant  came  In      I , 
„,'   know  that  .lofondant  did  not  have  «:!  on  his  person;  never  examined      He 
r    ,o        tl     1  abit  of  having  money,  -  though  this  is  the  lirst  time  I  saw  him  to 
in  w  him      Ho  has  not  been  about  n,o  since.    The  place  where  the  dofendan^ 
obtlo      he  cigars  from  n.e  was  in  D..nlon  County,  Texas.    He  has  never  pal 
Ifor   lieci-'ars.    The  cigars  wore  my  property."    Jan.es  Oldham,  a  Staters 
u     L  1   ,'>ath  savs.  "I   was  p.-osent  on  the  18th  day  of   February,  In  the 
:    m  of  M  .    it.  v?;her;  defo..da.,t  an..  .John  Skaggs  wore  throwing  dlco  for 
ZZZ'     Ska.'.swontheciga,soffof  .lefcdant.     Skaggs  won  twenty-  ve 
c  nt'lvo  th  of  cigars  of  dofe..da..t.    Defendant  paid  for  them.    They  contin- 
ued tirgne   until    Skaggs   won  twenty-tlvo   cents'    worth  o    cigars  again 
or  de  enJant.     Defendant    paid  for  them.    They  continued  tho  gamo  unt.l 
Ska-gvo.    fifty  cents'  worth  of   cigars  off  of  defendant;  when  Mr  Howry 
fold  dof      ant  1.0  w,...ld  have  to  pay  up.    I      ■ndant  remarked  that  Howry 
.0  d   not  bo   uneasy,   that  he    (defendant)    had  the  money    to  pay  for  to 
l.ars     He  di.l  not  say  that  ho   had  the  money  on  his  person,  or  where. 
I   <lidn..t  hear  thorn  say  the  ga.no  was  llmitcl  to   S3.     It  might  have  boeu 
a  .when  defeuda..t  q..it  the  gamo.     He   said  he  would   go  homo  and  ge 
0  money.     I  heard  defe..da..t  tell  Howry  that  ho  had  tho  money  and  would 
pu-Tor  the  cigars  befo.-e  he  left  the  room.    Idid  not  hear  him  say  where  ho  had 
tho  mo.,e   ;  1.;  might  have  said  so  and  I  not  have  hoard  it."    J.jhn  Skaggs,  ...- 
troduc  rt  in  behalF  of  defendant,  says:  "  I  am  the  party  who  throw  dice  w.tl, 
,c°e.u.  u  t  for  cigars  on  the  18tl,  day  of  February,  1881,  in  Mr.  Howry's  room. 
T  ivu   bJen  i°.  the  room  throwb.g  dice  with  various  parties,  and  when  dcfend- 
L^       mo  1     I   b  ..torod  hi.n  foT  a  ga.ne.    Wo  played  a  while  until  defendan 
won  some  ciUrs  off  mo.     I  remarked  then  If  ho  would  stick  to  m^  he  might 
^a  box  o  iars.    We  continued  tho  gan.o  until  I  won  $3  worth  of  cigurs  off 
of  dfnTn.    Defendant  did  not  say  ho  ha.l  ^3  in  his  pocket  or  anywhere  else. 


>r  r'jt^pma  WHJIiglWmWILU'WI  1 


t-T»«S£*;ia.v^.. , 


'    •- 


INSUI'FICIKNT    KVIUKNCr,    Ol"    SWINDI-INd. 


3J)1 


WOltll   of  ClKUlB  of 

up  for  tliL'ni,  hufoff 
lit  he  had  the  money 
iiino  until  he  U>st  8;i 
m  before  he  left  the 
is  apiece.    When  ho 
ilinl  my  money.    I)i'- 
;et  It.     Ho  went  off; 
)ry  to  him  to  ^et  the 
^It  iigulnst  him  thiit 
re  playing  at  a  game 
■  would  pay  for  them, 
•owing  dice,  that  the 
the  clgiirs;  that  w:is 
witness  satil  that  he 
lat  he  was  expecting 
he  relied   upon  de- 
ay  him  before  ho  left 
lot  liave  let  him  have 
e  next  morulng  ami 
hius  about  being  too 
pay  for  them  then;  I 
ender  me  the  money, 
ndant  came  In.    I  do 
lever  examined.     Ho 
Irst  time  I  saw  him  to 
I  where  the  defendant 
8.    He  has  never  paid 
nes  Oldham,  a  State's 
;  of   February,  In  the 
■ere  throwing  dice  for 
:ag!;s  won  twenty-flve 
r  them.    They  contln- 
•orth  of  cigars  again 
nned  the  game  until 
ant;  when  Mr.  Howry 
remarked  that  Howry 
oncy    to  pay  for  the 
lis  person,  or  where. 
,    It  miutht  have  been 
lid  go  home  and  get 
tl»e  money  and  would 
r  him  say  where  he  had 
it."    John  Skaggs,  in- 
,y  who  threw  dice  with 
in  Mr.  Howry's  room. 
;ies,  and  when  defend- 
i  while  until  defendant 
l  stick  to  mje  he  miglit 
1  $3  worth  of  clgurs  off 
icket  or  anywhere  else. 


til'  illcl  not  limit  the  game  lo  *,'!.  The  game  was  not  limited  to  any  amount.  I 
licii'd  all  lliat  was  said;  was  present  all  tiie  time  1111  defendant  left  the  room. 
.\fier  I  liiid  won  some  clpirs  off  of  d'-fcudant,  Mr.  Howry  wanted  him  to  settle 
up  fur  what  lie  had  got.  Deiendant  told  him  not  to  be  uneasy;  that  he  would 
pay  for  the  cigars.  When  defi  ndant  quit  the  game  he  said  ho  would  go  home 
iiiul  got  the  money,  and  return  and  pay  for  them."  Cross-examined.  "  I  did 
not  toll  Mr.  Howry  I  would  be  a  good  State's  witness,  last  week;  norany  other 
time  that  I  would  be  a  good  State's  witness."  J.  II.  Howry,  re-exumlned. 
"I.ust  week  or  two  Jolin  Skaggs  told  me  he  would  bo  a  good  Slate's  witness; 
I  (lid  not  have  hini  sulipo-naed,  because  I  thought  he  was  busy  in  the  game  and 
iiii;ilit  not  romonil)er  what  was  said.  I  had  James  Oldiiam  subpuMiaed  for  me." 
If  the  witnesses  for  tlie  defendant  told  the  truth,  then  there  wtis  no  offense 
conmiitled  by  the  defendant.  The  conviction  of  defendant  must  have  been 
u|M)n  the  evidence  of  Howry  alone,  and  the  evidence  of  the  two  witnesses  for 
ilofondant  utterly  disregarded.  Was  the  evidence  of  tlie  prosecutor  Howry 
sullloicnt  to  sustain  the  verdict?  The  defendant  had  met  and  completely 
orushod  the  case  made  by  the  prosecution,  and  tl^^it,  too  by  two  witnesses. 
Not  only  80,  but  the  witness  Howry  del!i)crately  swears  to  facts  about  which 
tluio  could  not  have  been  a  mistake,  facts  reaciiiug  the  vital  point  In  the  case, 
iiiid  which,  If  true,  repelled  all  Inference  of  guilt  of  tlie  offense  charged.  This 
witiioss,  however,  was  very  suddenly  impressed  with  the  fact  that  he  (as  he 
says  himself)  had  "got  him.self  in  a  tangle  and  had  told  It  wrong."  What  pro- 
duced this  tangle?  Why  had  he  told  It  wrong?  Was  the  subject  one  in  regard 
to  which  tangles  and  mistakes  would  prol)ably  and  possibly  occur?  This  wlt- 
III  ss  knew  the  moving  cause  wliich  Induced  him  to  part  with  his  property. 
Mdst  evidently,  if  he  looked  to  the  defendant  for  his  i)ay,  he  could  not  have 
i'o.  11  mistaken  about  It.  This  was  not  only  a  very  badly  "  tangled  "  witness, 
hut  rasli  in  tlie  extreme.  Hear  him  on  the  pecuniary  condition  of  the  defend- 
Mnt!  He  says:  "  He  was  not  in  the  habit  of  having  money,  —  though  this  was 
the  llrst  time  I  saw  hirn  to  know  him.     He  has  not  been  around  me  since." 

Willie  It  is  true  that  the  jury  itre  the  judges  of  the  credibility  of  the  witnesses 
iiud  llie  weight  to  be  given  to  their  testimony,  still  the  defendant's  guilt  should 
at  least  be  made  reasonably  to  appear;  and  In  passing  upon  this  question,  to 
"it,  the  guilt  of  defendant,  the  spirit,  manner,  contradictions,  etc.,  of  the  wit- 
ness should  be  looked  to.  If  not,  the  jury,  having  the  right  to  disregard  the 
testimony  of  defendant's  witnesses  utterly,  the  defendant  would  be  placed  be- 
yond ail  i)owcr  of  defence.  We  are  not  satislled  with  this  conviction.  The 
judge  below  should  have  granted  the  motion  for  a  new  trial. 

Tliere  is  another  view  In  which  we  desire  to  present  this  case.  The  dc- 
fendunt  returned  next  morning  and  proposed  to  pay  for  the  cigars.  At  the 
time  he  acquired  them  did  he  Intend  to  defraud  and  cheat  the  prosecutor?  We 
e;in  not  present  this  question  and  reasoning  upon  the  same  in  a  better  light 
(nay  not  as  clear)  than  that  in  which  it  Is  expounded  by  Judge  Anderson  In 
Vy  v.  CoiiimonweaUh,^  a  case  we  think  quite  analogous  to  the  one  before  us. 
The  facts  of  that  case  are  tliose :  "  The  only  proof  of  any  false  pretense  in  this 
ease,  or  that  the  prisoner  made  any  statement  that  was  not  strictly  true,  is  that 
1  e  said  he  was  the  owner  of  the  lots.  It  appears  from  the  certificate  of  facts 
tliut  the  prisoner  had  an  interview  with  Bowdeu,  the  owner  of  two  lots  of  land, 

1  2SGrntt.  (Va.)  ni2. 


"  ■vMiyW.V«i^k#Kii^.-p&l-  "^ 


FKAUD  AND  FALSE  inETENSES. 


392 

si  elling  b-..n  he  o.acd  ^^-^Jl'^V.^^^'^of  «15  each;  that  a  few  days 
:gre;d  to  pay  the  balance  In  --^^^^^^^^  ^n  and  comrleted  the  contract  of 
niter  the  sale  to  Randolph  he  went  to  Bowa  ^^  ^^^^  ^^^^^^  j^^  j^^^ 

;";:hLe  .Uh  him,  paymg  him  In  c^      ^^  ."'^I'tL  for  the  deferred  payment, 
received  from  Kaudolph,  and  «^'^'^""""  "   ,   ^^^^  getting  out  the  terms  of  the 
and  entering  Into  articles  of  ^^-'^'^j;;^;  "  each  of  the  lots  for  two  hun- 
Lle  and  purchase,  i"^--f  ^^^  "^    j  ^e    doUa-  on  the  price  he  ^vas  to  pav  fo 
drcd  dollars,  an  advance  of  one  h""^'"-^*"  ,y  ,vas  paid,  to  co  vey  the 

S  m,  and  requesting  him,  ^vhcn  t^e  P-^^^;««        J^,,^  „pi,ioa  thatunles 
ots  ;espcctlvely  to  the  vendee       ^h^c^nt  to  defraud  the  buyer,  the  case  I 
the  selling  was  by  false  J-  -;  ;-  J     rfrandulent  intent  must  have  existed 
not  within  the  statute.    It  ^o»«'^'';;'     ,    ^    .^hich  the  money  was  obtained. 

..d  to  Ml.g  to  ao  so  1«  """»;""  "";"„"„„  ,„  the  above  reasoB.lorr, 

"-r  r  r:o"^;:  r^s-nraju  o.  ,eco,u.  ..a ».  ..>, .-.. 

Ibe  judgment  of  conviction  is  a  nuUlty.  ^^^^^,,a  and  remanded. 


c  two  lots  of  lanil  together 
separately,  and  that  alter- 

iKlolph,  a  colored  man,  for 
paid  him  $50  in  cash,  and 
^«l5cach-,  that  a  lew  days 
comrlctcd  the  contract  of 
loney  or  the  amount  he  had 
lor  the  deferred  payments, 
setting  out  the  terms  ol  the 
■ach  ol  the  lots  lor  two  hun- 
,  the  price  he  was  to  pav  lor 
ney  was  paid,  to  CO  vey  the 
rtherof  opinion  that  unless 

ciraud  the  buyer,  the  case  Is 
lent  intent  must  have  existed 

-h  the  money  was  obtained, 
readily  applied  to  the  case  at 

,uld  have  granted  a  new  trial, 

r  which  the  judgraont  will  be 

to  the  above  reasons  lor  re- 

of  record,  and  on  this  ground 

Beversed  and  remanded. 


n.  V.  rOOLE. 

Pakt  III. 
LARCENY. 


393 


LARCENY  — TAKING  OF  PROPERTY  ESSENTIAL. 

R.  V.  POOLK. 

[Dears.  &  B.  345.] 

In  the  Engluh  Court  for  Crown  Cases  Reserved,  1857. 

1.  To  Conatitute  Larceny,  tlioro  must  bo  an  intention  on  the  part  of  tlio  prisoner  to 

appropriate  the  property  to  ills  own  use. 

2.  Case  in  Judgment. —  Tw:  orlovo  flnishers  took  a  qnnntlty  of  finished  gloves  ont  of  a 

store  room,  and  laid  them  on  their  tables,  with  intent  frauduli^nlly  to  obtain  payment  for 
them  as  ("ir  so  many  gloves  linished  by  them.  HtM,  that  they  were  not  guilty  of  the 
larceny  u  gloves. 

The  following  case  was  reserved  ami  stated  by  Bramwixl,  B.,  ai  the 
Slimmer  Assizes,  ISoT. 

Tiie  defendants  were  convicted  before  me  at  the  AssL'ces  for  tlie  city 
of  Worcester  of  steding  from  their  master. 

The  master  was  a  glove  maker ;  the  defendants  were  in  his  employ  as 
glove  finishers.  When  they  had  done  any  work,  the  practice  was  to 
take  the  finished  gloves  to  an  upper  room  and  lay  them  on  a  table,  in 
order  tliat  the  workmen  might  be  paid  accor<\ing  to  the  number  finished. 
Tlie  defendants  broke  open  a  store-room  on  the  premises  of  the  master, 
I  took  a  quantity  of  finished  gloves  out,  au'l  laid  ttiera  on  the  table  in  tiie 
[  upper  room,  also  part  of  the  same  premises,  with  inU'nt  fraudulently  to 
obtain  payment  for  them  as  for  so  many  gloves  finL-^hed  by  them.  Tiie 
gloves  were  never  off  the  master's  premises.  Doui)ting  the  sufficiency 
of  this  evidence,  I  reserved  the  point,  and  orders  ■  i,iie  prisoners  to  be 
1  bailed  on  finding  sureties.'  G.  Bramweix. 

Tliis  case  was  argued  on  November  21,  1857,  before  Cockburn,  C. 
jj.,  Erle,  J.,  WiLUAMS,  J.,  Cuompton,  J.,  and  Ciiamnei.i,,  B. 

E.  V.  Richards  appeared  for  the  Crown  ;  no  counsel  appeared  for  the 
[prisoners. 

E.  V.  Richards,  for  tl>e  Crown.  This  case  was  tried  bef««?<»  Br \>r- 
IwKLL,  B.,  and  tlie  case  of  Jicfjina  v.  Hoikomnii^'  being  '-aM  oh  beliaif  of 
Ithe  prisoner,  his  lordship  considered  tliMt  the  decision  in  '  <at  case  could 
Inot  be  supported,  and  in  that  view  Maktis.  IJ.,  csoHCurred.  and  tlie  point 


1  SeeBeg.  v.  Holloway.  1  Den.  C.  C.  3T0. 


s  i  tt«4i.  r,.4i.  310. 


394 


LARCENY. 


was  therefore  reserved.  In  Regina  v.  Hollorvay,  the  prisoner  was  in- 
dicted for  stealing  skins  of  leather,  and  there  was  n  special  verdict  that 
the  prisoner  took  the  skins,  not  with  intent  to  sell  or  dispose  of  them, 
but  to  bring  them  in  and  i-harge  them  as  his  own  work,  and  to  get  paid 
by  his  master  for  them ;  the  skins  not  having,  in  fact,  been  dressed  by 
tlie  prisoner,  but  by  another  workman;  and  the  court  liold  this  not  to 
be  a  larceny.  That  case  wss  followed  by  Eerjina  v.  //o^^^  in  which  the 
prisoner  wrongfully  took  the  goods  of  t.ie  prosecutor,  and  offered  them 
for  sale  to  the  prosecutor  as  the  goods  of  another  person,  and  that  was 
held  to  be  a  larceny;  and  Alderson,  B.,  distinguished  that  case  from 
Regina  v.  HoVoway  by  saying  that  in  the  latter  case  the  prisouer  never 
intended  to  treat  the  goods  as  the  property  of  any  one  but  the  real 
owner.     I  can  not  distiancuish  the  present  case  from  that  of  Ronina  ' 

HoUoKay. 

EuLE,  J.  The  law  is  correctly  laid  down  in  Regina  v.  Holloway,  and 
the  distinction  between  that  case  and  Regina  v.  Hall,  is  very  clear. 
The  test  is  whether  the  person  who  takes  tlie  property,  assumes  to  ex- 
ercise dominion  over  it  as  owner.  The  offer  to  sell  in  Regina  v.  Hall, 
was  tlie  strongest  evidence  of  the  intention  of  the  prisoner  to  exercise 
dominion  over  the  goods . 

Williams  J. ,  referred  to  in  Rex  v.  Webb,^  in  which  it  was  held  that  it  war, 
notlarcenyfor  miners  employed  to  bring  ore  to  the  surface,  and  paid  b 
the  owners  according  to  the  quantity  produced  to  remove  from  the  heaps 
of  other  miners,  ore  produced  by  them,  and  add  it  to  their  own,  in  or- 
der to  increase  tlieir  wages,  the  ore  still  remaining  in  the  possession 

of  the  owner. 

EuLE,  J.     In  larceny  there  must  be  the  intent  to  vest  the  property 

in  the  thief  by  wrong. 

Rirhanls.  It  is  said  in  Reginnv.  IloUmony,  that  the  intention  must  be 
pi>nnane:itly  to  deprive  tlie  owner  of  the  property,  but  it  seems  to  be  a 
dangerous  doctrine  tliat  an  intention  to  return  will  excuse  the  t:iking. 
Here  the  intenion  wna  to  return  tlie  gloves  to  the  owner,  but  subject  to 
a  lion  for  the  work  intended  to  be  done  upon  tliem. 

CocKuiiiN,  C.  J.     Not  so.     There  is  no  lien. 

Ckomi'ton,  J.  If  the  prisoner  had  obtained  a  lien,  the  case  might 
have  been  different ;  but  the  offense  intended  seems  to  be  that  of  ub- 
taininsf  nuuu  y  by  false  pretenses. 

EiM.E,  J.  It  is  important  that  offenses  should  lie  accurately  defined, 
and  R>'gi)h'  v.  HoUoimy  h&s  deftm-d  the  animm  fnrandi,  to  mean  an 
intemion  to  vest  the  property  in  (he  thief  by  wrong,  and  consequently 
to  divest  tlie  veal  owner. 


'  1  t»«n.  ().  V.  ;!81. 


>  1  M<m.  C.  C.  *^i. 


n.  V.  HOLLOWAY. 


395 


prisoner  was  in- 
cial  verdict  that 
ispose  of  them, 

and  to  get  paid 
been  dressed  by 
,  hold  this  not  to 
xZ/,1  in  which  the 
md  offered  them 
n\,  and  that  was 

that  case  from 
e  prisoner  never 
)ne  but  the  real 
bat  of  Rffjina  ^ 

V.  Holloway,  and 
II,  is  very  clear. 
,',  assumes  to  ex- 
Regina  v.  Hall, 
soner  to  exercise 

as  heW  that  it  war. 
'aee,  and  paid  b 
re  from  the  heaps 
their  own,  in  or- 
n  the  possession 

est  the  property 

intention  must  1(C 
t  it  seems  to  be  a 
ixcuse  tlie  tsiking. 
jr,  but  subject  to 


1,  the  case  might 
to  be  that  of  ob- 

ccurately  defined, 
andi,  to  mean  an 
ami  consequently 


CocKBCRN,  C.  J.  I  do  not  see  how  this  case  is  distinguishable  from 
Regina  v.  HoUoivay,  which  I  think  is  decided  on  verj-  sound  principles. 

Cromftox,  J.     I  confess  1  am  n"*^^  quite  so  clear  as  to  the  principle  of 

that  decision.     If  this  had  been  i,iie  first  time  tiie  point  had  been  raised 

I  should  have  been  inclined  to  think  that  there  was  sufficient  here  to  make 

out  the  lucri  causa;  but  we  are  bound  by  authority,  and  the  conviction 

must  be  quashed. 

Conviction  quashed. 


MUST   BE   PER- 


LARCENY  -  TAKING  —  DEPRIVATION    OF    PROPERTY 
MANENT  NOT  TEMPORARY. 

R.  V.  IIoi.I.OWAY. 


[I  Ueu.370;  L'C.  &  K  943] 
In  the  English  Court  for  Crown  Cases  Reserved,  1848. 

1.  Deflnittonof  Larceny  — There  moiit  bo  Permanent  Deprivation  of  Property.— 

Larceny  is  the  fraudulent  taking  tlje  personal  goods  of  anotlier  with  tlie  felonious  intent 
to  convert  them  to  the  takir's  own  use,  witliout  the  consent  of  the  owner  —  "  felonious" 
meaning  without  color  of  right  for  the  act  and  "  intent"  to  deprive  tlie  owner  not  tem- 
porarily but  permanently  of  the  property. 
:i.  Case  in  Jadgrment.  —  A.  who  was  in  the  employ  of  B.,  a  tanner,  took  skins  from  the  ware- 
house of  n.  10  C.  the  foreman  of  11.  at  another  part  of  the  premises  pretending  that  he 
had  done  work  on  them  for  which  he  win  to  be  paid.  A.  intended  to  return  the  skins  to 
his  master  when  he  had  been  paid  for  his  pretended  work  on  them.    HeUt,  not  larceny. 

The  following  case  was  reserved  to  this  court :  — 

The  prisoner  William  HoUowa}^  was  indicted  at  the  General  Quarter 
Sessions  holden  in  and  for  the  Borough  of  Liverpool,  on  December 
the  fourth,  one  thousand,  eight  hundred  and  forty-eight,  for  stealing 
within  the  jurisdiction  of  the  court,  one  hundred  and  twenty  skins  of 
leather,  the  property  of  Thomas  Barton  and  another. 

"Thomas  Barton  and  another  were  tannei-s,  and  the  prisoner  was  one 
of  many  workmen  employed  by  them  at  their  tannery,  in  Liverpool,  to 
(liess  skins,  of  leather.  The  skins,  when  dressed,  were  delivered  to  he 
foreman,  and  every  workman  was  paid  in  proportion  to  and  on  account  of 
the  work  done  by  himself.  The  skins  of  leather  wci-e  afterwards  stored 
in  a  warehouse  adjoining  to  the  workshop.  The  prisoner,  by  opening  a 
window,  and  removing  an  iron  bar,  got  access  clandestinely  to  the  ware- 
house, and  carried  away  the  skins  of  leather  mentioned  in  the  Indicft- 
iiunt,  and  which  had  been  dressed  by  other  workmen.  The  prisoner 
''id  not  remove  these  skins  fiom  the  tannery,  but  they  were  sron  and 
rceogiiized  the  following  day  at  the  porch  or  place  where  he  usually 
worked  in  the  workahoi)      It  was  proved  to  bo  a  common  practice  at 


396 


LARCFW. 


the  tannery  for  one  workman  to  lend  work,  that  is  to  aay,  skins  of 
leather  dressed  by  him,  to  another  workman,  and  for  the  borrower  in 
such  case  to  deliver  the  work  to  the  foreman,  and  get  paid  for  it  on 
his  own  account,  and  as  if  it  were  his  own  work. 

"A  question  of  fact  arose  as  to  the  intention  of  the  prisoner  la  i^^ ik- 
ing the  skins  from  tiie  warehouse.  The  juiy  found  that  the  prisoner 
did  not  intend  to  remove  the  skins  from  the  tannery,  and  dispose  of 
them  elsewhere,  but  that  his  intention  in  taking  them  was  to  deliver 
them  to  the  foreman,  and  to  got  paid  for  tlnnn  as  if  they  were  his  own 
work,  and  in  this  way  he  intended  the  skins  to  be  restored  to  the  pos- 
session of  his  masters. 

"The  question  is,  whether  on  the  finding  of  the  jury,  the  prisoner 
ought  to  have  been  convicted  of  larceny. 

"Judgment  was  postponed,  and  the  prisoner  was  liberated  on  bail 
taken  for  his  aipearanceat  the  next  or  some  subsequent  Court  of  Quar- 
ter Sessions,  to  receive  judgment  or  some  final  order  of  the  court." 

On  the  20th  January,  184!;,  this  case  was  argued  befoio  Lord  Den- 
man,  C.  J.,  Paufk,  B.,  Alukkson,  B.,  Coltman  J.,  Coleuidge,  J. 

Lowndes,  for  the  Crown. 

Pahke,  B.     Is  this  case  distinguishable  from  R.  v.  Webb.^ 

LowHles.  I  distinguish  it  thus.  I,i  that  case  there  was  no  taking  at 
all  from  the  possession  of  the  owner.  There  was  no  positive  physical 
act  which  showed  an  intention  to  defraud  the  owner. 

Aldkuson,  B.  Here  he  only  removes  the  skins  from  one  part  of  the 
workhouse  to  the  other. 

CoLEKiDCJE,  J.  In  R.  V.  Webb,  there  was  the  space  between  tlie 
heaps  of  ore  and  a  removal  over  that  space ;  and  the  intention  to  injure 
the  owners  was  necessarily  involved  in  tiic  uct  of  removal. 

Pauke,  B.  The  dilHcidty  here  is  that  it  is  essential  to  larceny,  that 
there  should  be  a  taking  with  intent  wholly  to  deprive  the  owner  of 
his  property  ;  a  mere  temporary  appropriation  is  not  enough  to  consti- 
tute a  felonious  taking.  Here  the  intent  was  to  return  them  to  the 
master. 

Lowndes.  The  older  authorities  show  that  such  intent  is  not  neces- 
sary, but  that  an  intent  to  return  the  chattel  in  an  impaired  or  altered 
state  will  constitute  the  offense.  In  R.  v.  Privett  and  Goodhali;^  tlie 
3wner  can  not  be  said  to  have  been  wholly  deprived  of  the  cats ;  they 
were  applied  to  his  use,  though  improperly.  Here  the  skins  w-re  taken 
wrongfully,  and  though  witli  a  view  of  returning  them  to  the  m aster,  it 
was  not  until  they  had  been  first  made  the  means  of  defrauding  him  ; 
therefore  they  can  not  be  said  to  have  been  returned  to  him  in  the 
same  state  as  wiien  taken.     They  had  other  incidents  attached  to  them 


1  1  Moody,  C.  C.  431. 


1  Don.  193. 


Btorw»!0*<PiT:sr).^'^-i:v»K'y  ■ 


R.  V.  HOLLOW  AY. 


397 


is  to  say,  skins  of 
)r  tlie  borrower  in 
a;et  paid  for  it  on 

he  prisoner  in  J,  ik- 
that  the  prisoner 
ry,  and  dispose  of 
em  was  to  deliver 
they  were  his  own 
Jstored  to  the  pos- 

jurj,  the  prisoner 

liberated  on  bail 
2nt  Court  of  Quar- 
of  the  court." 
befoio  Lord  Den- 

OoLEUIDGE,  J. 

,  Webb.^ 

0  was  no  taking  nt 

'  positive  physical 

im  one  part  of  tlie 

)ace  between  tlie 
inlention  to  injure 
loval. 

al  to  larceny,  that 

rive  tlie  owner  of 

enough  to  consti- 

etuia  them  to  the 

atent  is  not  neces- 
np  aired  or  altered 
md  Goodhall,'^  the 
of  the  cats ;  they 
jc  skins  wf^re  taken 
n  to  the  mvster,  it 
f  defrauding  him ; 
ned  to  him  in  the 
i  attached  to  them 


by  the  wrongful  act  of  the  prisoner,  which  incidents  carried  with  them 
an  intent  to  deprive  the  owner  of  his  property.  The  taking  was  clearly 
a  trespass ;  it,  therefore,  was  such  a  taking  as  to  support  a  charge  of 
liirceiiy,  provided  the  object  of  the  taker  was,  to  convert  them  to  his 
own  uso  wrongfully.  It  clearly  was  so.  The  old  authorities  show  that 
where  there  has  been  a  fraudulent  taking,  and  an  intention  on  the  part 
of  the  taker  to  use  the  thing  taken  as  his  own  and  so  wrongfully  to 
assert  an  entire  douunion  over  the  thing  jjm  tanto,  there  is  no  necessity' 
tha  he  should  also  intend  to  deprive  the  owner  wholly  of  his  property 
forever.  It  is  true  that  where  such  intention  exists,  coupled  with  a 
taking,  every  &iich  act  is  a  larceny  ;  but  there  may  be  a  larceny  without 
such  intention.  Surely  it  would  be  a  larceny  to  take  a  horse  out  of 
A.'s  stable  with  a  view  of  using  him  for  six  months,  and  then  return- 
ing it  to  A.  If  it  be  not,  what  length  of  user  on  the  part  of  the  taker 
will  make  the  taking  felonious? 

In  the  Mirror,  it  is  said,  "  Larcine  est  prise  d'autre  moeble  corporelle 
trechcrousment  contre  la  volunt  de  celu}'  a  q.  il  est  p.  male  egaigne  de 
la  possession,  ou  del  use."  Tlie  mere  wrongful  taking  for  the  purpose 
of  US""  is  h'H'e  said  to  be  larceny.  It  is  true  that  Bracton  expands  the 
words  '■'■  prise  trecherousmenf  into  ^^  contrectatio  frauditlenta  cum 
auimo  furundi ;  "  Fleta  uses  precisely  the  same  words  ;  and  Coke^  calls 
it  "the  felonious  and  fraudulent  taking."  But  the  question  still 
remains,  what  is  meant  by  felonious?  Is  not  the  definition  in  the 
Mirror  correct,  which  says  that  a  wrongful  and  fraudulent  taking  to 
use  is  a  larceny  ? 

Ai.oEusoN,  B.  If  a  servant  takes  a  horse  out  of  his  master's  stable, 
:ind  turns  it  out  into  the  road  with  intent  to  get  a  reward  the  next  day 
by  bringing  it  back  to  his  master,  would  that  be  larcenj'? 

Pauke,  B.,  cited  R.  v.  Phillips,^  an  showing' that  a  wrongful  taking 
for  a  temporary  user  was  not  larceny,  even  though  the  takers  there 
were  found  by  the  jury  to  be  perfectly  indifferent  whether  the  owner 
ever  recovered  his  property  or  no,  and  certainly  to  have  had  no  inten- 
tion of  returning  it  to  him  themselves. 

Lowndes  then  said  that  '*  tiie  court  thought  fit  to  send  back  tlic  case 
to  the  recorder  to  be  restated,  the  evidence  would  show  that  there  was 
another  ground  on  which  the  conviction  might  he  supported. 

Lord  Denmav  C.  J.,  intimated  that  the  court  would  not  take  that 
course ;  that  the  case  should  be  so  stated  as  to  enable  the  court  to  give 
their  decibion  in  the  first  instance.^    And  in  giving  judgment  against 


>  3  Inst.  cap.  47. 

2  2  East.  P.  C,  ch.  in,  800.  98. 

3  By  Stat.  11  and  13  Vict.,  ch.  78,  sec.  4,  itlB 
enactod, "  that  the  satd  justices  and  barons, 
when  a  cast)  has  been  reserved  tor  their 
opinion  shall  have  power,  it  they  think  fit, 


to  cause  the  case  or  certiflcato  to  be  sent 
back  for  amendment,  and  thereupon  the 
same  shall  be  amended  accordiagly,  and 
Judgment  shall  be  deliTere('  after  it  shall 
have  been  amended." 


398 


LARCENY. 


the  conviction,  lie  said  tliat  if  this  case  could  be  considered  open  upon 
the  authorities,  tlu-rc  seemed  great  reason  to  hold  tliat  it  was  a  larceny, 
but  that  as  tlie  court  had  so  lately  determined  that  the  intention  of  the 
taicer  must  be  to  deprive  the  owner  wholly  of  his  property,  the  convic- 
tion could  not  be  supported. 

Pakke,  B.  Wc  are  bound  to  say  that  this  is  no  larceny.  The  books 
do  not  give  a  full  definition  of  that  crime  ;i  East's  Pleas  of  the  Crown 
defines  it  with  perhaps  more  accuracy  than  other  writers  to  be  "the 
wrongful  or  fraudulent  taking  and  carrying  away  by  any  person  of  tiie 
mere  personal  goods  of  another  from  any  place  with  a  felonious  intent  to 
convort  them  to  his  (the  taker's)  own  use,  and  make  them  his  property 
without  the  consent  of  the  owner.  But  this  definition  needs  some  addi- 
tion ;  the  taking  should  be  not  only  wrongful  and  fraudulent,  but  should 
a' so  be  "  without  any  color  of  right."  All  the  cases  show  that  if  the 
intention  were  not  to  take  the  entire  dominion  over  the  property  that  is 
no  larceny.  R.  v.  Phillips,  and  Strong;^  is  the  earliest  case  on  the  sub- 
ject, and  there  are  others  to  the  same  effect.  Then  there  is  the  case  of 
R.  v.  Webb,^  which  is  precisely  the  same  as  the  present  case.  There- 
fore the  essential  element  of  larceny  is  here  wanting,  viz.,  the  intention 
to  deprive  the  owner  wholly  of  his  property. 

Aldkrson,  B.,  and  Coleridge,  J.,  concurred. 

CoLTMAN,  J.  It  is  safer  to  be  guided  by  the  cases  than  by  the  defini- 
tions given  by  text-writers.  If  on  looking  tlu-ough  all  tlie  cases  on  tlie 
subject,  it  seems  to  have  been  considered  that  a  taking,  though  wrong- 
ful, for  a.  mere  temporaiy  purpose,  does  not  amount  to  larceny,  we 
must  be  governed  by  such  authority,  even  though  some  old  definitions 
would  soem  to  warrant  a  different  judgment.  It  is  difficult  to  frame 
definitions  so  as  to  be  absolutely  correct;  they  are  constantly  amended 
and  explainer!  by  the  cases. 


LARCENY  — CAPTION  AND  ASPORTATION  ESSENTIAL. 

Edmonds  v.  State- 


[70  Ala.  S.] 
In  the  Supreme  Court  of  Alabama,  1881. 

1.  Caption  and  Asportation  Ewential  to  Larceny  -  To  oonBtitute  larceny  the  posbab- 
Bion  of  the  thing  must  pass  Irinn  the  owner.  Th.T.;fore,  whore  K.  with  corn  coaxed  a 
hojr  twenty  yards,  and  then  struck,  it  witli  iin  ax,  wlwn  the  hog  squealeJ  and  E.  ran  away 
and  left  it :    Held,  that  E.  was  not  guilty  of  larcenj. 


1  cii.  16,  sec.  2. 


*  East's'  P.  C,  ch.  W,  vcc.  98. 


3  1  Moo.  C.  C.  431. 


....im.iiiiiiiiMi 


KDMOND8  V.  STATE. 


399 


ered  open  upon 
t  was  a  larceny, 
intention  of  the 
rty,  the  convic- 

ny.  The  books 
as  of  the  Crown 
ters  to  be  "  the 
y  person  of  tlie 
lonions  intent  to 
era  his  property 
lecds  some  acldi- 
lent,  but  should 
5how  that  if  the 
property  that  is 
case  on  the  sub- 
re  is  the  case  of 
it  case.  There- 
z. ,  the  intention 


an  by  the  defini- 
tlic  cases  on  the 
,  though  wrong- 
t  to  larceny,  we 
le  old  definitions 
lifficult  to  frame 
»tautly  amended 


BNTIAL. 


I. 

te  larceny  the  poBsfiB- 
;.  with  corn  coaxed  a 
saleJ  and  E.  ran  away 


3  iMoo.  C.  C.431. 


Appeai-  from  KusscH  County. 

SoMERviLLK,  J.  The  indictment  in  this  case  charges  the  defendant 
with  the  larceny  of  a  bog,  which,  under  the  statute,  is  made  a  felony, 
without  reference  to  the  value  of  the  animal  stolen.^ 

The  only  evidence  in  the  case  showing  any  caption  or  asportation  of 
tlie  animal  was  the  testimony  of  an  accomplice,  one  Wadworth  who, 
made  the  following  statement :  th.at  shortly  after  dark,  on  the  18th  of 
February  last,  w'itncss  met  defendant  near  the  liorse  lot,  on  the  planta- 
tion of  one  Ili:^e3 ;  that  the  two  went  together  to  witness'  house,  where 
the  latter  procured  an  axe,  and  they  then  returned  to  the  lot.  Witness 
then  got  some  corn,  and,  after  giving  defendant  the  axe,  by  dropping 
some  corn  on  the  ground,  "  toled"  the  hog  to  the  distance  of  about 
twenty  yards  ;  the  defendant  then  struck  the  hog  with  the  axe,  and  the 
hog  squealed,  wliereupon,  imfnediately,  botli  the  witness  and  defendant 
ran  away,  leaving  the  hog  where  it  was. 

Upon  this  state  of  facts  the  court  charged  the  jury  tiiat,  if  they  be- 
lieved the  evidence,  it  was  sufficient  to  show  such  a  taking  and  carrying 
away  of  the  propertj',  if  done  feloniously,  as  was  necessary  to  make  out 
the  offense  of  larceny. 

Wq  think  the  court  erred  in  giving  this  charge,  though  the  question 
presented  is  not  free  from  some  degree  of  difficulty  and  doubt.  The 
usual  definition  of  larceny  is,  "the  felonious  taking  and  carrying  away 
of  tlie  personal  goods  of  another."  -  It  is  defined  in  Roscoe's  Criminal 
Evidence  as,  "  the  wrongful  taking  possession  of  the  goods  of  an- 
other, with  intent  to  deprive  the  owner  of  the  property  in  them."  ^  It 
is  a  well  settled  rule,  liable  to  some  few  exceptions,  perhaps,  that 
every  larceny  necessarily  involves  a  trespnss,  and  that  there  can 
he  no  trespass  unless  there  is  an  actual  or  constructive  taking 
of  possession,  and  this  possession  must  be  entire  and  absolute.'' 
There  must  not  only  be  such  a  caption  as  to  constitute  possession 
of,  or  domination  over  the  property,  for  an  appreciable  moment  of 
time,  but  also  an  asportation,  or  carrying  away,  which  may  be  accom- 
I'lisbed  by  any  removal  of  the  property,  or  goods,  from  the  orig- 
inal status,  such  as  would  constitute  a  complete  severance  from  the 
possession  of  the  owner.  ^  It  has  been  frequently  held,  that  to  chase 
and  shoot  an  animal,  with  felonious  intent,  without  removing  it  after 
being  shot,  would  not  be  such  a  caption  and  asportation  as  to  consum- 
mate the  offense  of  larceny."  So  it  has  been  decided  that  the  mere 
upsetting  of  a  barrel  of  turpentine,  though  done  with  felonious  intent, 


1  Code  1870,  se.5.  4368. 
-  4  l!la.  Com.  229. 
'■''  hi.  «22. 

'  HohfDo's  Cr.  Ev.  023,624;    3  Qreenl.  on 
Ev  .^ec.  134. 


0  1  Greenl.  on  Ev.,  sec.  154 ;  Roscoe's  Cr. 
Ev.  64.'5. 

«  Wolf  V.  State,  41  Ala.  412;  State  v, 
Seagler,  1  Rich.  (8.C.)30;2  Bish.Cr.  L.,sec. 
797. 


400 


LAUCEXY. 


floes  nut  complete  the  offense,  for  the  same  reason.*     The  books  arc 
full  of  cases  presenting  similar  illustrations. 

On  the  contrarj',  it  is  equally  well  settled,  that  where  a  person  takes 
an  animal  into  an  inclosure,  with  intent  to  steal  it,  and  is  arprehended 
before  he  can  get  it  out,  he  is  guilty  of  larceny. ^  In  Wisdom's  Case,'^ 
it  was  said,  orgiut'ndo,  by  Mr.  Justice  Goldthwaite:  "If  one  entice  a 
horse,  hog  or  other  animal,  by  placing  food  in  such  a  situation  us  to 
operate  on  the  volition  of  the  animal,  and  he  assumes  the  donsmion 
over  it,  and  has  it  once  under  his  control,  tiie  deed  is  complete ;  but  if 
we  suppose  him  detected  before  he  has  the  animal  under  his  control, 
yet  after  he  has  operated  on  its  volition,  the  offense  would  not  be  con- 
summated." This  principle  is,  no  donbt,  a  correct  one,  but  the  true 
difficulty  lies  in  its  proper  application.  It  is  clear,  for  example,  if  one 
should  thus  entice  an  animal  from  the  possession,  actual  or  constructive, 
of  the  owner,  and  "  tole  "  it  into  his  own  inclosure,  closing  agate  behind 
him,  the  custody  or  dominion  acquired  over  the  animal  might  be  re- 
garded as  so  complete  as  to  constitute  larceny.''  It  is  equally  manifest 
that  if  one  should,  in  like  manner,  entice  an  animal,  even  for  a  consid- 
erable distance,  and  it  should,  from  indocility  or  other  reason,  follow 
him  so  far  off  as  not  to  come  virtually  into  his  custody,  the  crime  would 
be  incomplete. 

The  controlling  principle  in  such  cases  would  seem  to  be,  that  the 
possession  of  the  owner  must  be  so  far  changed  as  that  the  dominion  of 
the  trespasser  shall  be  complete.  His  proximity  to  the  intended  booty 
must  be  such  as  to  enable  him  to  assert  this  dominion  by  taking  actual 
control  or  custody  by  manucaption,  if  he  so  wills.  If  he  abandons 
the  enterprise,  however,  before  being  placed  in  this  attitude,  he  is  not 
guilty  of  the  offense  of  larceny,  though  he  maj'^  be  convicted  of  an  at- 
tempt to  commit  it.^  It  would  seem  there  can  be  no  asportation  within 
the  legal  acceptation  of  the  word  without  a  previously  acquired  domin- 
ion. 

The  facts  of  this  case,  taken  alone,  do  not  constitute  larceny.  It  is 
not  a  reasonable  inference  from  them,  that  there  was  such  a  complete 
caption  and  asportation  as  to  consummate  the  offense. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause  is  re- 
manded. 


1  State  V.  Jones,  U5  N.  C. 

i  3  Inst.  lOU. 

»  8  Port.  607, 519, 


395. 


*  a  Blab.  Or.  L.  see.  806. 
»  Wolf  t>.  State,  41  Ala.  412. 


-  '<niiiiim  ommijiimiiMMIiliiUMfttiiiKiitl^ 


tmmmm 


B.  V.  OAUl>N£R. 


401 


I    The  books  arc 

ere  a  person  takes 
lul  is  arprehended 
1  Wisdom's  Cuse,'^ 
' '  If  one  entice  a 
a  situation  us  to 
aaes  the  donsmion 
3  complete ;  but  if 
aider  his  control, 
would  not  be  con- 
one,  but  the  true 
)r  example,  if  one 
lal  or  constructive, 
)siug  a  gate  behind 
imal  might  be  re- 
is  equally  manifest 
even  for  a  consid- 
ther  reason,  follow 
y,  the  crime  would 

3m  to  be,  that  the 
lat  the  dominion  of 
the  intended  booty 
)n  by  taking  actual 
If  he  abandons 

attitude,  he  is  not 
jonvicted  of  an  at- 

asportation  within 
ly  acquired  domiu- 

tute  larceny.    It  is 

as  such  a  complete 

e. 

knd  the  cause  is  re- 


»c.  806. 
1  Ala.  as. 


LARCENY— INSUFFICIENT  TAKING. 
K.  V.  GAUDNEft. 

[L.  &C.  243.] 
In  the  English  Court  fur  Crotm  Cases  Reserved,  1862. 

A.  Found  a  Oheok,  and  belnir  TTnable  to  read  showed  It  to  G.  who  told  him  it  was  only 
an  old  check;  that  ho  wished  to  show  it  to  a  fiiond.  G.  kept  the  chock  on  different 
excuses,  in  the  hopes  of  getting  the  reward  which  might  be  offered  for  it.  Iltlil,  that 
this  constituted  no  "  taking"  from  A.  such  as  would  amount  to  larceny. 

The  following  case  was  stated  by  the  Deputy  Assistant  Judge  of  the 
Middlesex  Sessions. 

At  the  Middlesex  Adjourned  Sessions,  holden  on  the  25th  of  August, 
1862,  Edward  Gardner  was  tried  before  me  on  an  indictment  charging 
him  in  the  first  count  with  stealing  one  banker's  check  and  valuable 
security  for  tlie  payment  of  £82  lOs.,  and  of  the  valuo  of  £82  19s,  and 
one  piece  of  stamped  paper  of  the  property  of  James  Goldsmith, 

In  the  second  count  the  property  was  stated  to  be  the  property  of 
Thomas  Boucher. 

It  appeared  from  the  evidence  of  ITiomas  Boucher,  a  lad  of  four- 
teen, that  he  found  the  check  iii  question ;  that,  having  met  the  pris- 
oner, Gardner,  in  whose  service  he  had  formerly  been,  he  showed  it  to 
him;  that  the  prisoner  (Thomas  Boucher  being  unable  to  read)  told 
him  that  it  was  only  an  old  check  of  the  Royal  British  Bank,  and  that 
he  wished  to  show  it  to  a  friend,  and  so  kept  the  cheek. 

It  was  also  proved  that  Boucher,  very  shortly,  on  the  same  day,  went 
to  prisoner's  shop,  and  asked  for  the  check ;  that  the  prisoner  from 
time  to  time  made  various  excuses  for  not  giving  up  the  check ;  and 
that  Boucher  never  again  saw  the  check. 

It  also  appeared  that  the  prisoner  had  an  interview  with  Goldsmith, 
in  which  he  said  that  he  knew  the  check  was  Goldsmith's,  asked  what  re- 
ward was  offered,  and,  upon  being  told  five  shillings,  said  he  would 
rathor  light  his  pipe  with  it  than  take  five  shillings. 

The  check  has  never  been  received  either  by  Goldsmith  or  Boucher ; 
though  there  was  some  evidence  (not  satisfactory)  by  prise  ner's  brother 
of  its  having  been  enclosed  in  an  envelope  and  put  under  the  door  of 
Goldsmith's  shop. 

The  jury  found,  "  that  the  prisoner  took  the  check  from  Thomas 
Boucher  in  the  hopes  of  getting  the  reward ;  and,  if  that  is  larceny,  we 
find  hira  guilty." 

1  thereupon  directed  the  verdict  of  guilty  to  be  entered,  and  reserved 
for  the  opinion  of  the  court,  whether  upon  the  above  finding,  the  pris- 
oner was  properly  convicted. 

3  l>i;i.K?>iK3.  j>e 


^*-*»' 


402 


LARCENY. 


This  case  was  argued  on  the  15th  November,  18G2,  before  Pollock,  C. 
B.,  WioiiTMAN,  J.,  Williams,  J.,  Ciiannkll,  B.,  anil  Mkllou,  J. 

J  Best  (Bedey  with  him),  for  the  prisoner.  The  facts  in  this  case  ... 
not  amoiuit  to  larceny.  The  jury  have  fuunil  that  the  prisoner  kept  tl.e 
check  in  the  hope  of  getting  a  reward.  There  was,  therefore,  no  felom- 
ous  intent  on  his  part.  In  Rerjiua  v.  York^  the  prisoner  had  found  a 
watch;  and  the  jury  brought  in  a  verdict  of  "not  guilty  of  steahug 
the  watch,  but  guilty  of  keeping  possession  of  it  in  the  liope  of  reward 
from  the  time  he  first  had  the  watch. ' '  Upon  argument  it  was  held  that 
that  finding  amounted  to  an  acquittal.     (He  was  then  stopped. ) 

Kemp,  for  tlic  Crown.  It  may  be  admitted  tlmt  it  is  not  larceny  tor 
the  finder  of  a  lost  chattel  to  Iceep  it  in  the  hope  of  getting  any  rewar.l 
that  may  be  offered  for  it.  Here,  however,  the  boy,  Boucher,  was  tl.e 
finder,  and  had  by  law  a  right  to  the  possession  of  the  chattel  against 
all  the  world  except  the  right  owner. 

Pollock  C  B.  Armory  v.  Ddamirie;'  is  the  foundation  of  that 
doctrine.     In  this  case  any  one  who  could  read  would  know  to  wliom 

the  check  belonged.  ,      „     ,         ,  .,., 

Kemp.  The  case  states  that  the  boy  could  not  read.  He  showed  the 
check  to  the  prisoner,  who  refused  to  give  it  back  to  him. 

Pollock  C  B.  A  check  is  not  a  chattel,  and  is  not  the  subject  of 
larceny  at  common  law.  In  Rex  v.  Aslett,'^  the  prisoner  was  indicted 
for  embezzling  exchequer's  bills,  an.l  it  was  held  that  the  indictment 
was  not  proved,  because  they  had  not  been  signed  by  a  person  legally 
authorized  to  do  so.  He  was  afterwards  tried  upon  a  second  indict- 
ment," one  count  of  which,  founded  upon  the  15  George  II., ^  describe. 
the  property  as  -  effects,"  ami  was  held  to  have  been  rightly  convicted 
on  that  count.  There  was  also  a  count  describing  them  as  pieces  of 
paper;  but  no  reliance  was  placed  on  that.  How  is  this  prisoner  in- 
dicted in  this  case  ? 

Kemp.     He  is  charged  with  stealing  a  piece  of  stamped  paper. 
Pollock,  C.  B.     Then  it  was  not  a  piece  of  paper,  but  a  check. 

Cur.  adv.  vult. 

The  judgment  of  the  court  vyas  delivered,  on  the  22d  of  ^ovember, 

Po'llock  C  B.  We  are  of  opinion  that  the  facts  stated  do  not  show 
any  felonious  taking.  The  mere  withholding  of  the  check  under  the 
circumstances  of  this  case  did  not  amount  to  such  a  taking  as  is  re- 
quired  to  constitute  the  offense  of  larceny.  ^^^^.^^.^^  ^^^^^^^^^^ 


1  1  Den.  C.  C.  335;  3  Cox  Or.  Cas.  181. 
s  1  strange,  604;  »•  c.  1  Smith  Ld.Cas.  (4th 
ed.),  256. 


3  2  Leach,  C.C.  954. 

4  2  Leach,  C.  C.  !)58;  Rnss.  &  R.  07. 
'  ch.  13,  sec.  12. 


i**^iS>» 


are  Pollock,  C 

KLLOU,  J. 
1  in  this  case  do 
lisoner  kept  tlie 
efci-e,  no  fcloni- 
ner  had  found  a 
lilty  of  stealing 
hope  of  reward 
it  was  held  that 
jtoppcd.) 
I  not  larceny  foi- 
ling any  reward 
loucher,  was  tlie 
I  chattel  against 

indation  of  that 
I  know  to  wliom 

He  showed  the 
im. 

ot  the  subject  of 
ner  was  indicted 
t  the  indictment 
'  a  person  legally 

a  second  indict- 
ee 11.,^  described 
rightly  convicted 
liem  as  pieces  of 

this  prisoner  in- 

iped  paper, 
but  a  check. 

2d  of  November, 

tated  do  not  show 

check  under  the 

I  a  taking  as  is  re- 

viction  quashed. 
1. 

8;  Rnss.  &R.  fi7. 


w  afee  v.  state.  403 

larceny  — taking  essential. 
McAfee  v.  State. 

[U  Tex.  (App.)  (J(i8.] 
In  the  Court  of  Appeals  of  Te.vn.'^,  ISS,'}. 

.  ▲  Neoesawy  Element  of  Theft  Is  tlio  frauiUilont  inking  of  properly  from  the  posses- 
sion of  the  owner,  or  soiiio  one  hohlliig  p.)g»es«lo„  for  lihii.  A  tiikiiiR  by  llio  party 
accused  Is  essential  to  his  guilt  of  theft,  nnd  no  other  subsecpient  connection  with  the 
stolen  properly,  whether  in  good  or  in  bad  faith,  will  of  itself  constjluto  theft;  wheiefr)ru 
it  was  error  to  charge,  In  substance,  that  the  Jury  was  authorized  to  convict  if  they 
believe  that  when  he  purchasted  the  alleged  stolen  property  from  another,  the  defendant 
know  that  the  person  from  whom  ho  purchased  had  no  title  to  the  property,  and  no  right 

lO  8011  itt 

.  PosBeaslon  of  Property  Beoently  Stolen  may  bo  relied  upon  by  the  State  to  connect 
the  defendant  with  the  taking,  but  this  p.)s8ession  maybe  acoountcl  for  by  purchase 
whether  In  good  or  bad  faith.  And  a  purchase  in  bad  faith,  though  it  would  subject  tlio 
accused  to  prosecution  for  knowingly  receiving  stolen  property,  is  matter  defensive  to 
a  prosecution  for  theft  of  the  property  thus  purchased  with  knowledge  that  the  seller 
had  stolen  it. 


Tried  below  before  the 


Appeal  from  the  District  Court  of  Navarro. 
Hon.  L.  D.  Bradley. 

The  indictment  charged  the  appellant  and  John  Bassett  with  the  tlicft 
of  a  cow,  the  property  of  II.  Ilailcy,  in  Navarro  County,  on  the  twenty- 
fifth  day  of  October,  1882.  Upon  his  separate  trial  tlie  appellant  was 
convicted,  and  was  awarded  a  term  of  two  years  in  the  penitentiary. 

Hiram  Hailey  testified,  for  the  State,  that  on  October  25,  1882,  he 
was  going  from  Corsicana  home  in  iiis  two-hor^e  wagon,  his  father 
and  brother  following  a  short  distance  beliind  in  another  wagon.     About 
three  miles  out  from  town,  the  witness  met  the  defendant  and  John 
Bassett  driving  three  head  of  cattle,  including  the  animal  in  question. 
The  witness  saw  tliem  before  they  saw  him.     WIk'h  defendant  and  Bas- 
sett saw  the  witness  they  stopped,  and  permitted  the  cattle  to  leave  the 
road  and  go  to  a  tank  which  lay  toward  the  witness.     The  defendant 
started   off  to  a  branch  as  though  to  water   his  horse.     The  witness 
called  Bassett  and  asked  Lira  what  he  an<l  the  defendant  were  doing 
with  his  cow,  pointing  to  the  animal.     Bassett  replied  that  the  defend- 
ant McAfee  had  bought  the  cow  as  one  of  the  JD  brand,  and  that  he 
witnessed  the  bill  of  sale.     About  that  time  tiie  defendant  came  up 
and  the  witness  asked  him  what  lie  was  doing  with  the  cow,  and  he  re- 
plied that  he  had  bought  her  as  an  unbranded  cow.     Witness  a^kcd : 
"Well,  how  is  this;  one  of  you  claim  to  have  bought  her  as  an  un- 
branded cow,  and  the  other  .says  you  bought  her  as  a  JD   cow." 
Whereupon  defendant  and  Bassett  dopped  their  heads. 
The  wittness  knew  his  cow,  and  claimed  her  as  soon  as  lie  saw  her. 


404 


LARCENY. 


!      hiH  ,.f  Bulc   saving  they  would  do  so  at  the  proper  time.     1  he  wit 
(lie  bill  of  sale,  8a>'ng^     ^  .        ,  ,,a^.u  to  llio  place 

„os8  told  the  part.cs  that  *' «•>  J^^.^^  ^  '  J,,  ^  for  her  delivery 
.here  they  got  her  Basset  ^^^  '^  ' J  "'^^^^^ J  ,,  ,,„,i  ^,,  accept 
next  day,  but  the  -tness  reph  d  to  -^^^^^^^^^  ^,,^  „,,^,,,  ,,  .^and 
him  as  security.     Presentl.v  Sam.  "''^^  '^  '      ^^j^.^i^ut  and  Bas- 

good  f..r  U.  anin.1,  -"^J^;;;-- ^^^  piu^  by,  and  take 
sett  said  \^->';^-:^^j;  \^f  J;:  X^  .^tnds  and  they  were  to  meet, 
her  next  day  to  ^J"""  ' .  .f  ,  .^  ,„„,.„i„g,  uut  defendant  and  Bassett 
The  parties  me  at  I^««^«  '  "^^^^  "^^  ^,  ^^  ,„«  ,,,t  a  small  boy  was  at 
Z  ;:r^l"::i;;tu:S  ;:.:..  ..ht  before,  ..  that  nusUey 
turned  her  out  that  night.  ^^^^^^   ^j^^ut 

The  witness  •-V^-^'^^i^,^^^^^^^  {[  ,,out  four  months  be- 

eighteen  months  before   and  "" '^^^'''^^    »     aswalluwfork  and  under- 
fore  this  time.     Her  color  w     r        h     ma  k  a  ^^^  ^^^^  ^^^^^^ 

bit  in  the  left  and  a  crop  ««^  ;»'*;  ^f ''  f  ^  ^^  ,h,  jown  stroke  or  stem 
7  and  f.  connected,  by  g.vi.ig   he  c ml  ^^  '^     ^^  "^^^^^^  i,i„.     she 

of  a  7,  making  7(„  and  that  brand  on    h      «-  ^^  ^^/^^  ,.,^^  ,,, 

-«^o"7--t;;:i\::rnt  'hTX  pls^ftho  house  of «. 

few  Stock  owned  by  the  witness      n  i  ^^ 

b,a...l  belonged,     "e  «■"*  'f,^,  „:„  t„.„  „„clc,bto  in  the  right  ear. 

never  seen  tl,o  cow  since  lie  saw  the  «'^'.'^""»  '  ,  j,    (  lie  wa« 

Frank  Ilailey,  tUe  bvotber  ot  *«  ^7;™'    " '"/" Ot  on  October 

within,  brother  when  *«y  "«' "'° ''"'™;  I' "^"o"  b^i!e  u,sWfi..l 
.,.5,  ,«e2.  with  the  cow  and  two  o  h„     a^^^^^^ 

::s:"t:iS\rt;the':::'  --.--  --  -■"^•"^' 

state  related  the  o.         nccs  at  ^^= ^      ^^  ^^.^^^  .^^  ^^^^.^.^„ 

with  tho  cow,  as  tiiey  .>  -.e  ulateu  ly  ^,^g 

that,  after  the  meeting  of  the  purt.es  at  '.-.quire  LeetcU  a, 


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Photographic 

Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14S«0 

(716)872-4503 


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Collection  de 
microfiches. 


Canadian  Institute  for  Historical  iVIicroreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Miiwiiiiiwiiiii  I  mmmmm^ '" 


mm^ammt 


M  AFEE   V.  STATE. 


405 


(Ipfendant  and  Bassett  admit  that  tlic}*  believed  tlie  cow  to  be  tlic  jnop- 
irty  of  Hiram  Hailey.  The  names  of  tiie  witness'  sons  were  II.  K. 
and  E.  F.  Hailey.  II.  K.  Ilailcy  signed  liis  name  II.  K.  Ilailey  and  E. 
F.  signed  his  E.  F.  Hailey.  II.  in  the  name  of  the  prosecutor  stands 
for  Iliram,  K.  for  King. 

M.  Iliiskej'  testified,  for  the  State,  that  he  lived  about  three  miles 
sonth  of  Corsieana.  and  owned  a  pasture  there.  No  cattle  wore  i)ut 
into  his  pasture  and  none  turned  out  in  1882,  by  the  witness.  He  liiid 
no  little  boy.  He  had  one  near  neighbor,  and  others  not  very  far  off, 
They  all  have  pastures.     Tlic  State  closed. 

Jack  McAfee  testified,  for  tlie  tlefence,  that  he  and  the  defendant 
were  brothers.  In  October,  1882,  a  man  named  Williams  drove  a  cow 
up  to  the  house  of  the  witness'  motlter,  where  the  defendant  and  the 
witness  lived.  He  inquired  the  w.ny  to  Mr.  W.  A.  Hancock's  i)lace. 
Tlie  cow  was  of  a  pale  red  color,  about  six  years  old ;  marked  with  a 
crop  off  the  right  and  a  swallowfork  and  underbit  in  the  left  ear,  which 
was  the  mark  of  Mrs.  Shones,  then  Mrs.  Newman.  The  cow  was  not 
branded.  The  man  Williams  claimed  the  cow,  saying  that  he  had 
traded  for  her,  and  offered  to  sell  her  to  the  defendant,  and  did  so,  giv- 
ing the  defendant  a  bill  of  sale.  The  defendant  wrote  the  bill  of  sale, 
Williams  signed  it,  and  tiie  witness  and  John  Bassett  signed  it  as  wit- 
nesses. The  defendant  signed  Williams'  name,  and  Williams  made  iiis 
mark.  Witness  and  Bassett  signed  it  at  the  request  of  Williams.  The 
witness  examined  the  cow  at  that  time,  but  could  see  no  brand  on  her. 

After  the  trade  si)oken  of,  the  cow  was  put  into  the  iot  and  was  there 
at  sundown,  but  broke  out  that  night,  and  the  witness  had  never  seen 
her  since.  When  Williams  l)rought  the  cow  to  the  house  the  animal 
looked  as  though  she  had  been  run.  Williams  had  lived  in  that  neigh- 
borhood twice  within  the  last  several  years.  Witness  had  never  seen 
Williams  since.  John  Bassett,  Clint  Collins,  Jolui  Bowman,  witness 
and  the  defendant  were  present  when  Williams  drove  up  witli  the  cow. 
The  witness  knew  one  or  two  of  Hailey's  cows,  and  knew  Williamson's 
(Adams'  father-in-law)  76  brand.  Williamson's  mark  was  two  under- 
bits  in  the  left,  and  an  underbit  and  a  notch  out  of  the  end  of  the  right 
ear. 

The  defence  tlien  introduced  in  evidence  the  bill  of  sale,  which  reads 
as  follows :  — 


\ 


188-2. 


"  The  State  of  )        The  County 
Texas.  J    of  Navarro,  s.  s. 

"  Known  all  men  by  these  presents,  that  I  the  undersigned  have  this 
day  bargain,  sold  and  delivered  to  N.  McAfee  one  pale  red  cow,  about 


m'W" 


40(5 


LARCENY. 


sK  vcr,  oM,  marke,!  tha, ;  («s  .taled  l.y  Sr,t  witness)  mlh  no  brand 
pe,.»civable,  wbid,  I  .Ul  warrant  an.,  dcteu,,  all  tjtle.    ^_^_^_^^_^^  ^ 

"  Witness  J.  T.  Bassett,  X 
"J.  K.  McAfee." 

.Tolm  Bowman  testified,  for  tl.e  defence,  that  he  was  at  Mrs.  McAfee's 
in  October,  1882,  when  -'iUiams  came  there  with  a  pale  red  cow  in  the 
mark  de     ibed  by  previous  witnesses,  and  inquired  direettons  to  Han- 
co'k  s      W  1  ams  c  aimed  that  he  had  traded  for  the  cow  and  that  she 
w^s  his  property,  and  he  finally  sold  her  to  ^^^^^^-^^^^^^^ 
presence  of  the  witness,  paid  him  eighteen- dollars  for  her.     Williams 
rove   he  cow  up  quietly.     The  witness  was  at  the  gate  when  the  bill  of 
llewa  IXten      It  was  his  impression  that  Williams  wrote  it  though 
he  was  no   certain.     He  could  see  into  the  house  where  the  bil  of  sale 
'!.s  being  Vitton,  but  paid  little  or  no  particular  attention  to  the  ma^ 
Z      T\Z  witness  could  not  write,  and  he  did  not  write  the  bill  of  sak^ 

'saw  Williams  make  his  mark  to  the  bill  of  sale.  He  saw  th  - 
put  into  the  pen  at  McAfee's  and  had  not  seen  her  since.  The  witness 
ox  mined  her  and  could  find  no  brand  on  her.  She  was  not  branded 
The  witness  had  been  a  witness  for  the  defendant  in  other  eases.  Ihe 
mutters  testified  to  in  regard  to  the  cow  occurred  on  the  12th  or 
rrS  October,  1882,  before  Hai.ey'.  cow  wa-aid  to  have  be^^^^^^^^^^^ 
The  cow  was  quiet  and  did  not  appear  to  have  been  run.  The  witness 
flul  not  know  Williams,  nor  has  he  seen  him  smce. 

CUut  CoUinI  testified  for  the  defence,  that  he  was  at  McAfee's  when 
WU  "ms  brought  the  cow  there  in  October,  1882  He  -  the  ^^^^^^^^^ 
ant  write  the  bill  of  sale  in  the  house  after  he  brought  the  cow.  The 
eo  V  wa  a  pale  red  animal  in  Mrs.  Newnan's  mark,  but  was  unbranded 
H^  Taw  the  cow  in  the  lot  that  evening.  He  saw  Williams  on  the 
prurin  the  neighborhood  a  week  before,  and  saw  him  several  Umes 
Eg  the  previous  spring.     He  did  not  know  where  W.lhams  lived 

*1>ere7cTi;ins  testified,  for  the  defence,  that  on  the  twelfth  day  of 
OetoTer  1882,  he  met  a  man  on  the  road  between  Grice's  and  Black  s, 
^fo  a  ked  if  Hancock  was  at  home.  He  was  driving  a  pale  red  cow  in 
Mr!  Nrwman's  mark,  but  unbranded.  The  witness  asked  him  his  name 
nna  he  said  W^iUiams.  Witness  passed  the  cow  first.  She  turnea 
:  oum  dig  the  conversation,  and  thereby  enabled  witness  to  see 
Tat  she  was  .lot  branded  on  either  side.  McAfee's  was  distant  a  short 
piece,  and  was  between  Grice's  and  Hancock's.  Witness  had  never 
seen  *he  man  Williams  before. 


^^m 


M  AFEE   ?'.  STATE. 


407 


with  no  brand 
Williams,  X 

ASSETT,    X 

McAfee." 

Mrs.  McAfee's 
red  cow,  in  tlie 
eetiona  to  Han- 
w,  and  that  she 
ant,  who,  in  the 
her.     Williams 
when  the  bill  of 
ivrote  it,  though 
3  the  bill  of  sale 
ition  to  the  mat- 
the  bill  of  sale. 
He  saw  the  cow 
;e.     The  witness 
vas  not  branded, 
her  cases.     The 
on  the    12th  or 
o  have  been  lost, 
in.     The  witness 

it  McAfee's  when 
!  saw  the  defend- 
ht  the  cow.  The 
t  was  unbranded. 
Williams  on  the 
him  several  times 
ere  Williams  lived 

lie  twelfth  day  of 
•ice's  and  Black's, 
a  pale  red  cow  in 
sked  him  his  name 
first.  She  turned 
led  witness  to  see 
(vas  distant  a  short 
rVitneas  had  never 


Henry  Swink  testified,  for  the  defence,  that  he  had  seen  the  cow  two 
or  tliree  times,  the  last  time  about  three  miles  from  Corsicana,  on  the 
Pursely  Road.  She  was  grazing  with  other  cattle.  This  was  in  the 
fall  of  1882.  She  was  a  pale  red  cow,  in  Mrs.  Newman's  mark,  and 
was  not  branded.  The  witness  first  saw  this  animal,  when  she  was  a 
year  or  two  old,  on  Tchuacana  Creek.  She  was  then  in  the  same  mark. 
He  next  saw  her  on  Alligator  Creek,  near  Hailcy's.  The  cow  was  near 
a  pasture  wlien  witness  last  saw  her. 

Fred  Black  testified  that  in  November,  1882,  his  brother  Sam  told 
him  to  get  twenty-five  dollars  from  Mr.  Jones  and  take  it  to  K.  H. 
Ilailcy  ;  which  the  witness  did. 

Tom  Bljick  testified,  for  the  defence,  that  in  the  fall  of  1882  he  saw 
the  cow  in  question  bctweeu  Pecan  and  Cedar  Creeks.  As  he  could 
see  no  brand,  lie  roped  and  threw  her  down  and  examined  for  brands. 
Slie  was  not  branded. 

J.  P.  Hailey,  in  rebuttal,  tastified  that  he  had  a  bill  of  sale  on  his 
books,  dated  February  14,  1883,  signed  by  W.  A.  Hancock.  The  wit- 
ness was  not  present  when  it  was  executed.  He  did  not  know  whether 
or  not  it  was  correct,  as  he  had  never  seen  the  cow.  The  witness' 
report,  showing  age,  marks  and  brands  of  cattle  bought  and  killed 
from  January  1  to  May  17,  was  made  out  by  Mr.  Killebrew,  not  pres- 
ent on  this  trial.  Killebrew  made  it  out  from  witness'  books  and  bills 
of  sales,  but  witness  could  not  say  that  it  was  correct  in  all  particulai-8. 
The  report  contains  the  following  entry :  — 

"One  cow,  four  years  old  (the  Newman  mark),  branded  seventy- 
six  (connected),  bill  of  sale  by  W.  A.  Hancock." 

Hiram  Hailey,  recalled,  disputed  several  matters  testified  to  by  the 
witnesses  for  the  defence. 
Tiie  motion  for  a  new  trial  was  overruled. 
William  Croft,  for  the  appellant. 

J.  H.  Burts,  Assistant  Attr  ruey-Gcneral,  for  the  State. 
Hurt,  J.  Nabe  McAfee  was  charged  with  the  tlieft  of  a  cow, 
the  property  of  H.  Hailey.  Hailey  swore  that  liis  name  was  Hiram, 
but  it  appeared  from  the  evidence  that  the  initials  of  his  given  name 
are  K.  H.,  making  K.  H.  Hailey.  Counsel  for  defendant  urged  l)elow, 
and  here  insists,  that  this  was  a  fatal  vaiiance. 

To  allege  H.  an<l  prove  Hiram  would  suffice.  To  allege  Hiram,  and 
prove  that  he  was  commonly  known  as  Hiram  would  be  sufficient, 
though  Hiram  be  the  middle  name.  But  to  allege  H.  and  prove  K.  H., 
the  H.  standing  for  Hiram,  presents  quite  a  different  case.  Under  the 
well  settled  rule  "  that  a  middle  name  or  initial  is  not  known  in  law, 
and  is  treated  as  of  no  consequence  whatever,"  it  would  follow  that  to 
iillcgc  a  middle  name  or  middle  initial  only,  would  not  be  a  basis  for 


|'*S*»  vfelSi .  ' 


408 


LARCKNY. 


proof  of  any  name ;  and  that,  when  the  evidence  developed  the  fact 
that  the  middle  name  or  initial  had  been  charged  in  tlic  indictment,  the 
insutticiency  of  tiie  indictment  would  appear,  and  the  prosecution  crum- 
ble under  audi  au  indictment.  These  observations  have  reference  to 
the  law  as  it  stood  prior  to  tlie  revision. 

By  article  four  hundred  and  twenty-five  of  the  Code  of  Criminal 
Procedure,  it  is  sufficient  to  state  one  or  more  of  the  initials  of  the 
Ciiristian  name,  and  tlie  surname.  This  article  settles  the  question 
against  tlie  defendant. 

Defendant  relied  upon  a  purchase  and  bill  of  sale  from  another 
party.  There  was  evidence  in  support  of  this  defence.  Upon  this 
theory  of  the  case,  the  learned  judge  charged  the  jury  as  follows: 
"3.  If  you  believe  from  the  evidence  that  the  defendant  in  good  faith 
purchased  from  one  Williams  said  cow,  and  that  he  took  and  had  pos- 
session of  the  same  by  reason  of  such  purchase  and  the  bill  of  sale 
introduced,  although  you  may  believe  from  the  evidence  that  it  had 
been  stolen  by  the  said  Williams,  you  are  instructed  that  such  taking 
would  not  constitute  theft,  and  in  that  case  you  will  find  the  defendant 
not  guilty,  unless  you  believe  from  the  evidenc  .hat  defendant  knesv, 
at  the  time,  that  the  said  Williams  had  no  right  x.  •  title  to  or  ownership 
in  said  cow,  or  authority  to  sell  the  same." 

Suppose  that  defendant  took  possession  of  the  cow  by  reason  of  such 
purchase,  what  had  good  faith  to  do  with  this  case?  Let  us  illustrate. 
A.  steals  a  cow.  B.,  with  knowledge  of  the  theft,  buys  the  cow  from 
A.  Shall  we  say,  thereuijon,  B.  stole  the  cow?  Again  A.  steals  a 
cow.  B.,  with  knowledge  of  the  theft,  buys  from  A.  Are  we  not 
forced  to  say,  therefore,  B.  did  not  steal  the  cow,  this  being  the  real 
fact  of  the  case? 

Theft  is  the  fraudulent  taking  of  property  from  the  possession  of  the 
owner,  or  some  one  holding  possession  for  him.  There  must  be  a  tak- 
ing, and  no  subsequent  connection  with  the  stolen  property,  be  it  In 
good  or  bad  faith,  honest  or  fraudulent,  will  constitute  theft. 

If  the  evidence  fails  to  connect  defendant  with  the  taking,  unless  by 
recent  possession,  this  recent  possession  may  be  accounted  for  by  proof 
of  purchase,  whether  in  good  or  bad  faith ;  and  defendant  may  in  law 
urge  the  purchase,  notwithstanding  he  had  full  knowledge  that  the  seller 
had  stolen  the  property.  It  is  true  that  this  would  be  receiving  prop- 
erty knowing  that  it  had  been  stolen,  for  which  the  purchaser,  under 
an  indictment  charging  this  offense,  could  be  tried  and  convicted.  But 
appellant  in  the  case  at  bar  was  tried  for  and  convicted  of  theft.  It 
was  this  charge,  this  offense,  he  was  called  upon  to  meet,  and  no  other ; 
and  he  had  the  right  to  meet  and  defeat  the  charge  of  theft  with  any 


U.  V.  WALKKn  AND  MOHROD. 


409 


leveloped  the  fact 
ilic  indictment,  the 
prosecution  crum- 
i  have  reference  to 

Code  of  Criminal 

the  initials  of  the 

ittles  the  question 

sale  from  another 
fence.     Upon  this 

jury  as  follows: 
idant  in  good  faith 

took  and  had  pos- 
ind  the  bill  of  sale 
ridence  that  it  had 
3d  that  such  taking 

find  the  defendant 
at  defendant  kne(v, 
tie  to  or  ownership 

V  by  reason  of  such 
Let  us  illustrate, 
buys  the  cow  from 
Again  A.  steals  a 
n  A.  Are  we  not 
,  this  being  the  real 

he  possession  of  the 
'here  must  be  a  tak- 
n  property,  be  it  in 
;ute  theft. 

lie  taking,  unless  by 
ounted  for  by  proof 
jfendant  may  in  law 
rledge  that  the  seller 
d  be  receiving  prop- 
he  purchaser,  under 
and  convicted.  But 
avicted  of  theft.  It 
meet,  and  no  other ; 
rge  of  theft  with  any 


matter  which  would  secure  that  purpose,  although  his  guilt  of  another 
offense  sliouUl  be  developed. 

In  the  charge  complained  of,  the  jury  are  told  that  if  defendant  in 
jrood  faith  purchased  the  cow  from  Williams,  and  by  virtue  of  said  pur- 
cliase  took  possession  of  the  cow,  tliey  should  fiixl  the  defendant  not 
guilty,  "  unless  defendant  knew  at  tl»e  time  that  Williams  had  no  right 
or  title  to  or  ownership  in  the  cow,  or  authority  to  sell  the  same." 
Now,  the  jury  are  not  informed  wiiat  they  should  do  in  tlie  event  they 
should  find  from  the  evidence  that  defendant  did  know  that  Williams 
liad  no  right  or  title  to  or  ownership  in  the  cow,  etc.  But  the  inference 
of  guilt  o'f  the  theft  of  the  cow  from  this  charge  is  inevitable.  And  the 
jury  could  have  drawn  no  other  conclusion,  if  they  believed  defendant 
knew  tilt  le  facts,  than  the  guilt  of  defendant. 

If  the  defendant  should  attempt  to  meet  the  proof  of  a  fraudulent 
taking  with  a  purchase  and  bill  of  sale,  his  guilty  knowledge  of  the 
seller's  title  or  right  to  sell  liecomes  of  very  great  importance.  He  will 
not  be  permitted  by  a  sham  purchase,  or  by  any  character  of  purchase, 
whether  in  good  faith  or  otherwise,  to  excuse  the  fraudulent  taking. 

But  suppose  that  the  jury  should  believe  from  the  evidence  that  the 
defendant  did  not  take  the  cow,  but  purchased  the  sarae  with  full  knowl- 
edge that  Williams  had  stolen  her,  he  certainly  would  not  be  guilty  of 
theft.  Hence,  we  conclude  that  if  the  defendant's  connection  with  the 
cow  was  subsequent  to  the  taking,  he  is  not  guilty  of  theft,  whether  this 
connection  be  fraudulent  or  in  good  faith.  We  are  not  discussing  the 
question  as  to  what  is  required  to  constitute  a  principal.' 

We  are  of  the  opinion  that  the  court  erred  in  the  charge  discussed ; 
and  as  this  charge  was  excepted  to,  the  judgment  must  be  reversed  and 

the  cause  remanded.  , 

Revened  and  remanded. 


LARCENY -EVIDENCE  OF  TAKING  ESSENTIAL  -  CORPUS  DELICTI. 

R.  V.  Walker  and  Morrod. 

[Dears.  280.] 

In  the  English  Court  for  Crown  Cases  Reserved,  1864. 

W.  wM  Indicted  «br  the  Larceny  of  six  pounds  of  brass  from  a  foundry.  The  only  evi. 
.fence  was  that  W.,  who  was  employed  on  the  premises,  had  been  scon  to  come  Into  the 
place  where  the  brass  was  kept.    Held,  that  there  was  no  evidence  on  which  to  convict. 

1  see  this  subject  exhaustively  treated  in  Cook  v.  State,  U  Tex.  (App.)  !K. 


410 


LAnCENV. 


The  prisoners  wore  indicted  at  the  Eust  Riding  of  Yorkshire  Ses- 
sions, held  at  Beverley  on  the  3d  of  January,  1854,  for  stealing  six 
ponmls  weight  of  brass  from  Mr.  Crosskill,  with  a  count .«  the  mdict- 

ment  for  receiving.  ,    ,  ,      nr     n        i.-n 

It  was  proved  at  the  trial  that  Walker  had  worked  for  Mr.  Cros  kdl 
and  borne  a  good  character,  for  five  or  six  years.     Ihat  on  the  9th  of 
November  he  left  Mr.  Crosskill's  employment.    That  on  the  9th  of 
November,  Morrod,  who  was  brother  to  Walker's  wife,  offered  for  sale 
in  Beverley,  six  pounds  weight  of  brass  (being  that  charged  m  the  in- 
dictment as  being  stolen  from  Mr.  Crosskill's)  and  a  quantity  of  white 
metal  similar  to  block  tin.     That  the  brass  (which  was  of  a  peculiar 
kind,  and  was  in  ingots  cast  in  moulds  belonging  to  Mr  Crosskill)  was 
usually  left  in  a  shop  the  door  of  which  opened  on  to  the  road  ead.ng 
into  Mr.  CroskiU's  works,  to  which  workmen  on  the  premises  might  have 
access,  the  door  not  being  kept  locked.     That  block  tin  and  white  metal 
were  only  kept  in  the  brass  foundry  within  this  outer  shop  with  a  door 
between  them.     That  Thomas  Morrod  was  employed  f.  •  one  week  on 
Mr.  Crosskill's  premises,  in  September  last,  as  a  bricklayer  s  laborer, 
and  that  in  such  employment  he  would  have  to  pass  along  the  road  into 
Mr.  Crosskill's  works,  and  might  have  access  to  the  outer  shop  (where 
the  metal  called  brass  was  kept),  but  had  never  been  seen  there ;  that  he 
never  had  been  seen  in  the  brass  foundry,  and  could  not  have  gone  in 
there  without  some  of  the  workmen  seeing  him.    T»iat  Walker  was  em- 
ployed  as  an  iron  moulder  at  works  on  the  other  side  of  Mr.  Crosskil  s 
yard      That  he  frequently  went  into  the  brass  foundry  to  borrow  tools, 
and  had  at  times  borrowed  white  metal,  saying  that  he  yante^  it  for 
purposes  of  casting.    Walker  was  apprehended  in  November  at  Wake- 
field      Morrod,  when  he  said  the  brass  on  the  9th  of  November,  stated 
to  the  person  to  whom  he  sold  it  that  Walker's  wife  had  given  it  to  him 
to  sell,  and  that  Walker  had  that  day  left  her  and  gone  into  the  West 
Riding;  which' he  also  stated  to  the  jury  in  his  defence  telling  them 
that  he  did  not  koow  but  that  it  was  honestly  obtained.     It  was  proved 
that  he  had  given  his  name  and  address  to  the  person  to  whom  he  sold 
th.  brass,  knd  immediately  he  heard  that  it  had  been  stolen  from  Mr. 
Crosskill  and  had  gone  to  see  about  it. 

The  chairman  told  the  jury,  that  they  were  not  to  take  what  Morrod 
said  as  to  the  way  he  obtained  the  brass,  as  evidence  against  Walker, 
drawing  their  attention  to  the  fact  that  it  was  easy  for  a  man  who  had 
himself  stolen  it  to  invent  such  a  story,  and  it  was  therefore  not  fair  to 
take  such  into  account  as  evidence  against  the  other  prisoner.     ^ 

The  jury  believing  that  Walker  had  stolen  the  metal,  and  that  Morrod 
had  received  it,  not  knowing  it  to  have  been  stolen,  found  Walker  guilty 
of  stealing,  and  acquitted  Morrod, 


1^ 


KELLOGO   V.  STATE. 


411 


Yorkshii'e  Scs- 

for  sleixling  six 

ant  in  the  indict- 

)!'  Mr.  Crosskill, 
hat  on  the  9th  of 
it  on  the  9th  of 
,  offered  for  sale 
;harged  in  the  in- 
luantitj'  of  white 
,as  of  a  peculiar 
[r.  Crosskill)  was 
I  the  road  leading 
mises  might  have 
[1  and  white  metal 

shop  with  a  door 
i  f ->  •  one  week  on 
^klajer's  laborer, 
long  the  road  into 
)uter  shop  (where 
een  there ;  that  he 

not  have  gone  in 
it  Walker  was  cm- 
of  Mr.  Crosskill' 8 
•y  to  borrow  tools, 
t  he  wanted  it  for 
ovember  at  Wake- 
November,  stated 
lad  given  it  to  him 
rone  into  the  West 
fence,  telling  them 
id.  It  was  proved 
»n  to  whom  he  sold 
3n  stolen  from  Mr. 

'  take  what  Morrod 

ce  against  Walker, 

for  a  man  who  had 

herefore  not  fair  to 

prisoner. 

il,  and  that  Morrod 

3und  Walker  guilty 


Mr  Dearsly,  on  behalf  of  Walker,  objected  that  there  was  no  evidence 
whatever  to^go  to  a  jury  of  Walker  having  stolen  the  brass,  and  re- 
quested the  chairman  to  reserve  a  case  for  the  consideration  of  the 
Court  of  Criminal  Ai>peal,  and  the  case  was  therefore  reserved  upon 

ti>is  point.  1     *    ♦ 

The  jury  was  probably  partly  influenced  in  their  finding  by  the  facts 
which  it  was  omitted  to  prove  distinctly  by  the  prosecution,  but  which 
were  nevertheless  apparent  in  the  case,  that  Walker  and  his  wife  and 
her  brother  Morrod,  lived  in  one  house  together,  and  that  Walker  had 
,,ft  Beverley  op  the  9th  of  November,  and  also  by  the  general  demeanor 
of  the  prisoners.  It  is  also  impossible  that  they  should  not  give  some 
weight  to  what  Morrod  had  said  at  different  times  as  against  Walkei, 
believing  as  they  did  that  he  had  sold  the  metal  innocently,  and  was 
speaking  the  truth  for  himself.  ^   ^^  Stuicklakd, 

Chairman. 
This  case  was  argued  on  the  28th  of  January,  1854,  before  Jekvis, 

C    J.,  MaULE,  J. ,  WiGHTMAN,  J. ,  WiLLIAMS,  J. ,  Sud  Pl.ATT,  B. 

Dearsly,  for  the  prisoner.     This  conviction  is  wrong.     There  is  not  a 
particle  of  evidence  to  be  left  to  the  jury. 
Maule,  J.     Not  a  scintilla. 
Jervis  C.  J.    This  conviction  must  be  quashed. 

'  Conviction  quashed. 


LARCENY -OWNER     INTENDING    TO    PART    WITH     PROPERTY     BY 

FRAUD. 

Kellogg  v.  State. 

[26  Ohio  St.  16.] 
In  the  Supreme  Court  of  Ohio,  1875. 
wh-,-  ♦!,.  0«nar  Intends  to  Part  with  his  property  there  U  no  larceny.    Thus  where  a 

of  the  crime  ol  larceny.  • 

Error  to  the  Court  of  Common  Pleas  of  Hamilton  County. 
At  the  June  term,  1875,  of  the  court  below,  the  plaintiff  in  error  was 
convicted  of  the  crime  of  larceny,  and  sentenced  to  the  penitentiary  for 

a  term  of  years.  ,    .    .     .v  „4.u  «* 

Tlie  testimony  offered  on  the  trial  showed  that,  m  the  month  of 


412 


I.AUCENY. 


April  preceding,  tlie  prisoner  liad  ol>tainetl  $2H0  in  bftnii-bills,  from  the 
pr<»si'cn(inj?  witness*,  under  tlic  following  cireiinistunces :  — 

The  witness  and  the  prisoner  l>nd  first  met  and  formed  a  casual  ac- 
quaintance as  passcnj^ers  on   a  train  of  cars  passing  from  St.  Louis  to 
Cincinnati.     After  tlieir  arrival  at  Cincinnati  tliey   ngaiu  met  at  tim 
railroad  depot,  where  the  prosecuting  witness  was  about  to  take  another 
train  for  his  home  in  Madison  County,  when  the  following  occurrences 
took  place,    as   detailed   by  the  witness :  The  defendant  asked  me  if  I 
was  going  to  take  that  train  ;  I  said  yes.     lie  said  he  thought  he  would 
go  on   that  train  too.     Then  a  man  came  up  to  us  ami  said  to  the  de- 
fendant, "  If  you  want  to  go  on  that  trai  i,  you  had  better  get  your  bag- 
gage and  pay  your  freight  bill."     The  defendant  then  said,  "  Confound 
these  fellows,  they  won't  pay  me  any  premium  on  my  gold,  and  I  have 
no  other  money  to  pay  this  freight  bill,  and  I  don't  want  to  give  them 
two  hundred   and  eiglity  dollars  in  gold  and  get  no  premium."     He 
then  said  to  me,  "Will  you  let  me  have  $280  in  currency,  and  I  will 
give  you  this  gold  to  hold  as  secuiity  until  I  can  go  to  the  bank  and 
draw  some  money  which   I  have  there,  and  I  will  then  i»ay  you  $280 
back."     He  further  said,  "I  must  get  my  freight  out  to-night,  and 
they  won't  let  me  have  it  till  I  pay  the  bill,  which  is  $280."     I  then 
tolil   him  I  would  let  him   have  the  two  hundred  and  eighty  dollars  to 
pay  his  freight  bill ;  which  I  did,  and  he  gave  me  fourteen  pieces  of 
what  he  said  were  gold,  and  which  I  took  for  twenty-dollar  gold  pieces, 
and  I  gave  him  $280  in  paper  money.     He  started  off,  and  I  examined 
them  and  found  that  they  were  not  twenty-dollar  gold  pieces,  nor  were 
they  gold  at  all.     •     ♦     •    I  followed  him  but  did  not  overtake  him  or 
see  him  any  more  until  he  was  arrested.     On  cross-examination  the 
prosecuting  witness  testified  as  follows :  "  I  delivered  my  money  to  him 
voluntarily.     He  used  no  force  or  violence  to  obtain  it  from  me.    I 
never  expected  to  get  the  same  money  again.     He  said  he  would  go  to 
the  bank  and  draw  some  money,  and  come  back  and  pay  me  what  he 
borrowed  and  get  the  gold."     The  commission  of  the  crime  charged  in 
the  indictment  was  not  otherwise  proved  than  as  above  stated. 

The  court  was  requested  by  the  defendant  to  charge  that,  "if  the 
jury  found,  from  the  evidence  in  the  case,  that  the  defendant  fraudu- 
ently  and  wrongfully  induced  Denton,  the  prosecuting  witness,  to  part 
with  the  money  mentioned  in  the  indictment ;  and  if  they  also  found 
that  the  prosecuting  w\^ness  was  fraudulently  induced  to,  and  in  fact  did 
part  with  the  possession  and  property  in  the  money  described  in  the  in- 
dictment," the  defendant  could  not  be  convicted  of  the  offense  of 
larceny  as  charged  in  the  indictment.  The  record  shows  that  "  tha  in- 
struction in  that  form  the  court  refused  to  give,"  but  did  give  the  same 
with  the  following  explanation :  *'  That  the  word  property,  as  used,  does 


^^ 


KELLOOO   I'.  STATE. 


418 


bank-bills,  from  thu 
iit'L's :  — 

I  foriiu'cl  a  casual  ac- 
ng  from  St.  Louis  to 
«y   ngain  met  at  tiif 
ibout  to  take  another 
bUowing  occurrences 
L'ndant  asked  me  if  I 
he  thought  he  would 
IS  and  said  to  the  de- 
l  better  get  your  bag- 
hen  said,  "Confound 
my  gold,  and  I  have 
n't  want  to  give  them 
;  no  premium."     He 
I  currency,  and  I  will 
ji  go  to  the  bank  and 
ill  then  pay  you  $280 
rht  out  to-night,  acd 
ich  is  $280."     I  then 
.  and  eighty  dollars  to 
me  fourteen  pieces  of 
ity-dollar  gold  pieces, 
id  off,  and  I  examined 
gold  pieces,  nor  were 
d  not  overtake  him  cr 
cross-examination  the 
ered  my  money  to  him 
obtain  it  from  me.    I 
[e  said  he  would  go  to 
k  and  pay  me  what  he 
'  the  crime  charged  in 
above  stated. 
I  charge  that,  "if  the 
the  defendant  fraudu- 
cuting  witness,  to  part 
and  if  they  also  found 
iced  to,  and  in  fact  did 
ley  described  in  the  in- 
ted  of  the  offense  of 
d  shows  that  "  tha  in- 
'  but  did  give  the  same 
property,  as  used,  does 


not  mean  the  mere  money  —  it  means  the  proprietary  right  of  owner- 
ship in  the  money.  So  that,  while  the  manual  possession  of  the  money 
may  be  in  one  person,  the  legal  technical  property  may  still  be  in  an- 
other, and  a  bailment  or  possession  of  goods  and  chattels  obtained  by  a 
trick  or  fraud  does  not  transfer  the  property  to  the  person  practicing 
the  trick  or  fraud.  If  you  find,  therefore,  that  the  mere  possession  of 
the  money  with  the  owner's  consent  was  fraudulently  obtained  by  the 
defendant  with  Intent  to  steal  it  from  the  owner,  it  Is  larceny." 

C.  //.  Blackburn,  for  plaintiff  in  error.  The  testimony  shows  that 
Kellogg  obtained  the  money  from  Denton  without  force  or  violence ; 
that  Denton  delivered  the  money  to  him  voluntarily,  and  did  not  expect 
to  get  the  same  money  again.  This  being  so,  there  was  no  trespass,  and 
could  be  no  larceny.' 

MoIlvaise,  C.  J.  On  the  trial  below,  the  jury  was  proi>erly  in- 
structed that  the  defendant  could  not  be  convicted  of  larceny.  If  he  ob- 
tained the  possession  of  the  money  alleged  to  have  been  stolen  from  the 
prosecuting  witness  with  his  consent.  If  It  was  further  found  that,  at  the 
time  of  the  transfer  of  the  possession,  the  right  of  property  in  the 
money  also  passed  from  the  prosecuting  witn  's  to  the  defendant,  al- 
tiiough  the  witness  was  Induced,  through  the  fraud  of  defendant,  to 
part  with  the  possession  and  the  property  In  the  money.  And  there 
was  no  error  In  the  further  Instruction:  "If  you  find,  therefore,  that 
tlie  mere  possession  of  the  moiiej ,  with  the  owner's  consent,  was  fraudu- 
lently obtained  by  the  defendant,  with  Intent  to  steal  It  from  the  owner, 
it  is  larceny." 

Tliis  last  instruction,  however,  was  the  predicate  of  a  proposition 
which  had  been  given  in  explanation  of  the  first  instruction,  to  wit, 
"  while  the  manual  possession  of  money  may  be  in  one  person,  the  legal 
technical  property  may  still  be  in  another ;  and  a  bailment,  or  posses- 
sion of  goods  and  chattels  obtained  by  a  trick  or  fraud,  does  not  trans- 
fer the  property  to  the  pei*son  practicing  the  trick  or  fraud."  Whether 
this,  as  an  abstract  proposition  of  law,  be  true  or  false,  it  was  certainly 
misleading  In  the  case  as  it  was  made  In  the  evidence.  The  jury  could 
not  well  have  understood  it  otherwise  than  as  a  declaration  by  the  court 
tliat  the  transaction,  as  detailed  by  the  prosecuting  witness,  amounted 
to  a  mere  contract  of  bailment,  which  left  the  right  of  property  remain- 
ing in  the  prosecuting  witness. 

Now,  if  the  common  law  at  all  recognizes  a  class  of  bailments,  corre- 
sponding to  the  mutuHm  of  the  civil  law  — to  wit,  where  a  loan  Is  made 


1  2  Ri3h.  Cr.  L.,  »0C8.  812,  813,  818,  and 
auiluiiliics  cited;  2  Wliart.  Cr.  I-., sees.  1833, 
W.I;  Eimls  V.  State, 3  Iowa,  67;  Welch  t;. 
People,  17  111.  3!»;  Wilson  ».  State,  1  Port. 
lis ;  15  8erg.  &  R.  03.    Nor  docs  it  vliange  tlie 


rule  when  the  consent  is  obtained  by  fraud. 
2  Bish.  Cr.  L.,  sec.  811;  Rex  v.  Summers,  3 
Salk.  194;2  E.  P.  C.688;  1.5  Serg.  &  U.  »3; 
Cary  v.  HotalHng,  1  HiU  CN.  Y.),  311. 


414 


LAHCENY. 


•       nr  other  thing  that  may  be  valucl  by  number,  vci-l.t, 
of  --«y' -;,;;;.  t^^^^^^^^^^  only  in  kind  of  eci«al  value  or  „ua... 

or  measure,  which  is  lo  oc  i^  ....«„„,.tv  in  such  bailments  remains  \u 

tay-  it  is  not  true  that  the  right  of  P-»-  >  ^J^^^^^^^^  passes  with  11. 
the»>ailor;  but  on  the  other  hand,  "'^^^^^^'^^  clses  the  fraud  of  U>e 
possession  and  rests  -^U  ^he  bor^^^^^^^  u  -^-  ^^  ^^^  ^^^^^  ,^^,.., 
borrower  no  more  prevents  the  passing  o  .chaser  of  gou.ls 

upon  delivery,  than  does  f'--\«»    ^P^'^'J;  ,',  ^ableat  the  election 
tL  contractin  either  ^^ ;;^'tl^:ZZ.. ,  seems  to  be  thatl 
of  the  lender  or  seller.     1  he  bate,  o  i    ^  ^^^^^  ^^^.^  ^^^^^ 

such  a  loan  is  not  a  regular  bailment  at  common     and  results  in  a  debt 
erly  under  the  innominate  contract,  do  nt  faeces,  anu  | 

and  not  in  a  trust.  ^^^^^  ^^„,^^,i  to  prove  a  I 

Tlie  testimony  before  the  jury  in  t  defendant  whereby 

loan  of  money  from  the  prosecut mg  v^-J  ^^  ^  ;^„,„^,  ,,  ^.^e  pay- 
the  borrower  became  '-^^^^f  J^^.^  ^r  witness  was,  thai  he  vol- 
„,cnt  in  other  money.  ^'^"^ ;^;'' ^^^fendant  and  never  expected  to 
untarily  delivered  «-  ^^^  ^^  JJ  ;^t^^^^  ,,duced  to  make  the  loan 
get  the  same  money  aga m      It  is  t  ue  ^^^^^^^^^      ^^  ^^^^^^  ^ 

through  the  fraud  •'"•If'^f.f^e  defendant,  but  it  was  the  crime  oJ 
crime  was  thus  -^'^^^^^^^^  .  t'nses  and  n^t  a  larceny.  To  consti- 
obtaining  money  under  alse  1>'-J«J««  voluntarily  parts  with  the  pos- 
tute  larceny  in  a  case  where  t»^«j;";;^^^^^^^^^  are  essential.  1.  The 
session  .f  his  property,  two  «*^«'-  f;"^^*;  ^^";.„"  ,„„,t  expect  and  in- 
owner  at  the  time  of  parting  with  f^J^^^^^^^  ,.,^  ,   disposed  of 

tend  that  the  ^^:^r^  ^•^::^jLon  taking  the  pes- 
under  his  direction  for  h.s  beneflt  /  ^,  j,!,  properly 

sessionmust   at  the  time   mt^^^^^^  .^^^„,,  to  transfer,  no. 

ia  the  thing  delivei^d      f^^J^^^^^  the  property,  although  indued 
rer^ryTe  f;iraUt^^^^^  pretenses  of  the  taker,  the  taki. 

another  person,  but  the  goods  «'  »^'°;^«*:-  „^  ^^ubt  the  ver- 

Had  the  law  been  thus  stated  to  the   u.y  there  ir no        ^^_^^^^^^ 

diet  would  have  been  not  gmlty,  ^j^^  ^^^'^^^^^^^^^  proceedi, 

Judgment  reversed  and  cause  remanded  for 
iia  may  be  lawfully  had  in  the  premises. 

wIh,  White!  Rex  and  Gii^mohe.  JJ.  concurred. 


^iM 


n.  V.  DKKUINO. 


41.') 


(I  by  number,  wcii,'lit, 
if  e(iual  value  or  (luaii- 
h  bailments  remains  in 
roperty  piisnea  witli  tlit 

cases  the  fraud  of  tlie 
tie  to  tUo  thing  loaiunl 

a  purchaser  of  gootU. 
voidable  at  the  election 
Ycver,  seems  to  be  tlial 
law  but  falls  more  prop- 
,,  and  results  in  a  debt 

clow  tended  to  prove  a 
)  the  defendant  whereby 
lI  assumed  to  make  pay- 
witness  was,  that  he  vol- 

and  never  expected  to  I 
nducedtomaketheloani 
defendant.     No  doubt  a 

but  it  was  the  crime  of 
,ta  larceny.    To  con3ti-[ 
arily  parts  with  the  pos- 
)  are  essential.     1.  ThcJ 
lion  must  expect  and  in- 
ed  to  him  or  disposed  oti 
le  pei-son  taking  the  pos-f 
the  owner  of  his  properlyl 
r  intends  to  transfer,  notl 
roperty,  although  induccll 
;8  of  the  taker,  the  takinjl 

r-  .  I 

t  taker  and  he  can  not  btl 
simple  reason  that  at  thel 
I  carry  away  the  goods  oil 

there  is  no  doubt  the  verl 
charged  in  the  indictmeuJ 
or  such  farther  proceedinjl 

)ncurred. 


LARCENY  — INTENT  TO  STEAL  MUST  BE  FOUND  BY  JURY 
R.  V.  Deerino. 

[11  Cox,  298.]  ' 

In  the  English  Court  of  Criminal  Appeal,  1869. 

Money  w««  Olven  to  the  Prisoner  Jor  the  purpogo  of  paying  turiipiko  tolls  at  two  gates 
on  his  Journey.  Twelve  days  adcnvardg,  on  being  asked  If  ho  had  paid  the  toll  at  ont  of 
the  gates,  the  prisoner  said  he  had  not -that  he  had  gone  by  a  parish  road  which  only 
crossed  the  road  at  that  gate,  and  so  no  toll  was  payable  there,  and  that  ho  had  spent  the 
motioy  on  beer  for  hlmsoll  and  his  mates.  The  prisoner  having  been  convkrted  of  lar- 
ceny of  the  money,  but  It  not  appearing  on  a  case  reserved  that  the  question  of  felonious 
intention  had  been  distinctly  loft  to  the  Jury,  this  court  quashed  the  conviction. 

Case  reserved  at  Quarter  Sessions  for  tlie  opinion  of  this  court . 

The  prisoner  was  tried  at  the  adjourned  Quarter  Sessions  foi  f  he 
county  of  Kent,  held  on  the  4th  of  March,  18G9,  on  an  indictment  for 
L-tealing  Gs,  the  money  of  Henry  Simmons,  his  master. 

The  following  facts  must  be  taken  to  have  been  proved :  - 

The  prisoner  .r.i  a  wagoner  in  the  employment  of  tlie  prosecu'^r. 
On  the  13th  of  February  last  the  prosecutor's  bailiff  sent  out  f-ur 
teams  01  horses  with  wagons,  one  of  them  being  in  charge  of  the  pris- 

ouer. 

The  prisoner  and  the  other  persons  in  charge  were  ordered  to  go 
with  the  teams  to  a  place  called  Snodland  to  fetch  coal. 
For  the  journey  which  these  teams  were  to  take  they  should  have 

I  gone  through  two  turnpike  gates  called  the  Loyal  Oak  and  Snodland 
gate,  and  before  starting  the  said  bailiff  delivered  to  the  prisoner 
money  to  the  amofiint  of  8s  8d  for  tlie  purpose  of  paying  the  tolls  at  the 

I  said  gates  in  respect  of  all  the  teams. 

On  the  25th  of  February  last,  the  bailiff  asked  the  prisoner  if  he  had 

I  paid  the  tolls  at  the  Snodland  gate.  The  prisoner  said  he  had  not. 
Tlic  said  bailiff  asked  him  why  he  had  not  paid  the  said  tolls,  and  the 
prisoner  replied  that  by  the  road  they  went  no  toll  was  payable,  and 
that  he  had  spent  the  money  amounting  to  5s  on  beer  for  himself  and 
the  other  wagoners  and  mates.  The  prisoner  stated  that  the  teams  had 
gone  by  a  parish  road  which  only  crossed  the  turnpike  road  at  the  gate, 

I  and  thus  no  toll  was  payable. 

The  jury  convicted  the  prisoner ;  but,  having  some  doubt  whether 
I  these  facts  prove  a  larceny  on  the  part  of  the  prisoner,  the  court  re- 
served the  point  for  the  opinion  of  the  court  for  the  consideration  of 
[Crown  Cases  Reserved,  and  admitted  the  prisoner  to  bail  to  appear  and 
I  receive  judgment  when  called  upon. 


416 


LARCENY. 


The  question  for  thf  -consideration  of  tlie  court  is,  whether  under  the 
above  facts  the  prisoner  could  properly  be  convicted  of  larceny. 

J  HN  G.  Talbot,  Chairman. 

No  counsel  appeared  for  the  prisoner. 

Barrow,  for  the  prosecution.  The  conviction  was  right.  The  law  is 
thus  laid  down  in  2  Russell  on  Crimes.  *  "  The  clear  maxim  of  the  com- 
mon law  establislied  by  a  variety  of  cases,  is,  that  where  a  party  has 
only  the  bare  charge  or  custody  of  tlie  goods  of  another,  the  legal  pos- 
session remains  in  the  owner ;  and  the  party  nay  be  guilty  of  trespass 
and  larceny  in  fraudulently  converting  the  same  to  his  own  use.  And 
this  rule  appears  to  hold  universally  in  the  case  of  servants  whose  pos- 
session of  their  master's  goods  by  their  delivery  or  permission,  is  the 
possession  of  the  master  himself. ' '  In  this  case  the  prisoner  had  only 
a  bare  cliarge  of  the  money  to  pay  tiie  turnpike  gates  with,  and  the  pos- 
session remained  in  the  master.  No  doubt,  if  a  master  gives  his  servant 
money  for  his  second-class  railway  fare,  and  also  for  refreshments, 
and  the  servant  was  to  go  tiiird-class  and  not  return  the  difference  to 
his  master,  that  might  not  be  larceny,  as  the  money  was  given  to  the 
servant's  own  use.  [Cockbuun,  C.  J.  Suppose  the  master  gives  the 
servant  money  for  his  railway  fare,  and  he  walks  and  saves  the  money 
and  spends  it?]  That  is  not  this  case.  If  the  master  gives  the  money 
to  a  sei'vant  to  pay  a  bill  with,  and  the  servant  does  not  pay  the  bill, 
and  appropriates  the  money  to  his  own  use,  that  is  larceny.  Here  the 
toll  is  imposed  on  tlie  wagons  and  horses,  and  the  master  was  liable  for 
it.  For  the  journey  these  teams  were  to  take,  the  case  stiites  that  they 
should  have  gone  througli  two  turnpike  gates.  In  2  Russell  on  Crimes  - 
it  is  said:  "  The  correct  distinction  in  cases  of  this  kind  appears  to  be 
that  if  the  owner  parts  with  the  custody  only,  and  not  with  the  posses- 
sion, and  the  prisoner  converts  the  chattel  to  his  own  use,  it  is  larceny, 
although  he  had  no  felonious  intent  at  the  time  he  received  it ;  but  if 
tlie  owner  parts,  not  only  witli  the  custody,  but  also  with  the  possession 
of  the  chattel,  and  the  prisoner  converts  it  to  his  own  use,  it  will  not  be 
larceny,  unless  the  prisoner  had  a  felonious  intent  at  the  time  he  received 
the  chattel.  A  servant  going  off  with  money  given  to  him  by  his  master 
to  carry  to  another,  and  applying  to  his  own  use,  has  been  holden  guilty  of 
larceny.  »  »  »  Where  on  an  indictment  for  stealing  a  shilling,  It 
appeared  that  the  prisoner,  who  was  the  servant  of  the  prosecutor,  wais 
ordered  by  him  to  go  for  twelve  hundred  weight  of  coals,  and  that  the 
prisoner  received  from  the  daughter  of  tho  prosecutor  63  which  she  had 
received  from  her  father  to  give  to  the  prisoner  to  pay  for  the  coals, 
and  the  prisoner,  instead  of  getting  twelve  hundred  weight  of  coals,  got 
only  nine  hundred  weight,  the  price  of  which  was  3s  3d,  and  gave  4$ 


|).  38S. 


I>.  3i).1. 


^^M 


R.  V.  DEEBING. 


417 


is,  whether  under  the 
id  of  larceny. 
?ALBOT,  Chairman. 


as  right.  The  law  is 
ar  maxim  of  the  com- 
lat  where  a  party  has 
iiother,  the  legal  pos- 
be  guilty  of  trespass 

0  his  own  use.     And 

1  servants  whose  pos- 
or  permission,  is  the 
he  prisoner  had  only 
es  with,  and  the  pos- 
ister  gives  his  servant 
so  for  refreshments, 
turn  the  difference  to 
iiey  was  given  to  the 
the  master  gives  the 
and  saves  the  money 
ister  gives  the  money 
'.oes  not  pay  the  bill, 
8  larceny.  Here  the 
master  was  liable  for 

case  sti;tes  that  they 

2  Russell  on  Crimes  '^ 
is  Icind  appears  to  be 

not  with  the  posses- 
»wn  use,  it  is  larceny, 
lie  received  it ;  but  if 

0  with  the  possession 
ivn  use,  it  will  not  be 
t  the  time  he  received 
to  him  by  his  master 
been  holden  guilty  of 

stealing  a  shilling,  it 
the  prosecutor,  wais 
>f  coals,  and  that  the 
tor  Cs  which  she  had 
to  pay  for  the  coals, 

1  weight  of  coals,  got 
»s  3s  3d,  and  gave  4s 


to  pay  for  the  coals  and  received  9d  in  change,  and  on  his  return  gave  the 
prosecutor's  daughter  Is  and  made  a  false  statement  as  to  the  quantity 
of  coals  he  had  bought,  and  appropriated  the  remaining  shilling  to  his 
own  use,  Patteson,  J.,  held  that  the  prisoner  was  guilty  of  larceny  of 
that  shilling.  1  So  where  the  prisoner  was  indicted  for  stealing  a  sov- 
ereign, the  property  of  the  prosecutor,  his  master,  who  had  engaged 
liim  to  take  a  canal  boat  on  a  voyage,  and  had  paid  £5  for  his  wages  in 
advance,  and  for  the  keep  of  the  towing  horse,  and  had  given  him  a 
sei)arate  sum  of  three  sovereigns  to  pay  the  tonnage  dues  on  tiie  canal. 
The  prisoner  took  the  boat  about  sixteen  miles,  and  paid  tonnage  dues 
amounting  to  rather  less  than  £2,  but  appropriated  the  remaining  sov- 
ereign to  his  own  use.  It  was  urged  that  the  relation  of  master  and 
servant  did  not  exist.  Patteson,  J.  Taking  that  to  be  so,  it  does  not 
appear  to  me  to  be  material  in  tiiis  case.  The  prosecutor  distinctly 
swears  that  he  gave  this  man  three  sovereigns  to  pay  the  torn:  -ge  dues, 
and  it  appears  that  he  has  made  away  with  one  of  the  sovereigns.  To 
constitute  a  larceny  in  this  case  there  is  no  occasion  to  show  that  the 
relation  of  master  and  servant  existed.  If  I  give  a  man  money  to  apply 
to  a  particular  purpose,  and  he  appropriates  it  to  another  purpose  he  is 
guilty  of  larceny.  If  a  man  were  to  employ  another  to  go  somewhere 
with  his  horse  for  a  certain  price,  that  other  is  for  that  purpose  his  ser- 
vant, but  if  in  addition  to  this  he  gives  him  a  distinct  and  separate  sum 
of  money  to  be  disbursed  in  a  particular  way,  and  if  instead  of  so  disburs- 
ing it  he  appropriate  it  to  his  own  use,  that  is  felony.^  [M.  Smith,  J. 
Where  is  tlie  evidence  of  the  felonious  intent  here?]  The  jury  must  be 
taken  to  have  found  the  prisoner's  intent.  The  only  question  reserved, 
is  whether  the  prisoner  could  properly  be  convicted  of  felony.  [CocK- 
BiRx,  C.  J.  The  facts  are  stated,  and  the  prisoner  may  have  thought 
tiiat  by  going  another  road  he  could  save  tlie  toll,  and  that  it  would 
make  no  difference  to  his  master,  which  way  he  went,  and  that  he  was 
entitled  to  spend  what  he  so  saved  in  beer.  That  no  doubt  was  very 
wrong,  but  did  it  make  him  guilty  of  larceny?  M.  Smith,  J.  He  spent 
the  money  openly  among  the  other  men.  BuAMwrcr-L  B.  The  mere 
spending  the  money,  unless  done  with  a  thievish  mind  or  fraudulent 
intent,  was  not  larceny.] 

CocKBURN,  C.J.  We  think  that  the  right  question  was  not  left  to 
the  jury  in  this  case;  if  it  had  been,  in  all  probability,  the  prisoner 
would  have  been  acquitted.  We  come  to  this  conclusion  on  the  specie^ 
facts  in  the  case. 

Bramwell,  B.  It  is  not  to  be  assumed  that  the  court  has  answered 
tlie  question  submitted  in  the  negative,  but  we  infer  from  this  case  that 
the  proper  question  was  not  left  to  the  jury.  Conviction  quashed. 


>  Reg.  V.  Beaman,  R.  &  M.  433. 
3  Defexcks. 


2  Reg.  V.  tiood,  C.  AM.  582. 


418 


LAKCENV. 


LARCENY 


.  INTENT  TO  STEAL  ESSENTIAL 
OFFICER. 


TAKING  GOODS  FROM 


Commonwealth  v.  Greene. 


[Ill  Masa.  392.] 
In  the  Supreme  Judicial  Court  of  Massachusetts,  1873. 

On*  la  not  Guilty  of  Stealin»  Oooda  from  an  attaching  officer,  if  ho,  being  owner, 
intended  at  tlio  time  to  leave  and  did  leave  with  the  officer  goods  enougb  to  satiify  tlie 
claim  ot  the  attaching  creditor. 

MouTON,  J.  The  indictment  charges  the  larceny  of  certain  goods 
alleged  to  be  tiio  property  of  Ephraim  W.  Farr.  It  appeared  at  the 
trial  that  the  defendant  was  the  general  owner  of  the  goods ;  that  they 
had  been  Rttaclied  by  Farr,  who  is  a  constable  of  the  city  of  Boston, 
upon  a  writ  duly  sued  out  of  the  Superior  Court  by  a  creditor  of  the 
defendant ;  and  that  while  Ihey  were  under  attachment  the  defendant 
took  and  carried  them  away.  There  is  no  doubt  an  attaching  officer 
has  a  special  property  in  the  goods  attached,  so  that  he  may  maintain 
trespass  or  trover  if  they  are  taken  from  him ;  and  so  that,  if  tliey  are 
stolen  from  him,  the  property  in  them  may  properly  be  alleged  to  be  iu 
him.'  And  if  the  general  owner,  unlawfully  and  without  the  consent  of 
the  officer,  takes  and  carries  away  the  goods,  the  question  whether  he 
can  be  convicted  of  larceny  depends  upon  the  intent  with  which  he  does 
the  act.  If  his  intent  is  to  charge  tlie  officer  with  the  value  of  die 
goods  taken,  the  taking  is  larceny.  Mr.  East  says:  "  If  A.  bails  goods 
to  B.,  and  afterwards  aiiimo  fiirundi  steal  them  from  him  with  design 
probably  to  charge  him  with  the  vaUie,  or  if  A.  send  his  servant  with 
money ;  and  afterwards  waylay  and  rob  him,  with  intent  to  charge  tlie 
hundred,  in  either  case  the  felony  is  complete."  ^ 

An  attaching  creditor  acquires  by  the  attachment  a  qualified  right  to 
so  much  of  the  property  attached  as  is  necessary  to  satisfy  his  debt ; 
and  if  the  general  owner  takes  and  carries  tlie  whole  or  a  part  of  tlie  prop- 
erty, with  the  intent  to  defraud  him  of  this  security,  we  think  it  would 
be  larceny.  But  if  his  design  is  merely  to  prevent  other  creditors  from 
attaching  the  goods,  and  he  has  no  intent  to  defraud  the  officer  or  the 
attacliing  creditor,  the  act,  though  unlawful,  would  not  be  larceny. 

The  case  at  bar  seems  to  Jiaye  been  tried  upon  this  view  of  the  law. 
The  only  question  was  as  to  the  intent  with  which  the  defendant  took 
the  goods.     He  was  a  witness  in  his  own  behalf,  and  was  permitted  to 


1  Gen.  Stats.,  cli.  172,  sec.  12;  Bond  v. 
PadeKord,  l:!  Mass.  3'.W;  Ilrowiiell  i'.  Man- 
oheeter,  1  Piclt.  233. 


2  2  East's  P.  C.  fiM ;  1  Hale's  P.  C.  61m  ;  4 
nia.  Com.  231;  Palmer  v.  People,  10  Weml. 
165. 


JOHNSON   V,  STATK. 


419 


G   GOODS   FROM 


',ts,  1873. 

r,  if  ho,  being  owner, 
enouKh  to  autliify  the 


of  certain  goods 
[t  appeared  at  the 

goods ;  that  they 
16  city  of  Boston, 
r  a  creditor  of  the 
lent  tlie  defendant 
n  attaching  otDcer 
t  he  may  maintain 
JO  that,  if  tliey  are 
be  alleged  to  be  iu 
loiit  the  consent  of 
iiestion  whether  he 
with  which  he  does 
I  the  value  of  ihe 
"  If  A.  bails  goods 
m  him  with  design 
id  his  servant  witli 
itent  to  charge  the 

El  qualified  right  to 
0  satisfy  his  debt ; 
•  a  part  of  tlie  prop- 
,  we  think  it  would 
ther  creditors  from 
d  the  officer  or  the 
lot  be  larceny, 
lis  view  of  the  law. 
the  defendant  tools 
d  was  permitted  to 


►4;  1  Hale'sP.  C.  61i;4 
iier  V.  People,  10  Weml. 


testify  that  he  took  them  for  the  purpose  of  protecting  himself  against 
other  creditors,  and  not  for  the  purpose  of  defrauding  the  officer.  But 
he  offered  also  to  testify  that  "  his  intention  was  to  leave  and  that  he 
did  leave,  five  or  six  hunured  dollars  worth  of  the  goods  in  the  store, 
enough  to  satisfy  the  suit  already  commenced,"  which  testimony  was 
excluded  by  tlic  court. 

The  defendant  in  a  criminal  case  may  be  a  witness  and  may  testify 
directly  to  his  motives  and  intent ;  but  he  also  has  the  rigiit  to  prove, 
by  his  own  or  other  testimony,  any  competent  facts  which  tend  to  sliow 
bis  intent. 

The  fact,  jf  proved,  that  the  defendant  purposely  left  in  the  store 
enough  of  the  goods  to  satisfy  the  debt  of  the  attaching  creditor, 
would  tend  to  explain  and  qualify  the  transaction  of  which  it  was  a 
part,  and  to  show  that  his  purpose  was  not  to  defraud  the  officer  or 
creditor.'  It  would  tend  to  corroborate  his  statement  as  to  the  intent 
with  which  he  took  the  goods.  The  weight  of  the  testimony  was  for 
the  jury  to  consider,  but  we  think  it  was  competent  and  should  have 
been  admitted. 

Exceptions  sustained. 


LARCENY  — FELONIOUS  INTENT  NECESSARY. 

JoHxsoN  V.  State. 

[36  Tex.  375.] 
In  the  Supreme  Court  of  Texas,  1871. 

To  Conatltute  liaroeny,  there  must  be  a  felonious  intent  to  deprive  the  owner  perma* 
iiently  of  his  property. 

Appeal  from  Hays.     Tried  before  Hon.  J.  P.  Richards. 

The  opinion  of  the  court  sufficiently  states  the  case. 

Walker,  J.  The  appellant  has  been  twice  tried  upon  an  indictment 
charging  him  with  feloniously  stealing  a  roan  gelding,  the  property  of 
some  unknown  person.  He  has  been  twice  convicted  and  each  time  sen- 
tenced to  five  years  in  the  penitentiary. 

Tiie  evidence  establiblif  s  the  fact  that  the  horse  alleged  to  have  been 
stolen  had  been  running  upon  the  range  in  Hays  County  for  a  number 
of  years,  during  which  timo  people  were  in  the  habit  of  catching  him 
iind  riding  him  for  temporary  pur[)oses. 

1  Com.  I'.  Rowe,  10,5  Mats.  690. 


''M»IH»SM«IMaMillMnM 


mtssm 


420 


LARCENY. 


About  the  latter  part  of  February,  1872,  «-;^f  "^-*'^;:^^^^^^^^ 
with  th.ee  others,  »ere  hunting  beeves  near  a  Pl«;  «  «^1«^  joLson  rt 
in  Hnv9  Ccuntv,  where  the  horse  was  seen  grazing,  'when  Johnson  re 
l"r  th:u:^;ouUl  catch  the  horse  ana  ride  hi™  awhile ;  th.  he  ha^ 
as  much  ri-ht  to  ride  him  as  other  people ;  whereupon,  Jun  Carson,  one 
"f  The  pi;.;,  roped  the  horse  for  the  defendant,  and  he  mounted  and 

"j^uirwas  then  in  the  employ  of  Henry  Bittick;  Bittick  was  a 
butler  "ving  in  San  Marcos,  and  the  beeves  which  they  were  hunting 

Tm^Vo-l- remarks  were  made  between  Bittick  and  John-  at  the 
timeTe  horse  was  taken  up,  Bittick  telling  Johnson  that  he  had  bette 
time  the  norse  .      ^        ^  j^^^  the  penitentiary ;  and  Johnson 

'^'r  ":%!  t  waf  u  gr  at  waj  to  the  penitentiary,  and  that  it  would 
raS;r.l:rn'™  m  ^ys  county  to  send  him  to  the  peniten- 
tiarv  for  taking  up  and  riding  the  old  stray  pony. 

But  it  appeal  from  the  evidence  that  Jo^-^ -^'^  «'«  ^7/ Bit' 
Marcos   and  then  turned  him  into  a  lot;  afterwards  he  to  d  B  ttick 
Ma.  cos,  and  tnc  ^^ ^^^^^    ^^^.^^  ^^^^  admonished 

;r  thlt^t^^^^         trouble.  \o  Which  he  replied,  we  have  traded 

^T".:::rr;rr:Ser^at  Emest  had  theroanhor. 
in  iisprsession  for  some  time,  and  that  the  defendant  subsequently 
"ad  1  o«tle  horse  which  he  got  from  Ernest  to  a  third  party,  giving 
Ifd  liars  boot  money,  and  afterwards  sold  the  horse  he  got  o.  the 
se^-ond  trade  for  thirty  dollars,  to  the  same  man.  Clay  Ernest. 

iu  a  recent  English  case,  Mr.  Baron  Parke  defined  the  term  '•  felc 
nious  "  to  be  an  ^ct  where  there  is  no  color  of  right  or  excuse  for  it 
Tlarcely  the  taking  must  be  with  a  felonious  intent  to  depnve  the 
owner,  not  temporarily,  but  permanently  of  his  property. 
Tt    I?e  time  of  the  trial  the  old  pony  was  back  on  the  range,  run- 
ning a'  C'    In  order  to  determine  whether  the  ^e^ef  a°t  «  guiUy 
of  farceny  or  not,  we  must  look  to  the  quo  «nmo  of  the  taking.    H 
fourdlt  have  iitonded  to  deprive  the  owner  of  ^^^^HX^^^ 
owner  of  the  horse  was  known  to  be  in  existence.    The  '"^^s^^ad  run 
Jor  years  at  large  upon  tbe  range  without  an  owner,  and  d.«event  pe 
sons Id  used  him  at  pleasure.    To  make  the  ««^««  «°«  f;'^'-*'^"^;,' 
Zst  be  shown  that,  at  the  time  of  taking,  Johnson  had  formed  the 
"e'ii^s  trention.  'This  the  evidence  does  not  show;  if  the  taking 
the  horse  had  been  felonious,  Carson,  who  roped  the  ammal  for  tbe 

1  In  neg.  f.  HoUoway.  2  C.  A  K.  042. 


^^H 


AVK8TON   V.  UNITKU    STATICS. 


421 


ant,  in  company 
led  Pitt's  Pond, 
lien  Johnson  re- 
lile ;  thut  he  had 
Jim  Carson,  one 
he  mounted  and 


defendant,  and  Bittick  and  Baker,  wlio  were  also  present,  wiere  all  par- 
ticipes  criminis,  but  the  evidence  leads  to  no  such  legal  conclusion. 

The  verdict  of  the  jury  ia  unsupported  by  and  contrary  to  law. 

The  judgment  of  the  District  Court  is  therefore  reversed  and  the 
cause  dismissed. 

Reversed  and  dismissed. 


k  -,  Bittick  was  a 
hey  were  hunting 

id  Johnson  at  the 
liat  he  had  better 
ry ;  and  Johnson 
and  that  it  would 
im  to  the  peniten- 

e  the  pony  to  San 
Is  he  told  Bittick 
again  admonished 
;d,  we  have  traded 

lad  the  roan  horse 
idant  subsequently 
third  party,  giving 
orse  he  got  o; .  the 
ly  Ernest, 
sd  the  term  "  felo- 
t  or  excuse  for  it.' 
ent  to  deprive  the 
jperty. 

on  the  range,  run- 
defendant  is  guilty 
of  the  taking.  He 
f  his  property.     No 

The  horse  had  run 
r,  and  different  per- 
se one  of  larceny,  it 
ion  had  formed  the 
show ;  if  the  taking 

the  animal  for  the 


LARCENY— ANIMUS  FURANDI  MUST  BE  PROVED. 

Weston  v.  United  States. 

[5  Cranch,  C.  C.  492.] 
In  the  United  States  Circuit  Court,  District  of  Columbia,  1838. 

It  Is  Error  in  the  Jadve  to  Instruct  the  Jury  that  certain  facts  constitute  larceny, 
unless  tlio  animut /Urandi  be  expressly  stated  as  one  o(  those  facts;  and  unless  the  fact 
be  also  stated  that  the  goods  were  taken  without  the  consent  of  the  owner. 

Error  from  the  Criminal  Court  of  the  District  of  Columbia. 

The  prisoner  was  indicted  for  stealing  twenty-six  silver  coins  of  the 
value  of  fifty  cents  each,  sixteen  silver  coins  of  the  value  of  twenty- 
five  cents  each,  and  nine  silver  coins  of  the  value  of  one  dollar  each,  of 
the  goods  and  chattels  of  one  Sophia  Brasey. 

Upon  the  trial  the  attorney  for  the  United  States,  prayed  the  follow- 
ing instruction,  namely :  — 

"If  the  prisoner  is  believed,  by  the  jury,  to  have  come  into  the 
witness'  house  and  found  her  counting  money ;  and  that  he  then  con- 
ceived the  intention  to  obtain  the  money  under  a  fraudulent  and  false 
pretense  of  changing  it  for  her  into  gold,  meaning  at  the  time  to  appro  • 
priate  it  to  himself  under  this  pretense ;  and  that,  having  falsely  stated 
himself  to  be  a  clerk  in  the  post-offlce,  of  the  name  of  Wilson,  he 
thereupon,  in  pursuance  of  his  said  intention,  talked  and  acted,  in  re- 
lation of  the  said  money,  so  as  to  induce  the  witness  to  believe  that  he 
liad  the  gold  about  him,  and  would  then  give  her  the  gold  for  the 
money ;  and  thereupon  the  witness  being  so  induced  to  believe  that  the 
prisoner  was  about  tc  give  her  gold,  in  exchange  for  her  money,  al- 
lowed him  to  take  the  money  from  the  table  and  put  it  in  his  pocket ; 
and  that  n.fter  he  had  so  taken  it  up  and  put  it  into  his  pocket,  he  said 
he  would  go  and  bring  her  the  gold,  and  was  permitted  by  her  to  go 
away  with  it,  upon  his  promise  to  return  and  bring  her  the  gold ;  tlien 
the  taking  up  and  pocketing  the  money,  under  the  circumstances  of 


422 


LARCKNY 


the  case  above  stated,  if  belicvea  by  the  jury  to  be  true,  with  the  in- 
tent  and  in  t'<e  manner  above  stated,  is  larceny." 

Whereupon,  the  defendant's  counsel  prayed  tlie  court  the  foUowing 
addition  be  made  to  said  instruction,  if  given,  namely :  — 

"  But  should  the  jurv  believe,  from  the  evidence,  tliat  the  prosecutrix 
propose.l  to  the  defendant  to  tal<e  the  money  and  get  gold  for  it,  and  .hat 
he  sui.l  he  would  try  to  do  it,  hut  as  gold  was  hard  to  be  got,  or  words  to 
that  effect,  ho  did  know  if  he  could,  and  that  said  money  was  delivered 
to  him  for  that  purpose,  with  the  consent  of  the  prosecutrix,  notwitli- 
standin^'  the  defendant  may  not  have  returned  the  money  so  proposed 
to  be  changed,  it  is  not  larceny,  and  the  defendant  is  entitled  to  a  ver- 
dict of  acquital."  _         ,     ^u     •   j 

The  instruction,  with  the  addition,  as  prayed,  was  given  by  the  judge, 
and  the  defendant's  counsel  took  a  bill  of  exceptions,  upon  which  the 
cause  was  brought  up  to  this  court  by  writ  of  error. 

Two  objections  were  made  to  the  instruction  granted  at  the  prayer  of 

the  District  Attorney. 

1.  That  it  does  not  require  the  jury  to  find  that  the  money  was  taken 

amino  fnraudi,  or  feloniously.  ,     .  ,  • 

2  That  the  facts  stated  in  the  prayer,  do  not  show  that  the  t  king 
was  without  the  consent  of  the  owner  of  the  money,  or  as  the  books 


sav,  "  i)ivito  domino. 


Mr  R  J.  Brent  fm^  Mr.  Cor/is^e,  for  the  defendant,  cited  2  Russell, 
Roscoe,2  Rex  v.  Wahh,^  Dane's  Abridgment,"  PerVs   Case,^  Rex.  v. 
Protle'i  «  Si.v  Carpenters'  Cose.^    1  Russell,«  Young  v.  Rex.^ 

Mr  Key,  for  the  United  States,  contra,  cited,  2   Russell,^"  2  Chitty's 
BlacUstono."    See,  also,  2  Russell,i'^  Phineas  Adams's  Case. 

CuANCH  C  J.  The  facts  stated  in  a  bill  of  exceptions  are  to  be  con- 
sidered by'the  court  exactly  as  if  they  had  been  found  in  a  special  verdict ; 
for  the  court  tells  the  jury  what  the  law  is  upon  the  facts  to  be  found  hy 
them  ;  and  the  only  difference  is,  that  if  a  special  verdict  be  found,  the 
court  decides  the  law  after  the  facts  are  ascertained  by  the  jury ;  and  in 
givin-  an  instruction  at  the  trial,  the  court  decides  the  law  before  the 
facts  are  found.  And  the  court,  in  giving  an  instruction,  can  no  mwe 
infer  any  fact  not  expressly  stated  in  the  prayer,  than  they  can  uu:. 
any  fact  not  expressly  found  in  a  special  verdict. 
A  court  can  not  instruct  a  jury  that  certain  facts  constitute  a  CbV 


1  pp.  93,  107. 108. 109. 110. 112.  lU,   117,  122. 

135. 187. 

2  pp.  487.  491. 

8  4  Taunt.  281. 

*  pp.  164, 187. 

6  In  this  court,  at  March  term.  1838. 

•  fiC.  &  P.533. 


^  8  Coke,  290. 
8  C.  &  M.  52. 
«  3  T.  K.  98. 
1"  p.  118,  etc. 
n  p.  106,  note. 
18  p.  113. 


^^M 


WESTON'   V.  UNITED   STATES. 


423 


e,  with  the  in- 

t  the  following 

the  prosecutrix 
for  it,  ami  that 
rot,  or  words  to 
y  was  delivered 
tutrix,  notwith- 
ley  so  proposed 
ititled  to  a  vcr- 

n  by  the  judge, 
upon  which  the 

at  the  prayer  of 

loney  was  talcen 

that  the  t  king 
)r  as  the  boolis 

cited  2  Russell,' 
Case,^  Rex.  v. 

isell,!"  2  Chitty'8 
Case. 

ms  are  to  be  con- 
a  special  verdict ; 
;s  to  be  found  by 
liet  be  found,  tlie 
the  jury ;  and  in 
le  law  before  the 
on,  can  no  m  jre 
,n  they  can  "lu*:  ■ 

i  constitute  a  «Jbr 


t;iin  offense,  unless  every  essential  fact  ncccfsary  to  constitute  the 
offense  be  incliuUd  in  the  statement.  And  every  instruction  given  to 
tlie  jury  upon  an  hypothetical  statement  of  facts,  must  be  ns  strictly 
justified  1)3'  the  hypothesis,  as  an  opinion  given  upon  a  special  verdict 
must  1)6  by  tlie  facts  found  by  the  jury,  and  in  neither  case  can  tlie 
court  infer  any  fact  from  tlie  facts  stated,  or  found.  Every  fact  to  bo 
inferred  from  facts  stated,  must  be  expressly  found  or  stated. 

There  is  no  definition  of  larceny,  to  be  found  in  tlie  books,  which 
does  not  include  the  fact  of  a  felonious  intent,  or  tlio  animus  furandi, 
as  an  ingredient  necessary  to  constitute  the  offense.  No  otlier  intent 
can  be  substituted.  An  "  intention  to  obtain  money  under  a  fraudu- 
lent and  false  pretense,"  "  meaning  at  the  time  to  appropriate  it  to 
iiimself  under  this  pretense,"  is  evidence  from  which  the  jury  may, 
when  connected  with  other  circumstances,  infer  the  animus  furandi, 
liiit  it  is  not  the  animus  furandi  itself.  There  may  be  a  fraudulent 
intent  to  obtain  money,  which  may  not  be  a  felonious  intent.  So  tliero 
may  be  a  taking  of  money  by  a  man,  with  intention  to  obtain  it  under 
&  fraudulent  and  false  pretense,  and  to  appropriate  it  to  himself  under 
thiit  pretense,  which  might  not  be  a  felonious  taking,  or  a  taking  animo 
fnrandi.  An  instruction  that  such  a  case  is  larceny,  witliout  finding 
the  felonious  intent,  or  the  intent  to  steal,  is  not  perfectly  correct  in 
law. 

There  is  a  great  difference  between  an  instruction  to  the  jury,  and  a 
demurrer  to  evidence.  In  the  latter  cnse  the  question  is,  whether  the 
evidence,  with  aid  of  all  the  inferences  hich  the  jury  may  lawfully 
make  from  the  facts  proved,  is  sufficient  to  .justify  the  jury  in  finding 
the  defendant  guilty.  The  same  question  arises  upon  a  motion  for  a 
new  trial  on  the  ground  that  the  verdict  is  against  evidence. 

In  such  cases,  the  judges  have  been  in  the  habit  of  saying  that  such 
and  such  facts  amount  to  larceny ;  when  it  is  evidently  their  meaning, 
that  the  convictions  were  right,  that  is,  justified  by  the  evidence ;  or,  in 
other  words,  that  the  evidence  was  sufficient  to  justify  the  jury  in  con- 
victing the  prisoner,  because  it  justified  them  in  finding  the  animus 
furandi. 

It  is  in  this  way  that  all  the  English  cases  which  have  been  so  pro- 
fusely cited,  came  before  the  courts.  In  all  of  them  the  question  was, 
whether  the  jury  could,  inlaw,  find  the  prisoner  guilty,  upon  the  evidenee 
stated  aa  in  u  demurrer  to  evidence ;  and,  of  course,  leaving  the  jury 
to  draw  all  the  inferences  which  they  could  lawfully  draw  from  the  facts 
given  in  evidence ;  and  in  almost  every  one  of  them  the  jury  was  left  to 
!hul  the  felonious  intent. 

Not  one  of  them  was  upon  a  bill  of  exceptions  taken  to  an  instruction 
to  the  jury  by  the  court  upon  an  hypothetical  state  of  facts.     In  some 


424 


LAKCENY. 


jnisoncra  giulty.  . .  ^  ^  ^^jg  cngp 

Tl,e  Engli-b  <-«..  *'7'r;:'°  °t,  jf  a  l".r  to  the  evMencc, 

r:rr;„rr.;t:str£:j.^^ 

structing  the  jury  that  the  facts  f-^l^^'^^ZtZyZ  the  prisoner 

r  ht  L:  hi.  guilty  of  larceny  as  charged  in  the  hul.Une  . 

Upon  this  bill  of  exceptions,  the  ques  .on  is  °«  ^^^^J"  *      ^^^^  ,,, 
was  sufficient  to  justify  the  general  verdict  of  g»  ^^y-    «  ^J^^      ^^^  .„. 

trmeat  should  b.  reversed  .nd  «  «e«re  "»»'»•""'«'«•      ^^..^^  ,„ 

2    The  second  objeotion  to  the  Instmetion  is,  that  the  foots  stated  in 

tb  Mart  out  to  whieh  the  defendant  exeepUd  do  not  show  that  the 

'd:e'r7*rr:rr-'-^^^^^ 

statdTont;i.ed'.aree„y,  we  th,nU.e  '5»^^7JS:„V..  tt„t 
«„n  that  the  jnry  should  4nd  '™m  the  »v,den-  th^^^;^'       ^  ^^^ 

the  money  without  the  ""r?   °*  .''!  °  unot  a  snOcient  «ndtog  to 
from  which  that  inference  might  be  drawn,  is  not  a  snmoie  e 

oonstitnte  the  '^'^^^/^r.^ZTan^  -<«  *  no«. ««.«. 


..»CBNT-.»a..B    OF   OOODS   OH   HfOHWAT-LO.T    BA»K.»o™. 

K.  V.  Tburborn. 

[1  Denison,  387;  Temp.  &  M.  67.»] 
J»  the  English  Court  for  Crovm  Cases  Reserved,  1849. 

o^er  can  not  be  found,  he  is  not  guilty  of  larceny. 

1  Also  reported  «&  nam,  H.  v.  Wood  in  3  Cox.  453. 


^rfl 


R.  V.  THUUBOKN. 


4S5 


;ftted  jiistittocl  tlie 
ly,  in  finding  thu 

i  part  of  the  cnsc 
•r  to  the  evidence, 
sceptions  to  an  in- 
;r  se  are  larceny, 
ndi;  instead  of  in- 
ue  from  which  the 
ley  by  the  prisoner 
iliouldsofind,  they 
:lictment. 

lether  the  evidence 
.  If  such  were  the 
hat  part  of  the  in- 
which  we  could  re- 
ikc  it  a  condition  of 
[lious  intent,  or  the 
ction,  for  which  the 
ivarded. 

t  the  facts  stated  in 
>  not  show  that  the 
ner. 

jury  that  the  case 
ive  inserted  a  condi- 
itthe  defendant  took 
rhe  finding  of  facts 
1  sufllcient  finding  to 

i  de  novo  awarded. 


-LOST    BANK-NOTE. 


iserved,  1849. 

reasonably  supposed  by  Wm 
)elleylng  at  the  time  that  the 


!ox,  453. 


2.  T.  Found  a  Bank-Mote  on  the  Highway  and  took  It  Intending  tn  appropriate  it  to  his 
own  use.  The  note  had  no  murk  on  It  to  Identify  the  owner,  nor  did  he  then  know  him. 
T.*nftcrwardH  and  when  he  hud  discovered  who  the  owner  was,  changed  the  note,  and 
appropriated  the  money.    Jltlil,  that  T.  was  not  guilty  of  larceny. 

The  prisoner  was  tried  before  Parke,  B.,  at  the  Summer  Assizes  for 
Huntingdon,  1845,  for  stealing  a  bank-note. 

He  found  the  note,  whicli  Lnd  been  accidentally  dropped  on  the  high 
road.  There  was  no  name  or  mark  on  it,  indicating,  w'o  was  the 
owner,  nor  were  there  any  circumstances  attending  the  finding  which 
would  enable  him  to  discover  to  wliom  tlie  note  belonged  when  lie  picked 
it  up ;  nor  had  he  any  reason  to  believe  that  the  owner  knew  where  to 
find  it  again.  The  prisoner  meant  to  appropriate  it  to  Ills  own  use, 
when  lie  picked  it  up.  The  day  after,  and  before  he  had  disposed  of 
it,  he  was  informed  that  the  prosecutor  was  the  owner,  and  had  dropped 
it  accidentally ;  he  then  changed  it,  and  appropriated  the  money  taken 
to  his  own  use.  The  jury  found  that  he  had  reason  to  believe,  and  did 
believe,  it  to  be  the  prosecutor's  property,  before  he  thus  changed  the 
note. 

The  learned  Baron  directed  a  verdict  of  guilty,  intimating  that  he 
should  reserve  the  case  for  further  consideration.  Upon  conferring 
with  3Iaule,  J.,  the  learned  Baron  was  of  opinion  that  the  original  tak- 
ing was  not  felonious,  and  that  in  the  susequent  disposal  of  it,  there  was 
no  taking,  and  he  therefore  declined  to  pass  sentence,  and  ordered  the 
prisoner  to  be  discharged,  on  entering  into  his  own  recognizance  to  ap- 
pear when  called  upon. 

On  the  30th  of  April,  A.  D.  1849,  the  following  judgment  was  read 
by  Parke,  B. 

A  case  was  reserved  by  Parke,  B.  ,  at  the  last  Huntingdon  assizes. 
It  was  not  argued  by  counsel,  but  the  judges  who  attending  the  sitting 
of  the  court  after  Michaelmas  Term,  1848,  namely,  the  L.  C.  Bakon, 
Pattkson,  J.,  RoLFE,  B.,  Cresswell,  J.,  Williams,  J.,  Coltman,  J., 
and  Pakke,  B.  ,  gave  it  much  consideration  on  account  of  its  importance, 
and  the  frequency  of  the  occurrence  of  cases  in  some  degree  similar,  in 
the  administration  of  the  criminal  law,  and  the  somewhat  obscure  state 
of  the  authorities  upon  it.     (The  learned  Baron  here  stated  the  case. ) 

In  order  to  constitute  the  crime  of  larceny,  there  must  be  a  taking  of 
the  chattel  of  another  «ntmo  furandi,  and  against  the  will  of  the  owner. 
This  is  not  the  full  definition  of  larceny,  but  so  much  only  of  it  as 
necessary  to  be  referred  to  for  the  present  purpose ;  by  the  terra  animo 
furandi  is  to  be  understood,  the  intention  to  take,  not  a  partial  and  tem- 
porary, but  an  entire  dominion  over  the  chattel,  without  a  color  of 
riglit.  As  tlie  rule  of  law  founded  on  justice  and  reason  is,  that  actus 
non  facit  reum  nisi  mens  sit  rea,  the  guilt  of  the  accused  must  depend 


"'-'v".^>?;an;y*'*^ 


4-20 


LAUCENY 


on  tl.c  circnm«tancc8  as  they  appear  to  him,  and  the  cnmc  of  lac  t,> 
can  not  l.e  comnntted,  unless  the  goods  taken  appear  o  have  an  o>>n.  . 
and  the  party  taking  must  know  or  believe  that  the  taking  is  agamst  the 

""uhe'ldi^rtime  it  was  held,  that  chattels,  which^ere  apparently 
.•it..Mt  any  owner,  "  nulUu  sin  bouisr  could  not  be  the  Bubject  of  lui- 

'^Stamford,  one  of  the  oldest  authorities  on  criminal  law  who  was  a 
Judge    n  the  reign  of  Phillip  and  Mary,  says-     "Treasurer  trove 
w;ecks  of  the  seaf  waif  or  stray,  taken  and  carried  away  is  notfelonj-^ 
..  Quia  ilomiuus  rerum  ..oh  apparet,  idea  cujus  sunt  mcertumest.       1  or 
th^  he  quotas  Fit/.  Abr.  Coron.  ;^  these  passages  are  taken  from  22  As- 
8i=,es,  22  EdwardIII.,='and  mentioned  only  "  treasure  trove,     "wreck 
and  "  waif,"a..d  Fitz.  says,  the  punishment  for  taking  such,  is  not  the 
Ls  of  life  or  limb.     The  passage  in  3  Institutes  ^  goes  beyond  tU-s ; 
Lord    Coke  mentions  three    circumstances   as  mt.enal  in    larceny 
First,  the  taking  must  be  felonious,  which  he  explains ;  second  y    it 
I;:!  be  an  act.fal  taking,  which  he  also  explains ;  and  tb-1  y,      't^^^ 
not  by  trover  or  finding ;  "  he  then  proceeds  as  follows :        If  one  lo  e 
hisgLsand  another  find  them,  though  he  convert  them,  .m*mo /.<• 
a  ,rto  his  own  use,  it  is  not  larceny,  for  the  first  takuig  is  lawfu 
So,  if  one  find  treasure  trove,  or  waif  or  stray  (here  wreck  is  omitted 
and  stray  introduced),  and  converts  them  ut  supra,  it  is  no   larceny, 
both  in  respect  of  the  finding,  and  that  "  dorainus  ren.mnon  appart. 
The  only  authority  is  that  given  before  mentioned,  22  Assizes,^  22 

""no'v!  treasure  trove  and  waif  seem  to  be  subject  to  a  different  con- 
struction  from  goods  lost.     Treasure  trove  is  properly  money  supposed 
to  have  been  hidden  by  some  owner  since  deceased  the  se^'^et  of  the 
deposit  having  perished,  and,  therefore,  belongs  to  the  Crown  ;  as  to  waif 
he  original  owner  loses  his  right  to  the  property  by  neglecting  to  pursue 
^  the  thief.     The  very  circumstances  under  which  these  are  assumed  to 
b';  teen  taken  and  converted  show  that  they  could  not  ^e  taken  J^^^^ 
any  one,  there  being  no  owner.     Wreck  and  stray    are  not  exactly  o 
Lsam^  footing  as  treasure  trove  and  waif;  wreck  is  not  properlj' so 
eld   if  the  real  owner  is  known,  and  it  is  not  forfeited  untU  after  a 

^^Thrwlnl'^-^estray  "  is  used  in  the  books  in  different  senses,  as  may 
be  seen  in  Com.  Dig.,  Waife,  F,  where  it  is  used  in  the  sense  o 
cattle  forfeited  after  being  m  a  manor  one  year  and  one  day  without 


1  bk.  l.ch.  16. 
S  i);>.  1S7.  265. 
3  1).  99. 


«  p.  108. 
e  p.  09. 


^tm 


H.  V.  THUKBOKN. 


427 


crime  of  larceny 
)  liiivc  an  owiui. 
ing  is  against  the 

,  were  apparently 
he  bubject  of  lar- 

lal  law  who  was  a 
Treasurer  trove, 
ay  is  not  felony." 
ertum  est."     For 
aken  from  22  As- 
trove,"  "wreck" 
ig  such,  is  not  the 
roes  beyond  this; 
erlal  in    larceny, 
lins ;  secondly,  it 
nd  thirdly,  "  it  is 
'8:     "If  one  lose 
;  them,  animofnr- 
t  taking  is  lawful. 
1  wreck  is  omitted 
it  is  no   larceny, 
mm  non  apparet." 
I,  22  Assizes,^  22 

to  a  different  con- 
iy  money  supposed 
,  the  secret  of  the 
1  Crown  ;  as  to  waif, 
leglecting  to  pursue 
ese  are  assumed  to 
I  not  be  taken  from 

are  not  exactly  on 
c  is  not  properly  so 
•feited  until  after  a 

•ent  senses,  as  may 
led  in  the  sense  of 
ind  one  day  without 


challenge,  after  being  proclaimed,  whore  the  property  vests  in  the 
Crown,  or  its  grantee  of  estrays ;  and  also  of  cattle  straying  in  the 
manor,  before  they  are  so  forfeited.  IJlackstone,'  defines  estrays  to  be 
"such  valuable  animals  as  arc  found  wandering  in  any  manor  or  lord- 
shii),  and  no  man  knoweth  the  owner  of  them,  in  which  case  the  law 
pivos  them  to  the  sovereign." 

In  the  passage  in  Stamford  no  doubt  the  word  is  used,  not  exclusively 
in  the  former  sense,  but  jienernlly  as  to  all  stray  cattle,  not  seized  by  the 
lord.  Now  treasure  trove  ami  waif  properly  so-called,  are  clearly 
botia  vacantia,  vnUim  in  honix,  and  but  for  the  prerogative  would  be- 
long to  the  first  fluder  absolutely. 

"  Cum  igmtnr  tlwmurus  in  nnllim  bonis  sit,  et  avdquittis  de  jur* 
nahirali  esset  inventoris,  nunc  de  jure  gentium  efflMur  ipniua  domini 
regis." '^  Wreck  and  stray  in  the  sense  we  ascribe  to  those  words 
arc  not  in  the  same  situation,  for  the  right  of  the  owner  is  not 
forfeited  until  the  end  of  a  year  and  a  day;  but  Lord  Coke  in 
Constable's  Case,^  treats  wreck  also  as  nvllius  in  bonis  and  estrays 
animalia  vagantia,  he  terms  vacantia,  because  none  claims  the  prop- 
erty. Wreck  and  estray,  however,  before  seizure,  closely  resemble 
goods  lost,  of  which  the  owner  has  not  the  actual  possession,  and  afford 
an  analogy  to  which  Lord  Coke  refers  in  the  passage  above  cited. 

AVhether  Lord  Coke  means  what  the  language  at  first-sight  imparts, 
that  under  no  circumstances  could  the  taking  of  the  goods  really  lost 
and  found,  be  guilty  of  larceny,  is  not  clear ;  but  the  passage  is  a  com- 
plete and  satisfactory  authority,  that  a  pcson  who  finds  goods  which 
are  lost  may  convert  them  animo  furandi,  under  some  circumstances 
80  as  not  to  be  guilty.  The  two  reasons  assigned  by  him  are,  that  the 
person  taking  has  a  right  in  respect  of  the  finding,  and  also  that  they 
are  apparently  without  an  owner,  dominus  rerum  non  apparet,  an 
owner,  or  the  owner  docs  not  appear. 

The  first  of  these  reasons  has  led  to  the  opinion  that  the  real  meaning 
of  Lork  Coke  was  not  that  every  finder  of  lost  goods,  who  takes  animo 
furandi,  is  not  guilty  of  felony,  but  that  if  one  finds,  and  innocently 
takes  possession  meaning  to  keep  for  the  real  owner,  and  afterwards 
changes  his  mind  and  converts  to  his  own  use  he  is  not  a  felon,  on  the 
principle  that  Lord  Coke  had  previously  laid  down,  viz. :  that,  "the 
intent  to  steal  must  be  when  the  thing  stolen  cometh  to  his  possession, 
for  if  he  hath  the  possession  of  it  once  lawfully,  though  he  hath  animum 
furandi  afterwards,  and  carryeth  it  away  afterwards,  it  is  no  larceny," 
and  Lord  Coke  also  cites  Granville,  "  Furtum  non  est  ubi  initium  habet 
detentionia per  dominium  rei." 


1  vol.  2,  p.  561,  Stephen's  ed. 

s  IJracton  Coron.  L.  3,  ch.  3,  p.  120. 


s  5  Rep.  168  A. 


428 


LAHCENY. 


It  iH  enid,  therefore,  that  the  case  of  flnding  is  nn  instance  of  this, 
beginning  witli  lawful  title,  which  consequently  can  not  become  a  felony 
by  subsequent  conversion  ;  but  if  it  be  originally  taken  not  for  the  true 
owner,  but  with  intent  to  appropriate  it  to  his  own  use,  it  is  a  felony, 
and  of  this  opinion  the  commissioners  for  the  atucndmcnt  of  the  crimi- 
nal law  appear  to  have  been,  as  stated  in  their  llrst  report. 

TIjIs  opinion  appears  to  us  not  to  be  well  founded,  for  Lord  Colte 
puts  the  case  of  lust  goods  on  the  same  footing  as  wuif  and  treasure 
trove,  which  are  really  bona  vacdntia  goods  without  an  owner,  and  with 
respect  to  which,  wo  apprehend  that  a  jicrsoD  would  not  be  guilty  of 
larceny,  though  he  took  originally  Ortimo/Km«d»,  that  is,  with  the  in- 
tent not  to  take  a  partial  or  temporary  possession,  but  to  usurp  the 
entire  dominion  over  tlicm,  and  tlie  previous  observations  have  refer- 
ence to  cases  in  which  the  original  possession  of  the  chattel  stolen  is 
with  the  consent  of  or  l)y  contract  of  tiie  owner.  But  any  doubt  on  this 
question  is  removed  by  wliat  is  said  by  Lord  Hale:  *  "  If  A.  find  tlie 
purse  of  B.  in  the  highway  and  take  and  carry  it  away,  and  hath  all  the 
circumstances  that  may  prove  it  to  be  done  animo  furandi,  as  denying 
or  secreting  it,  yet  it  is  not  felony.  The  like  in  taking  of  a  wreck  or 
treasure  trove," '■' "or  a  waif  or  stray."  Lord  Hale  clearly  considers 
that  if  lost  goods  are  taken  originally  animo  furandi,  in  the  sense  above 
mentioned,  the  taker  is  not  a  felon ;  and  when  it  is  considered  tliat  by 
the  common  law,  larceny  to  the  value  of  above  twelve  pence  was  pun- 
ishable by  death,  and  that  the  quality  of  the  act  in  taking  animo  furandi 
goods  from  the  possession  of  the  owner,  ('iffers  greatly  from  that  of 
taking  them  when  no  longer  in  his  possession,  and  quasi  derelict,  in  its 
injurious  effect  on  the  interests  of  society  (the  true  ground  for  the  pun- 
isliment  of  crimes),  it  is  not  surprising  that  such  ^\  rule  should  be  es- 
tablished, and  it  is  founded  in  strict  justice;  for  the  cases  of  abstrac- 
tion of  lost  property  being  of  rare  occurrence,  when  compared  with  the 
frequent  violations  of  property  in  the  possession  of  an  owner,  there  was 
no  need  of  so  severe  a  sanction,  and  the  civil  remedy  might  be  deemed 
amply  sufficient.  Hawkins,^  says:  "  Our  law,  which  punishes  all  theft 
with  death,  if  the  thing  stolen  be  above  the  value  of  twelve  pence,  and 
with  corporal  punishment  if  under,  rather  chooses  to  deal  with  them 
(e.flr.  cases  of  finding,  and  of  appropriating  by  bailees),  as  civil  tlian 
criminal  offenses,  perhaps  for  this  reason,  in  the  cases  of  goods  lost, 
because  the  party  is  not  much  aggrieved  where  nothing  is  taken,  but 
what  he  had  lost  before."  It  can  not  indeed  be  doubted  that  if  at  this 
day  the  punishment  of  death  was  assigned  to  larceny  and  usually  car- 
ried into  effect,  the  appropriation  of  lost  goods  would  never  have  been 


1  1  p.  0.  606. 
8Citing2t,As8.  99. 


3  bk.  1,  cli.  10,  sec.  3,  Curwood's  ed. 


mm 


R.  V.  TlIUItUOItN. 


429 


istancn  of  this, 
ccomo  a  felony 
lot  for  the  true 
,  it  is  a  felony, 
:)t  of  tlie  critni- 
t. 

for  Lord  Coke 
f  and  treasure 
tvnur,  and  witli 
ot  be  guilty  of 
is,  witli  tlie  in- 
ut  to  usurp  the 
ns  have  vcfer- 
lattel  stolen  is 
f  doubt  on  this 
'  If  A.  find  the 
ind  hatli  all  the 
idi,  as  denying 
f  of  a  wreck  or 
early  considers 
lie  sense  above 
sidered  that  by 
pence  was  pun- 
animo  furandi 
y  from  that  of 
i  derelict,  in  its 
nd  for  the  pun- 
B  should  be  es- 
ises  of  abstrac- 
ipared  with  the 
vner,  there  was 
ight  be  deemed 
uiisbes  all  thefl 
.Ive  pence,  and 
deal  with  them 
,  as  civil  than 
I  of  goods  lost, 
^  is  taken,  but 
d  that  if  at  tliis 
ad  usually  ear- 
ever  have  been 

urwood's  ed. 


held  to  oonstituto  that  offense,  and  it  is  ccitnin  that  the  alteration  of 
punishment  can  not  alter  the  definition  of  tlio  offense.  To  prevent, 
liowcvcr,  the  taidng  of  goods  from  being  larceny,  it  is  essential  that 
they  should  be  pre  uraably  lost,  that  is,  tiiat  they  sliould  be  taken  in 
such  a  place  and  under  Hueh  circuuistanc<'s,  us  tluit  the  owner  would  bo 
reasonably  presumed  l)y  tlie  taker,  to  have  abandoned  them,  or  at  least 
not  to  know  wlicre  to  find  tliem.  Therefore,  if  a  liorso  is  found  feeding 
ou  an  open  common  or  on  tlie  side  of  a  public  road,  or  a  watch  found 
apparently  hidden  in  a  haystack,  the  taking  of  these  would  bo  larceny, 
because  the  taker  had  no  right  to  presume  that  the  owner  did  not  know 
wliere  to  find  them ;  and  consequently  had  no  right  to  treat  them  as 
lost  goods.  In  the  present  case  there  is  no  doubt  that  the  bank-note 
was  lost,  the  owner  did  not  know  where  to  find  it,  the  prisoner  reason- 
ably believed  it  to  be  lost,  he  had  no  reason  to  know  to  whom  it  be- 
longed, and,  therefore,  though  he  took  it  with  the  intent  not  of  taking 
a  partial  or  temporary,  but  the  entire  dominion  over  it,  the  act  of  taking 
(lid  not  in  our  opinion  constitute  the  crime  of  larceny.  Whether  the 
subsequent  appropriation  of  it  to  his  own  use  by  changing  it,  with  the 
knowledge  at  that  time  that  it  belonged  to  the  p^'osccutor,  does  amount 
to  that  crime,  will  be  afterwards  considered. 

It  appears,  however,  that  goods  which  do  fall  within  the  category  of 
lost  goods,  and  which  the  taker  justly  believes  to  have  been  lost,  may 
be  taken  and  converted  so  as  to  constitute  the  crime  of  larceny,  when 
tlie  party  finding  may  be  presumed  to  know  the  owner  of  th«!m,  or  there 
is  any  mark  upon  them,  presumably  known  by  him,  by  which  the  owner 
can  be  ascertained.  Whether  this  is  a  qualification  introduced  in 
modern  times  or  which  always  existed,  we  need  not  determine.  It  may 
liave  proceeded  on  the  construction  of  the  reason  of  the  old  rule. 
Quia  dominua,  rerum  non  apparet  ideo  aijus  sunt  incertum  eat,  and  the 
rule  is  held  not  to  apply  when  it  is  certain  who  is  the  owner ;  but  the 
autliorities  are  many  and  we  believe  this  qualification  has  been  gener- 
ally adopted  in  practice,  and  we  must  therefore  consider  it  to  be  the 
established  law.  There  are  many  reported  cases  on  this  subject. 
Some  where  the  owner  of  goods  may  Be  presumed  to  be  known  from  the 
circumstances  under  which  they  are  found ;  amongst  these  are  included 
the  cases  of  articles  left  in  hackney  coaches  by  passengers,  which  tlie 
coachman  appropriates  to  his  own  use,  or  a  pocket-book  found  in  a  coat 
sent  to  a  tailor  to  be  repaired,  and  abstracted  and  opened  by  him.  In 
these  cases  the  appropriation  has  been  held  to  be  larceny.  Perhaps 
these  cases  might  be  classed  amongst  those  in  which  the  taker  is  not 
justified  in  concluding  that  the  goods  were  lost,  because  there  is  little 
doubt  he  must  have  believed  that  the  owner  would  know  where  to  find 


430 


LARCENY. 


them  again,  and  he  had  no  pretense  to  consider  them  abandoned  or 
derelict.  Some  cases  appear  to  have  been  decided,  on  the  ground  of 
bailment  determined  by  breaking  bulk,  which  would  constitute  a  tres- 
pass, us  Wi/ne's  Cane,^  but  it  seems  dilflcult  to  apply  that  doctrine 
which  belongs  to  bailment,  -^-hcn  a  special  property  is  acquired  by  con- 
tract, to  any  case  of  goods  merely  lost  and  found,  where  n  special  prop- 
erty is  acquired  by  finding. 

The  ai)propriution  of  goods  by  the  finder  has  also  been  held  to  be 
larceny  where  tlie  owner  could  be  found  out  by  some  mark  on  them,  as 
in  the  case  of  lost  notes,  checks  or  bills,  with  the  owner's  name  upon 
them. 

This  subject  was  considered  in  the  case  of  Merry  v.  Oreen,^  in  which 
the  Court  of  Exchequer  acted  upon  the  authority  of  these  decisions ; 
and  in  the  argument  iu  that  case  difficulties  were  suggested,  whether 
the  crime  of  larceny  could  be  committed  in  the  case  of  a  marked  article, 
a  check  for  instance,  with  the  name  of  the  owner  on  it,  where  a  person 
originally  took  it  up,  intending  to  look  at  it  and  see  who  was  the  owner, 
and  then  as  soon  as  he  knew  whose  it  was,  took  it,  animo  furaniH;  as 
in  order  to  constitute  a  larceny,  the  taking  must  be  a  trespass,  and  it 
was  asked  when  in  such  a  case  the  trespass  was  committed?  In  answer 
to  that  inquiry  the  dictum  attributed  to  me  in  the  report  was  used ;  tb:it 
in  such  a  case  the  trespass  must  be  taken  to  have  been  committed,  ndt 
when  he  took  it  up  to  look  at  it,  and  see  whose  it  was,  but  afterwards, 
when  he  appropriated  it  to  his  own  use,  animo  furandi. 

It  is  quite  a  mistake  to  suppose,  as  Mr.  Greaves  has  done,^  that 
meant  to  lay  down  the  proposition  in  the  general  terms  contained  in  tlu 
extract  from  the  report  of  the  case  in  7  Meeson  and.Welsby,  whid 
taken  alone,  seems  to  be  applicable  to  every  case  of  finding  unmarkec 
as  well   as  marked   property.     It  was  meant  to  apply  to  the  latte 
only. 

Tiie  result  of  tliese  authorities  is,  that  the  rule  of  law  on  this  subjec 
seems  to  be,  that  if  a  man  finds  goods  that  have  been  actually  lost, 
are  reasonably  supposed  by  him  to  have  been  lost,  and  appropriat 
them,  with  intent  to  take  the  entire  dominion  over  them,  really  belie 
ing  when  he  takes  them,  that  the  cwner  can  not  be  found,  it  is  not  la; 
cony.  But  if  he  takes  them  with  the  like  intent,  thougli  lost, 
reasonably  supposed  to  be  lost,  but  reasonably  believing  that  the  own( 
can  be  found,  it  ia  larceny. 

In  applying  this  rule,  as  indeed  in  the  application  of  all  fixed  rule 


1  Leach,  0.  C.  460. 
S  7.  H.  &  W.  623. 


3  vol.  2,  ch.  14. 


K,  V.  TH III! HORN. 


431 


Acr  them  abandoned  or 
•ideil,  on  the  ground  of 
vould  constitute  a  trcs- 
to  apply  that  doctrine 
icrty  is  acquired  hy  con- 
nd,  where  ;i  special  prop- 

as  also  been  held  to  be 
y  some  mark  on  them,  as 
I  the  owner's  name  upon 

'rferry  v.  Oreen,^  in  which 
ority  of  these  decisions ; 
were  suggested,  whether 
I  case  of  a  marked  article, 
■ner  on  it,  where  a  person 
id  see  who  was  the  owner, 
ok  it,  animo  funindi;  as 
mst  be  a  trespass,  and  it 
IS  committed?  In  answer 
the  report  was  used  ;  th:it 
have  been  committed,  not 
►se  it  was,  but  afterwards, 
0  furandi. 

Jreaves  has  done,^  that  I 
sral  terms  contained  in  the 
:eeson  and.  Welsby,  which 
case  of  finding  unmarked, 
nt  to   apply  to  the  latter 

rule  of  law  on  this  subject 
have  been  actually  lost,  or 
een  lost,  and  appropriates 
n  over  them,  really  believ- 
not  be  found,  it  is  not  lar- 
ie  intent,  though  lost,  or 
jly  believing  that  the  owner 

plication  of  all  fixed  rules, 


questions  of  some  nicety  may  arise,  but  it  will  generally  be  ascertained 
whether  the  person  accused  had  reasonable  belief  that  the  owner  could 
be  found,  by  evidence  of  his  previous  acquaintance  with  the  ownership 
of  the  particular  chattel,  the  place  where  it  is  found,  or  the  nature  of 
the  marks  upon  it.  In  some  cases  it  would  be  apparent,  in  others  ap- 
pear only  after  ex.    ..nation. 

It  would  probably  be  presumed  that  the  taker  would  examine  the 
chattel  as  an  honest  man  ought  to  do,  at  the  time  of  taking  it,  and  if  he 
(lid  not  restore  it  to  the  owner,  the  jury  might  conclude  that  he  took  it, 
when  he  took  complete  possession  of  it,  animo  furandi.     The  mere  tak- 
ing it  up  to  look  at  it,  would  not  be  a  taking  possession  of  the  chattel. 
To  api-'y  these  rules  to  the  present  case;  the  first  taking  did  not 
amount  to  larceny,  because  the  note  was  really  lost,  and  there  was  no 
mark  on  it,  or  other  circumstance  to  indicate  then  who  was  the  owner 
or  that  he  might  be  fo and,  nor  any  evidence  to  rebut  the  presumption 
that  would  arise  from  the  finding  of  the  note  as  proved,  that  he  be- 
lieved the  owner  could  not  be  found,  and  therefore  the  original  taking 
was  not  felonious ;  and  if  the  prisoner  had  changed  the  note  or  other- 
wise disposed  of  it,  before  notice  of  the  title  of  the  real  owner,  he 
clearly  wouhl  not  have  been  punishable ;  but  after  the  prisoner  was  in 
possession  of  the  note,  the  owuer  became  known  to  him,  and  he  then 
appropriated  it,  animo  furandi,  and  the  point  to  be  decided  is,  whether 
that  was  a  felony. 
Upon  this  question  we  have  felt  considerable  doubt. 
If  he  had  taken  the  chattel  innocently,  and  afterwards,  appropriated 
it  without  knowledge  of  the  ownershi[»,  it  would  not  have  been  larceny, 
nor  wotdd  it,  if  he  had  done  so,  knowing  who  was  the  owner,  for  he  had 
the  lawful  possession  in  both  cases,  and  the  conversion  would  not  have 
been  a  trespass  in  either.     But  here  the  original  taking  was  not  inno- 
cent in  one  sense,  and  the  question  is,  does  that  make  a  difference? 
Wo  think  not ;  it  was  dispunishable  as      •  have  already  decided,  and 
though  the  possession  was  accompanied  by  a  dishonest  intent,  it  was  still 
a  lawful  possession,  and  good  against  aCU  but  the  real  owner,  and  the  sub- 
seiiuent  conversion  was  not,  therefore,  a  trespass  in  this  case,  more 
than  the  otliers,  and  consequently  no  larceny. 
We  therefore  think  that  the  conviction  was  wrong. 


2,  cb.  14. 


432 


LARCENY. 


LARCENY  —  FELONIOUS    INTENT    AT    TIME    OF   FINDING  —  FINDER 
MUST  HAVE  IMMEDIATE  MEANS  OF  FINDING  OWNER. 

R.  V.  CHniSTOPHER. 

[Bell,  C.  C.  27.] 
In  the  English  Court  Jor  Crown  Cases  Eeserved,  1858. 

To  Eatablish  a  Charge  of  Larceny  Bgainst  the  Under  of  a  lost  article  two  trtlngs  must  b« 
shown,  (1)  that  at  the  time  ol  Uio  flnUlng,  the  Under  had  the  felonious  InU-nt  to  api>ro 
priaie  the  thing  to  his  own  use,  (2)  that  nt  the  time  of  finding  he  had  reasonable  grounds 
for  believing  that  the  owner  might  be  discovered. 

The  case  as  stated  by  the  magistrate  was  as  follows :  "It  appeared  from 
the  evidence  that  the  prosecutrix  left  her  master's  house  between  eleven 
and  twelve  o'clock  in  the  morning  of  the  13th  October  to  go  to  Dorches- 
ter (a  distance  of  about  a  mile),  having  in  her  possession  a  purse  of 
green  leather  (commonly  called  a  port-monnaie),  containing  within  it 
another  smaller  purse,  about  the  size  of  a  half  crown,  in  which  there 
were  three  sovereigns  and  two  half  sovereigns. 

' '  In  the  public  path  between  Stinsf  ord  House  and  the  first  meadow,  as 

she  supposes,  she  dropped  the  purse;  but  thinking  she  might  have  left  it 

on  her  table,  she  went  on  and  returned  home  about  one.     Finding  out 

her  loss  she  went  in  the  afternoon  to  Dorchester,  and  had  the  property 

cried  by  the  public  crier, —describing  it  as  a  green  leather  purse  and 

a  smaller  one  inside,  and  that  they  contained  three  sovereigns  and  one  half 

sovereign  and  a  half  crown,  or  £3  12s  6d.     (This  was  an  error,  as  it 

really  contained,  as  she  found  afterwards,  two  half  sovereigns  instead 

of  only  one,  £4  2s  6d. )     About  four  o'clock  the  prisoner  is  at  the  Bull's 

Head  public  house  with  a  man  named  Upshall  whom  he  treats  to  beer, 

and  paid  for  it  with  a  sovereign  which  he  took  out  of  a  purse.     Whilst 

they  were  sitting  at  the  table  together  in  the  tap,  the  crier  came  by  and 

cried  something.     Tlie  landlady,  Mary  Jane  Russell  went  to  the  door 

to  hear ;  Upshall  asked  her  what  it  was  cried.     Landlady,  from  the 

passage  said,  '  Some  money  lost,  £3  12s  6d.'     Prisoner  was  taken  up 

eventually  at  twelve  o'clock  at  night  at  another  public  house,  and  the 

two  purses  with  six  half  sovereigns,  two  shillings  and  six  pence  in  silver 

and  some  pence  found  on  him.     The  constable  said :  '  These  things 

were  lost.*      Prisoner  said:   'Well,  I  know    I  did   pick  them  up.' 

Constable  said:    'There  was  more  money  than  this.'     Prisoner  said: 

'I  know  I've  done  wrong.' 

"  On  the  part  of  the  prisoner,  it  was  contended  that  at  the  time  he  took 
the  purse  (which  was  admitted)  he  had  no  felonious  intent;  that  there 
was  no  name  or  special  mark  on  the  purse  or  the  money,  and  that  the 


^im 


K.  V.  CHRISTOPHER. 


488 


i"INDINQ  —  FINDER 
!fG  OWNER. 


rved,  1858. 


rtlcle  two  trtlngs  must  b« 
ilonious  intt'Ot  to  ap|)ro- 
3  had  rea8on»ble  grounda 


:  "It  appeared  from 
)use  between  eleven 
)er  to  go  to  Dorches- 
ossession  a  pui'se  of 
containing  within  it 
own,  in  which  there 

[  the  first  meadow,  as 
she  might  have  left  it 
t  one.  Finding  out 
nd  had  the  property 
en  leather  purse  and 
irereigns  and  one  half 
3  was  an  error,  as  it 
if  sovereigns  instead 
soner  is  at  the  Bull's 
)m  he  treats  to  beer, 

of  a  purse.  Whilst 
le  crier  came  by  and 
sell  went  to  the  door 

Landlady,  from  the 
risoner  was  taken  up 
)ublic  house,  and  the 
lid  six  pence  in  silver 
mid:  ^  These  things 
did  pick  them  up.' 
his.'     Prisoner  said: 


subsequent  appropriation  did  not  amount  to  larceny ;  that,  though  civilly, 
he  was  not  criminally  liable,  and  the  cases  of  Regina  v.  Mole,^  T/tur- 
hom's  Caae,^  and  Regina  v.  Lathin,^  were  cited.  In  summing  up,  I 
told  the  jury  that  a  felonious  intent  was  held  to  be  a  necessary  ingre- 
dient in  every  larceny,  but  that  intention  was  to  be  judged  of  by  such 
acts  subsequent  as  well  as  immediate ;  that  if  they  thought  the  conver- 
sion of  the  money  to  his  own  use  without  inquiry  was  proved,  and  that 
there  was  though  no  name  or  mark  on  the  purse  yet  such  peculiarity  in  it 
as  containing  a  second  smaller  one,  as  to  warrant  some  inquiry  and  above 
all,  if  they  were  satisfied  that  the  prisoner  when  sitting  in  the  public 
house,  heard  the  words  of  the  landlady,  which  Upshall  said  he  heard, 
and  then  did  not  take  measures  to  make  restitution,  that  I  thought  they 
might  infer  felonious  intention,  and  find  him  guilty. 

"  The  jury  returned  a  verdict  of  guilty  on  the  count  for  stealing.  A 
previous  conviction  was  then  proved  and  the  prisoner  was  sentenced 
six  calendar  months  hard  labor. 

"  On  application  of  counsel  for  the  prisoner,  a  case  was  granted, 
and  execution  of  the  judgment  respited  till  the  decision  of  the  court 
above  was  known. 

I  respectfully  submit  the  question,  whether  the  above  facts  warranted 
in  point  of  law,  the  finding  of  the  jury  in  this  case. 

"Chables  Pobchek, 
"  Deputy  Chairman  of  the  Quarter  Sessions. 

This  case  was  argued  on  the  22d  of  November,  1858,  before  Pollock, 

C.  B.,  WiGHTMAN,  J.,  WiLUAMS,  J.,  ClIANMELL,  B.,  and  HiLL,  J. 

Stock,  appeared  for  the  Crown,  and  Ffooks,  for  the  prisoner. 

Ffooks,  for  the  prisoner.  The  facts  in  this  case  are  identical  with 
those  in  Regina  v.  Tlmrborn,*  and  the  object  of  the  court  below  in  re- 
senlng  it,  seems  to  have  been  to  procure  a  review  of  that  decision. 

Pollock,  C.  B.  The  question  for  us  is,  whether  there  was  any  evi- 
dence to  go  to  the  jury,  that  at  the  moment  when  the  prisoner  took  up 
the  purse  he  intended  feloniously  to  appropriate  it. 

Ffooks.  There  was  not  any  whatever.  The  purse  was  lying  on  a 
public  footpath,  and  had  evidently  been  lost.  There  was  no  name  on 
it,  and  nothing  about  it  or  its  contents  to  indicate  the  ownership. 
The  circumstance  that  the  purse  contained  a  smaller  one,  can  not  of 
course,  alter  the  character  of  the  first  taking,  although  certainly  it 
might  have  facilitated  the  discovery  of  the  person  who  had  lost  it. 
This  very  case  is  put  by  Lord  Hale,*  and  mentioned  in  Regina  v.  Thur- 


lat  at  the  time  he  took 
us  intent ;  that  there 
I  money,  and  that  the 


>  1  Oar.  A  K.  417. 

<  1  Den.  C.  0.  392. 

3  This  appears  to  be  an  error,  and  prob- 

a  Drfbncrs. 


ably  the  case  referred  to  waa  Reg.  v.  Pre** 
ton,  2  Den.  C.  0.353. 

«  1  Oen.  C.  U.  387. 

>  llale'8  P.  C.  506. 


28 


434 


LAIICKSV. 


born  1  "  If  I  find  the  purse  of  B.  in  the  highway,  and  take  and  carry 
t  away,  and  hath  all  L  circumstances  that  may  prove  ^t  to  be  don. 
aniJfurandi.  as  denying  or  secreting  it,  yet  xt  is  not  f e  ony  But 
Reainav.  Thurborn  does  not  stand  alone ;  it  has  been  frequen  ly  recoj- 
Sl Td  acted  npon.     In  Begina  v.  Preston,^  Lord  Campbell  strongly 

Tar.'^:  rri  t  ^ina  ..  m^,  also,  it  is  acted  upon.  The 
observations  of  Lord  Campbell,  in  Regina  v.  Preston  are  very  impor- 
tant, as  they  show  what  the  direction  to  the  jury  ought  to  be. 

Ffooks.  The  direction  of  the  chairman  here  was  to  the  effect  hat 
BuWquent  conduct  might  convert  an  innocent  taking  into  a  felomou. 
appropriation.    That  was  clearly  wrong. 

The  learned  counsel  was  stopped  by  the  court.  ^ 

Stock  for  the  Crowrt.  The  present  case  is  distinguishable  from  the 
cases  cied.  In  Regina  v.  Preston,  the  jury  did  not  say  that  there  was 
atlonirus  intention  at  the  time  of  finding,  and  in  that  case  the  re- 
coVder  had  misdirected  the  jury  in  telling  them  to  consider  at  what 
"me  he  prisoner  first  resolved  to  appropriate  the  not«  to  his  own  use , 
and  that  if  they  arrived  at  the  conclusion  that  the  prisoner  either  knew 
"e  owner,  or  reasonably  believed  that  the  owner  could  be  found  when 
he  first  resolved  to  appropriate  the  note,  then  he  was  guilty  of  larcenj 
a^d  the  court  held  that  direction  was  wrong,  because  it  was  consistent 
with  an  honest  possession  on  the  part  of  the  prisoner. 

The  fact,  in  this  case  differ  from  those  in  Reginay.  Thurhom  an 
the  jury  here  substantially  find,  that  the  P^^oner,  though  be,»eving^ 
the  time  of  finding  that  the  owner  could  be  found,  did  intend  felon- 
iouslv  to  appropriate  the  purse  and  its  contents  to  his  own  use. 

wfLUXMs,  J.     You  have  this  difficulty  to  grapple :  that  there  is  no 
evidence  of  that,  except  the  subsequent  conduct  of  the  prisoner. 

tol    I  submit  that  the  nature  of  the  property  found,  one  purse 

within  another,  and  the  place  where  it  was  found,  on  a  'ootpath  near  » 

market  town,  Afford  reason  for  believing  that  the  owner  could  be  found. 

POLLOCK  C.  B.     If  you  examine  all  and  each  of  the  facts,  they  are 

J^sLnt  \.;h  the  innocence  of  the  prisoner.     Is  there  any  evident 

from  which  the  jury  ought  reasonably  t^  have  found  a  verd-ct  of  gudtj . 

Channell,  B.     In  Regina  v.  Dixon.*  in  which  Regxna  v.  nurftom, 

w.«  referred  to,  it  was  held  that,  if  a  man  find  lost  prope,.y«id  keep 

it,  and  at  the  time  of  finding  it  have  no  means  -  no  immediate  m^^, 

of  discovering  the  owner,  he  is  not  guilty  of  larceny  because  he  rf^er- 

wards  has  means  of  finding  him,  and  nevertheless  retains  the  property 

to  his  own  use. 


1  1  Den.  C.  C.  893. 
1  S  Den.  C.  O.  3BS. 


3  Dean.  O.  C.  SW. 
«  Dears.  O.  C.  680. 


^^ 


R.  V.  CHRISTOPHER. 


435 


,',  and  take  and  carry 
y  prove  it  to  be  doni' 
is  not  felony."  But 
een  frequently  reco<;- 
•rd  Campbell  strongly 

it  is  acted  upon.    The 
eston,  are  very  impor- 
ought  to  be. 
was  to  the  effect  that 
making  into  a  felonious 


stinguishable  from  the 
not  say  that  there  was 
id  in  that  case  the  re- 
n  to  consider  at  what 
te  note  to  his  own  use; 
te  prisoner  either  knew 
r  could  be  found  when 
1  was  guilty  of  larceny ; 
icause  it  was  consistent 
oner. 

egina  v.  Thurbom,  and 
ler,  though  believing  at 
ound,  did  intend  felon- 
to  his  own  use. 
apple:  that  there  is  no 
;  of  the  prisoner, 
(perty  found,  one  purse 
id,  on  a  footpath  near  » 
e  owner  could  be  found, 
sh  of  the  facts,  they  are 
Is  there  any  evidence 
lund  a  verd'ct  of  guilty? 
ih  Begina  v.  Thurborn, 
\  lost  property  and  keep  I 
I  —  no  immediate  means, 
weeny  because  he  after- 
iless  retains  the  property  j 


j.o.sao. 

J.C.S80. 


Pollock,  C.  B.  I  am  of  opinion  that  this  conviction  can  not  be  sus- 
tained. Wo  are  bound  by  the  authoritj'  of  liegina  v.  Thurborn.  It  is 
necessary  to  bring  home  to  tlie  prisoner  a  felonious  intention  at  the  time 
of  finding. 

WiGHTMAN,  J.  The  decision  in  Regina  v.  Tliwbom  has  been  rec- 
ojriiized  in  several  subsequent  decisions.  We  can  not  overrule  that 
case  and  are  bound  by  it. 

Williams,  J.  Though  considering  myself  bound  by  the  authority 
of  Regina  v.  Thurborn,  and  agreeing  as  I  do  with  the  decision  in  that 
case,  I  must  confess  I  have  never  been  able  to  agree  with  some  of  the 
principles  there  laid  down.  Here  the  direction  to  the  jury  was,  I  think, 
calculated  to  mislead  them  and  to  induce  them  to  suppose  that  although 
the  prisoner  had  no  felonious  intent  at  the  time  of  finding,  yet  if  he 
subsequently  had  such  intent  he  was  guilty  of  larceny ;  but  that  is  not 
Uie  law.  ' 

The  evidence  here  shows,  according  to  my  view  of  it,  that  the  pris- 
oner found  the  purse  and  took  possession  of  it  as  a  finder,  and  that  the 
wiciced  intention  of  appropriating  it  came  upon  him  afterwards.  I 
therefore  think  this  conviction  can  not  be  sustained. 

Channell,  B.  I  think  that  the  case  of  Regina  v.  Tlmrborn  was 
rightly  decided ;  and  I  think  that  the  cases  of  Regina  v.  Preston  and 
Begina  v.  Dixon,  which  followed,  laid  down  a  reasonable  rule  and  one 
consistent  with  the  decision  in  Regina  v.  Thurborn. 

The  question  is,  was  there  a  felonious  intent  at  the  time  when  the 
prisoner  first  took  possession  of  the  purse?  I  am  by  no  means  ^  vc- 
pared  to  say  that  evidence  of  what  subsequently  occurred  was  not  ad- 
missible to  prove  a  felonious  intention  at  the  time  of  finding,  but  the 
question  of  intent  at  that  time  was  not  put  to  the  jury.  The  chairman 
told  the  jury  that  a  felonious  intent  was  held  to  be  a  necessary  ingre- 
dient in  every  larceny,  but  that  intention  was  to  be  judged  of  by  acts 
subsequent  as  well  as  immediate ;  and  that,  if  they  were  satisfied  that 
the  prisoner  when  sitting  in  the  public  house  heard  the  words  of  the 
I  landlady,  and  then  did  not  take  measures  to  make  restitution,  they 
might  infer  a  felonious  intention.  Now,  it  is  quite  consistent  with  that 
direction  that  the  jury  should  find  the  prisoner  guilty,  although  they 
were  of  opinion  that  the  felonious  intent  did  not  arise  until  subsequently 
to  the  finding.  I  therefore  think  that  the  conviction  can  not  be  sus- 
I  tained. 

Hill,  J.    Two  things  must  be  made  out  in  order  to  establish  a  charge 

I  of  larceny  against  the  finders  of  a  lost  article.     First,  it  must  be  shown 

that,  at  the  time  of  finding,  ho  had  the  felonious  intent  to  appropriate 

the  thing  to  his  own  use ;  and  this  is  founded  on  the  rule  iaid  down  by 

Lord  Coke,  and  referred  to  and  acted  upon  in  Regina  v.  Thurborn, 


-a  fclliiViri5fiO>.ftsJiGW»/i  xt 


43(5 


LAKCENY, 


The  other  incrrcdient  necessary  is  that,  at  the  time  of  finding,  he  had 
reasonable  ground  for  beheving  that  the  owner  might  be  discovered, 
and  that  reasonable  belief  may  be  the  result  of  a  previous  knowledge  or 
may  arise  from  the  nature  of  the  chattel  found,  or  from  tl><3re  being 
some  name  or  mark  upon  it ;  but  it  is  not  sufficient  that  the  finder  may 
tbinkthat  by  taking  pains  the  owner  may  be  found,  —there  must  be  the 
immediate  means  of  finding  him.  In  this  case  the  evidence  fads  m 
both  these  particulars,  and  therefore  the  conviction  can   not  be  sus- 

^'*'"®'**  Conviction  quashed. 


LARCENY -FINDER -INTENT  FORMED  SUBSEQUENTLY. 

R.  V.  Preston. 

[1  Den.  &  P.  351.] 
In  the  English  Court  for  Crown  Cases  Reserved,  1851. 

Where  a  Banknote  Is  lost.  anJ  is  found  by  a  person  who  appropriates  it  to  hi.  own  use 
ftri"*harT*Murj  nre  no  to  be  directed  to  consider  at  what  time  the  P'""""";  «'" 
S  iltin to.  is  .ossession.re.olved  to  appropriate  It  to  his  own  «»«. ^»'7^^«'^"  » 
the  time  ho  took  possession  of  it  he  knew,  or  had  the  means  <.f  knowing,  '^h"  "'«  "JJ 
was  Vnd  ook  possession  of  It  with  Intent  to  steal  it;  for  if  his  original  possession  of 
was'au  fnnoccnt  one.  no  subsequent  change  of  his  .nlnd.  or  resolution  to  appropriate  it 
to  his  own  use.  would  amount  to  larceny. 

The  prisoner,  Michael  Preston,  was  tried  before  M.  D.  Hill,  Esq., 
Recorder  of  Birmingham,  at  the  last  Michaelmas  Sessions  for  that  bor- 
ou'^h,  upon  an  indictment  which  charged  him  in  the  first  count  with 
stelling;  and  in  the  second,  with  feloniously  receiving  a  £50  note  of  the 

Bank  of  England.  .  ^.     .     u 

It  was  proved  that  the  prosecutor,  Mr.  Collis,  of  Birmingham,  re- 
ceived the  note  in  question  with  others  on  Saturday,  the  18th  of  Octo- 
ber from  Mr.  Lidsam,  who,  before  he  handed  it  to  the  prosecutor  wrote 
on  the  back  of  it  the  words  "  Mr.  Collis."  It  was  further  proved  that 
Collis  was  a  very  unusual  name  in  Birmingham,  and  almost,  if  not  quite 
confined  to  the  family  of  the  prosecutor,  the  well  known  master  manu- 

About  four  o'clock  the  same  afternoon  the  prosecutor  accidentally 
dropped  the  notes  in  one  of  the  public  streets  in  Birmingham,  and  im- 
mediately gave  information  of  his  loss  to  the  police,  and  also  caused 
hand-bills,  offering  a  reward  for  their  recovery,  to  be  printed  and  cir- 
culated about  the  town. 


r..i>.'--i;«!«^'- 


R.  V.  PRESTON. 


437 


of  finding,  he  had 
ght  be  discovered, 
rious  knowledge  or 
r  from  there  being 
that  the  finder  may 
-  there  must  be  the 
e  evidence  fails  in 
1  can   not  be  sus- 

nviction  quashed. 


3EQUENTLY. 


rved,  1851. 

sprlates  It  to  hU  own  use, 
;  time  the  prisoner,  after 
own  UBO,  but  whether  at 
!  knowing,  who  the  owner 
9  original  possession  of  it 
jsolution  to  appropriate  it 


e  M.  D.  Hill,  Esq., 

Sessions  for  that  bor- 

the  first  count  with 

ing  a  £50  note  of  the 

,  of  Birmingham,  re- 
ly,  the  18th  of  Octo- 
the  prosecutor  wrote 
s  further  proved  that 
\  almost,  if  not  quite 
known  master  manu- 

■osecutor  accidentally 
Birmingham,  and  im- 
jlice,  and  also  caused 
bo  be  printed  and  cir- 


On  Monday,  the  20th,  about  three  o'clock  in  the  afternoon,  tlie  pris- 
oner, who  had  been  living  in  Birmingham  fourteen  years,  and  keeping 
a  sliop  there,  went  to  one  of  the  police  stations,  and  inquired  of  a  polite" 
man  if  there  was  not  a  reward  publicly  offered  for  some  notes  that  had 
been  lost,  and  whetiier  their  numbers  were  known,  stating  tiiat  he  was 
as  likely  as  any  person  to  have  them  offered  to  him,  and  if  he  heard  any 
thing  of  them  he  would  let  the  police  know.  He  also  inciuiicd  if  the 
policeman  could  give  any  description  of  the  person  who  was  supposed 
to  have  found  them,  and  the  policeman  gave  him  a  written  description 
of  such  person,  who  was  described  therein  as  a  tall  man.  Afterwards, 
between  three  and  four  o'clock  the  same  afternoon,  tlie  prisoner  went 
to  tiie  shop  of  Mr.  Bickley,  in  iiirmingham,  and  after  inquiring  if  he 
(Bickley)  had  heard  of  the  loss  of  a  £50  note,  stated  that  he,  the  pris- 
oner, thought  that  he  knew  parties  that  had  found  one,  and  then  asked 
Bickley  whether  the  finders  would  be  justified  in  appropriating  it  to  their 
own  use ;  to  which  Bickley  replied  that  they  would  not. 

At  four  o'clock  on  the  same  afternoon  the  prisoner  changed  the  note, 
and  was  later  in  the  same  evening  found  in  possession  of  a  considerable 
quantity  of  gold,  with  regard  to  which  he  gave  several  false  and  incon- 
sistent accounts. 

He  was  then  taken  into  custody,  and  on  the  following  day  (October 
21),  stated  to  a  constable  that  when  he  was  alone  iu  his  house  on  Siin- 
thiy,  a  tall  man  whom  he  did  not  know  came  in,  and  offered  him  a  £50 
note,  for  which  he,  the  prisoner  gave  him  fifty  sovereigns. 

The  police  officers  had  previously  told  the  prisoner,  that  they  were 
in  possession  of  information  that  one  Tay,  who  was  known  to  the  pris- 
oner, had  found  the  note ;  but  Tay  was  not  called,  nor  was  any  evidence 
given  as  to  the  part  (if  any)  which  he  took  in  the  transaction. 

Upon  these  facts  the  learned  recorder  directed  the  jury,  that  the  im- 
portant question  for  them  to  consider,  was  at  what  time  the  prisoner 
first  resolved  to  appropriate  the  note  to  his  own  use ;  if  they  arrived  at 
the  conclusion,  that  the  prisoner  either  knew  the  owner,  or  reasonably 
believed  that  the  owner  could  be  found  at  the  time,  when  he  first  re- 
solved to  appropriate  it  to  his  own  use,  that  is  to  exercise  complete 
dominion  over  it,  then  he  was  guilty  of  larceny;  if  on  the  other  hand, 
he  had  formed  the  resolution  of  approprijiting  it  to  his  own  use,  before 
he  knew  the  owner,  or  had  a  reasonable  belief  that  the  owner  could  be 
found,  then  he  was  not  guilty  of  larceny.  He  also  told  the  jury  that 
there  was  no  evidence  of  any  other  person  having  possession  of  the 
note  after  it  was  lost,  except  the  prisoner ;  but  that  even  though  the 
prisoner  might  not  be  the  original  finder,  still  if  he  were  the  first  person 
who  acted  dishonestly  with  regard  to  it,  and  if  he  began  to  act  dislion- 
estly  by  forming  the  resolution  to  keep  it  for  his  own  use,  after  he  knew 


<flr«;er.-,.*»5«jcsr  iTV,  sh--^  ■ 


438 


LARCENY. 


the  (.wncr,  or  reasonably  believed  that  the  owner  could  be  found,  he 

would  be  guilty  of  larceny.  ,     ^    ,  .    „„a  th. 

The  jury  found  the  prisoner  guilty  upon  the  flrat  count,  and  the 
learned  recorder  requested  the  opinion  of  the  judges  as  to  the  validity 
of  the  conviction.  The  prisoner  was  discharged  on  the  recognizance  of 
himself  and  sureties,  to  appear  and  receive  judgment  at  the  next  Ses- 

sions.  J  I.  * 

On  the  22d  of  November,  A.  D.  1851,  this  case  was  argued  before 
Lord  Campbell,  C.  J.,  Alderson,  B.,Platt,  B.,  Talfoubd,  J.,  and 

Martin,  B. 
Bi«iestone,  for  the  Crown.     0 'Brien,  for  the  prisoner. 

O'Brien     The  jury  found  the  verdict  under  the  direction  of  the 
learned  recorder,  and  I  submit  tha»,  that  direction  was  wrong  in  law. 
The  jury  were  told,  that  the  important  question  for  them  to  consider, 
was  at  what  time  the  prisoner  first  resolved  to  appropriate  the  note  to  his 
own  use.     If  they  arrived  at  the  conclusion,  that  the  prisoner  either  knew 
the  owner,  or  reasonably  believed  that  the  owner  could  be  found  at  the 
time  when  he  first  resolved  to  appropriate  it  to  his  own  use,  then  he  was 
suiltv  of  larceny.    But  the  real  question  is  whether  the  prisoner  knew  who 
L  owners  as  or  had  reasonable  means  of  knowing  who  was  the  owner  at 
the  time  of  his  taking  the  property  into  his  possession  r    Unless  at  the 
time  of  taking  it,  there  was  a  knowledge  or  a  reasonable  means  of  know- 
ing  who  was  the  owner  animus  furandi,  on  the  part  of  the  finder,  there 
could  be  no  larceny.     This  is  distinctly  laid  down  in  the  judgment  o 
Parke  B.,  in   Regina  v.   nnrborn.'    In  the  case  of  Merry  v.  Green 
which  was  an  action  for  false  imprisonment,  the  question  was  much 
discussed,  and  the  difficulty  was  to  find  the  precise  time  when  the  tak- 
m<r  became  a  trespass.     The  conditions  are  laid  down,  in  Regtna  v.  Thur- 
bJrn,  with  great  precision.     In  that  case  it  was  found,  that  when  he 
prisoner  picked  up  the  note,  he  had  the  animus  furandi,  but  had  not  the 
means  of  knowing  who  was  the  owner ;  and  it  was  there  held,  that  un- 
less attlietime  of  taking,  the  finder  had  an  animvs  furandi,  and  the 
knowledge  or  the  means  of  knowing  who  the  owner  was,  he  was  no 
suiltv  of  larceny.     In  the  present  case,  it  is  not  found  by  the  jury  that 
the  prisoner,  when  he  picked  up  the  notes,  knew  who  the  owner  was  or 
that  he  intended  to  steal  them.     It  may  weU  be  that  he  had  onginaUy 
taken  them  innocently  and  "  dispunishably." 

Alderson,  B.  The  recorder  told  the  jury  that  even  if  the  prisoner 
were  not  the  original  finder,  still  if  he  were  the  first  person  who  acted 
dishonestly  with  regard  to  the  note,  he  would  be  guilty  of  larceny. 

O'Brien.  There  was  ample  evidence  to  show  that  he  was  not  the 
original  finder. 


1  1  Den.  C.  C.  387. 


i  7  Mce.  A  W. 


^^m 


R.  r.  PRESTON. 


439 


sould  be  found,  he 

•at  count,  and  the 
IS  as  to  the  validity 
the  recognizance  of 
nt  bt  the  next  Ses- 

was  argued  before 
Talfoubd,J.,  and 

iaoner. 

;he  direction  of  the 
i  was  wrong  in  law. 
)r  them  to  consider, 
)riate  the  note  to  his 
prisoner  either  knew 
)uld  be  found  at  the 
»wn  use,  then  he  was 
lie  prisoner  knew  who 
who  was  the  owner  at 
sion?    Unless  at  tl»e 
able  means  of  know- 
t  of  the  finder,  there 
1  in  the  judgment  of 
of  Merry  v.  Green," 
5  question  was  much 
>e  time  when  the  tak- 
n,  in  Regina  v.  Thur- 
found,  that  when  the 
andi,  but  had  not  the 
i  there  held,  that  un- 
mua  furandi,  and  the 
ner  was,  he  was  not 
3und  by  the  jury  that 
(vho  the  owner  was  or 
tiat  he  had  originally 

t  even  if  the  prisoner 
irst  person  who  acted 
juilty  of  larceny, 
r  that  he  was  not  the 


Lord  Campbell,  C.  J.  The  first  part  of  the  recorder's  direction  is 
consistent  with  this,  that  the  prisoner  may  have  received  the  property 
honestly,  and  have  kept  it  for  some  time  for  tlie  right  owner,  and  after- 
wards have  yielded  to  temptation,  and  appropriated  it  to  himself. 

Aldebson,  B.  When  the  finder  first  takes  it  into  his  possession,  — 
in  order  to  constitute  larceny  —  there  must  be  an  intention  of  "  taking  '* 
it  the  moment  he  knows  what  it  is. 

Platt,  B.     Tliere  must,  at  that  moment  be  a  felonious  taking. 

Lord  Campbell,  C.  J.  If  the  original  possession  was  a  lawfui  pos- 
session, then  there  was  no  asportavit.  If  the  prisoner,  when  he  took 
tlie  notes  originally  into  his  possession,  had  not  the  means  of  knowing 
who  the  owner  was,  and  had  not  then  the  animus  furandi,  when  was  the 
"taking?" 

O'Brien  cited  R.  v.  Leigh,^  R.  v.  Muckloiv.^ 

Bittlestone,  for  the  Crown. 

The  direction  of  the  recorder  is  supported  by  the  judgment  of  the 
court  in  Regina  v.  Thurbom. 

Lord  Campbell,  C.  J'.  Do  you  contend  that  if  the  prisoner  once  had 
tiie  property  honestly  in  his  possession,  he  would  be  guilty  of  larceny 
by  afterwards  appropriating  it  to  his  own  use? 

Bittlestone.  The  question  can  not  be  governed  by  the  intention  of 
the  finder  at  the  very  moment  he  takes  the  thing  into  his  possession 
There  must  be  time  to  examine  it. 

Lord  Campbell,  C.  J.  Assume  that  he  has  full  time  .for  examination, 
and  has  examined  it.  The  recorder  tells  the  jury  to  consider  at  what 
time  the  prisoner  fir§t  resolved  to  appropriate  it  to  his  own  use,  and 
that  if  when  be  resolved  to  appropriate  it  to  himself  he  bad  the 
means  of  knowing  who  the  owner  was,  he  was  guilty  of  larceny,  al- 
though he  may  have  before  then  received  it  bono  anima.  When  was  the 
taking? 

Alderson,  B.  The  direction  of  the  recorder  does  not  exclude  the  sup- 
position that  the  prisoner  might  have  got  the  notes  honestly,  kept  them 
for  three  or  four  days,  and  then  resolved  to  appropriate  them  to  bis  own 
use. 

Bittlestone.  I  should  submit  that  as  long  as  the  prisoner's  possession 
of  the  property  was  an  innocent  one,  his  possession  was  that  of  the 
owner.  If  a  person  find  a  bank-note  marked,  so  that  it  may  be  trnced 
to  the  owner,  the  possession  of  the  finder  is  the  possession  of  the  owner, 
so  long  as  the  finder  deals  honestly  with  the  property.  But  as  soon  as 
the  finder  resolves  to  convert  it  to  his  own  use  he  alters  the  possession, 
and  then  can  only  be  said,  for  the  first  time,  to  take  the  note  for  the  pur- 
pose of  exercising  dominion  over  it. 


1  a  East's  p.  C.  694. 


a  1  Mo.  C.  C.  160. 


mw^imumwrm'^ 


440 


LARCENY. 


Aldebson,  B.  There  is  no  proof  here  that  the  prisoner  couUl  reail 
any  marks  which  may  have  been  on  the  note. 

Bittlestone.  But  there  is  evidence  that  ho  took  them  and  showod  them 
to  other  persons  who  could  read.  He  went  about  making  inquiries 
whether  ho  could  safely  keep  them  for  himself  or  not. 

Lord  Campbell,  C.  J.  That  might  have  been  strong  evidence  for  tlie 
jury  that  the  prisoner  originally  took  the  property  animo  furandi,  and 
with  the  means  of  knowing  who  the  owner  was. 

Bittlestone.  Parke,  B.,  lays  it  down  In  Regina  v.  nurbom,  that  the 
mere  taking  up  of  a  note  to  look  at  it  is  not  a  taking  possession  of  tiie 
chattel.  The  taking  is  when  the  finder  takes  it  intending  to  exercise 
complete  dominion  over  it. 

Lord  CampbellC.  J.  Your  position  is  that  the  finder,  while  he  holds 
the  property  honestly,  holds  it  for  the  right  owner,  and  that  when  lie 
resolves  to  appropriate  it  to  his  own  use  there  is  a  new  taking,  and  that 
he  then  takes  it  animo  furandi? 

Bittlestone.  It  is  laid  down  in  Blackstone's  Commentaries,*  that  al- 
though the  finder  of  a  chattel  has  a  good  title  to  it  against  all  the  rest 
of  the  world,  he  has  no  property  or  right  of  possession  in  a  chattel 
wliich  has  been  lost,  adverse  to  the  owner.  The  finder  has  a  mere  cus- 
tody of  it  for  tlie  owner ;  and  when  he  resolves  to  appropriate  it  animo 
furandi  adversely  to  the  owner,  it  is  submitted  that  it  is  larceny. 

Martin,  B.  Suppose  a  man  takes  an  article,  —  an  umbrella  for  in- 
stance, —  by  mistake,  and  three  or  four  days  afterwards  discovers  who 
the  owner  is,  by  the  name  which  is  upon  it,  and  yet  resolves  to  keep  it 
as  his  own  property,  would  that  be  larceny. 

Bittleitone.  I  should  say  so ;  but  this  is  the  case  of  a  fifty  pound 
note.  In  Wynn's  Case,''  it  was  held  that  if  a  hackney  coachman  con- 
vert to  his  own  use  a  parcel  left  by  a  passenger  in  his  coach  by  mistake 
it  is  felony  if  he  knew  the  owner,  or  if  he  took  him  up  or  set  him 
down  at  any  particular  place  where  he  might  have  inquired  for  him. 

Aldebson,  B.  This  differs  from  a  case  of  bailment,  where  the  tor- 
tious breaking  bulk  determines  the  bailment.  According  to  the  direc- 
tion of  the  Recorder,  the  notes  might  have  passed  through  a  dozen 
innocent  hands  before  they  came  to  the  prisoner,  who  may  have  got 
them  innocently,  and  yet  the  prisoner,  he  rules,  was  guilty  of  larceny. 
.  Lord  Campbell,  C.  J.  I  am  of  opinion  that  this  conviction  can  not 
be  supported.  Larceny  necessarily  supposes  a  taking  animo  furandi. 
The  rule,  as  to  taking  is  somewhat  technical,  but  it  is  not  likely  to  be 
departed  from,  In  the  case  before  us  the  direction  to  the  jury  is  con- 
sistent with  an  honest  possession  on  the  part  of  the  prisoner.     The  re- 


1  IBla.  Com.  (ed.  Chltty)  296;  Armory  r. 
Delamerle,  Strange,  SOS. 


2  1  Leach,  C.C.  413. 


riita 


R.  V.  KNIOIIT. 


441 


risoner  couUl  rend 

I  and  showod  thorn 
making  inquiries 

ig  evidence  for  the 
%imo  furandi,  and 

nurbom,  that  tlie 
[  possession  of  tlie 
lending  to  exercise 

der,  wliile  he  holds 

and  that  when  lie 

w  talcing,  and  that 

nentaries,^  that  al- 
against  all  the  rest 
ession  in  a  chattel 
er  has  a  mere  ens- 
ppropriate  it  animo 
it  is  larcen}'. 
in  umbrella  for  in- 
'ards  discovers  who 
,  resolves  to  keep  it 

ise  of  a  fifty  pound 
cney  coachman  con- 
is  coach  by  mistake 
him  up  or  set  him 
nquired  for  him. 
lent,  where  the  tor- 
nrding  to  the  direc- 
jd  through  a  dozen 

who  may  have  got 
IS  guilty  of  larceny. 

conviction  can  not 
ting  animo  furandi. 
t  is  not  likely  to  be 
1  to  the  jury  is  con- 
)  prisoner.     The  re- 

3. 413. 


corder  says  that  the  question  for  tliem  to  consider  was,  at  what  time  the 
prisoner  first  resolved  to  appropriate  the  note  to  his  own  use.  What, 
then,  was  the  taking?  It  is  supposed  to  be  a  thought  which  passed 
through  the  prisoner's  own  mind ;  but  I  do  not  think  tliat  can  amount 
to  a  taking,  when  nothing  was  in  fact  done,  and  when  it  may  be,  that 
the  prisoner  was  lying  in  bed  at  a  distance  from  the  article.  There  is 
no  taking  animo  furandi  in  this  case ;  consequently,  there  is  no  larceny. 
It  is  unnecessary  for  us  now  to  enter  further  into  the  question,  after  the 
elaborate  judgment  of  my  Brother  Parke,  on  the  subject  of  larceny  in 
Regina  v.  Thurborn. 

Alderson,  B.  If  there  must  be  both  a  taking  and  the  animus  furandi 
to  constitute  a  larceny,  the  difficulty  is,  how  the  changing  a  man's 
mind,  ex  post  facto,  can  render  an  honest  taking  larceny. 

According  to  the  summing  up  of  tlie  Recorder  to  the  jury,  if  a  man 
gets  a  note  honestly,  keeps  it  for  a  week,  with  an  intention  of  restoring 
it  to  the  owner,  and  then  changes  his  mind  and  resolves  to  appropriate 
it  to  his  own  use,  it  may  be,  as  the  Lord  Chief  Justice  remarks,  while 
he  is  in  bed,  that  converts  a  lawful  taking  into  a  dishonest  one.  To 
uphold  such  a  doctrine  would  be  to  refine  in  such  a  way  as  to  destroy 
the  simplicity  of  the  'criminal  law. 

Talfouro,  J.  A  mere  movement  of  the  mind  can  not  amount  in  law 
to  a  taking. 

Platt,  B.  The  case  where  there  has  been  a  bailment  stands  on  a 
different  principle,  that  of  breaking  bulk,  but  to  constitute  larceny  in 
every  other  case,  something  must  be  taken,  animo  furandi  and  invito 
domino. 

Martin,  B.  It  is  of  great  importance  that  the  rules  of  the  criminal 
law  should  be  plain  and  intelligible ;  and  considering  that  the  prisoner 
may  originnlly  have  become  innocently  possessed  of  the  note,  I  do  not 
think  that  this  can  be  held  to  be  a  case  of  larceny. 


LABCENT— LOST  BANK-NOTE— FINDBB. 
R.  V.  Knight. 

[12  Cox,  162.] 
In  the  English  Court  for  Croum  Cases  Reserved,  1871. 

I  hiaoner  Beoelved  from  his  Wife  a  £10  Bank  of  England  note,  which  she  had  tonnd, 
and  passed  it  away.  The  note  was  indorsed  "K.  May"  only,  and  tlie  prisoner,  when 
asked  to  put  his  name  and  address  on  it,  by  the  person  to  whom  he  passed  it,  wrote  on 
it  a  false  name  and  address.  When  charged  at  the  police  station,  the  prisoner  said  he 
knew  nothing  about  tlie  note.  The  jury  were  directed  that,  if  they  were  satisfied  that 
the  prisoner  oould,  within  u  reasonable  time,  have  found  the  owner,  and  if,  instead  of 


442 


LAUCENY. 


waiting,  the  prUoner  Immodlktely  converted  the  note  to  bit  own  n»e,  Intending  to 
deprive  the  owner  of  It,  It  would  be  larceny.  The  prlnoner  w«»  convicted.  Beld,  dial 
the  Jury  ouKht  to  hAve  been  aitked  whether  the  prisoner,  at  the  time  ho  received  the  nute, 
believed  the  owner  could  bo  (ound;  and  that  the  conviction  wai  wrong. 

Ooao  reserved  for  the  opinion  of  this  court. 

At  the  general  quarter  session  of  the  peace,  boldcn  by  adjournment, 
nt  St.  Mary,  Newlngton,  in  and  for  tlie  county  of  Surrey,  on  Wednes- 
day, the  2«th  July,  1871,  WilMam  George  Green  Knight,  was  tried  and 
convicted  on  an  indictment,  cliarging  him  In  the  first  count  with  feloni- 
ously stealing  £10  in  money,  of  the  property  of  John  Willlmot  Morgan ; 
and  In  the  second  count,  nrlth  feloniously  receiving  the  same  money, 
well  knowing  It  to  have  been  stolen,  upon  the  following  evidence :  — 

Ricliard  Adye  Bailey,  clerk  in  the  Bank  of  England,  having  been 
sworn,  produced  a  canceled  note  of  such  ba_.iC  for  £10,  paid  81st  May, 
1871,  No.  30,483,  dated  22d  March,  1871,  indorsed  E.  May;  E.  Ran. 
dall,  8  Cowland  Terrace,  Wandsworth  Road ;  G.  Hollyman,  346  Wands- 
worth Road. 

John  Willlmot  Morgan,  on  his  oath  stated  as  follows :  "  I  am  traveler 
and  collector.  On  the  26th  of  May  last,  I  received  a  £10  note  at  Dept- 
ford,  between  one  and  half  past  one  o'clock.  Indorsed  E.  May.  I  put 
It  in  my  left-hand  waistcoat  pocket.  I  went  to  South  Bermondscy 
station,  a  quarter  of  a  mile  from  where  I  received  the  note,  and  thence 
to  Loughborough  Park  station.  I  called  upon  a  customer  in  the  Brix- 
ton Road.  I  walked  from  there  to  Clapham.  I  got  there  about  three 
o'clock.  It  was  the  Oaks  day.  I  walked  along  tlie  Clapham  Road. 
I  put  the  note  in  my  waistcoat  pocket  with  my  watch.  I  did  not  take 
out  the  note  after.  I  missed  it  when  I  arrived  at  the  office,  Arthur 
Street,  London  bridge.  I  went  from  Clapham  station  to  the  Borough 
Road  station.  I  went  the  same  night  to  Scotland  Yard  and  gave  infor- 
mation to  the  police.  Wuju  at  Clapham,  I  went  down  High  Street  to 
Muswell's,  the  butcher.  I  came  up  Acre  Lane.  I  left  Clapham  at  four 
o'clock  by  train." 

George  Hollyman,  on  his  oath  steted:  *'  I  am  a  clothier,  carrying  on 
business  at  345  Wandsworth  Road,  (hi  the  26th  of  May  last,  the  pris- 
oner came  to  me  between  seven  and  eight  o'clock  in  the  evening ;  I 
knew  hira  by  sight.  I  did  not  kno  w  !iis  name.  He  purchased  a  waist- 
coat, two  pairs  of  drawers,  and  other  things,  together  of  the  value  of 
12s  9d.  He  tendered  a  Bank  of  England  note  for  £10.  The  note  pro- 
duced by  the  witness  Bailey  is  the  one.  I  asked  prisoner  to  indorse  it, 
which  he  did,  "  E.  Randall,"  as  on  the  note  produced,  I  put  my  initials 
under  his  name  and  gave  him  change.  The  articles  produced  by  wi^ 
ness  Tucker  are  of  the  same  description  as  those  I  sold  to  prisoner.  I 
will  swear  they  are  the  same. 


mamm 


wem 


^m 


R.  V.  KMOflT. 


443 


vn  uie,  Intending  to 
ionvioted.  H*l<l,  ilmt 
ho  reoetved  the  Dut«, 
rang. 


by  adjonrnmcnt, 
rey,  on  Wednes- 
it,  was  tried  and 
ount  with  feloni- 
nilitnot  Morgan ; 
tlie  same  money, 
[  evidence :  — 
ad,  having  been 
I,  paid  Slst  May, 
5.  May;  E.  Ran- 
nan,  345  Wands- 


i: 


I  am  traveler 
CIO  note  at  Dept- 
l  E.  May.  I  put 
»uth  Bermondsey 
note,  and  tlicnce 
omcr  in  tlie  Brix- 
ttiere  about  tiirec 
9  Clapliam  Road. 
I.  I  did  not  take 
the  office,  Arthur 
in  to  the  Borough 
i  and  gave  infer- 
vn  High  Street  to 
t  Clapham  at  four 

thier,  carrying  on 
lay  last,  tlie  pris- 
in  the  evening ;  I 
urcbased  a  waist- 
ir  of  the  value  of 
I.  The  note  pro- 
mer  to  indorse  it, 
,  I  put  my  initials 
produced  by  wit- 
Id  to  prisoner.    I 


George  Tiickor,  Metropolitan  Police  Constable,  fid  W. ,  on  his  oath, 
stated:  I  received  a  communication  from  the  witness  Uollytnan.  I 
apprehended  the  prisoner  in  tiie  Wandsworth  Road,  about  7:15  on  Sat- 
urday, the  24th  of  June.  I  said  to  him,  "I  shall  place  you  under 
arrest  for  some  illegal  proceedings  or  transactions  in  passing  a  £10 
lSanl{  of  England  note,  nnd  a  gentleman  will  nharge  you  at  the  station." 
lie  did  not  say  anything.  I  took  him  to  tlio  station.  Tlie  sergeant 
tbere  said  to  him,  '  You  arc  charged  with  illegally  coHverting  this  note 
to  your  own  use!'  Tlie  prisoner  said,  'I  know  nothing  about  the 
note.'  He  gave  me  his  address,  2  Pensbury  Street,  Wandsworth  Road, 
and  gave  me  his  latch  key  to  bo  given  to  his  wife.  I  took  one  pair  of 
drawers  from  tlie  prisoner,  and  Detective  Lonsdale,  brough);  me  the 
nraistcoat  and  other  pair  of  drawers,  which  I  now  produce.  When  I 
apprehended  him  he  said,  '  All  right,  I  will  go  with  you.'  It  is  wrong 
in  the  deposition,  '  I  know  nothing  about  it.'  " 

The  prisoner's  statement  before  the  committing  magistrate  was  read 
as  follows:  ''My  wife  found  it  in  Clapham  Road  on  the  Oaks  day, 
from  half  past  four  to  five,  between  Manor  Street  and  the  Two  Brew- 
ers. She  left  it  till  I  came  home  from  work  at  half  past  six,  r.nd  then 
told  me  what  she  had  found.  I  said  I  did  not  think  it  was  a  good  one, 
but  I  would  take  it  to  Mr.  Hollyman,  and  see  if  he  could  change  it.  I 
took  it  to  him  and  thought  no  more  about  it.  I  had  money  to  pay  for 
the  things  in  my  pocket  if  it  had  not  been  all  right.  I  did  not  oome  by 
it  l)y  dishonest  means." 

The  counsel  for  the  prosecution  presented  the  case  to  the  jury  as  a 
larceny  of  lost  property  by  the  finder. 

The  prisoner's  counsel  contended  there  was  no  evidence  to  show  that 
the  prisoner  at  the  time  when  the  note  came  into  his  possession  had  the 
intention  of  wrongfully  and  feloniously  depriving  the  owner  of  his  prop- 
erty, or  that  he  knew  or  had  any  reasonable  means  of  ascertaining  to 
whom  the  note  belonged  (the  only  mark  on  the  same  when  found  bein^ 
"E.  May,"  not  the  name  of  the  owner),  and  consequently,  upon  the 
authority  of  Begina  v.  Tlmrborn,^  Regina  v.  Moore,^  and  Regina  v. 
Olyde,^  the  prisoner  ought  to  be  acquitted,  it  being  laid  down  that  on 
each  of  those  points  (as  well  as  the  conversion)  there  must  be  evidence 
to  satisfy  the  jury. 

The  court,  however,  left  the  case  to  the  jury,  telling  them  that,  if 
they  were  satisfied  that  the  prisoner  could  within  a  reasonable  time  have 
found  the  owner,  but,  injitead  of  waiting  at  all,,  he  immediately  con- 
verted the  note  to  his  own  use  by  changing  it,  and  that  he  intended  to 
deprive  the  owner  of  the  note  against  his  will,  Ir  vrould  be  larceny ;  and 


1  1  Den.  O.  O.  388 ;  3  Oox,  C.  0. 4S3,  nomine 
Rog.  V.  Wood. 


2  8  Cox,  C.  0.  416. 

3  11  Cox,  0.  C.  lOS. 


444 


LARCENY. 


in  considering  tlieir  verdict  it  would  be  riglit  for  them  to  remember  the 
conduct  of  tlie  prisoner,  viz.,  that  when  asked  by  the  person  who 
changed  the  note  to  write  his  name  and  address  on  tlie  back  of  the  note, 
he  wrote  a  false  name  and  a  false  address,  and  when  charf,ed  at  the 
police  station  with  the  offense,  he  said,  "  I  know  nothing  about  the 
note." 

Tiie  jury  returned  a  verdict  of  guilty. 

The  court  thereupon  reserved  for  the  decision  of  the  Court  for  Crown 
Cases  Reserved  the  question  whether,  under  the  circumstances,  the 
conviction  was  right  ? 

Judgment  upon  the  prisoner  was  respited,  and  he  was  committed  to 

the  custojiy  of  the  governor  of  the  common  gaol  at  Newington,  in  the 

said  county,  until  the  decision  of  the  Court  for  Crown  Cases  Reserved 

should  be  known. 

E.  Richards  Adams,  Chairman. 

No  counsel  appeared  to  argue  for  the  prisoner. 

Oppenheim,  for  the  prosecutioi^.  The  question  in  this  case  is  whether 
there  was  evidence  to  show  that  the  prisoner,  at  the  time  he  appropri- 
ated the  note  to  his  own  use,  believed  he  could  find  the  owner  of  it. 
The  case  of  Regina  v.  Qlyde  decided  that  the  finder  of  a  sovereign  in  the 
high  road  who,  at  the  time  of  finding,  had  no  reasonable  means  of 
knowing  who  the  owner  was,  but  who,  at  that  time,  intended  to  appro- 
priate it  even  if  the  owner  should  afterwards  be  discovered,  and  to 
whom  the  owner  was  speedily  mode  known,  when  be  refused  to  give  it 
up  to  him,  was  not  guilty  of  larceny.  That  decision  was  come  to  on  the 
ground  that  there  was  no  evidence  to  show  that  when  the  prisoner 
picked  up  the  sovereign  he  had  any  reason  to  believe  that  the  true 
owner  could  be  found.  Here  the  evidence  is  different.  [Lush,  J. 
But  that  point  was  not  put  to  the  jury.]  The  question  reserved  for 
this  court  is  whether,  under  the  circumstances,  having  regard  to  the 
prisoner's  conduct  in  dealing  with  the  note  and  denying  all  knowledge 
of  it,  the  conviction  was  right.  Now,  may  not  the  court,  after  verdict, 
infer  that  the  jury  substantially  found  that  point. 

Kelly,  C.  B.  It  is  quite  clear  that  this  conviction  can  not  be  sus- 
tained. There  was  no  evidence  that  the  prisoner,  at  the  time  when  he 
first  received  this  note  from  his  wife,  believed  that  the  owner  of  it 
could  be  found ;  and  if  there  had  been,  the  proper  question  has  not 
been  left  to  the  jury. 

Btles,  J.  I  also  am  of  opinion  that  this  conviction  can  not  be  sus- 
tained. The  prisoner  found  the  note  in  his  wife's  hands,  and  he  did  not 
know  who  the  owner  was ;  and  there  is  no  evidence  that  lie  had  the 
means  of  knowing.  The  appropriating  it  under  these  circumstances  is 
not  larceny. 


•Aum 


^^m 


tr  them  to  remember  the 
iked  by  the  person  who 
3  on  the  back  of  the  note, 
nd  when  charf,ed  at  the 
know  nothing  about  the 


tn  of  the  Court  for  Crown 
r  the   circumstances,  the 

ind  he  was  committed  to 
jaol  at  Newington,  in  the 
)r  Crown  Cases  Reserved 

IDS  Adamsi,  Chairman. 

ler. 

iion  in  this  case  is  whether 

at  the  time  he  appropri- 
uld  find  the  owner  of  it. 
inder  of  a  sovereign  in  the 

no  reasonable  means  of 
I  time,  intended  to  appro- 
•ds  be  discovered,  and  to 
hen  be  refused  to  give  it 
ecision  was  come  to  on  the 
T  that  when  the  prisoner 

to  believe  that  the  true 

is  different.  [Lush,  J. 
'he  question  reserved  for 
ses,  having  regard  to  the 
d  denying  all  knowledge 
)t  the  court,  after  verdict, 
int. 

onviction  can  not  be  sns- 
)ner,  at  the  time  when  he 
'ed  that  the  owner  of  it 

proper  question  has  not 

ionviction  can  not  be  sus- 
Ife's  hands,  and  he  did  not 
svidcnce  that  he  had  the 
ler  these  circumstances  is 


PEOPLE    V.  ANDEK80N. 


445 


PioGOTT,  B.  The  question  left  to  the  jury,  and  which  they  have 
found,  ia  whether  they  were  satisfied  that  the  prisoner  could  have  found 
the  owner  within  a  reasonable  time.  That  finding  is  quite  consistent 
with  this,  that  the  prisoner  himself  believed  he  could  not  have  found 
the  true  owner. 

Lush,  J.  The  real  question  for  the  jury  in  this  ease  was  what  was  in 
the  mind  of  the  prisoner  when  the  bank-note  first  came  into  his  posses- 
sion. But  without  regard  to  his  belief,  the  jury  were  asked  whether 
they  were  satisfied  that  the  prisoner  could,  within  a  reasonable  time, 
have  found  the  owner.  The  jurj'  have  thought  that  he  could;  the  pris- 
oner might  have  thought  that  he  could  not.  The  conviction  can  not  be 
sustained. 

Hannen,  J.,  concurred. 

Conviction  quashed. 


larceny  — finder— subsequent  intent. 
People  v.  Anderson. 

[14  Johns.  294;  7  Am.  Dec.  462.] 
In  the  Supreme  Court  of  New  York,  August,  1817. 

I  Larceny  by  Finder.  —The  bona  fid«  finder  of  a  lost  article,  as  a  trunk  lost  from  a  itage 
coach  and  found  on  the  highway,  is  not  guilt:^  of  larceny  by  any  subsequent  act  in  secret- 
ing or  appropriating  to  his  own  use  the  article  found. 

Indictment  for  stealing  a  trunk.     The  cause  came  before  this  court 
I  on  a  writ  of  habeas  corpus.     The  case  is  stated  in  the  opinion. 
Seeley  and  Starkweather,  for  the  prisoner. 
Van  Buren,  contra. 

By  the  Court  Spencer,  J.  The  prisoner  was  convicted  at  the  last  court 
I  of  Oyer  and  Terminer  and  gaol  delivery  held  in  and  for  the  county  of 
Otsego ;  and  a  question  of  law  having  arisen  on  the  trial  sentence  was 
respited  and  he  has  now  been  brought  up  on  habeas  corpus  to  receive 
the  judgment  of  this  court.  On  the  trial  it  came  out  in  proof  that  the 
articles  for  the  stealing  of  which  the  prisoner  was  indicted  were  con- 
tained in  a  trunk  and  that  he  found  this  trunk  on  the  highway.  The 
court  below  instructed  the  jury  that  if  the  prisoner  took  the  trunk 
with  intention  to  steal  it,  they  ought  to  find  him  guilty,  and  that  in 
determining  that  question  they  had  a  right  to  take  into  consideration 
the  prisoner's  subsequent  conduct  as  well  as  all  the  circumstances  of  the 
1  case. 

We  assume  it  as  an  undisputed  fact  that  the  prisoner  found  the  trunk 


»iMrmriiiimiMmr''iini|»riii 


446 


LARCENY. 


bona  fide  and  consequently  tliat  it  had  been  lost  by  its  proprietor;  and 
we  proceed  on  the  ground  that  if  any  subsequent  embezzlement  of  the 
contents  of  the  trunk  would  make  the  act  a  larceny  of  those  articles, 
that  then  the  conviction  is  correct.  But  the  court  arc  of  the  opinion 
that  the  bona  fide  finder  of  a  lost  article  or  of  a  lost  trunk  containing 
goods,  can  not  be  guilty  of  larceny  by  any  subsequent  act  of  his,  in 
concealing  or  appropriating  to  his  own  use  the  article  or  the  contents  of 
a  trunk  thus  found.  In  Butler's  Case  in  28  Elizabeth,  this  doctrine  is 
fully  established.  In  that  case  it  was  decided  that  the  intent  to  steal 
must  be  when  it  comes  into  the  hands  or  possession  of  the  party ;  for 
if  he  hath  the  possession  of  it  once  lawfully ;  though  he  hath  animuni 
furandi  afterwards  and  carry  it  away,  it  is  no  larceny.  *  Again  Lord 
Coke  lays  down  the  law  as  drawn  from  the  year  books,'  to  be  that  if 
one  lose  his  goods  and  another  find  them,  though  he  convert  them 
animo  furandi,  to  his  own  use,  yet  it  is  no  larceny,  for  the  first  taking 
is  lawful.  So  he  says  if  one  find  treasuce  trove  or  waifs  or  stray,  and 
convert  them,  ut  supra,  it  is  no  larceny,  both  in  respect  of  the  finding 
and  also  for  that  dominus  rerum  non  apparet.  The  same  doctrine  will 
be  found  in  1  Hale's  Pleas  of  the  Crown,'  and  1  Hawkins,*  In  2  East's 
Pleas  of  the  Crown,'*  it  is  expressly  stated  that  where  one  finds  a  purse 
in  the  highway  which  he  takes  and  carries  away,  it  is  no  felony  althougli 
it  may  be  attended  with  all  those  circumstances  which  actually  prove 
taking  with  a  felonious  intent,  such  as  denying  or  secreting  it. 

It  can  not  be  doubted  that  an  indictment  for  a  larceny  must  charge 
that  the  goods  were  feloniously  taken  as  well  as  feloniously  carried 
away,  and  hence  it  is  an  established  position  that  if  the  taking  is  not 
an  act  of  trespass,  there  can  be  no  felony  in  carrying  away  the  goods.^ 
There  can  be  no  trespass  in  taking  a  chattel  found  in  the  highway,  and 
the  finder  has  a  right  to  keep  the  possession  against  every  one  but  the 
true  owner.  How  then  can  it  be  said  that  a  thing  found  bona  fide  and 
of  which  the  finder  had  a  right  to  take  possession,  shall  be  deemed  to 
be  taken  feloniously  in  consequence  of  a  subsequent  conversion  by  de- 
nying and  secreting  it,  with  an  intention  to  appropriate  it  to  the  use  of 
the  finder? 

It  was  urged  on  the  part  of  the  People  that  the  same  test  ought  to  be 
applied  in  the  case  of  the  findiug  of  a  chattel  and  its  subsequent  con. 
version  to  the  use  of  the  finder,  to  ascertain  the  felonious  intention, 
as  has  been  applied  where  goods,  and  particularly  horses  and  carriages, 
have  been  feloniously  obtained  under  the  pretense  that  the  person  ap- 
plying for  and  obtaining  them  would  use  them  for  a  certain  specific  pur- 


1  3  Inst.  107. 
3  3  lOBt  107. 
3  p.  fi06. 


<  p.  208,  sees.  1, 2. 

>  p.  603. 

*  1  Hawk,  ch.  33:  Kel.  24 ;  Dal.  3. 


I  ijmisiSfmitKiiiumvimieiai^seimsiismiit''"- 


^^m 


proprietor;  and 
izzlement  of  the 
f  those  articles, 
!  of  the  opinion 
runk  coiitaioing 
t  act  of  his,  in 
•  the  contents  of 
this  doctrine  is 
!  intent  to  steal 
'  the  party ;  for 
le  hath  animum 
.  *  Again  Lord 
I,*  to  be  that  if 
B  convert  them 
the  first  taking 
la  or  stray,  and 
t  of  the  finding 
ne  doctrine  will 
s,*  In  2  East's 
ne  finds  a  purse 
felony  althougli 

actually  prove 
:ing  it. 

ny  must  charge 
niously  carried 
le  taking  is  not 
ray  the  goods.  ^ 
e  highway,  and 
sry  one  but  the 
I  bona  fide  and 

be  deemed  to 
iversion  by  de- 
It  to  the  use  of 

!st  ought  to  be 
ubsequent  con- 
ous  intention, 
and  carriages, 
the  person  ap- 
in  specific  pur- 


24 ;  DiU.  3. 


PEOPLE   V.  ANDERSON. 


447 


pose,  and  then  has  gone  off  with  them  and  converted  them  to  his  ov.n 
use.  On  a  slight  examination  the  cases  will  be  found  to  be  very  dis- 
similar ;  in  the  latter  case,  there  must  have  been  an  original  felonious 
intention,  and  unless  this  case  be  fairly  deduced  from  all  the  facts  in 
the  case,  it  is  to  felony.  Where  that  original  felonious  intention  ex- 
ists, although  the  person  having  it  has  obtained  the  consent  of  the  pro- 
prietor to  let  him  have  the  possession  for  one  purpose,  he  intended  to 
get  it  for  another  and  far  different  purpose,  and  he,  therefore,  never 
had  the  possession  for  this  different  and  fraudulent  purpose,  and  may 
be  fairly  said  to  have  acquired  possession  feloniously. 

It  is  not  80  with  regard  to  a  person  coming  fairly  into  the  possession 
by  finding.     No  fraud  is  practiced  on  any  one  in  first  acquiring  the  pos- 
session.     It,  therefore,  never  can  be  a  question  with  a  jury,  how  far 
forth  a  person  who  found  a  chattel  intended  to  find  it  for  the  purpose 
of  stealing  it.     The  very  nature  of  the  case  excludes  a  premeditated  or 
already  formed  intention  to  steal.    That  depends  as  matter  of  fact 
upon  a  variety  of  circumstances,  such  as  the  value,  the  facility  of  con- 
cealment, etc.,  which  are  matters  of  after  consideration.     Hence  we  do 
not  find  a  single  case  in  the  reports  of  criminal  trials,  or  in  the  treatises 
on  criminal  law,  in  which  it  has  ever  been  intimated  that  a  person  actually 
finding  a  chattel  has  been  held  to  have  stolen  it,  from  the  circumstances 
of  denial,  concealment  or  appropriation ;  nor  from  the  happening  of 
any  of  those  facts  which  in  reference  to  the  taking  of  chattels  ordinarily 
shows  a  felonious  intention.     It  is  true  that  there  are  cases  in  which 
though  the  party  apparently  had  the  possession  of  the  chattel,  yet  the 
taking  has  been  adjudged  felonious.     The  case  of  a  guest  at  a  tavern 
or  of  a  gentleman's  butler  who  have  taken  the  things  committed  to 
their  use  or  care  are  mentioned  in  the  books  as  illustrative  of  the  prin- 
ciple that  the  mere  naked  possession  for  a  special  purpose  will  not  pro- 
tect the  party,  if  he  take  it  away  feloniously.     So  if  a  bailee  of  a  bale 
or  trunk  of  goods,  break  the  bale  or  trunk  and  take  and  carry  away  a 
part  of  the  goods  with  intent  to  steal  them,  it  is  larceny ;  but  if  he 
carry  them  to  a  different  place  than  the  one  agreed  upon,  and  convert 
the  whole  to  his  use,  it  is  not  larceny.     East*  observes  that  this  dit  - 
tinction  seems  to  stand  more  upon  positive  law,  not  now  to  be  ques- 
tioned, than  upon  sound  reasoning:,  and  he  adopts  Lord  Hale's  reason- 
ing, that  the  privity  of  contract  is  determined  by  the  act  of  breaking 
the  package,  which  makes  him  a  trespasser,  and  that  then  it  makes  no 
difference  whether  he  takes  all  or  part  only  of  the  goods  after  the  pack- 
age is  broken.     There  can  be  no  analogy  between  this  case  and  that  of 
the  carrier  who  breaks  the  package  or  opens  a  trunk,  animo  furandi, 

»  2  C.  L.  «95. 


448 


LARCENY. 


because  the  finder  of  goods  has  them  not  in  virtue  of  any  contract,  and 

violates  none,  in  opening  a  bale  or  trunk. 

Tlie  court  believe  that  it  would  by  an  innovation  on  the  criminal  law 

to  consider  this  as  a  case  of  larceny ;  and  they  therefore  direct  tlie 

prisoner  to  be  discharged. 

Thompson,  C.  J.,  dissented. 

Prisoner  discharged. 


larceny  —  finder. 
State  v.  Dean. 

[49  Iowa,  73;  31  Am.  Rep.  143.] 
In  the  Supreme  Court  of  Iowa,  1878. 

One  who  Finds  Ijoat  goods  which  have  no  marks  or  indications  of  ownership  and  who 
does  not  Icnow  the  owner  is  not  bound  to  exercise  diligence  to  ascertain  the  owner  and 
is  not  guilty  of  larceny  in  retaining  the  goods. 

Conviction  of  larceny.    The  opinion  states  the  facts. 

Pollock  &  Shields,  for  appellant. 

J.  F.  McJunkin,  Attorney-General,  for  the  State. 

Adams,  J.  The  evidence  shows  that  in  July,  1876,  a  great  flood 
occurred  in  the  Catfish  Creek  at  the  village  of  Rockdale  in  the  county 
of  Dubuque,  whereby  nearly  the  whol«  village  was  swept  away  and 
destroyed.  Two  stocks  of  merchandise  were  swept  away  and  the 
goods  swept  to  a  great  distance.  A  part  of  these  goods  as  well  as  arti- 
cles of  household  furniture,  etc.,  were  gathered  up  by  different  persons 
immediately  after  the  flood  and  carried  to  different  houses  in  the  neigb 
borhood.  The  defendant  found  on  the  banks  of  the  Catfish,  about 
three-fourths  of  a  mile  below  Rockdale,  some  papers  belonging  to  one 
Horn,  also  a  lady's  muff,  a  piece  of  flannel,  a  piece  of  muslin,  and  a 
coat,  and  took  the  same  to  his  house.  They  were  at  the  time  very  much 
soiled  by  wet  and  dirt,  and  his  wife  washed  them  and  hung  them  out 
to  dry  on  a  clothes-line,  by  the  side  of  public  street,  where  they  were 
found.  The  evidence  shows  that  the  defendant  had  previously  been 
making  inquiry  as  to  where  Horn  could  be  found,  with  the  ostensible 
purpose  of  restoring  to  him  the  papers.  There  was  no  evidence  tending 
to  show  that  the  defendant  knew  who  owned  the  other  property,  and  as 
to  a  part  of  it  the  ownership  does  not  seem  to  have  been  ascertained 
yet. 

The  defendant  asked  the  court  to  give  an  Instruction  in  these  words: 
If  you  find  from  the  evidence  that  said  goods  were  lost ;  that  the  same 


MHWM 


IHM 


WSMMMMI 


MMWH 


any  contract,  and 

)n  the  criminal  law 
lierefore  direct  the 


'aoner  discharged. 


9. 

8  of  ownership  and  who 
ascertain  the  owner  and 


■«liSa 


1876,  a  great  flood 
3kdale  in  the  county 
as  swept  away  and 
ept  away  and  the 
oods  as  well  as  arti- 
by  different  persons 
houses  in  the  neigh- 
the  Catfish,  about 
rs  belonging  to  one 
ce  of  muslin,  and  a 
;  the  time  very  much 
I  and  hung  them  out 
set,  where  they  were 
lad  previously  been 
,  with  the  ostensible 
no  evidence  tending 
ler  property,  and  as 
ve  been  ascertained 

ction  in  these  words: 
lost;  that  the  same 


STATE    v.  DEAN. 


449 


were  found  by  the  defendant ;  that  at  the  time  he  found  the  same  he  did 
not  know  who  owned  them ;  that  there  were  no  marks  upon  or  about 
the  goods  showing  to  whom  they  belonged,  so  that  defendant  could 
identify  the  owner  at  once,  even  th«ugh  the  defendant  could  afterwards 
liuve  discovered  the  owner  by  honest  diligence,  then  you  must  acquit 
the  defendant.     The  court  refused  to  give  this  instruction  and  in- 
structedthe  jury  as  follows:    Lost  goods  may  be  the  subject  of  lar- 
ceny and  should  receive  the  same  protection  from  the  civil  and  criminal 
law  as    goods  in  any   other    situation.     Where  the  finder  knows  or 
has  tlie  immediate  means  of  knowing  who  was  the  owner,  and  instead 
of  returning  the  goods,  converts  them  to  his  own  use,  such  conversion 
will  constitute  larceny.     Reasonable  diligence  in  discovering  the  owner 
should  be  shown  by  the  party  finding.     The  intention  of  a  party  com- 
mitting a  larceny  at  first  may  not  be  felonious,  but  if  the  property  is 
wrongfully  used  or  converted,  it  is  larceny.     In  giving  these  instruc- 
tions  and  in  refusing  to  instruct  as  asked,  we  think  tliat  the  court  erred. 
Tiie  statute  upon  the  subject  is  in  these  words :  "  If  any  person  come  by 
finding  to  the  possr ssion  of  any  personal  property  of  which  he  knows 
the  owner,  and  unlawfully  appropriates  the  same  or  any  part  thereof  to 
his  own  use  he  is  guilty  of  larceny."  i    The  crime,  if  committed,  must 
consist  in  the  origin.nl  taking.     It  c.-xn  not  consist  in  a  subsequent  lack 
«f  diligence  in  attempting  to  find  tlie  owner,  nor  in  a  subsequent  con- 
version.    The  statute  does,  indeed,  provide  a  penalty  for  converting  lost 
goods.     It  provides  a   penalty  of  twenty  dollars.     In  addition"  the 
owner  may  recover  for  any  damage  which  he  may  sustain. »    The  stat- 
ute also  provides  what  steps  the  finder  of  lost  goods  should  take,  and 
iiow  he  may  be  compensated-^    But  where  the  original  taking  is  lawful, 
as  where  the  finder  is  ignorant  of  the  owner,  the  omission  to  take  the 
steps  pointed  out  by  the  statute,  and  the  conversion,  do  not  constitute 
larceny.    This  is  not  only  the  plain  meaning  of  the  statute,  but  it  ia 
the  doctrine  of  the  decisions.     It  is  stated  in  Bishop's  Criminal  Law,< 
in  these  words:  "A man  knowing  the  owner  of  goods  can  not  lawfully 
pick  them  up  without  returning  them  to  him,  but  a  man  not  knowing  the 
owner  can.     The  doctrine,  therefore,  is  that  if  when  one  takes  goods 
into  his  hands  he  sees  about  them  any  marks,  or  otherwise  learns  any 
facts  by  which  he  knows  who  the  owner  is,  yet  with  felonious  intent, 
appropriates  them  to  his  own  use,  he  is  guilty  of  larceny,  otherwise 
not." 

In  People  v.  CogrdcW,5  the  defendant  was  indicted  for  larceny  of  a  lost 
pocket-book  and  money  contained  therein.    He  made  no  effort  to  find 


>  see.  8907  of  the  Code. 
«  Cude,  .^c.  16«. 

'  "'•>de,  sec*.  UM,  1515, 1516,  and  1318. 
'J  Defkncrs. 


*  Tol.  S,  iee.883  (5th  ed.). 
»  1  Hill,  M. 


29 


MHBiMl 


450 


LAUCENY. 


the  owner,  and  converted  the  property  to  his  own  use.  The  court  held 
fhltZas  a  n.ere  ca.e  of  trover,  and  not  larceny.  Tl.  -^  ^;;  r-- 
held  in  People  v.  Anderson,^  State  v.  Conway,'  Wnght  v.  Sate  The 
rule  that  the  use  of  property  by  the.flnder  without  reasonable  d.hgen 
Zn  bis  part  to  find  the  owner  would  constitute  larceny,  would  o ft  n 
be  opp  ssive.  Scarcely  any  effort,  short  of  a  success  m  one,  might  be 
deemed  by  juries  sufficient.  In  the  meantime  the  finder  must  care  or 
t  properV.  -^  if,  through  his  negligence,  It  is  lost,  he  becomes  hable 

*"Th!  rX  here  held  is  in  harmony  with  that  held  by  this  court  In  State 
V.  Trood,Mn  which  substantially  the  same  principle  was  involved.  In 
Lt^cas;  the  defendant  had  innocently  come  into  the  rf^-^  «'; 
guitar,  and  afterward  sold  it,  with  the  design  of  "^P  W'»*'°«J^«  P/"" 
ceeds-i  it  was  held  not  to  be  larceny.  The  same  doctrine  was  held  m 
Abro^m.  '■    ■  -r.U,^  and  Wilson  v.  People."  «  ^^^ 


LAECBisr.      Sm        .UENT  CONVERSION  OF  HIRED  PROPEBTT. 

Hill  v.  State. 

[67  Wis.  877] 
In  the  Supreme  CouH  of  Wisconsin,  1883. 

not  guilty  of  Iwrceny. 

Ebrob  to  the  Municipal  Court  of  MUwaukee  County. 

For  plaintiff  in  error,  A.  C.  Brazee. 

For  defendant  in  error,  H.  W.  Chyno^eth,  Assistant  Attorney-Gen- 

^''obton  J  The  information,  was  for  the  larceny  of  a  horse,  the 
^Z^yoi  Silas  Barber,  the  keeper  of  a  livery  stable  in  the  city  of 

""Tttfendant  Lawrence,  on  the  10th  day  of  September,  at  five 
o'clock  in  the  afternoon,  hired  a  horse  with  a  top  ^"88^*0^8?*°' 
;i^e  called  Honeyakers,  about  three  miles  *-- ^a^ket,  tobe - 
?rned  about  nine  or  ten  o'clock  that  evening.  The  defendant"^ 
wr^keninto  f.e  buggy  before  leaving  Waukesha,  and  a  short  di. 


I  U  Johns.  394;  t.e. 
3  18  Mo.  321. 
3  S  Terg.  IM. 


i  Am.  Deo.  481. 


<  46  Iowa,  118. 
»  6  Ilnn,  491. 
•SON.  T.  489. 


i-4«B*«».*«!<» 


ifeiia 


HILL   V.  STATE. 


451 


.  The  court  held 
lie  same  doctrine  is 
At  V.  State.^  The 
asonable  diligence 
ceny,  v'ould  often 
isful  one,  might  be 
iider  must  care  for 
,  he  becomes  liable 

r  this  court  in  State 
was  involved.  In 
the  possession  of  a 
iropriating  the  pro- 
ioctrine  was  held  in 

Beveraed. 


lED  PROPBBTY. 


1883. 

loordlng  to  his  agresnent. 
ntuse.   J7eM,Uimthewu 


mty. 

istant  Attorney-Gen- 

jny  of    a  horse,  the 
stable  in  the  city  of 

f  September,  at  five 
bop  buggy  to  go  to  a 
I  Waukesha,  to  be  re- 
The  defendant  Hill 
sha,  and  a  short  dis- 


tance from  that  place  on  the  road  to  the  city  of  Milwaukee  the  buggy 
was  turned  over,  and  the  top  torn  off  and  left,  and  they  drove  on  to- 
gether to  3Iilwaukee  that  night.  The  next  day  Hill  was  at  Oak  Creek, 
in  Milwaukee  County,  on  the  road  to  Racine,  with  the  horse  and  a  part 
of  the  harness,  and  tried  to  sell  the  horse  tiiere,  and  was  arrested,  and 
Lawrence  was  arrested  in  Milwaukee.  They  both  prevaricated  as  to 
tlieir  names,  residence,  and  destination.  The  Municipal  Court  of  the 
county  of  Milwaukee  refused  the  following  instruction  asked  on  behalf 
of  defendants:  "That  if  the  defendants,  at  the  time  said  horse  was 
liired,  had  no  intent  to  steal  it,  the  subsequent  appropriation  of  the 
same  to  their  own  use  is  a  mere  conversion,  and  is  not  larceny."  And 
the  court  gave  the  following  instruction,  which  was  excepted  to  on  be- 
half of  the  defendants:  "  If  you  believe  their  statements  against  Bar- 
ber's and  his  man's  that  was  in  the  stable  at  the  time,  that  they  hired 
tlie  horse  for  an  indefinite  purpose  and  agreed  to  be  back  before  ten 
o'clock  at  night,  and  that  they  afterwards  went  to  Milwaukee  and 
formed  a  design  to  sell  the  horse  after  that  time  at  any  time  before 
they  were  caught,  you  will  be  justified  in  finding  that  they  had  that 
intention  at  the  time  they  took  the  horse." 

The  instruction  refused  substantially  expressed  the  law  and  ought  to 
liave  been  given,  and  the  instruction  given  was  clearly  erroneous,  be- 
cause against  the  law  so  expressed. 

It  may  at  one  time  have  been  considered  the  law  of  larceny,  that 
although  the  hiring  and  taking  in  the  first  place  might  have  been  bona 
fide,  yet  if  the  time  for  which  the  hiring  was  made  had  expired  and  the 
property  is  afterwards  converted,  it  is  larceny.  But  such  has  not  for  a 
long  time  been  considered  the  law,  and  it  is  now  stated  correctly  as  fol- 
lows: That  "  when  the  horse  was  delivered  on  a  hire  or  loan,  and 
such  delivery  was  obtained  bona  fide,  no  subsequent  wrongful  conver- 
sion pending  the  contract  would  amount  to  a  felony."  ^  "When  the 
possession  was  obtained  bona  fide  the  mere  fact  of  the  subsequent  exist- 
ence of  the  animus  furandi  does  not  make  the  offense  larceny. "  »  • '  The 
exception  to  this  rule  has  no  application  to  this  case.  If  one  hires 
a  horse  and  sells  it  before  a  journey  is  performed  or  sells  it  after,  be- 
fore it  is  returned,  he  commits  no  larceny  in  a  ease  where  the  felonious 
intent  came  upon  him  subsequently  to  receiving  it  into  his  possession."  3 

This  statement  of  the  law  should  be  qualified  by  saying  if  he  hires  the 
horse  in  the  first  place  with  a  bona  fide  intention  of  returning  it,  accord- 1 
ing  to  the  contracts  of  hire,  the  circumstances  of  the  conversion  of  the 
property  subsequently,  and  of  not  even  entering  upon  the  performance 


>  2  Russ.  Cr.  (9th  ed.)  337. 
2  2  Whart.  Cr.  L.,  sec.  1860. 


3  3  BUhCr.  L.,8ec.8M. 


4')2 


LARCENY, 


of  the  contract  of  hire,  but  taking  the  property  elsewhere,  and  of  other 
matters  evincing  it,  may  be  evidence  of  an  intention  to  convert  tlu 
property  at  the  time  of  the  hiring.  But  a  subsequent  conversion  of  the 
property  merely  may  not  be  sufHcient  evidence  of  such  an  original  in- 
tent. In  a  case  very  sim'Iur  to  tliis  in  its  facts,  of  liegina  v,  Broo/i.'*.' 
it  is  hel<l  that  the  subsequent  offer  to  sell  the  property  was  not  consiil- 
orcd  sufficient  evidence  of  the  felonious  hiring  or  taking  in  the  first 
place ;  unless  from  the  circumstances  it  appears  that  tlie  hiring  was  only 
a  pretext  made  use  of  to  obtain  the  property  for  the  purpose  of  after- 
wards disposing  of  it. 

The  law  applicable  to  this  case  is  as  well  stated  in  SempJe's  Case,^ 
as  in  any  which  can  be  found  in  the  books.  "  It  is  now  settled  tiiat 
the  question  of  intention  is  for  the  consideration  of  the  jury,  and  if  in 
the  present  case  the  jury  sliould  be  of  opinion  that  tlie  original  taking 
[of  tlie  property]  was  witli  the  felonious  intent  to  steal  it,  and  the 
hiring  a  mere  pretense  to  enable  him  [the  ])risoner]  to  effectu:ite  that 
design  without  any  intention  to  restore  it,  or  pay  for  it,  the  taking 
would  amount  to  a  felony;  •  •  *  but  if  there  was  a  &on<i^de  hiring 
and  a  rc:d  intention  of  returning  it  at  th.nt  lime,  the  subsequent  conver- 
sion of  it  could  not  be  a  felony."  "If  it  be  proved  that  there  was 
no  trespass  or  felonious  intent  in  taking  tlie  goods,  no  subsequent  con- 
version of  them  can  amount  to  a  felony."  These  authorities  were  fur- 
nished b}'  the  learned  counsel  of  the  plaintiffs  in  error  in  his  brief  and 
are  amply  sufficient,  we  think,  to  sliow  the  error  complained  of. 

On  motion  to  correct  the  bill  of  exceptions  it  appears  that  it  is  the 
recollection  of  the  learned  judge  before  whom  this  case  was  tried,  and 
that  it  is  tlie  recollection  of  some  other  persons  that  the  above  instrno 
tion  was  not  given  to  the  jury,  but  that  the  instruction  orally  and  actu- 
ally given  was  the  reverse,  and  that  the  instruction  was  that  you  will 
not  be  justified  in  finding,"  etc. 

It  is  especially  unfortunate  and  dangerous  in  criminal  cases  that  the 
statute  allows  instructions  to  be  given  to  a  jury  orally  by  the  judge,  and 
to  be  regretted  that  judges  avail  themselves  of  the  personal  benefit  of 
the  statute.  It  is  hardly  possible  for  any  judge  to  extemporize  and 
orally  declaim  tliose  principles  of  law  applicable  to  the  case  which  in 
the  books  are  found  clearly  and  tersely  expressed  in  "  words  fitly 
spoken."  Perspicuity  and  certainty  are  essential  in  legal  expressions, 
and  there  should  be  no  doubt,  ambiguity,  or  chance  of  questionable  con- 
struction in  any  language,  word,  or  sentence  in  a  judge's  charge  of  the 


1  8  C.  &  p.  295. 


*  S  East's  p.  0. 691. 


A^ta 


HILL   V.  STATK. 


453 


!where,  and  of  other 
tiott  to  convert  tin 
lit  conversion  of  \\w 
such  an  original  in- 
Regina  v.  BwoIck} 
erty  was  not  consid- 
r  taking  in  tlie  first 
t  tlie  Iiirin;:;  was  ouly 
he  purpose  of  after- 

il  in  Semple'a  Caae,^ 
t  is  now  settled  tiiat 
'  the  jury,  and  if  in 
tlie  original  taking 
to  steal  it,  and  the 
;r]  to  effectuiite  that 
ly  for  it,  tlie  taking 
ras  a  bona  fide  hiring 
3  subsequent  conver- 
roved  that  there  was 
,  no  subsequent  con- 
authorities  were  f  iir- 
irror  in  his  brief  and 
mplained  of. 
ippears  that  it  is  the 
s  case  was  tried,  and 
at  the  above  instnio 
;tion  orally  and  actu- 
on  was  that  you  will 

'iminal  cases  that  the 
illy  by  the  judge,  and 
e  personal  benefit  of 
to  extemporize  and 
to  the  case  which  in 
ised  in  "  words  fitly 
in  legal  expressions, 
!  of  questionable  con- 
judge's  charge  of  the 

X691. 


*U~-»«t^».;iJtf,*S^!»#*l«f 


law  to  the  jury.  The  law  is  worthy  of  studied  and  correct  expressions 
anywhere  and  in  all  cases,  and  csi)ec'ially  so  when  it  is  sought  to  be 
stated  to  the  jury  not  versed  in  it,  or  over  ready  to  apprehend  its  mean- 
\\vr.  I  speak  for  niyself  when  I  say  that  the  practice  of  oral  instruc- 
tions to  the  jury  not  committed  to  memory  beforehand  is  not  only 
|iernicious,  as  it  affects  the  rights  of  parties  to  tite  suit,  but,  in  the  uii- 
tertainty  afterwards  as  to  what  the  instructions  really  were  in  word  and 
meaning.  The  omission  of  one  single  .word,  as  in  this  instance,  may 
change  the  meaning  of  a  whole  sentence  and  principle  of  law.  The 
judge,  in  the  mental  effort  to  grasp  the  principles  and  compose  his  sen- 
tences to  express  them  under  such  disadvantage,  ma}'  easily  omit  a  word 
or  use  a  wrong  one,  unconsciously  to  himself,  and  he  can  not  in  any 
case  retain  in  memory  every  word  he  used  or  omitted  in  u  charge  of  the 
usual  length  under  such  a  practice.  The  learned  judge  in  this  case 
appears  honestly  to  have  but  little  or  no  doubt  but  that  he  used  the 
word  not  in  the  above  instruction,  and  the  phronological  reporter  ap- 
pears to  have  as  little  doubt  but  that  he  did  not  use  it,  and  he  therefore 
insists  upon  the  correctness  of  his  verbatim  report  of  the  iiistruclion. 
One  of  tlie  jurors  states  bis  recollection  that  that  word  was  not  used  in 
that  connection  in  the  charge  of  the  court,  and  the  phronograpliic  report 
with  the  not  omitted  was  read  to  the  jury  on  their  coming  into  court  for 
further  instructions. 

The  instruction  was  a  vital  one,  and  if  one  of  the  jury  understood 
the  instruction  as  it  is  tlie  bill  of  exceptions  it  might  have  affected  the 
verdict.  But,  besides  the  error  of  this  instruction,  we  think  the  above 
instruction  asked  and  refused  ought  to  have  been  given  in  order  to  meet 
that  particular  phase  of  tlio  case  which  involved  the  legal  effect  of  a 
subsequent  conversion  of  the  property  upon  the  question  of  the  original 
intent  with  which  it  was  taken  or  hired,  and  as  to  the  time  when  the 
felonious  intent  must  be  formed  to  constitute  the  crime  of  larceny.  The 
learned  judge  may  be  correct  in  his  recollection  and  the  reporter  may 
have  wrongfully  reported  in  this  particular,  but  the  error  is  as  great  and 
material  by  the  reading  of  the  report  to  them  and  the  understanding  of 
the  jury  of  the  instruction  as  it  now  appears  in  the  record,  as  if  it  had 
been  wrongly  given  in  the  first  place. 

Jvjdgraent  reversed. 


454 


LARCENY. 


LARCENY -DOGS    NOT    SUBJECT    OP    LARCENY -NOR    ARE    THEY 
••CHATTELS"  WITHIN  STATUTE. 

R.  V.  Robinson. 
[Bell,  C.  C.  84.] 
In  the  English  Court  fqr  Crown  Cases  Reserved,  1859. 

Son  are  not  the  Butaleot  of  larceny  »t  common  Uw  nor  «•  they  "  chattel.  "  within  th« 
•Utnte. 

The  following  case  was  reserved  by  the  Recorder  of  Liverpool :  — 
The  prosecutor  who  resided  at  Hartlepool,  was  the  owner  of  two 
dogs,  which  he  advertised  for  sale.  The  prisoner,  Samuel  Robinson, 
having  seen  the  advertisement,  made  application  to  the  prosecutor  to 
have  the  dogs  sent  to  him  at  Liverpool  on  trial,  falsely  pretending  that 
he  was  a  person  who  kept  a  man  servant.  By  this  pretense  the  pros- 
ecutor was  induced  to  have  the  dogs  sent  to  Liverpool,  and  the  pris- 
oner there  obtained  possession  of  them  with  intent  to  defraud,  and 
sold  them  for  his  own  benefit.  The  tlogs  were  pointers,  useful  for  the 
pursuit  of  game,  and  of  the  value  of  £5  each. 

At  the  Liverpool  Borough  Sessions,  holden  in  December,  1858,  the 
prisoner  was  indicted,  convicted  and  sentenced  to  seven  years'  penal 
servitude  under  the  statute  7  and  8  George  IV.*  On  behalf  of  the 
prisoner  a  question  was  reeerved,  and  is  now  submitted  for  the  consid- 
eration of  the  justices  of  either  bench  and  Barons  of  the  Exchequer,  viz., 
•hether  the  said  dogs  were  chattels  within  the  meaning  of  the  said  sec- 
tion of  the  statute,  and  wliether  the  prisoner  was  rightly  convicted. 
The  prisoner  remains  in  Liverpool  Borough  gaol,  under  the  sentence 

passed  at  Sessions.  ^  ,, 

Gilbert  Henderson, 

Recorder  of  Liverpool. 

This   case  was  argued  on  the  29th  of  January,  1859,  before  Lord 

Campbell,  C.  J.,  Martin,  B.,  Crowder,  J.,  Willes,  J.,  and  Watson, 

B. 

Brett,  appeared  for  the  Crown,  and  LUtler  for  the  prisoner. 

Littler,  for  the  prisoner.  A  dog  is  not  a  "  chattel ' '  within  the  mean- 
ing of  the  statute.  At  common  law  no  larceny  could  be  committed  of 
a  dog.  It  is  laid  down,9  that  "  it  is  felonie  to  steal  any  of  the  movable 
goods  of  any  person ;  but  because  it  may  in  some  cases  be  doubted 
whether  the  things  so  taken  are  to  be  numbered  amongst  movable 
goods  or  no,  I  will  proceed  to  particularitie."    Then  he  says  "  to  take 


I  oh.  29,  see.  S3. 


2  Lambard'g  Eirenarche,  267. 


wwiaiiiwwwi 


ft»i*'iA^^*^'^^* 


iA>^ 


R.  V.  ROBINSON. 


455 


NOR  ARE  THE7 


-ved,  1859. 

ij  ••  obattalt "  wtthln  th* 

)f  Liverpool :  — 
the  owner  of  two 
Samuel  Robinson, 

0  the  prosecutor  to 
lely  pretending  that 
9  pretense  the  pros- 
rpool,  and  the  pris- 
nt  to  dcfrand,  and 
Iters,  useful  for  the 

)ecember,  1858,  the 
»  seven  years'  penal 
On  behalf  of  the 
itted  for  the  consid- 
the  Exchequer,  viz., 
ning  of  the  said  sec- 
ghtly  convicted. 
,  under  the  sentence 

ERT  Henderson, 
ecorder  of  Liverpool. 
r,  1859,  before  Lord 
Ea,  J.,  and  Watson, 

e  prisoner. 

si"  within  the  mean- 

>uld  be  committed  of 

1  any  of  the  movable 
ne  cases  be  doubted 
ed  amongst  movable 
hen  he  says  "to  take 

:irenarobe,  267. 


(iogges  of  any  kind,  apes,  parots,  singing  birds,  or  such  like,  though 
they  be  in  the  house,  is  no  felonie;"  and  Dnlton  adds:*  "No,  not 
by  taking  a  blood-liound  or  mastiff,  althougli  there  is  good  use  of  them 
and  that  a  man  may  be  said  to  have  a  property  in  them,  so  us  an  action 
nf  trespass  lieth  for  taking  them."  And  by  statute  it  is  not  to  this  day 
made  larceny  to  steal  a  dog,  but  it  is  a  misdemeanor  only."  And  by 
section  31  of  the  very  same  statute  under  which  the  prisoner  has  been 
convicted,  the  stealing  of  a  dog  is  made  punishable  by  flno  only,  and 
by  a  three  months'  imprisonment  in  default ;  and,  yet,  if  tlie  intention 
of  the  Legislature  were,  that  section  53  L'  "'>uld  be  applicable  to  dogs, 
the  obtaining  a  dog  by  false  pretenses  would  involve,  as  in  this  case, 
seven  years'  penal  servitude.  But  this  section  is  apnlicable  solely  to  the 
obtaining  of  such  articles  by  false  pretenses  as  might  be  eitlier,  at  com- 
mon law  or  by  previous  statute,  the  sulijcct- matter  of  an  indictment  for 
larceny,  if  the  facts  were  such  as  would  support  it.  The  preamble  to 
the  section  says :  "Whereas,  a  failure  of  justice  frequently  arises  from 
the  subtle  distinction  between  larceny  and  fraud,  for  remedy,  "  etc. ; 
And  the  clause  concludes  with  this  proviao,  "  Provided,  that  if  upon  the 
trial  of  any  person  indicted  for  su~h  misdemeanor,  it  sliall  be  proved 
that  he  obtained  the  property  in  question  in  such  a  way,  as  to  amaunt 
in  law  to  larceny,  he  shall  not  by  reason  thereof,  be  entitled  to  be  ac- 
quitted of  such  misdemeanor,  and  no  such  indictment  shall  be  remova- 
lile  by  certiorari,  and  no  person  tried  for  such  misdemeanor  shall  be 
liable  to  be  afterwards  prosecuted  for  larceny  upon  the  same  facts." 
From  this  it  is  clear  that  the  Legislature  throughout,  looks  at  the  prob- 
aliility  and  actually  provides  for  the  objection  being  raised  that  the 
facts  amount  to  larceny. 

The  present  dog  stealing  act,^  by  section  1  repeals  the  provisions  of 
7  and  8  George,  IV.  ;*  so  far  as  it  relates  to  dog  stealing  and  by  section 
2  enacts  that  to  steal  a  dog  shall  be  a  misdemeanor,  for  which  the 
offender  shall  be  liable  on  summary  conviction  to  imprisonment  and 
hard  labor  not  exceeding  six  months ;  and  the  same  statute  enacts  that 
a  second  offense  shall  be  an  indictable  misdemeanor. 

Brett,  for  the  Crown.  It  can  not  be  disputed  that  for  some  purposes 
dogs  are  chattels.  They  are  chattels  which  pass  to  the  executor,  and 
for  which  trover  will  lie ;  ^  but  it  is  said  they  are  not  chattels  within  this 
section,  because  they  are  not  the  subject  of  larceny  at  common  law.  The 
statute  relating  to  false  pretenses  was  passed  to  provide  a  remedy  in  cases 
of  cheating.     The  reason  which  is  assigned  why  dogs  should  not  be  the 


1  Cenntry  Jutice,  37S. 
>  10 Geo.  III.  ch.  18;  7  ft  8  G«o.  TV., ob.  89, 
>ec.  31 ;  8  and  9  Vict,  cb.  47. 
'849  vie.  ch.  47. 
*  ch.  29. 


*  Williams  on  Executors,  Com.  Dig. 
Action  Sur. Trover;  Ireland  v.  Iliggins,  Cro. 
Etiz.  125;  Wright  v.Rainscot,  1  Wm.  Saund. 
88 ;  The  Case  of  Swans,  7  Rep.  16. 


iimsimmmmimti 


466  LAnCENY. 

\  ■ 

subject  of  larceny  at  common  law  ia,  not  that  they  were  not  always  con- 
sidered to  be  chattels,  but  bccauHU  "  they  are  of  so  base  a  nature  that 
a  man  shall  not  die  for  them;  "  but  death  never  was  the  punisiiment 
for  cheating ;  and,  therefore,  the  reason  why  dog  stealing  should  not  be 
a  larceny  does  not  apply.  Words  sulHoiently  largo  to  include  this 
offense  arc  introduced  into  38  Henry  VIII., >  30  George  II., ^  and  also  into 
the  statute  now  under  consideration. 

Lord  Campbell,  C.  J.  It  is  clear  that  dog  stealing  was  not  felony 
at  common  law ;  the  reason  why  it  was  not  is  immaterial. 

Brett.  Assuming  that  dogs  are  not  the  subject  of  larceny,  they  may 
well  be  within  the  section  in  question.  They  are  within  the  words  of 
the  section,  and  there  is  no  reason  why  the  words  should  not  have  their 
full  effect. 

Lord  Campbell,  C.  J.  It  is  admitted  that  dog  stealing  ia  not  larceny 
at  common  law,  and  a  speciflo  punishment  of  a  milder  character  has 
been  enacted  by  the  latter  statute,  which  makes  the  offense  a  misde' 
meanor.  That  being  so,  it  would  be  monstrous  to  say  that  obtain- 
ing a  dog  by  false  pretenses  comes  within  the  statute  7  an<l  8  George 
IV., 3  by  which  the  offender  is  liable  to  seven  years'  penal  servitude. 
My  brother  Coleridge  used  to  say  that  no  indictment  would  lie  under 
that  section,  unless,  if  tlie  facts  justified  it,  the  prisoner  could  be  in- 
dicted for  larceny  and  that  is  now  ray  opinion. 

Martin,  B.  I  think  this  conviction  can  not  be  sustained.  The  ques- 
tidn  is  one  entirely  of  the  construction  of  the  statute. 

WiLLES,  J.  From  the  Year  Books  downwards  ircsluding  The  Case 
ofSwiina,*  dogs  have  always  been  held  not  to  be  the  subject  of  larceny 
at  common  law. 

The  other  learned  judges  concurred. 

Conviction  qtMshed. 


DOGS  NOT  SUBJECTS  OF  LASCENT. 

State  v.  Lymds. 

[26  Ohio  St.  400.] 

In  the  Supreme  Court  of  Ohio,  1875. 

A  Bov  1*  not  the  rabjaet  of  lareeny. 

Rex,  J.     The  defendant  was  indicted  at  the  March  term,  1872,  of  the 
Court  of  Common  Pleas  of  Logan  County,  for  burglary. 


1  oh.  1. 

*  ch.  M,  see.  1. 


3  ch.  29,  sec.  03. 
*  7  Rep.  15b. 


Arfk 


STATE   V.  LYMU8. 


457 


not  always  con- 
ic u  nature  that 
the  punisliment 
ig  should  not  bu 
;o  include  this 
. ,''  and  also  into 

was  not  felony 

I. 

■ceny,  they  may 

in  the  words  of 

)  not  have  their 

g  is  not  larceny 
■  character  has 
)ffense  a  misde' 
ay  that  obtain- 
7  an<l  8  George 
)enal  servitude, 
'ould  lie  under 
er  could  be  in- 

led.     The  ques- 

iding  The  Case 
bject  of  larceny 


Uion  qtMshed. 


rm, 1872,  of  the 


The  burglary  consisted  of  breaking  and  entering  a  stalile  in  the  night 
season  with  intent  to  steal  property  of  value  contained  therein,  to  wit,  a 
dog  found  therein,  tl»o  property  of  the  owner  of  the  8tal)le,  of  tiie  value 
of  twcniy-flve  dollars.  The  defenduut  moved  to  quash  the  indictment, 
on  the  ground  that  it  did  not  charge  him  with  the  commission  of  iin 
offense  which  was  punishable  by  the  criminal  laws  of  this  State. 

The  court  sustained  the  motion  and  ordered  the  defendant  to  be  tWy 
jharged,  holding  "  that  tlicre  is  no  law  authorizing  the  indictment,  and 
that  it  docs  not  charge  a  crime,  offense  or  misdemeanor." 

The  prosecuting  attorney  excepted  to  the  ruling  and  decision  of  the 
court,  and  presented  a  bill  of  exceptions,  embodying  the  indictment, 
motion,  ruling  and  decision  of  the  court,  and  ♦'  exceptions  taiten 
tii-.reto,  which  waa signed  and  sealed  by  the  cou  -t,  uwl  made  part  of  the 
rer;ord  in  the  case. 

Vhe  only  question  presented  by  the  exception  is:  Is  the  stealing  of  a 
dog  a  crime  in  this  State. 

The  property  intended  to  be  stolen  by  the  burglar  must  be  property 
of  which  a  larceny  may  be  committed.  We  have  no  statute  that,  in 
express  terms,  declares  a  dog  to  be  the  subject  of  larceny ;  but  it  is 
claimed  that  inasmuch  as  the  riglit  of  property  In  dogs  is  protected  by 
civil  remedies,  and  as  a  recent  statute  of  this  State  requires  tlua  to  be 
listed  for  taxation,  they  are  property,  and,  therefore,  properly  the  sub- 
jects of  larceny.  We  do  not  think  so.  Neither  the  fact  that  tlio  right 
of  property  in  dogs  is  protected  in  this  State  by  civil  remedies,  nor  the 
fact  that  recent  legislation  requires  them  to  be  listed  for  taxation,  has 
the  effect  of  enlarging  the  operations  of  the  statutes  defining  and  pun- 
ishing larceny. 

At  the  common  law,  althougti  It  was  not  a  crime  to  steal  a  dog,  yet  it 
was  such  an  Invasion  of  property  as  might  amount  to  a  civil  injury,  and 
1)6  redressed  by  a  civil  action.^  In  describing  the  property  of  which  a 
larceny,  either  grand  or  petit,  may  be  committed,  the  statutes  of  this 
State  use  the  wojds  "  goods  and  chattels."  These  words  at  the  com- 
mon law  have  a  settled  and  well  defined  meaning,  and  when  used  in  stat- 
utes defining  larceny,  are  to  be  understood  as  meaning  such  goods  and 
chattels  as  were  esteemed  at  the  common  law  to  be  the  subjects  of  lar- 
ceny. As  dogs,  at  the  common  law,  were  held  not  to  be  the  subjects  of 
larceny,  they  are  not  included  In  the  words  "goods  and  chattels,"  as 
usetl  in  the  statutes  referred  to. 

Bonds,  bills,  notes,  etc.,  are  goods  and  chattels,  and  yet,  as  they 
were  held  not  to  be  the  subjects  of  larceny  at  common  law,  it  was 
deemed  necessary  to  so  enlarge  the  larceny  statutes  as  to  declare  the 


1  a  Chit.  Black.  393, 894 ;  1  Bisb.  Cr.  L.  1080. 


458 


LARCENY. 


Stealing  or  malicious  destruction  of  them  punishable  m  the  same  man- 
ner  and  to  the  same  extent,  as  the  larceny  of  money,  or  other  goods 
and  chattels  of  the  same  value.  So  with  dogs.  It  will  be  t.me  enough 
for  the  courts  to  say  that  a  dog  is  the  subject  of  larceny  when  the  law- 
making power  of  the  State  has  so  declared.  "  Constructive  crimes  a  e 
odious  and  dangerous."  * 
We  are,  therefore,  of  opinion  that  the  Court  of  Common  Picas  did 

not  err  in  the  ruling  and  decision  excepted  to. 

Exceptiohs  overruled. 

"White  and  McIlvaine,  JJ.,  concurred. 
Welch,  C.  J.,  and  Gilmobe,  J.,  dissented. 


LARCENY  —  ANIMALS. 
R.  V.  TOWNLET. 


[12  Cox,  69.] 
In  the  English  Court  of  Criminal  Appeal,  1871. 

did  not  amount  to  larceny. 

Case  reserved  for  the  opinion  of  this  court  by  Mr.  Justice  Black- 

"''^The  prisoner  and  one  George  Dunkley  were  indicted  before  me  at  the 
Northampton  Spring  Assizes  for  stealing  one  hundred  and  twenty-six 

dead  rabbits.  ^  ,^.„.       „  ...     .    „„ 

In  one  count  they  were  laid  as  the  property  of  William  HoUis ;  m  an- 
other as  being  the  property  of  the  Queen.    There  were  also  counts  for 

receiving.  •«••  i    * 

It  was  proved  thatSelsey  Forest  is  the  property  of  Her  Majesty. 
An  agreement  between  Mr.  Hollis  and  the  Commissioners  of  the 
Woods  "and  Forests  on  behalf  of  Her  Majesty  was  given  in  evidence, 
which  I  thought  amounted  in  legal  effect  merely  to  a  license  to  Mr.  Hoi- 
lis  to  kill  and  take  away  the  game,  and  that  the  occupation  of  the  soil 
and  all  rights  incident  thereto  remained  in  the  Queen.  No  point,  how- 
ever,  was'reserved  as  to  the  proof  of  the  property  as  laid  in  the  indict- 
ment, 

1  Flndlay  v.  Bean,  8  S.  &  R.  6T1. 


A^M 


R.  r.  TOWNLEY. 


459 


\  the  same  man- 
or other  goods 
be  time  enough 
ly  when  the  law- 
ictive  crimes  ave 

mmon  Picas  did 

iohs  overruled. 


1871. 

it.,  a  ditch,  on  the  land 
)me  three  hours  after- 
itnred  by  gamekeepers 
achers.    Held,  that  this 


Ir.  Justice  Black- 

d  before  me  at  the 
red  and  twenty-six 

liam  Hollis ;  in  an- 
ere  also  counts  fov 

Her  Majesty, 
amissioners  of  the 
given  in  evidence, 
license  to  Mr.  Hol- 
cupation  of  the  soil 
in.  No  point,  how- 
a,s  laid  in  the  indict- 


Tl  .aence  showed  that  Mr.  Hollis'  keepers,  about  eight  in  the 
morning  on  the  23cl  of  September,  discovered  about  one  hundred  and 
rwenty-^ix  dead  and  newly  killed  rabbits  and  about  four  hundred  yards 
o7net  concealed  in  a  ditch  in  the  forest,  behind  a  hedge,  close  to  a  road, 

''^:^r^::fJ^:':::t.^s  andsomem  bundles,  strappedtogej^er 
by  the  legs,  and  had  evidently  been  placed  there  as  a  place  of  deposit  by 
thnso  who  had  netted  the  rabbits. 

T  e  k^per  lay  in  wait,  and  about  a  quarter  to  eleven  on  the  same 
day  Townfeyand  aman who  escaped,  came  in  a  cab  ^^-^^^y  ^^^f  ^^^ 
'  ong  the  road.  Townley  and  the  man  who  escaped  le  t  the  cab  in 
chTfge  of  Dunkley,  and  came  into  the  forest,  and  went  straight  to  the 
ditch  where  the  rabbits  were  concealed,  and  began  to  remove  them. 

The  prisoners  were  not  defended  by  counsel. 

It  was  contended  by  the  counsel  for  the  prosecution  that  the  rabbits 
on  being  killed  and  reduced  into  possession  by  a  wrong-doer  became 
I  p  onerty  of  the  owner  of  the  soil,  in  this  case  the  Queen-  and  tha 
ev  n  if  it  was  not  larceny  to  kill  and  carry  away  the  game  at  once  it 
3  so  here,  because  .      filing  and  carrying  away  was  not  one  con- 

'' The  'ury!  in  answer  to  questions  fromme,  found  that  the  rabbits  had 
be^  killed  by  poachers  in  Selsey  Forest,  on  land  in  the  same  occupa- 
tion and  ownership  as  the  spot  where  they  were  found  hidden. 

That  Townley  removed  them,  knowing  that  they  had  so  been  killed, 
but  that  it  was  not  proved  that  Dunkley  had  any  such  knowledge. 

thereupon  directed  a  verdict  of  notguilty  to  be  entered  as  regarded 
Dunkley,  and  a  verdict  of  guilty  as  to  Townley,  subject  to  a  case  for 

the  Court  of  Criminal  Appeal.  5„t„„«^n  tnahan- 

It  is  to  be  taken  as  a  fact  that  the  poachers  had  no  intention  to  aban- 

don  the  wrongful  POB-ssion  of  the  rabMts  which  they  had  acqmv.^^^^^ 

taking  them,  but  placed  them  in  the  ditch  as  a  place  of  deposit  till  they 

poiild  conveniently  remove  them. 
The  question  for  the  court  is,  whether  on  these  facts  the  prisoner  was 

properly  convicted  of  larceny. 
The  prisoner  was  admitted  to  bail.  ^^^  Blackbubh. 

No  counsel  appeared  to  argue  on  either  side. 

Bov  r  C.  J  (after  stating  the  facts).  The  first  question  hat 
arises  is  a's  to  the  nature  of  the  property.  Live  rabbits  -re-r-^^f^^ 
nature,  and  are  not  the  subject  of  absolute  property ;  t^.<>»g^;*  ^J^^™^^ 
time  they  are  particular  species  of  property  raUone  aoh-ov  rather  the 


1  Blades  V.  Hlggi,  7  L.  T.  (N.  8.)  798, 834. 


»  1  Hale's  P.  0.  810,  and  Lee  v.  Klsdon,  7 
Taunt.  191,  were  cited. 


460 


LARCENY. 


owner  of  the  soil  has  the  right  of  taking  and  killing  them,  and  as  soon 
as  he  has  exercised  that  right  tliey  become  the  absolute  property  of  the 
owner  of  the  soil.  That  point  was  decided  in  Bladen  v.  Higgs,^  as  to 
rabbits,  and  in  Lonsdale  v.  Eigg,^  as  to  grouse.  In  this  case  the  rab- 
bit buying  been  killed  on  land  the  property  of  the  Crown,  and  left  dead 
on  the  same  ground,  would,  therefore,  in  the  ordinary  course  of  thiugs 
become  the  property  of  the  Crown.  But  before  a  person  can  te  cou- 
victed  of  larceny  of  a  thing  not  the  subject  of  larceny  ittits  original 
state,  as  e.g.,  of  a  thing  attached  to  the  soil,  there  must  not  only  be  a 
severance  of  the  thing  from  the  soil,  but  a  felonious  taking  of  it  also 
after  such  severance.  Such  is  the  doctrine  as  applied  to  stealing  trees 
and  fruits  therefrom,  lead  from  buildings,  fixtures  and  minerals.  But 
if  the  act  of  taking  is  continuous  with  the  act  of  severance,  it  is  not  lar- 
ceny. The  case  of  larceny  of  animals /eree  natural  stands  on  the  same 
principle.  Where  game  is  killed  and  falls  on  another's  land,  it  becomes 
the  property  of  tlie  owner  of  the  land,  but  the  mere  fact  that  it  has  fallen 
on  the  land  of  another  does  not  render  a  person  taking  it  up  guilty  of 
larceny,  for  there  must  be  a  severance  between  the  act  of  killing  and 
the  act  of  taking  the  game  away.  In  the  present  case  we  must  take  it 
tliat  the  prisoner  was  one  of  the  poachers,  or  connected  with  them. 
Under  these  circumstances  we  might  come  to  the  conclusion  th.it  it  was 
a  continuous  act,  and  that  tlie  poachers  netted,  killed,  packed  up,  and 
attempted  to  carry  away  the  rabbits  in  one  continuous  act,  and  there- 
fore that  the  prisoner  ought  not  to  have  been  convicted  cf  larceny. 

Martin,  B.  I  am  of  the  same  opinion.  It  is  clear  that  if  a  person 
kills  rabbits,  and  at  the  same  time  carries  them  away,  he  is  not  guilty 
of  larceny.  Then,  when  he  kills  rabbits  and  goes  and  hides  them,  and 
comes  back  to  carry  them  away,  can  it  be  said  that  is  larceny  ?  A  pas- 
sage from  Hale's  Pleas  of  the  Crown, ^  "  If  a  man  comes  to  steal  trees, 
or  the  lead  off  a  church  or  house,  and  sever  it,  and  after  about  an  hour's 
time  or  so,  come  and  fetch  it  away,  it  is  a  felony,  because  the  act  is  not 
continuated,  but  interpolated,  and  in  that  interval  the  property  lodgeth 
in  the  right  owner  as  a  chattel,  and  so  it  was  argued  by  the  Court  of 
King's  Bencli,*  upon  an  indictment  for  stealing  the  lead  off  Westminster 
Al)bey  "  — was  relied  on  by  the  prosecution.  There  is  also  a  dictum 
of  Gibbs  C.  J.,  to  the  same  effect  in  Lee  v.  Riadon.^  I  am  not  insensi- 
ble to  the  effect  of  those  dicta  but  here  we  must  take  it  as  a  fact  that 
the  poachers  had  no  intention  to  abandon  possession  of  the  rabbits,  but 
put  them  in  the  ditch  for  convenience  <;ake ;  and  I  concur  in  thinking 
that  the  true  law  is  that,  when  the  poachers  go  back  for  the  purpose  of 


I  mtpra. 

<  2«  L.  J.  196,  Ex. 

1  p.  SIO. 


«  9  Oor.  1. 
'  7  Taunt.  191. 


■ta«M 


R.  V.  TOWNLEY. 


461 


id  as  goon 
jrtyof  the 
|9'.9«.'  as  to 
le  the  rah- 
left  dead 
of  thiugs 
in  te  con- 
Its  original 
|pnly  be  a 
of  it  also 
iling  trees 
'als.     But 
is  not  lar- 
>  the  same 
it  becomes 
has  fallen 
)  guilty  of 
dlling  and 
ust  take  it 
i^itb  them. 
ilMt  it  was 
'J  up,  and 
Eind  there- 
cony. 
f  a  person 
not  guilty 
them,  and 
?    A  pas- 
teal  trees, 
an  hour's 
act  is  not 
y  lodgeth 
Court  of 
istminster 
a  dictum 
t  insensi- 
fact  that 
»bit8,  but 
thinking 
irpose  of 


taking  them  away,  in  continuation  of  the  original  intention,  it  does  not 
amount  to  larceny. 

BuAsiWELL,  B.  Our  decision  does  not  appear  to  me  to  be  contrary 
to  what  Lord  Hale  and  Gibbs,  C.  J.,  have  said  in  the  passages  referred 
to.  If  a  man  having  killed  rabbits  on  the  land  of  another,  gets  rid  of 
them  because  he  is  interrupted,  and  then  goes  away  and  afterwards 
comes  back  to  remove  the  rabbits,  that  is  a  larceny ;  and  so,  if  on 
being  pursued  he  throws  tliem  away ;  and  it  is  diflicult  to  perceive  any 
distinction  wliere  the  owner  of  a  chattel  attached  to  the  freehold  finds 
it  on  his  land  severed,  and  the  person  who  severed  it  having  abandoned 
it  afterwards  comes  and  takes  it  away.  I*^  is  in  those  cases  so  left  as  to 
be  in  the  jiossession  of  tlie  true  owner,  and  the  act  is  not,  as  Lord  Hale 
expresses  it,  continuated.  In  this  case,  however,  the  rabbits  were  left 
by  the  poachers  as  trespassers  in  a  place  of  deposit,  tliough  it  liappenod 
to  be  on  the  land  uf  the  owner ;  and  it  is  just  the  same  as  if  they  bad 
been  taken  and  left  at  a  public  house,  or  upon  the  land  of  a  neighbor. 
If  tliey  had  been  left  on  the  land  of  a  neighbor,  or  at  a  public  house 
could  it  have  been  said  to  be  larceny  ?  Clearly  not ;  and  if  not,  why  is 
it  larceny  because  the  poachers  left  them  in  a  place  of  deposit  on  the 
owner's  own  land?  It  seems  to  me  that  the  case  is  not  witliin  the  dicta 
of  Lord  Hale  and  Gibbs,  C.  J.,  but  that  here  the  act  was  continuous, 
and  that  there  was  an  asportation  by  the  poachers  to  a  place  of  deposit, 
where  they  remained  not  in  the  owner's  possession. 

Byles,  J.  I  can  not  say  that  I  have  not  entertained  a  doubt  in  this 
case;  but  upon  the  whole  I  think  that  this  was  not  larceny.  The 
wrongful  taking  of  the  rabbits  was  never  abandoned  by  the  poachers, 
for  some  of  the  rabbits  were  in  their  bags.  It  could  hardly  be  said 
that  if  a  poacher  dropped  a  rabbit  and  afterwards  picked  it  up  that 
could  be  converted  into  larceny,  yet  that  would  follow  if  the  conviction 
were  upheld. 

Blackburn,  J.  I  am  of  the  same  opinion.  Larceny  has  always 
been  defined  as  the  taking  and  carrying  away  of  the  goods  and  chattels 
of  another  person ;  and  it  was  very  early  settled  where  the  thing  taken 
was  not  a  chattel,  as  where  a  tree  was  cut  down  and  carried  away,  tliat 
was  not  larcen}',  because  the  tree  was  not  taken  as  a  chattel  out  of  the 
owner's  possession,  and  because  the  severance  of  the  tree  was  accom- 
panied by  the  taking  of  it  away.  The  same  law  applied  to  fruit,  fix- 
tures, minerals,  and  the  like  things,  and  statutes  have  been  passed  to 
make  stealing  in  such  cases  larceny.  Though  in  the  House  of  Lords, 
in  Modes  v.  Higgs,  it  was  decided  that  rabbits  killed  upon  land  became 
the  property  of  the  owner  of  the  land,  it  was  expressly  said  that  it  did 
not  follow  that  every  poacher  is  guilty  of  larceny,  because  as  Lord 
Cranwcll  said:  "  Wild  animals,  whilst  living,  though  they  are,  according 


462 


LARCENY. 


to  Lord  Holt,  the  property  of  the  owner  of  the  soil  on  which  they  are 
living,  are  not  his  personal  chattels  so  as  to  be  the  subject  of  larceny. 
They  partake,  while  living,  of  the  quality  of  the  soil,  and  are,  like 
growing  fruit,  considered  as  part  of  the  realty.     If  a  man  enters  my 
orchard  and  fills  a  wheel  barrow  with  apples,  which  he  has  gathered 
from  my  trees,  he  is  not  guilty  of  larceny,  though  he  has  certainly 
possessed  himself  of  my  property,  and  the  same  principle  is  applicable 
to  wild  animals."     The  principle  is  as  old  as  11  Year  Book,i  where  it 
is  reported  that  a  forester  who  had  cut  down  and  carried  away  trees, 
could  not  be  arraigned  for  larceny,  though  it  was  a  breach  of  trust,  but 
it  was  said  it  would  have  been  a  different  thing  if  the  lord  of  the  forest 
had  cut  down  the  trees  and  the  forester  had  carried  them  away,  then 
that  would  have  been  larceny.     So  that,  in  the  case  of  wild  animals,  if 
the  act  of  killing  and  reducing  the  animals  into  possession  is  all  one  and 
continuous,  the  offense  is  not  larceny.     The  jury  have  found  in  this 
case  that  the  prisoner  knew  all  about  the  killing  of  the  rabbits,  and  that 
thwy  were  lying  in  the  ditch.     It  is  clear,  that,  during  the  three  hours 
they  were  lying  there,  no  one  had  any  physical  possession  of  them,  and 
that  they  were^still  left  on  the  owner's  soil ;  but  I  do  not  see  that  that 
makes  any  difference.     Then  there  is  the  statement  from  Hale's  Pleas 
of  the  Crown,3  where  it  is  said  that  larceny  can  not  be  committed  of 
things  that  adhere  to  the  freehold  as  trees,  or  lead  of  a  house,  or  the 
likc'yet  that  the  Court  of  King's  Bench  decided  that,  where  a  man  sev- 
ered lead  from  Westminster  Abbey,  and  after  about  an  hour's  time 
came  and  fetched  it  away,  it  was  felony,  because  the  act  is  not  continu- 
ous but  interpolated ;  and  Lord  Hale  refers  to  Dalton.3    And  Gibbs,  C. 
J.,  expressed  the  same  view  very  clearly  in  Lee  v.  Risdon.     Now,  if 
that  is  to  be  understood  as  my  Brother  Bbamwell  explained,  I  have  no 
fault  to  find  with  it,  but  if  it  is  i;o  be  said  that  the  mere  fact  that  the 
chattel  having  been  left  for  a  time  on  the  land  of  the  owner  has  thereby 
remained  the  owner's  property,  and  that  the  person  coming  to  take  it 
away  can  be  convicted  of  larceny,  I  can  not  agree  with  it  as  at  present 
advised.     If  we  are  to  follow  the  view  taken  by  my  Brother  Bramwell 
of  these  authorities,  they  do  not  apply  here,  for  no  one  could  suppose 
that  the  poachers  ever  parted  with  the  possession  of  the  rabbits.     I 
agree  that,  in  point  of  principle,  it  can  not  make  any  difference  that  the 
rabbits  were  left  an  hour  or  so  in  a  place  of  deposit  on  the  owner's 
land.     The  passage  from  Lord  Hale  may  be  understood  in  the  way  my 
Brother  Bbamwell  has  interpreted  it,  and  if  so  the  facts  do  not  bring 

this  case  within  it.  ^  •  .  j 

Conviction  quashed. 


1  par.  ss. 
'p.SlO. 


3  cb.  108,  p.  166. 


^rfM 


R.  V.  FETCH. 


463 


LARCENY -WILD  ANIMALS -POSSESSION. 

R.  V.  Fetch. 

[14  Cox,  116.1 
/n  the  English  Court  of  Criminal  Appeal,  1878. 

trapped,  to  the  head  "'"^P"' J'^^'Jj'^XanS  ll«^ed  them  In  a  bag  with  intention  of 
and  took  them  to  another  part  of  "•" J""';' '""  ^^    „  oba 

appropriatmgthem  to  hU  own  "»«•  «^'''«'» »™/ '^eand  nicked  them  and  put  them 
„?rherabblt.o«tofthebagdurmgthepr,^onerBa^^^^^^^^^  ^,^ 

into  the  bag.    HI.  reason  for  nicking  t"^™  T'"  *""!"" ^,^,  that  the  act  of  the  keeper 

to  make  the  prisoner  guilty  of  stealing  Ihem. 

This  was  a  case  reserved  for  the  opinion  of  this  court  by  B.  B. 
ihis  was  a  CH»  o  p    M  P    the  chairman  of  the  Second  Court 

n1  the  West  Suffolk  Quarter  Sessions. 

Jt,  ZZi^  Dhuleep  Sing,  of  «y.one  de.<.  r.bbi..,  .h.  proper,, 
nf  his  master.    There  was  also  a  count  for  receiving. 
°'t  rp^oner  was  employed  by  the  Maharajah  to  trap  rabb^  upon  a 
part  of  his  estate,  and  it  was  the  duty  of  the  prisoner  forthwith  to  take 
dailv  the  rabbits  so  trapped  to  the  head  keeper. 

On  the  morning  of  the'  9th  day  of  February,  about  haW-past  deven^ 
an  underkeeper  named  Howlett,  also  employed  by  the  Maharajah  was 
ut  on  his  beat  in  the  parish  of  North  Stowe,  where  he  obs^-^^^^^^ 
prisoner  go  three  or  four  times  from  the  places  where  his  rabbit  traps 
we  set  ?o  a  spot  near  a  furze  bush  on  his  beat.  On  examining  this 
Ta  n  the  day,  he  found  sixty.one  dead  rabbits  in  a  bag  hidden  in  a 
hde  in  th  ear'tk  near  a  furze  bush.  Howlett  took  twenty  of  the  rab- 
;  ts  out  of  the  bag  and  marked  them  by  cutting  a  sma  ^^--^^^^ 
throat.  He  then  placed  them  in  the  bag,  and  covered  it  up  in  he  ho^ 
in  the  ground  as  before.  In  cross-examination  Howlett  said  that  his 
reason  for  marking  the  rabbits  was  that  he  might  know  them  again. 

E^ly  on  the  following  Sunday  morning  the  prisoner  was  seen  by 
How"tt,  and  a  police  constable,  who  ^ad  been  watching  t«^ 
take  the  rabbits  from  the  hole  in  the  ground  and  put  them  m  h  s  cart 
and  he  was  driving  the  cart  away  along  the  road  in  a  ^^f;'l^^'^'^ 
to  the  head  keeper's  house  where  he  should  have  deposited  them,  when 
he  was  stopped  and  taken  into  custody  by  the  police. 
Counsel  for  the  prisoner  contended  that  there  was  no  evidence  to  go 

84  and  85  Vict.,  ch.  96,  sec.  69. 


iv:,Z5^5S«S*!SapaESaii;SV4*4feS^-'^VJi*r4^ 


464 


LARCENY. 


to  the  jury  of  the  larceny  charged  in  the  indictment,  and  referred  to 
Rtf'jiiKi  V.  T'lWiiley.^ 

Tlie  court,  however,  held  that  there  was  evidence  to  go  to  the  jury  of 
larceny,  and  that  the  present  case  was  distinguishable  from  that  of 
Jte'jina  v.  Toicnlen,  in  consequence  of  the  continuity  of  the  possession 
having  been  broken  by  Hewlett,  the  servant  of  the  Maharajah,  h^  hav- 
ing taken  twenty  of  the  rabbits  out  of  the  bag  and  marked  them  as  de- 
scribed. 

Tlie  court  agreed  with  the  contention  of  counsel  for  the  prisoner  that 
there  was  no  evidence  of  any  intention  on  the  part  of  the  prisoner  to 
abandon  possession  of  the  rabbits  and  this  point  was  not  left  to  the 

jurv. 

The  court  left  the  case  generally  to  the  jury,  who  found  the  prisoner 
guilty  of  the  larceny  cliarged,  and  the  prisoner  was  sentenced  to  three 
months'  imprisonment  with  hard  labor ;  execution  of  tlie  judgment  was 
respited  until  the  decision  of  this  court. 

The  court  reserved  for  the  opinion  of  this  court  the  question  whether 
upon  these  facts  the  prisoner  was  properly  convicted  of  the  larceny 

charged. 

Kinosford  (Mdlden  with  him).     The  conviction  was  wrong.     There 
was  no  larceny  here.     "  Theft  may  be  committed  by  taking  and  carry- 
ing away  witiiout  the  consent  of  the  owner  (even  if  he  knows  and  af- 
fords facilities  for  the  commission  of  the  offense)  of  any  thing  which  is 
not  in  possession  of  the  thief  at  the  time  when  the  offense  is  comn  '* 
whether  it  is  in  the  possession  of  any  other  person  or  not.     *     •     -     ii 
the  thing  taken  and  carried  away  is  for  the  first  time  rendered  capable 
of  being  stolen  by  the  act  of  taking  and  carrying  away,  and  if  the  tak- 
ing and  carrying  away  are  one  continuous  act,  such  taking  and  carry- 
ing away  is  not  theft,  except  in  the  cases  provided  for  in  articles  826, 
327.     It  seems  that  the  taking  and  carrying  away  are  deemed  continu- 
ous if  the  intention  to  carry  away  after  a  reasonable  time  exists  at  the 
time    of    taking."  *     In    this    case  the  rabbits   were  always  in  the 
prisoner's  possession  and  never  in  that  of  the  master,  and  that  being 
so,  Regina  v.  Totonley  is  an  authority  that  the  prisoner  is  not  guilty  of 
larceny.     The  continuity  of  the  possession  of  the  rabbits  was  not  broken 
by  the  act  of  Howlett  going  and  nicking  the  rabbits.    This  was  done  for 
the  purpose  of  identifying  them,  not  for  reducing  them  into  the  posses- 
sion of  the  master.     [Field,  J.     And  with  the  intention  that  the  pris- 
'    oner  should  have  possession  of  them.]     The  distinction  taken  by  the 
chairman  is  not  consistent  with  the  facts.    The  judgment  of  Black- 
burn, J.,  in  Regina  v.  Townley,  was  referred  to,  and  also  the  case  of 
Regina  v.  Read.'^ 


1  L.  E.  1  O.  C.  R.  815:  12  Cox.  C.  C.  69. 
•  sir  J.  r.  Stephen's  Dig.  Cr.L.,  art.  296. 


14  Cox,  0  C.  X: ;  L.  n.  S  Q.  B.  Dlv.  181. 


^^m 


R.  V.  FETCH. 


465 


No  couni^el  appeared  for  the  prosecution. 

CocKBUKK,  C.  J.    Thl8  conviction  must  be  quashed.     The  case  is 
really  governed  by  that  of  Begina  v.  TounUey,  wliere  the  law  on  the 
subject  is  fully  stated  in  the  judgment  of  Blackburn,  J.     At  common 
law  to  constitute  larceny  it  was  necessary  that  there  should  be  a  taking 
and  carrying  away  of  the  chattel,  and  among  the  instances  put  in  the  old 
books  are  those  of  growing  trees,  and  lead  fixed  to  a  building,  which 
constitute  part  of  the  freehold,  where  a  severance  was  necessary  to  turn 
tliem  into  chattels,  and  unless  there  was  an  interval  between  the  one 
act  of  turning  them  into  chattels,  and  the  other  act  of  taking  them 
a^ay,  during  which  there  was  a  change  in  the  possession  from  the 
person  who  severed    them  from  that  of  the  owner,  the  final  act  of 
carrying  them  away  by  the  person  who  severed  them  did  not  form 
the   subject-matter   of    larceny.     So,  in    the  present  case,   although 
property  in  wild  animals,  as  decided  in  Bladea  v.  Higgs,^  becomes  that 
of  the  owner  by  being  killed  on  his  land,  it  does  not  follow  that,  when  a 
man  without  right  goes  upon  the  land  and  kills  wild  animals  they  be- 
<ome  so  reduced  into  the  possession  of  the  owner  of  the  land  as  to  ren- 
der the  man  liable  to  the  charge  of  larceny  for  carrying  them  away.     In 
Itegina  v.  Read,  the  principle  was  the  same  as  that  which  governs  this 
case.    It  is  true  that  in  that  case  the  prisoner  was  employed  to  trap 
rabbits,  and  had  authority  to  kill  rabbits,  and  that  availing  himself  of 
that  authority  he  trapped  and  killed  rabbits,  but  that  was  not  in  fulfill- 
ment of  his  duty,  but  with  the  intention  of  taking  the  rabbits  for  his 
own  purposes  and  not  for  his  master's.     In  no  sense  did  he  reduce 
them  into  the  possession  of  his  master,  for  he  took  them  direct  from 
the  trap  to  where  the  bag  was  concealed,  and  put  them  into  his  bag. 
The  only  circumstance  that  appears  to  distinguish  this  case  is  the  fact 
that  the  keeper  Howlett  marked  some  of  the  rabbits,  but  that  was  done, 
not  with  the  intention  of  altering  the  possession  of  them,  but  for  the 
purpose  of  identifying  them.    That  fact  does  not  make  any  difference 
in  the  case.     I  am  of  opinion  that  the  conviction  should  be  quashed. 

Pollock,  B.  I  am  of  the  same  opinion.  This  case  was  reserved 
that  it  might  be  determined  whether  there  was  any  distinction  between 
it  and  Jiegina  v.  Toumley,  nud  whether  the  nicking  of  rabbits  by  the 
keeper  could  be  considered  as  a  reducing  of  them  into  the  possession  of 
the  master.  There  is  really  no  distinction.  It  is  impossible  to  say  that 
all  that  the  prisoner  did  was  not  in  his  conduct  as  a  thief. 

Field,  J.  I  am  of  the  same  opinion.  There  is  no  question  raised  as 
to  any  reduction  of  the  rabbits  into  the  possession  of  the  master  by  the 
act  of  trapping  them,  but  it  is  said  that  the  continuity  of  possession  by 


3  Dkkkncks. 


1  11  H.  L.  Cm.  «S1. 

30 


^Qi^;.^.MXiVii»"^^'->'' 


;„:,a»^a5»»sx; 


466 


LARCENY. 


the  prisoner  was  broken  by  the  act  of  the  keeper  in  going  to  the  trap 
and  nicking  the  rabbits.  It  appears  to  me  that  tliere  is  no  foundation 
for  any  distinction  between  this  case  and  Regina  v.  Townley. 

HdddlestoW;  B.  I  am  of  the  same  opinion.  There  was  no  intention 
on  the  part  of  the  prisoner  to  abandon  his  possession  of  the  rabbits./  I 
agree  that  the  act  of  the  keeper  in  nicking  the  rabbits  was  not  for  the 
purpose  of  reducing  them  into  the  possession  of  the  master,  but  for 
identifying  them.  I  do  not  agree  in  the  distinction  of  this  case  from 
Regina  y.  Townley,  drawn  by  the  chairman  of  the  Court  of  Quarter  Ses- 
sions. There  was  no  evidence  from  which  it  might  have  been  inferred 
that  the  rabbits  had  been  reduced  into  the  possession  of  the  master. 

LiMDLBT.  J.     I  am  of  the  same  opinion. 

ConvMion  quaahea. 


LARCENY  — PROSECUTOR  MUST  HAVE  POSSESSION  OF  AND 
PROPERTY  IN  GOODS. 

R.  V.  Smith. 

[1  Den.  &  P.  447.] 
In  the  English  Court  for  Crown  Cases  Reserved,  1852. 

The  Prisoner  took  out  of  his  Pocket  a  piece  of  blank  paper  properly  aMmped  with  » 
•ixpenny  BUmp,  haring  led  the  proiecntor  to  believe  that  he  waa  about  to  pay  him  the 
■am  of  £4  llB  IJd  due  to  him  from  one  P.  The  prosecutor  wrote  upon  the  paper  a  receipt 
for  the  money;  whereupon  the  prlioner  took  up  the  receipt,  and  left  the  prosecutor 
without  paying  him;  and  the  Jury  found  that  he  took  it  with  Intent  to  defraud.  ffM^ 
that  the  prisoner  could  not  be  conylcted  of  larceny,  the  prosecutor  never  having  ha4 
such  a  possession  of  the  paper  ai'  would  have  enabled  him  to  mainuin  trespass. 

At  the  Ephiphany  Quarter  Sessions  held  by  adjournment  at  Swansea, 
in  the  county  of  Glamorgan,  on  the  9th  January,  1852,  the  prisoner, 
John  Smith,  was  indicted  before  H.  A.  Brccb,  Esq.,  and  other  justices 
of  the  same  county,  for  having,  on  the  3d  December,  1851,  "  one  piece 
of  paper  stamped  with  a  certain  stamp  denoting  payment  of  a  duty  to 
our  sovereign  lady,  the  Queen,  of  sixpence  of  the  property,  etc.,  of 
Thomas  Henderson,  feloniously  stolen,"  etc. 

The  prosecutor,  Thomas  Henderson,  had  been  timekeeper  and  general 
clerk  to  Isaac  Powell,  a  railway  contractor,  whose  [employment  he  left 
in  November,  1861.  The  prosecutor  applied  frequently,  and  without 
success,  to  Powell  for  payment  of  wages  due  to  him.  On  the  8d 
December,  1851,  prosecutor  went  to  a  public  house  where  he  saw 
Powell  and  the  prisoner,  who  was  a  ganger  (or  foreman)  in  the  employ 
of  Powell.     Prosecutor  asked  Powell  if  he  was  going  to  settle  with  him. 


R.  V.  SMITH. 


467 


Powell  answered,  "  Yes,"  and  said  that  he  would  send  the  prisoner  up 
to  his  house  to  his  (Powell's)  wife  for  the  money.  Powell  then  left  the 
house  and  prisoner  followed  him.  In  about  two  minutes  prisoner  re- 
turned, and  beckoned  the  prosecutor  to  come  to  him  into  the  front  par- 
lor. Prosecutor  went  there.  They  were  alone,  and  made  up  between 
them  the  balance  of  wages  due  to  prosecutor,  which  they  fixed  at  £4, 
lis,  iVsd.  Prisoner  then  took  out  of  his  pocket  a  sixpenny  stamp,  and 
put  it  on  the  table.  Prosecutor  took  the  stamp  and  pulled  it  towards 
himself,  and  asked  the  prisoner  whether  he  (prosecutor)  should  write  a 
receipt  for  the  full  sum  of  £10,  168,  or  for  the  balance.  Prisoner  said, 
"for  the  balance."  While  prosecutor  was  writing  ho  observed  the 
prisoner  pull  out  a  fist  full  of  silver,  and  turn  it  over  in  his  hand. 
When  prosecutor  had  written  out  the  receipt,  prisoner  took  it  up  and 
went  out  of  the  room.  Prosecutor  followed  him  and  said,  "  Smith, 
you  have  not  given  me  the  money."  Prisoner  said:  ♦'  It's  all  right." 
Prosecutor  repeatedly  asked  prisoner  for  the  money,  but  in  vain.  On 
the  evening  of  the  same  day  prosecutor  met  Powell  and  the  prisoner 
together,  and  asked  Powell  if  he  had  given  prisoner  any  money  for 
him.  Powell  said :  "  No ;  but  my  wife  has."  Prosecutor  said  he  had 
not  had  the  receipt.  "Well,"  answered  Powell,  "he  (the  prisoner) 
would  not  have  the  receipt  if  you  (the  prosecutor)  had  not  had  the 
money." 

The  learned  chairman  told  the  jury,  after  much  doubt,  that  if  they 
believed  the  evidence,  the  stamped  receipt  was  the  property  and  was  In 
possession  of  the  prosecutor  at  and  after  the  time  of  his  writing  the 
receipt ;  and  that  if  they  believed  the  prosecutor's  statement,  and  should 
be  of  opinion  that  the  prisoner  took  the  receipt  out  of  such  possession 
with  a  fraudulent  intent,  they  might  convict  him  of  larceny. 

The  jury  returned  a  verdict  of  guilty,  and  the  prisoner  was  sentenced 
to  imprisonment  for  four  calendar  months,  with  hard  labor. 
The  counsel  for  the  prisoner  raised  the  following  objections :  — 
1st.  That  there  was  not  such  a  property  and  possession  in  the  prose- 
cutor as  to  support  the  charge  laid  in  the  indictment. 
2d.  That  there  was  no  evidence  of  a  felonious  taking. 
The  chairman  thereupon  reserved  the  case  for  the  consideration  of  the 
judges,  and  begged  their  opinion  thereon. 

On  the  24th  April,  A.  D.  1852,  this  case  was  considered  by  Pollock, 
C.  B.,  Parke,  B.,  Erle,  J.,  Talfoubd,  J.,  and  Crompton,  J. 

Terry^  for  the  Crown,  read  the  case  and  cited  Rex.  v.  Phipoe.^ 
There  the  prosecutor  was  compelled  by  duress  to  sign  a  promissory  note 
which  had  been  previously  prepared  by  the  defendant,  who  produced  it 

I  2Li?acb,C.  C.673.  • 


:.mmmigss^^mm^^^^'^^'^^'^^^'^^^ 


468 


LAIICENY. 


and  withdrew  it  again  as  soon  as  it  was  signed,  and  a  great  difference 
of  opinion  existed  among  the  judges  as  to  wliether  there  wa»  a  larceny 

or  not.  , 

Pakke,  B.  The  stamped  paper  never  was  in  the  prosecutor  s  posses- 
sion, and  the  prisoner  can  not  be  convicted  of  stealing  it  unless  the 
prosecutor  had  such  a  possession  of  it  as  would  enable  him  to  mamtain 
trespass.     It  was  merely  handed  over  for  him  to  write  upon  it. 

Terry.  But  it  is  found  that  it  was  obtained  from  the  prosecutor  by 
the  prisoner  with  an  Intent  to  defraud. 

Pakke,  B.     It  is  like  the  case  of  Rex  v.  Hart^  where  the  prisoner 
was  indicted  for  stealing  an  imperfect  bill  of  exchange.     There  the 
prisoner  produced  from  his  pocket  ten  blank  stamps,  and  the  prosecutor 
wrote  on  each  of  them  the  words  "  payable  at  Messrs.  Praed  &  Co.,  189 
Fleet  Street,  London."     Nothing  was  written  on  the  stamps  at  that 
time  but  these  words;  and  the  prisoner  took  the  stamps  away.    The 
prosecutor  saw  him  again  several  days  afterwards,  when  he  said  that 
tlie  prosecutor  had  omitted  to  sign  his  name;  and  he  again  produced 
tlie  ten  pieces  of  paper;  the  prosecutor  signed  them  and  wrote  "  ac- 
cepted "  on  each  of  them,  and  gave  them  to  the  prisoner  again.     He 
said  he  would  send  the  money  in  a  few  days  by  the  mail,  but  it  was 
never  sent.    Littledale,  J.,  observed,  in  giving  judgment:  "  If  a  per- 
son, by  false  representation,  obtains  tlie  possession  of  the  property  of 
another,  intending  to  convert  it  to  his  own  use,  this  is  felony ;  but  the 
property  must  have  been  previously  in  the  possession  of  the  person 
from  whom  it  is  charged  to  have  been  stolen.     Now,  I  think  that  these 
papers,  in  the  state  in  which  they  were,  were  the  property  of  the  pris- 
oner.     He  took  them  from  his  pocket,  and  the  prosecutor  never  had 
them  except  for  the  puri>ose  of  writing  upon  them;  they  were  never 
out  of  the  prisoner's  sight;  the  prosecutor  writes  upon  them  as  he  in- 
tended, and  the  prisoner  immediately  has  them  again.     I  think  that  the 
prisoner  can  not  be  convicted  as  having  committed  a  trespass  in  the 
taking,  as  they  were  never  out  of  his  possession  at  all.'*    In  the  same 
way  here,  the  prosecutor  never  had  the  possession  of  the  stamped  paper. 
Terry.    In  the  case  of    Rex  v.  Hart,  the  articles  alleged  to  have 
been  stolen  were  imperfect  bills  of  exchange.    Here  the  case  is  some- 
what different :  a  receipt  for  a  sum  of  £4,  10s,  1  V^d  -  a  debt  due  to 
the  prosecutor,  is  obtained  ix<m  the  prosecutor  by  fraud. 

Parke,  B.     But  there  was  never  any  property  in  the  stamped  paper 
in  the  prosecutor.     It  was  never  delivered  to  him  to  keep. 

Terry.    It  is  submitted  that  he  had  a  property  in  it  as  a  bailee  ? 


1  6  C.  ft  p.  106. 

t  At  to  the  cMes  where  a  man  may  eoin- 
nit  larceny  by  etealinK  hit  own  goodt  from 


a  bailee,  tee  4  Bla.  Com.  Ml.  and  not*  by 
Chitty. 


m'NAIR  v.  8TATB. 


469 
.      It 


Parke,  B.     No.     It  was  never  intended  that  he  should  retain  it 
was  merely  handed  to  liim  to  write  upon  it. 

Pollock,  C.  B.     Could  tlw  prosecutor  have  brought  an  action  to 
trover  for  the  stamped  paper? 

Terry.    I  apprehend  he  could. 

Pabke,  B.    That  is  another  question.     Littledale,  J.,  says  that  he 
could  not  maintain  an  action  of  trespass. 

The  judges  were  all  of  opinion  that  this  was  not  a  case  of  larceny, 
and  the  conviction  was  ordered  to  be  quashed. 


LARCENY -PROSECUTOR  MUST  HAVE  PROPERTY  TO  GOODS, 

McNair  v.  State. 

[14  Tex.  (App.)  18.] 
In  the  Court  of  Appeals  of  Texas,  1883. 

1  On  a  TrUl  tor  thett  iho  court  charged  u  follow. :  "  PceBtlon  of  the  perwn  onlawfuUy 
^prl^f  P^perty  U  con.tit«ted  In  ^X  ewe.  where  the  por.on  «o  deprived  of  po«e.^ 
.ion "..  at  the  Ume  of  taking.  lawfuUy  entitled  to  the  poMeMl.n  thereof  a.  agaln.t  the 
trae  owner."   ^.Jd,  error. 

.  InUnt.-Upon  the  question  of  Intent,  the  court  charged  In  a  theft  caw  a.  foUows:  T*e 
intent  in  all  criminal  case.  i»  Judged  of  from  the  act."  miC  -  ^r.  ''•''•«"»«»' «« '' °°»; 
lines  the  question  of  Intent  to  the  act.  whereas  Intent  is  to  be  deduced  from  aU  the  cir- 
cumstances remotely  or  immediately  attendU  ;  the  taking. 

S.  Owneribip.  -  Upon  the  question  of  ownership  the  court  charged :  "  If  you  believe  from 
the  evidence  that  the  property  as  charged  was  not  the  property  of  the  person  as  charged, 
beyond  a  reasonable  doubt,  you  will  acquit  the  defendant."    Hdd,  error. 

4.  PosMMion  of  BwenUy  Stolen  Prop«ty  is  not  of  itself  sufficient  to  sustain  a  con- 
^SUJI^or  theft.  The  court  charged  as  foUows:  "If  the  Jury  Und  that  the  property 
alleged  to  have  been  stolen  was  the  property  of  the  defendant,  and  that  he  had  exercised 
actual  control,  crfre  and  management  over  the  same,  prior  to  the  alleged  taking,  yo»  w'" 
find  the  defendant  not  guilty."  md,  error,  inasmuch  as  when  the  •J»«f»'«»^*«™™  *° 
show  that  the  defend*  •  was  the  legal  owner  of  the  property,  the  effect  of  the  charge 
was  to  destroy  such  d(  nse,  unless  the  defendant  could  show  that  he  exercised  actual 
control,  care  and  management  of  the  property  prior  to  the  taking. 

Appeal  from  the  County  Court  of  Comal.  Tried  below  before  the 
Hon.  E.  KoEBiG,  county  judge. 

The  appellant  was  convicted  of  the  theft  of  a  quantity  of  lumber  un- 
der  the  value  of  twenty  dollars,  alleged  to  be  the  property  of  Andrew 
Watson,  and  his  punishment  was  affixed  by  the  verdict  at  a  fine  of 
twenty-five  dollars  and  confinement  in  the  county  jail  for  one  day. 

Andrew  Watson  was  the  first  witness  introduced  by  the  State.  He 
testified  that  on  the  sixteenth  day  of  February  he  was  notified  that  some 


^/iM^A^*^"^'!^^" 


:■  VV' --i --»'-■  ^"^'■* -**- r 


470 


LARCKNY. 


one  was  taking  the  lumber  off  of  a  house  wliioh  stood  about  two  and  a 
half  miles  from  wlivro  the  witness  was  then  living.  Witness  went  to 
the  house  un  that  day  and  found  that  the  lumber  had  been  taken  from 
the  side  room  and  from  tito  floor  of  the  house.  He  found  fresh  wagon 
tracks  leading  off  in  llie  direction  of  the  defendant's  house,  which  was 
about  one  mile  distant.  The  witness  followed  these  tracks  to  the  de- 
fendant's house,  where  he  found  tlie  lumber  lying  in  the  defendant's 
front  yard.  He  also  found  two  shingles  on  the  way.  Witness  told  the 
defendant  that  some  one  had  taken  the  lumber  from  his  house.  The 
defendant  said :  ''Your  lumber  1  I  would  use  them  up  for  it."  Wit- 
ness recognized  the  lumber  and  asked  him  where  he  got  it,  and  the  de- 
fendant said:  ''  From  the  bouse  my  son,  Taylor  McNair,  built  (which 
was  the  house  alluded  to  by  witness),  and  I  bought  it  from  Taylor 
McNairandpaid  him  for  it  a  long  time  ago."  When  the  witness  claimed 
the  lumber,  the  defendant  said,  sneeringly :  "  Your  lumber  I  Your  lum- 
ber!" The  lumber  was  worth  nineteen  dollars,  and  was  taken  iu 
Comal  County,  in  February,  188.'>,  without  the  consent  of  the  witness. 
Witness  was  permitted,  over  objection,  to  state  that  he  had  at  home  a 
deed  conveying  to  him  the  land  on  which  the  bouse  was  situated,  to- 
gether with  the  house  and  improvements.  The  deed  was  not  lost  but 
could  be  had. 

Cross-examined,  the  witness  stated  that  he  had  no  trouble  tracking 
the  wagon.  When  he  and  Daniel  Greorge  arrived  at  defendant's  bouse, 
defendant  invited  them  into  the  house,  and  in  going  they  had  to  pass 
near  the  lumber.  Witness  asked  him  why  he  did  not  come  to  see  him 
before  taking  the  lumber.  Defendant  replied :  "I  had  no  business  to 
come  and  see  you.  I  bought  from  Taylor  MoNair  and  paid  for  it  a 
long  time  ago,  and  I  will  take  my  property  wherever  I  find  it."  The 
witness  heard  that  Taylor  McXair  claimed  the  lumber  before  he,  wit- 
ness, bought  the  house,  but  did  not  know  it.  Taylor  McNair  lived  in 
this  house  when  witness  flrst  knew  him,  three  or  four  years  ago. 
Daniel  Greorge  forbade  both  the  defendant  and  Taylor  taking  the 
lumber  off.  Witness  could  not  say  that  the  wagon  tracks  were  or  were 
not  plain.  He  denied  that  on  February  21,  1883,  he  stated  that  the 
wagon  tracks  were  very  plain ;  or  that  he  stated  he  knew  that  Taylar 
McNair  set  up  a  claim  to  the  lumber ;  or  that  he  stated  he  found  a  pack 
of  shingles  on  the  road  from  the  dismantled  house  to  the  defendat's 
house.  Here  the  defendant  showed  the  witness  a  written  document, 
which  he  acknowledged  he  signed  as  his  statemeat.  It  reads  as  f< 
lows :  — 

"  I  had  never  lived  in  the  bouse  I  bought.     I  knew  that  Taylor  Mc 
Nair  set  up  a  claim  to  the  lumber.     Old  man  Daniel  George  had  for- 
bade Taylor  McNair  and  the  defendant  both  from  taking  the  lumber. 


m'nair  v.  state. 


471 


Tavlor  McNair  lived  In  the  house  in  question  about  four  years  ago.  It 
..llaoon  be  four  yonrs  since  Taylor  McNair  lived  in  said  house. 
iMjuglit,  at  the  time  of  buying  the  house,  three  hundred  acres.  Daniel 
(Jcorge  gave  mo  the  balance  of  the  land,  which  makes  about  six  hun- 
,l,ed  acres.  Th«  wagon  trades  were  very  plain  from  where  the  lumber 
,vft9  taken  to  Mr.  McNalr's.  I  found  on  the  route  a  small  pack  of 
«l,ln«les  about  two  or  three  hundred  yards  from  the  house  wh^re  they 
were  taken.     The  defendant  lives  about  one  mile  from  the  place  on  an 

''' ThTdefendant  made  no  effort  to  conceal  the  lumber.     It  was  lying 
out  in  the  front  yard  where  any  one  could  see  it. 

Daniel  George,  for  the  Slate,  testified,  over  objection,  to  his  convey- 
.nee  of  the  land  on  which  the  house  stood  to  Watson,  and  corroborated 
Watson  as  to  the  discovery  of  the  lumber  at  the  defendant's  house  and 
the  conversation  that  ensued  between  Watson  and  the  defendant. 

^ross-examined,  he  testified  that  about  seven  years  ago  Taylor  Mc- 
Nair contracted  with  him  for  the  land  on  which  the    house  stood. 
Tavlor  McNair  furnished  the  lumber  and  built  the  house  in  controversy. 
Taylor  McNair  lived  In  that  house  about  three  years.    He  contracted  in 
the  same  manner  with  witness  for  other  land,  and  improved  a  farm  on 
it  cultivating  it  for  the  three  years  he  occupied  the  house  in  question. 
About  a  year  after  he  moved  off  he  sold  the  fence  Improvements  to  a 
son  of  the  witness,  and  on  two  separate  occasions  tried  to  sell  the  lum- 
ber   in   the    house    to   the    witness.    That   was   the    same    lumber 
which  defendant  is  now  charged  with  stealing.    Witness   dechned 
to  buy,  and  told  Taylor  McNair,  that  he,  witness,  thought  he  was  en- 
titled  to  something  for  the  use  of  the  land.    Taylor  McNair  had  never 
at  any  time,  or  in  any  manner,  conveyed  the  lumber  or  the  house  to 
the  witness.     A  year  or  two  ago  defendant  told  the  witness  that  he  had 
bought  the  lumber  from  Taylor,  and  witness  forbade  him  taking  it. 
Defendant  made  no  effort  to  conceal  the  lumber  after  he  took  it. 

John  McNair  testified,  for  the  defence,  that  Taylor  McNair  partty 
built  the  house  in  question  out  of  the  lumber  charged  to  be  stolen  by 
defendant.  Taylor  bought  and  paid  for  the  lumber  himself.  Witness 
paid  Taylor  fifteen  dollars  for  the  defendant  as  part  of  the  purchase- 
Lney  for  the  lumber  in  the  house.  Witness  went  with  defendant  to 
gP*  tho  lumber.  They  went  in  the  day  time,  and  made  considerable 
noise  in  tearing  it  from  the  frame  of  the  house. 

J.  Dickson  testified  that  he  lent  the  defendant  his  wagon  for  the 
avowr    purpose  of  hauling  this  lumber  home,  and  that  the  defendant 

used  it  for  that  purpose. 

The  motion  for  new  trial,  setting  up  some  eighteen  or  twenty  grounds, 
was  overruled,  and  this  appeal  prosecuted. 


li!»*V*»*5J, 


472 


LABCKNY. 


J.  D.  Guinn,  for  the  appellant. 

J.  H.  Burts,  Assistant  Attorney-General,  for  the  State. 

Hurt,  J.  This  is  a  conviction  for  the  theft  of  lumber,  the  appellant 
being  fined  twenty-five  dollars  and  imprisoned  in  the  county  jail  one 
day. 

A  bill  of  exceptions  was  reserved  to  the  following  charges :  — 

Third  charge.  "  Possession  of  the  person  unlawfully  deprived  of 
property  is  constituted,  in  all  cases,  were  the  persons  so  d '.-privcd  of 
possession  is  at  the  time  of  taking  unlawfully  entitled  to  the  possession 
thereof  as  against  the  true  owner." 

"  5.  The  intent  in  all  criminal  cases  is  judged  from  the  act." 

•*  7.  If  you  believe  from  the  evidence  that  the  property  taken,  as 
charged,  was  not  the  property  of  the  person  as  charged,  beyond  t  rea- 
sonable doubt,  you  will  acquit  the  defendant." 

"9.  If  stolen  property  is  traced  to  the  rec'-nt  possession  of  the  de- 
fendant, \'i  must  show  that  he  came  lawfully  by  it,  or  the  law  considers 
him  the  thief." 

"11.  If  the  jury  find  that  the  property  alleged  to  have  been  stolen 
was  the  property  of  the  defendant,  and  that  he  had  exercised  actual  con- 
trol, care  and  mangement  over  the  same,  prior  to  the  alleged  taking, 
you  will  find  the  defendant  L>ot  guilty." 

"  12.  If  you  have  any  reasonable  doubt  as  to  the  guilt  or  Snocence 
of  the  defendant,  you  will  give  him  the  benefit  of  the  doubt,  and  acquit 
him." 

The  third  subdivision  of  thti  charge  is  abstractly  correct,  and  if  there 
was  evidence  in  this  case  tending  to  show  that  the  prosecutor  was  en- 
titled to  th'3  possession  of  the  lumber,  utt  against  the  defendant,  the 
owner,  it  would  have  been  a  proper  charge.  This,  however,  was  not 
the  case ;  hence  the  charge  was  calculated  to  injure  defendant. 

Fifth  charge,  to  wit:  "  The  intent  in  all  criminal  cases  is  judged  of 
from  the  act."  What  act?  The  taking?  The  intent  is  judged  of  by 
all  the  circumstances  attending,  remotely  or  irr^n)ediatel}%  the  taking  — 
the  facts  relevant. 

"7.  If  3'ou  believe  from  the  evidence  that  the  property  taken,  as 
charged,  was  not  the  property  of  the  person,  as  charged,  beyond  a  rea- 
sonable doubt,  you  will  acquit  the  defendant."  By  this  the  jury  are 
required  to  believe,  beyond  a  reasonable  doubt,  that  the  property  was 
not  the  property  of  th«  prosecutor.  The  rule  is  clearly  and  emphati- 
cally the  converse  of  this,  requiring  the  jury  to  believe,  beyond  a  rea- 
sonable doubt,  that  the  property  was  that  of  the  prosecutor. 

"9.  If  stolen  property  is  traced  to  the  recent  possession  of  the 
defendant,  he  a  ust  show  that  be  came  lawfully  by  it,  or  the  law  con- 
siders him  the  thief  ''    Upon  this  predicate,  the  law  does  not  so  con- 


m'naik  v.  state. 


473 


r,  the  appellant 
20unty  jail  one 

rges:  — 
lly  deprived  of 
so  d-'prived  of 
>  the  possession 

le  act." 

)erty  taken,  as 

,  beyond  i  rea- 

ssion  of  the  de- 
le  law  considers 

lave  been  stolen 
3ised  actual  con- 
i  alleged  taking, 

iiilt  or  'inocence 
oubt,  and  acquit 

-ect,  and  if  there 
osecutor  was  en- 
e  defendant,  the 
lowever,  was  not 
ifendant. 
ises  is  judged  of 
is  judged  of  by 
ily,  the  taking  — 

operty  taken,  as 
id,  beyond  a  rea- 
this  the  jury  are 
the  property  was 
rly  and  emphati- 
e,  beyond  a  rea- 
cutor. 

)088C8sion  of  the 
t,  or  the  law  con- 
'  does  not  so  con- 


«ider  him  •  recent  possession  of  stolen  property  alone,  has,  we  believe, 
never  ieen^eld  ei^cient  to  sustain  a  conviction.     Recent  possession 
une/plJned  when  the  circumstances  demanded  explanation,  has  been 
"rKeTd    we  think  justly)  sufficient.    This  applies  to  cases  m  which 
there  is  no  evidence  Lept  the  corpusdelicti,  recent  possession  a  de- 
!,  nd  for  explanation,  and  a  failure  to  explain.     If  there  be  other  ev- 
we  eTther  for  or  against  defendant,  it  may  or  may  not  be  sufficien  , 
ferenkSfalwa^s  on\e  nature  and  weight  of  the  evidence.     Though 
ie  defendant  may  bo  in  recent  possession  of  stolen  property,  he  is  not 
W  dt  show  L  possession,  lawful  in  the  strict  sense  of  that  word, 
in  a  Kreat  many  cases  his  acquisition  of  the  proi^rty  may  not  be  law- 
^1  yftmply  sufficient  U>  rebut  the  conclusion  sought  to  be  drawn 
i"^  his  possession  by  the  prosecutor.     He,  in  acquiring  possess.on^ 
Tarhave  been  a  mere  trespasser.     Some  one  else  may  have  p  aced  him 
Tn  possession  wrongfully  and  unlawfully.    This  is  merely  an  Castration 
of  Cwrs  and  mfans  by  which  the  possession  of  the  property,  though 
L  en,r4  be  lawfully  acquired,  without  a  fraudulent  or  thievish  intent. 
.'  1      If  the  jury  find  that  the  property  alleged  to  have  been  sto  en 
was  the  property  of  the  defendant,  and  that  he  had  exercised  actual 
lolol    cLr  and  management  over  the  same  prior  to  the    alleged 
alg,  you  will  find  the  defendant  not  guilty."     This,  ^PO" /e^";^ 
of    h£  case,  was  a  charge  of  the  greatest  importance     Its  effect,  the 
vidence  tending  strongly  to  prove,  if  it  did  not  conclusively  P'ove  «iat 
lefendant  was  the  just  and  legal  owner  of  the  P^^^' ^^^^^^^^^^^ 
to  cut  him  off  from  this  defence,  unless  he  could  show  that  he  had  ex 
ercised  actual  control,  care  and  management  over  the  property  prior  o 
the  taking.     We  will  not  discuss  this  charge,  it  being  beyond  the  reach 
of  criSm.     Law,  justice  and  the  rights  of  the  citizen,  are  terribly 
maltreated  by  the  principle  therein  contained. 

What  shall  we  say  of  the  twelfth,  which  is  as  foUows :      « J^^^^^^ 
reasonable  doubt  as  to  the  guilt  or  innocence  of  .f  «Jf    "^^"i;^;^,^ 
will  irive  him  the  benefit  of  that  doubt  and  acquit  him.       Notwith 
TtanSng,  tlat  the  eleventh  charge  deprived  defendant  of  a  just  and 
compleS  defence    to    the    accusation  against  hi.  ,  still  we  can  not 
comprehend  how  it  were  possible  for  the  jury  not '  .acquit  the  defend- 
anr?f  they  observed  the  instructions  of  his  honor  below  conUmed  m 
this  twelfth  charge.     By  it  they  are  instructed  to  -<^^-^'^^J^^^^ 
any  reasonable  doubt  of  defendant's  guilt  or  innocence     If  they  do"bt 
gu  It,  they  must  acquit;  and  if  they  doubt  innocence,  t^^^X  »««*  ^"'^^ 
Was  there  no  doubt  of  either?    The  jury,  by  their  verd.c.   say  they 
believe  him  guilty;  hence  of  necessity,  they  must  hav«  doubted  his  in- 
nocIncelS  if  so,  under  this  charge  they  should  have  acquitted  him. 
Tb?rongrthe  be  ief  of  guilt,  the  greater  the  doubt  of  innocence. 


^gggg^^ggl^t^^^i^-^ 


I'/JXT^-vJi^l-^jr-F"  *-3^^K5:^^^rf?^ 


474 


LARCENY. 


In  every  prosecution,  guilt  la  the  affirmative  proposition,  and  must 
be  established  beyond  a  reasonable  doubt.  Jurors  are  not  required  to 
believe  defendant's  innocence  in  order  to  acquit.  They  are  not  called 
upon  to  pass  upon  the  defendant's  innocence,  but  tb.y  are  called  upon 
to  determine  whether  or  not  the  State  has  proven  beyond  a  reasohable 
doubt,  the  affirmative  proposition,  to  wit,  the  guilt  of  the  defendant. 

The  next  question  presented  is  the  sufficiency  of  the  evidence  to  sup- 
port t  le  verdict.  We  are  of  the  opinion  that  this  verdict  is  not  only  un- 
supported  by  any  evidence,  but  it  is  very  clearly  and  unquestionably 
against  the  evidence ;  and  to  permit  it  to  stand  would  be  a  monstrous 
outrage.  Not  only  so ;  its  sanction  by  this  court  would  tend  to  degrade 
and  bring  into  contempt  the  solemn  proceedings  of  the  courts  of  this 

coimtry. 

It  should  be  the  pride  and  greatest  effort  of  the  courts  of  the  country 
to  protect  the  property,  character,  liberty  and  life,  especially  of  the 
innocent,  law-abiding  and  virtuous  citizens.  By  this  verdict  and  judg- 
ment, this  citizen  has  not  only  been  deprived  of  his  property  and  liberty 
but  his  character  and  that  of  his  family  stand  blasted  forever.  The 
brand  of  a  thief  has  been  indelibly  stamped  upon  him,  not  only  without 
law  and  without  evidence,  but  directly  in  the  face  of  the  evidence. 
Shall  this  court  permit  such  verdicts,  with  all  their  dire  consequences, 
to  stand?  By  no  means ;  for  we  are  vested  with  the  power  to  reverse 
judgments  upon  the  ground  of  the  insufficiency  of  the  evidence. 

For  the  errors  noted  in  the  charge,  and  because  the  verdict  is  not 
supported  by  the  evidence,  the  judgment  is  reversed  and  the  cause  re- 
manded. 


LARCENY -STEALING  COFFIN  -  CRITERION  OF  VALUE  IN  LARCENY 

State  v.  Doepke. 

[68  Mo.  208.] 
In  the  Supreme  Court  ofMiaaouri,  1878. 

1.  It  !•  not  lAToeny.  at  Oommon  law,  to  steal  a  dead  bodr;  o/««r*»  to  a  ooffln  in  which 

a  body  la  interred. 
3  Whan  the  Value  of  the  Article  Stolen  i»  material  In  a  prosecution  for  larceny,  tti 

value  U  to  be  fixed  by  iti  market  price,  and  not  by  what  it  is  worth  to  iU  owner,  or  tor 

the  particular  purpose  for  which  it  is  used.   It  Is  to  be  regarded  as  worth  ]ttst  what  it 

would  fetch  in  the  open  market. 

Hekrt,  J.    It  is  conceded  by  counsel  for  appellant,  and  fully  estab- 
lished by  the  authorities,  that  a  coffin  in  which  the  remains  of  a  human 


STATE   V.  DOEPKE. 


475 


^,„,  ,e.e  interred  w«  .  »*;',^°Vn7Jl  ^7:0^.0.  co:: 
contended,  however,  «»'■ -<«'  °°'. ";'''  i'„\7„,  ,U  common  law  M 

being  from  the  grave  % J^^^^  J^^^^  °' j"^e  such  remains,  knowing 

grave  clothes.  ^    ^        j^g    i^ce  of 

Tf  WAS  not  larceny  common  law,  to  take  a  aeaa  uoujr  xi«         ^ 

the  remains  of  the  dead.  ..  .u 

■t,r«ro«t^dr:-  ,«.!*«.«..  .or  .n  «-»«'--•  •i;;,- 

i:;'rSr.  SC>^^>.lg  pr;«rtbed  .  punUUmeat  .or 

1  Wag-BtaU.  WW,  SOI. 


ei^jM^.- 


iXi^'f^vi 


iSJSSSKtW*^^^'^^''**''***''^ 


476 


LARCENY. 


Steal  a  coffin.  We,  therefore,  conclude  that,  notwithstanding  the  enact- 
ment of  those  sections,  a  coffin  in  which  the  remains  of  a  human  being 
are  interred  is  still  a  subject  of  larceny  in  this  State. 

It  Is  insisted  that  the  indictment  is  defective  in  failing  to  negative  the 
exceptions  contained  in  section  fourteen.  This  question  has  been  other- 
wise determined  by  repeated  decisions  of  this  court,  and  recently  in 
Stmte  V.  O' Gorman.^ 

The  coffin  was  alleged,  in  the  indictment,  to  be  the  property  of  one 
Makel,  a  son-in-law  of  the  accused,  and  it  is  contended  that  when  he  had 
the  body  interred  he  parted  with  all  the  property  he  had  in  the  coffin,  and 
that,  therefore,  the  conviction  of  defendant  can  not  be  sustained.  Roscoe, 
in  his  work  on  Criminal  Evidence,  says:  "A  shroud  stolen  from  the 
corpse  must  be  laid  to  be  the  property  of  the  executor,  or  of  whoever 
else  buried  the  deceased."  ^  All  these  authorities  it  is  true,  speak  only 
of  shrouds  and  ornaments  buried  with  the  dead,  but  the  principle  upon 
which  these  may  be  alleged  to  be  the  property  of  the  executor,  or  of  the 
person  who  buried  the  deceased,  will  certainly  sustain  an  allegation  that 
the  coffin  is  the  property  of  the  person  who  buried  the  deceased. 

The  court,  for  the  State,  instructed  the  jury  that  if  they  found  that 
the  coffin  was  of  less  value  than  ten  dollars,  and  that  defendant  stole  it, 
they  should  convict  him  of  petit  larceny.  By  another  instruction  they 
were  told  that  in  order  to  convict  defendant  of  grand  larceny  they 
should  find  the  coffin  to  have  been  of  the  value  of  ten  dollars  or  more, 
and  that  it  was  sufficient  if  they  found  it  to  have  been  of  that  value 
to  the  owner,  and  that  it  was  not  required  that  it  should  be  of  that 
value  to  third  persons,  or  that  it  would  command  that  price  in  the  open 
market.  This  latter  instruction  was  erroneous.  The  authorities  cited 
to  support  the  doctrine  it  announced  give  it  no  countenance. 

InSGreenleaf 's  Evidence,^  the  author  says:  "Nor  is  it  necessary 
to  prove  the  value  of  the  goods  stolen,  except  in  prosecuting  under 
statutes  which  made  the  value  mateinal  either  in  constituting  the  offense 
or  in  awarding  the  punishment. 

"  But  the  goods  must  be  shown  to  be  of  some  value  at  least  to  the 
owner,  such  as  reissuable  bankers'  notes,  or  other  notes,  completely 
executed,  but  not  delivered  or  put  into  circulation,  though  to  third 
persons  they  might  be  worthless,"  It  is  clear  that  in  the  latter  clause 
he  was  siieaking  of  other  prosecutions  than  those  under  statutes  which 
make  the  value  material,  either  in  conbtituting  the  offense  or  award- 
ing the  punishment. 

By  the  English  law,  as  it  stood  when  this  country  was  settled,  lar- 


I  68  Mo.  179. 

1  p.  604  (6th  Am.  ed.) ;  1  Chitty  Cr.  L.  (Sth 


Ain.ed.)«4;lHawk.  P.  C. 
wood  Black .,  4th  vol.,  235. 
'  p.  140,  sec.  1S3. 


144,  148;  SharB- 


'"**■  tHMH»*HiJllWWI» 


STATE   V.  DOEPKE. 


477 


He;  tor  when  the  •"'"«'''«"'•*"• '"'""^„;"hi.h.r.=  SoLord 
.,  the  time  Lord  Cok.  -rote,  t ««  5^  •:tUr„aWy  valued,  for  ,h. 
coke,.  .ay,=  ''™«  *"^ '"^^tr^^^^^'Ho^lueof  20d,  and 
„„„„e  of  attver,  .t  *«  »*f.,tr" 'ThosWuteof  We,lm>a.«rl.,. 
Z^  tXT:l^t  TJl.  hy  WMCU  the  d.a.i.c«o„  he^ixt 

„ade  graod  laroeny.'  ^^^ ''  '^^^utl , be  ofleni  of  larceny  it  i. 
adjudged  caaea,  that  '"''^'^V^^,^^  „  the  owner,  however 
,„mcient  if  the  thing  atolen  be  »'  TfJ"  „b„„,„„„a  relate  to 
a^all,  .Ithongh  to  third  I''"""^^  r°'^Jf^*%°lr  the  statute  «!V.n 

and  e«"  G^J^  'll' '°  „  4M„e,ion  ia  made  by  atatute  betweentUat 
to  grand  larceny,  ^"f"  "  °'^  ,.,„e  „,  the  gooda  stolen  the  remarks 
and  P'*'"7'-''''"t  :^Jr^ld,.holoonclasively  that  the 
„t  East  and  Lord  C»ke.«W'«'J^        •„,„„,  the  redm, 

:rtisr:.rrasnhrrr.crrt.inedu.dctern^ngwh.th.r 

a.„ve  iustrucUona  be  -J^^^llll^cor  -^J     vatn^  »'  «v.  dollars, 
forstealing  .«;««  r,jjg^f  the  .n.nn»c«  ^  ^^^^^ 

„„,y  because,  forsooth  bemg  »  P  ^  ^^  ^^  ,^  ,„  ^4 

or  wife,  or  other  lovea  one,  uc  f  nersons  than  another 

its  value,  although  of  no  ^-'^l';';^^';J^^^:Zr^eptio^^  ssle 
ring  of  the  same  kind  which  «°«]^^^f^P7;:;tir^^^^^^^^  were  told  in 
for  five  dollars.  The  criterion  of  value  ^  7";;' ^^^j  f  ^  .  general 
that  instruction  they  might  ^jo^^^i.-^r^^^  that  pfoper^ 
rule,  in  c'vil  proceedings,  and  wnen  ^^  ^rder  to  constitute  the 

.tolen  shall  be  of  the  value  of  *««  ^°»*^''^^  .^  ^  y^  t,Wen  in  its 
theft  thereof  f - ^TI' ^fJer  C  U-o-o^  acceptation,  and 
ISl  n:  :l^J'^r  1^  Z  other  mode  for  ascertaining  the 


1  BUh.  Or.  L.  Tol.  1.  "ec.  679. 
«  of  West  I.,  oh.  15. 
.1  J  Ea»t'«  P.  C.  7J6. 
t  Inst.  18B. 


'  See,  also,  BU.  Com.,  vol.  4,  p.  S»7. 

•  ch.  IS. 

T  oh.  »,  sec.  3. 

•  Sharswooa's  Black.,  toI.  4,  p.«30. 


gjs^^ijssftiagasgjaa^s^ 


■■■■BaBMi 


478 


LARCENY. 


Talue  of  stolen  property  in  a  criminal  prosecution  than  that  which  pre- 
vails generally  in  civil  proceedings.  It  is  not  the  fancy  estimate  of 
value  placed  upon  the  property  by  the  owner  which  is  to  determine 
whether  the  theft  is  grand  or  petit  larceny,  but  its  actual  value,  as  that 
value  is  usually  ascertained  in  other  proceedings. 

If  one  sue  another  for  conversion  of  personal  property,  he  recovers 
not  what  the  property  was  worth  to  him,  but  its  value  in  the  market ; 
and  it  would  be  strange  enough  if,  when  the  statute  declares  that  no 
one  shall  be  adjudged  guilty  of  grand  larceny,  unless  the  goods  stolen 
were  of  the  value  of  ten  dollars,  a  criterion  of  value  should  be  adopted 
which  would  authorize  a  conviction  for  that  offense,  when  the  goods 
stolen  are  worthless  to  third  persons,  and  of  no  market  value,  but  pos- 
sess a  value  which  can  only  be  measured  by  fancy  or  sentiment  —  a 
measure  of  value  as  uncertain  and  variable  as  the  whims  and  caprices 
of  the  owner  of  the  goods,  or  the  witnesses  he  may  introduce  to  prove 
tueir  value. 

We  can  not  substitute  this  for  the  stable  and  certain  measure  furnished 
by  the  price  which  such  goods  command  in  the  market. 

In  some  civil  oases  we  are  aware,  the  jury  are  allowed  to  consider 
pretium  affectionis,  in  estimating  the  value  of  property,  but  the  reason 
for  the  departure  from  the  general  rule  in  those  cases  does  not  apply  in 
a  prosecution  for  stealing  such  property.  The  purpose  of  the  prosecu- 
tion is  to  punish  the  thief,  not  to  compensate  the  owner  of  the  property 
for  his  loss. 

The  judgment  of  the  Court  of  Appeals  is  reversed,  and  cause  re- 
manded. 

All  concur. 

Reversed. 


larceny  — lucri  causa  essential. 

People  v.  Woodward. 

[31  Hnn,  67.J 

In  the  Supreme  Court  of  New  TorJc,  1883. 

1.  To  Oonstitnto  I<areeny,  an  intention  of  benefit  or  gain  by  the  taUnc  ia  eeaenttal. 

3.  A.  and  B.  Betnar  on  bad  Twtam  on  account  of  lawsnits  between  them,  A.  took  B.'t 
hone  from  the  stable  killed  and  baried  it.  The  act  Injured  B.  but  was  not  Intended  to 
and  comld  not  benefit  A.    Btld,  that  A.  waa  not  goUty  of  the  larceny  of  the  horse. 

Appeal  from  a  judgment  of  the  Court  of  Sessions  of  Scratoga  County 
convicting  the  defendant  of  grand  la.'3cny. 


^'■^ji^iWWWtlllMliwIiWil 


PEOPLE   V.  WOODWARD. 


iVJ 


The  evidence  tended  to  show  that  the  defendant  took  a  horse  belong- 
to  one  Ambrose  Jewell  from  the  latter's  stable  and  killed  and  buned  it 
in  a  pit.  Jewell  and  the  defendant  had  been  on  bad  terms  for  a  long 
time  and  had  had  lawsuits,  one  of  which  was  pending  at  the  time  the 

horae  was  taken. 

W.  J.  Miner  and  J.  S.  L'Amoreaux  and  H.  L.  Grose,  for  the  ap- 
pellant. 
John  Van  Benaaelaer,  District- Attorney,  for  the  People. 
BoABDMAN,  J.    The  court  below  did  not  properly  state  the  legal 
questions  before  the  jury.    Upon  the  evidence  it  is  certainly  a  grave 
question  whether  the  act  charged  and  proved  was  larceny  or  malicious 
mischief.    To  constitute  larceny  there  must  have  been  a  felonious  in- 
tent, animofurandi  or  lucH  causa.    The  malicious  killing  of  a  horse  is 
a  misdemeanor.!    Theoflenses  are  quite  distinct.    In  either  case  there 
is  a  trespass.     In  larceny  the  taking  must  be  for  the  purpose  of  con- 
verting to  the  use  of  the  taker.     In  malicious  mischief  no  such  intent 
is  necessary.    In  the  present  case  the  evidence  tends  to  show  a  taking 
of  the  horse  to  kill  him,  with  a  sole  desire  to  injure  the  owner.     It  was 
incumbent  on  the  court  then  to  point  out  to  the  jury  the  legal  elements 
in  the  crime  of  larceny,  so  as  to  distinguish  it  from  malicious  mischief. 
This  we  think,  was  not  done.    The  jury  was  told,  in  substance,  if  de- 
fendant took  or  procured  to  be  taken  this  horse,  and  killed  or  aided  in 
Icilling  him,  he  must  be  found  guilty.'    In  no  part  of  the  charge  is  this 
language  iriOdifled  or  qualified. 
The  seventh  request  to  charge  is  as  follows :  — 
»  There  must  have  been  a  felonious  intent,  for  without  such  an  in- 
tent there  was  no  crime,  and  the  felonious  intent,  must  have  been 
formed  before  the  taking;  and  that  if,  before  the  taking  of  the  horse, 
the  intent  was  to  take  it  and  kiU  it,  the  crime  would  not  be  a  felony, 
but  an  offense  under  the  statute,  classed  among  misdemeanors  under 
the  term  of  malicious  mischief."    The  defendant  excepted  to  the  re- 
fusal to  charge  as  requested.    The  request  to  f  ^-^gf '  *^«  T*'!;;,'^.  ^, 
charge,  and  the  exception  are  all  very  informal  and  inartificial,  but 
sufficient,  we  think,  to  present  the  Important  point  in  the  case. 

The  defendant  was  entitled  to  have  the  jury  instructed  in  substance 
as  requested.  Mr.  Wharton  in  his  work  on  Criminal  Law,3  has  con- 
sidered  whether  larceny  can  exist  where  there  is  no  int.nt  on  the  p«t 
of  the  taker  to  reap  any  advantage  from  the  taking.  He  h»8 -.viewed  the 
decisions  from  the  case  of  Rexy.  CoSftoye,*  cited  by  the  district  au^mey, 
to  the  time  of  his  writing,  and  concluded  that  the  qualification,  lucn  cama. 


1  Penal  Code,  sec.  654;  2  IUt.  8UU.  *69B. 
and  oh.  681,  Law*  of  1800. 
<ToU.38S.  284,296. 


<  gees.  1781, 1784. 

•  Basi.ftBy.  0.0.  291. 


■MMM 


480 


LARCENV. 


m 


h„s  been  accepted  by  our  courts  as  an  -^-^'"-^^^^^^^^^^ 
law      He  saya:'  "Thus  it  has  been  frequently  held  to  be  a  miscle 
mLor  of  the  nature  of  malicious  mischief,  to  kill  an  ammal  belonging 
To  anotLer.  though  it  has  never  been  held  larceny  so  to  k.    and  take, 
unless  some  benefit  was  expected  by  the  taker."     And  he  c.tes,  m  sup- 

0  t  of  s^ch  statement,  a>nong  other  cases.  Commonwec,Uh  v  Leach,^ 
CpUy^Smith,^  Loomisv.  Edgartan.*    The  conclusion  is  sustained  by 

'1tt«  a  serious  matter  for  the  defendant  whether  he  should  be  con- 
victed of  grand  larceny  upon  facts  which  he  claimed  co«»d  °nly  con- 
stitute  maUcions  mischief.  He  had  the  right  to  have  «^e  ^-t^««t^; 
pointed  out  to  the  jury.  He  requested  it,  but  it  was  no  done  Thu 
he  court  neglected  and  refused  to  point  out  the  essential  ingredient  of 
the  crime  of  grand  larceny,  whereby  the  defendant  may  have  been  con- 
victed  of  a  felony,  while  the  facts  and  the  charge  were  equally  applica- 
ble to  a  misdemeanor.  The  learned  county  judge  very  properly  and 
fully  recognized  the  serious  importance  of  this  question  when  he  stayed 
the  execution  of  the  sentence  pending  an  appeal. 

There  are  various  other  questions  presented,  but  it  is  unnecessary  to 
consider  them,  since,  upon  the  point  already  discussed,  a  new  trial  must 
be  granted.    The  judgment  and  conviction  are  reversed,  and  a  new 

1  rial  is  granted. 

BocKES,  J.,  concurred. 
Learned,  P.  J.,  dissenting. 


LARCENY -JOINT  OWNERSHIP  OF  PROPERTY. 

Bell,  v.  State. 

[7Tex.  (App.)  "^j.] 
In  the  Court  of  Appeals  of  Texas,  1879. 

,    T  4—  n.^..  «*P«.iMirty.  -The  Code  provides  that, "  If  the  person  aoensed  of  theft  be 
'• 'p^\wr"ffhf^7^  thI?rk.ngdlnotcomewU^ 

?he  person  from  whom  It  was  taken  be  wholly  entitled  to  '»•« '•^"^'•"'^.V.ndlorf  did 

iWdr«PPUc«ble  to  a  renter  or  cropper  on  shares,  wbose  contract  '^«'hh'»  »•"*'«''?«?. 

nrontltle  the  latter  to  the  exclusire  possession  ol  the  crop,  and  who.  without  the  land- 

lord's  consent,  took  part  of  the  crop  before  it  was  divided. 


1  sec.  1784. 
*  1  Mass.  59. 


»  5  Cow.  1S». 
«  19  Wend.  420. 


^^^vaumm>nmmfm»* 


DELIi  V.  STATE. 


481 


m  sup- 


corn.   Setd,  that  the  taking  WM  not  theft. 

APPEAL  from  the  County  Court  of  Gregg.    Tried  below  before  the 
Hon  J  F.  W1THEB8POON,  County  Judge. 

WHITE  J.     Appellant  was  tried  and  convicted  under  an  information 
chrrlg'him  wi  h'the  theft  of  one  bushel  of  corn,  worth  seventy  cents 
andTs  punishment  was  assessed  at  a  fine  of  $10,  together  with  impns.  . 
nnment  in  the  county  jail  for  one  month.  .    ^     »„ 

m  flcts  of  the  case  are  that  an  agreement  was  entered  into  between 
BeU  the t>pellant.  and  one  Tankersley,  by  which  Bell  was  to  become 
!r  iter  orTopper  upon  land  owned  by  Tankersley,  each  party  to  have 
one  half  of  tul  produce  raised,  when  it  was  gathered,  and  the  crop  to 
oe  bound  for  ad^vances  made  by  Tankersley  to  Bell.  Before  the  corn 
crop  was  gathered,  Bell  went  into  the  field  and  pulled  a  bushel  of  ears, 
and  sold  it  for  seventy-five  cents. 

On  the  trial,  defendant's  counsel  asked  the  court  to  instruct  the  juj 
..  that  if  defendant  Bell  was  tenant  on  Tankersley^s  and,  and  had  m^e 
a  crop  upon  said  land,  and  before  a  settlement  Bell  went  into  the  field 
and  Lk  a  bushel  of  corn,  he  is  not  guilty  of  theft;  and  you  will  so 
find  "     This  instruction  was  refused  by  the  court. 

Our  statute  governing  the  case  reads;  "If  the  person  accused  of 
theft  be  part  owner  of  the  property,  the  taking  does  not  come  withm 
hfd  finition  of  theft,  unless  the  person  from  whom  it  is  taken  be 
Illy  entitled  to  the  possession  at  the  time."  ^    Again,  -  h--no^ 
statute  which  provides  that  "  the  taking  must  ^^  ^^^^^YJ^^'^ 
the  property  came  into  the  possession  of  the  ^^^-l^l^'^^^,}'^^l 
by  lawful  means,  the  subsequent  appropriation  of  it  is  not  theft     etc. 
Under  the  facts  as  applied  to  the  law  quoted,  it  is  plain  that  defend- 
ant's liability  depends  solely  upon  *»»«  q'^^^*^^"  •"  I,** '^^^.^'l'^;  " t; 
at  the  time  he  took  the  com,  Tankersley  was  '^hoUy  entiUed  to  the 
possession  of  it.     If  he  was,  then  defendant  was  guilty  of  theft ;  if  he 
'arnot,  then  defendant  is  not  so  guilty.     The  article  of  agreement  for 
rent  under  which  the  parties  were  operating  does  not  confer  the  r.ght 
0  such  possession  upon  Tankersley.     Nor  is  such  possession,  or  the 
rlltt  to  such  possess^,  conferred  by  the  act  of  1874,  giv  ng  a  pre- 
fe°rence  lien  to  landlords  upon  crops  for  advances  made  to  renters 

It  seems  that  in  North  Carolina  they  have  a  statute  which  not  oidy 
.ives  the  landlord  a  "  lien,"  but  declares  that  the  «'  possession     sh^ 
he  deemed  to  be  in  him.     And  in  that  State,  where  the  lessee   after 
gathering  a  crop  and  putting  it  in  the  crib,  converted  a  iK,rtioa  thereof 


1  Paac.  Dig.,  art.  2389. 
sPa«c.Dlg.,art.23»». 

3  Defences. 


»  Uev.  Stats.,  art.  310;. 


31 


M^Mi 


482 


LARCENY. 


to  his  own  use  by  feeding  it  to  his  own  stoclc  without  the  consent  of  the 
landlord,  it  was  held  an  indictable  offense.' 

In  Illinois  the  law  is,  that  where  land  is  leased  for  a  share  of  the 
crops  raised,  to  be  divided  after  gathering,  the  title  to  the  whole  wiU 
be  that  of  the  tenant  until  the  division  and  delivery.'  And  so  in  Arkan- 
sas: "The  mere  ownership  of  land  confers  no  right  to  the  possession 
and  disposal  of  the  crop  raised  on  it  by  tenants."  ^ 
.  In  the  absence  of  any  statute,  or  of  any  stipulation  in  the  contract  of 
rent,  giving  the  right  to  the  possession  wholly  or  exclusively  to  the  land- 
lord, we  are  of  opinion  that  the  landlord  and  tenant  occupy  the  relation 
to  the  crop  and  each  other,  under  such  a  contract  as  the  one  in  evidence, 
of  tenants  In  common,  or  joint  owners,  and  the  rules  applicable  to  such 
relationship  must  govern  in  determining  their  rights.  •• 

With  regard  to  such  relationship,  the  law  seems  to  be  well  settled 
that,  V  if  the  property  was  the  joint  property  of  the  parties,  it  is  clear 
that  one  of  the  joint  owners  or  tenants  in  common  could  not  be  guilty 
of  larceny  by  taking  it  and  disposing  of  the  whole  of  it  to  his  own  use ; 
and  that  such  taking  and  disposing  of  it  would  be  merely  the  subject  of 
a  civil  remeey,  unless  he  took  it  out  of  the  hands  of  a  bailee  with  whom 
it  was  left  for  safe  custody,  or  the  Uke,  and  the  effect  of  such  taking 
would  be  to  charge  the  bailee.*  , 

Such  being  the  law,  we  are  of  opinion  that  the  court  erred  in  refusing 
to  give  the  special  instruction  asked  by  defendant's  counsel;  and  for 
this  error  the  judgment  is  reversed,  and  the  cause  remanded  for  a  new 

*''"•  Reversed  and  remanded. 


LARCENY -ONB  IN  LAWFUL  POSSESSION  OF  GOODS. 

R.  V.  Pratt. 

[Dears.  860.] 

In  the  English  Court  for  Crovm  Caxea  Reserved,  1854. 

Ob.  In  I^awftU  PoMSMlon  of  Oood.  cn  not  be  oonylortd  of  their  Uroeny.   The  pritoner 

^"•JSg^^Sr»^^ed  to  truBte..  for  the  benefit  of  hi.  ereditor.    »•»•»«- P«», 

^*on  w«  S^n  under  the  -.ignment.  but  the  V^i'Of.J^'^^xaj^Mo^'i^^^^^ 

good.  hlm.elf .  and  whUe  In  .uoh  powesslon  he  remoyed  the  goode.  intending  to  deprive 


1  Vamer  v.  Spencer,  72  N.  O.  S81. 
■  Sargent  v.  Courier,  66  111.  S4S. 

*  Bobinsonv.  Kruae,90  Ark.  676. 

*  Swaaner*.  Swanner.  80  Ala.  66;  Went 
worth  V.  PorUmouth  B.  Co.,  S5  N.  H.  6*0. 


•  S  Wat.  Arch.  PI.  168;  1  Hale'.  P.  C 
618;  BexK.  Bramley,  1  Bu...  *  B.  478;  Bex 
v.WUkerMU,!  Bu...  *  B.  470;  Splvey  v. 
State,  86  Ala.  00;  Long  v.  BUte,  27  Ala.  32; 
Klrksey  v.  Pike.  SO  AU.  206. 


iilil'i-fHTirHillT""™""'"" 


Ai* 


B.  V.  PRATT. 


483 


th.  creditor,  of  them.  The  Jury  found  the  priioner  guilty  of  Uraeny.  and  «ound  that  the 
goodrwere  not  In  the  custody  of  the  prl«,ncr  «.  th.  .gent  of  the  tru.tee..  il.W.  that 
the  conrlctlon  wai  wrong. 

The  following  case  was  stated  by  the  Recorder  of  the  Borough  of 

Birmingham :  —  .      ,    ^  t 

The  prisoner,  David  Pratt,  was  tried  before  me  at  the  last  Januwy 
sessions  for  the  borough  of  Birmingham,  upon  a  charge  of  having  felo- 
niously stolen,  taken,  and  carried  away,  on  the  18th  day  of  May,  in  the 
sixteenth  year  of  our  sovereign  lady  the  Queen,  one  die  lathe,  the 
goods  of  Edward  Barker  and  another ;  and  on  the  19th  day  of  May  in 
the  same  year,  ten  lathes,  the  property  of  the  said  Edward  Barker  and 
another,  the  goods  and  chattels  of  the  prosecutors,  and  was  found 

guilty.  .  . , 

The  prisoner  was  a  thimble  maker  and  manufacturer,  carrying  on  his 
business  in  two  mills,  one  a  thimble  mill  and  the  other  a  rolling  mill  in 
the  borough  of  Birmingham,  and  before  the  occurrences  hereinafter 
mentioned,  he  was  the  owner  and  proprietor  of  the  property  mentioned 

in  the  indictment.  .  , 

On  the  14th  of  May,  1853,  the  prisoner,  being  m  pecumary  difficul- 
ties, arranged  with  the  prosecutors,  Edward  Barker  and  William  Wayte, 
creditors  of  the  prisoner,  and  with  Mr.  CoUis,  an  attorney  at  law,  who 
acted  on  their  behalf,  to  execute  an  assignment  to  trustees  for  the  ben- 
eflt  of  bis  creditors ;  and  on  the  18th  of  May  a  deed  of  assignment  was 
executed  by  him,  whereby  the  prisoner  assigned  to  the  prosecutors  as 
trustees,  for  the  purposes  therein  mentioned,  certain  property  by  the  de- 

scription  following: —  .,         ^  u  — «- 

"All  and  every  the  engines,  lathes,  roUs,  boilers,  furnaces,  horses, 
carts,  machinery,  tools,  and  implements  of  trade,  the  stock  in  trade, 
goods,  wares,  merchandise,  household  furniture,  fixtures,  plate,  hnen, 
china,  books  of  account,  debts,  sum  and  sums  of  money,  and  all  securi- 
ties  for  money,  vouchers,  and  other  documents  and  writings,  and  all  other 
thepersonal  estate  and  effects,  whatever  and  wheresoever,save  and  except 

leasehold  estates  of  the  said  David  Pratt,  in  possession,  reversion,  remain, 
der  or  expectancy,  and  together  with  full  and  free  possession,  right  and 
title  of  entry,  in  and  to  all  every  of  the  mills,  works,  messuages,  or 
tenements  and  premises  wherein  the  said  several  effects  and  premises 
then  were,  to  have  and  to  hold  the  said  engines  and  other  the  premises 
unto  the  said  Edward  Barker  and  William  Wayte,  their  executors, 
administrators,  and  assigns,  absolutely." 

The  deed  was  executed  by  the  prisoner  in  the  presence  of,  and  was 
attested  by,  James  Bous,  who  was  a  clerk  of  Mr.  CoUis',  and  who  was 
not  an  attorney  or  solicitor.  ^       xi.       • 

On  the  19th  of  May  the  said  deed  was  again  executed  by  the  prisoner 


!lCSJ^*'''iif'~*'f*' 


.5.;;j-,:r™-r^a«H,rcOTr!P3«w^e?5r!3n^^ 


484 


LARCENY. 


in  the  presence  of  the  said  Mr.  CoUU,  «n(l  In  all  respects,  In  conformity 
llth  the  provisions  of  the  sixty-elghth  section  of  the  bankrupt  law  con. 
Tolulation  act,  1849,  ^Ith  the  view  of  preventing  the  deed  from  operat- 
liiR  as  an  act  of  bankruptcy.  „„♦.„« 

The  deed  had  been  duly  stamped  on  its  first  execution,  but  no  stamp 
^as  affixed  on  Its  second  execution,  which  o™'«f »/.';»  ™jf\'*; 
ground  of  an  objection  to  Its  receipt  In  evidence.  I  «d™'"«;^  "' ^;j: 
ever,  subject  to  the  opinion  of  this  honorable  court,  which  I  directed 
should  be  taken  If  It  became  necessary. 

At  the  time  of  the  flr.t  interview  with  Mr.  Collls  on  the  14th  of  May 
the  prisoner  said  he  had  stopped  work  altogether;  but  on  the  16th  It 
wL  arranged  between  him  and  Mr.  Collls  that  the  rolhng  business 
should  be  allowed  to  go  on  to  complete  some  unfinished  work.  Mr.  Collls 
then  told  him  to  keep  an  account  of  the  wages  of  the  men  employed  on 
the  rolling  work,  and  to  bring  It  to  the  trustees.  This  the  prisoner  dui 
on  the  19th  of  May,  when  the  wages  were  paid  by  the  trustees,  and  the 
rolUng  business  finally  stopped. 

In  the  nights  of  Monday  the  16th  of  May,  and  of  eveiy  other  day 
during  that  week,  the  prisoner  removed  property  conveyed  by  th«  ?««  ' 
including  the  articles  mentioned  in  the  indictment,  from  the  thimble 
and  rolling  mills  (some  of  the  hea>ier  machines  being  taken  to  pieces 
for  the  purpose  of  removal),  and  hid  them  In  the  cellar  and  other  parts 
of  the  house  of  one  of  the  workmen.     Some  time  afterwards,  and  after 
the  sale  by  the  trustees  of  the  remainder  of  the  property,  a  Mr.  Walker, 
who  had  been  a  large  purchaser  at  the  sale,  recommenced  the  business 
at  the  thimble  and  rolling  mills,  and  the  prisoner  acted  as  his  manager 
when  the  property,  which  formed  the  subject  of  the  indictment,  was  by 
the  prisoner's  direction  brought  back  at  intervals  to  the  mills. 

No  manual  possession  of  the  property  was  taken  by  the  prosecutors 
prior  to  Its  removal  from  and  back  to  the  mills,  but  the  prisoner  re- 
malned  In  possession  after  the  execution  of  the  deed  in  the  same  man- 
ner  as  before. 

I  asked  the  jury  three  questions :  —  .**».„ 

1.  Did  the  prisoner  remove  the  property  after  the  execution  of  the 

deed  of  assignment?  -i     u    - 

2.  Did  he  so  act  with  Intent  fraudulently  to  deprive  the  parties  bene- 
ficially entitled  under  the  deed  of  the  goods? 

3.  Was  he  at  the  time  of  such  removal  in  the  care  and  custody  ol 
such  goods  as  the  agent  of  the  trustees  under  the  deed  ? 

I  put  these  three  questions  to  the  jury  separately,  and  they  answered 
them  separately  as  follows:  — 

1.  He  did  remove  the  property  after  the  execution  of  the  assign- 
ment. 


t,maxi^mmmmmM>»-^'«»'^'^'**^ 


R.  V.  PHATT, 


485 


ifonnity 

law  coil- 

operat- 

10  stamp 
lade  the 
it,  how- 
directed 

of  May, 
B  16th  it 
))usiness 
Ir.  Collls 
iloj'ed  on 
joner  did 
,  and  the 

other  day 
the  deed, 
e  thimble 
to  pieces 
tlier  parts 
and  after 
r.  "Walker, 
e  business 
9  manager 
at,  was  by 

irosecutors 
risoner  re- 
same  man- 


lion  of  the 
irties  bene- 
custody  of 
sy  answered 
the  assign- 


which  they  did. 
The  Questions  for  the  opimon  of  the  court  are : 

1  Whettr  the  deed  of  assignment  ought  to  have  been  received  In 

evidence?  ,, 

2  Whether  my  direction  to  the  jury  was  correct? 

And  lastly,  whether  the  conviction  is  valid?  ^  ^  ^^^ 

Recorder. 
This  ease  was  argued  on  June  8d,  1884,  before  Lord  Campbell,  C. 

t  Z  llXl  po»,e,rion  o.  the  good.,  ...«  the  .-'"■"'■/«*™  7. 

c;tvz.  ii::."Xin » "o,,>ah.ve «...,«,. h^.  to. .». 

r.l.»civil.rtiono«  tr..pa«  .gainst  a  tl>.rdpcr,on,  «  » ''I'^ey''''^ 

B.W,,hich  WM  argued  '»'<>7  f  »*™™J  of  a  »etv.»t  is  not  the 
,„,  the  P"P^,'/^  jt^r/nii  I'^^rh:.  ..one  «..ethi«g  to  d. 
SlTeT'eirr^-.^sion.  •»*  -^^^l^ZTXtZ 

L-=Tea„„.theeonte„a«,onthepj^^^ 

aeea  ne  uau«*  second  place  it  is  contended  that 

determine  the  possession.     In  *^«  ^^J^"^;  ^    ^^„  -^  ^^  g^st  executed 

I  Dears,  257. 


486 


LARCENY. 


ence  of  an  attorney,  to  give  it  a  different  effect,  and  I  contend  that 
the  deed  wlien  so  re-executed  required  to  be  restamped. 

Lord  Campbell,  C.  J.  Would  not  the  re-ei -icution  be  a  mere 
nullity? 

Bitlleston.    Probably  that  would  be  so. 
A.  Wills,  for  the  prosecution,  contended  that  this  was  a  case  of 
bailment,  and  that  the  prisoner  by  breaking  bulk  determined  his  pos- 
session, and  that  although  the  jury  had  found  that  he  was  not  an  agent, 
that,  finding  did  not  negative  his  being  a  bailee. 

Lord  Campbell,  C.  J.  The  jury  expressly  find  that  the  prisoner  was 
not  in  the  care  and  custody  of  the  goods,  as  the  agent  of  the  trustees. 
Tills  clearly  negatives  a  bailment,  and  that  is  the  only  way  in  which 
f,he  ctise  can  be  put  on  the  part  of  the  prosecution.  Tlie  prisoner,  there- 
fore, being  in  lawful  possession  of  the  goods  can  not  be  convicted  of 
larceny.    The  other  learned  judges  concurred. 

Conviction  quashed. 


LAKCENY  — CONSTABLE  CONVERTING  PROCEEDS  OF  SALE— BAILEE. 

ZscHOCKE  V.  People. 

[62  111.  127.] 
In  the  Supreme  Court  of  Illinois,  1S71. 

A.  Ck>natable  HaTlnv  an  Execution  placed  in  his  hands,  levied  upon  ^nd  took  posMi- 
■Ion  of  certain  <rood8  belonging  to  the  judgment  debtor,  and  put  them  in  posaeeslon  ol 
the  judgment  creditor,  A  Bhort  time  after,  the  constable  took  the  goods  away,  with  the 
consent  of  the  judgment  creditor,  and  sold  them  at  private  F.ile,  receiving  therefor  the 
sum  of  J85,  which  he  converted  to  his  own  use.  In  a  prosecution  against  the  constable, 
under  an  Indictment  charging  him  vilth  having  stolen  dlvera  United  States  notes  and 
current  bank-bills,  for  the  payment  of  ?55,  and  of  that  value,  of  divers  Issues  and 
denominations  to  the  granC  Jury  unknown,  the  personal  goods  and  property  of  the 
judgment  creditor,  It  was  held,  that  the  prosecution  could  not  be  maintained  under 
section  71  of  the  Criminal  Code,  declaring  the  felonious  cnnversion  of  money,  gooc:8, 
etc.,  by  a  bailee,  to  be  laroeny. 

Writ  of  error  to  the  Criminal  Court  of  Cook  County ;  the  Hon.  John 
G.  Rogers,  Judge,  presiding. 

Mr.  Onar  Bvshnell,  for  the  plaintiff  in  error. 

Mr.  Charles  H.  Reed,  States  Attorney,  for  the  People. 

Mr.  Justice  McAllister,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  convicted  in  the  Criminal  Court  of  Cook 
County,  and  sentenced  to  two  y  lars'  imprisonment  in  the  penitentiary, 
upon  an  indictment  charging  him  with  having  stolen  divers  United 
ictes  and  current  bank-bills,  for  the  payiuent  of  $55,  and  of  that; 


Z8CHOCKE   V.  PEOPLE. 


487 


contend  that 
I  be  a  mere 


as  a  case  of 
lined  his  po?- 
not  an  agent, 

prisoner  was 

the  trustees. 

way  in  which 

isoner,  there- 

!  convicted  of 

on  quashed. 


L£— BAILEE. 


1  ^nd  took  poBHS- 
m  in  posMMion  of 
ids  away,  with  the 
tivlag  therefor  the 
inst  the  constable, 
I  States  notes  and 
divers  issues  and 
1  property  of  the 
maintained  under 
of  money,  goobs, 


the  Hon.  John 


court. 

Court  of  Cook 

e  penitentiary, 

divers  United 
55,  and  of  that 


value,  of  divers  issues  and  denominations  to  the  grand  jury  unknown, 

^7h:rret-^^^^^^ 

?ever  taTen  from  the  possession  of  Eck,  and  the  only  question  is 
"rPthlrth  re  is  evidence  sufficient  to  support  a  conviction  under  sec 
tt:  sevent^^^^^^^^^^^^        criminal  code^  declaring  the  felonious  conversion 

and  EThaving  an  execution  in  his  favor,  issued  upon  a  justice's  judg- 
^ent  again.*  one  Jacob  Forsythe,  delivered  the  writ  to  the  prisoner  to 

Texecuted;  that,  under  the  -cution  «ie  Pns^^^^^^ 

tain  eoods  of  the  judgment  debtor,  and  took  them  to  Eck  s  house  ana 

?  fh?™  into  his  possession:  that  afterwards  the  prisoner  came  and 

Cktrgo  ds  a4^^^^^    Eck's  consent,  and  sold  tliem  at  priva^ 

X  receiLg  therefor  the  $55  alleged  to  have  been  stolen,  which  the 

prisoner  converted  to  his  own  use.  .u„  *,:„i   tho  lew 

If  the  orisouer  was  a  constable,  as  was  assumed  on  the  trial,  the  levy 

If  the  P"«°!'^^7  ^^^   ,,^  execution  would  vest  in  h.m  a  special 

tain  an  action  of  trespass  or  trover  against  a  wrong-doer ,  such 
could  be  brought  only  by  the  officer.  ^.„,„„  thpn  the  ecn- 

When  a  sale  is  made  under  the  writ,  pursuant  to  law,  then  the  gen 
erlproperty  of  the  judgment  debtor  becomes  diverted,  and  he  pro- 

ds'ofCsale  remainTn  the  custody  of  the  1-  u-tU  'j^^^^^^^ 
over  to  the  plaintiffs.    The  specific  money  in  the  hands  of  t^e  «b"iff  i. 
.  «       ,.«LvKr  nf  thP  Dlaintiff  in  the  execution  until  paid  over  to  him. 
"CinTu  le  t  e  gt^^^^^^^^   sold,  "ai  by  authon.y  of  la,,  but  .t 
JIM     By  ml  .b«»  of  .«  .u*ori-.y  given  by  law,  the  offlcer 
ZZ  :U,Lr  at,  «<o.    Wo  are  at  a  .o»  to  """-"ow  ^«„"r 

can,  by  ratifying  «  ^ --"Tr^r If'LTtao^lt"^*   -"^^^ 
to  the  fruits  of  such  wrongful  act.     If  Eck,  ^''°^]''f\  ° 

act  of  the  prisoner,  had  received  the  "»«°«y  «»>^^°«';.^\7;^^  ",;;t 
b«,ome  a  joint  trespasser  with  the  prisoner.  It  ^  "^'^I'S^d 
a  constable  or  sheriff  who  becomes  a  tortfeasor  in  ^^^J-^^^  ^^f^^^ 
here  holds  the  fruits  of  the  tort  as  bailee  for  the  p  aintifl  m  tiie  wnt 
ecause  the  plaintiff,  by  ratifying  the  act,  becomes  ^^^^l^^^^^^ 
and  then  the  result  would  always  follow  that  one  of  t^«  J°'"V!^'^ 
o^  would  become  the  bailee  of  the  other,  as  to  the  P-^^^^^;^'^ 
by  virtue  of  the  wrongful  act  itself,  simply  ^^-^^^'J^^^l'^J^ 
the  first  possessor.    The  law  does  not  recognize  even  th.  right  to  oo^ 


1  Rev.  SUts.  \«l. 


2  Uffbtner  «.  Steinagfiw. »  »  510- 


H>S»,««SSii*t«"J»«:i 


»;-*<i^-ff.iw-.  ■,<*-■«*'*« 


488 


LARCENY. 


tribution  between  wrong-doers,  and  much  less  will  it  the  relation  of 
bailer  or  bailee,  from  the  mere  fact  that  one  is  in  the  possession  of  the 
fruits  of  the  wrong. 

There  is  no  view  of  the  eyidence  which  will  support  the  position  that 
the  prisoner  was  the  bailee  of  Eck,  as  to  the  money  receiv  '  upon  thr 
private  sale  of  the  goods. 

The  conduct  of  the  prisoner  merits  severe  punishment,  bat  we  can 
not  sustain  the  conviction  without  disregarding  all  distinctions  between 
crimes. 

The  conrt  below  should  have  granted  the  motion  for  a  new  trial,  and 
it  was  error  to  refuse  it ;  for  this  reason,  the  judgment  of  the  court  is 
reversed  and  the  cause  remanded. 

Judgment  reversed. 


LARCENY  BY  BAILEE. 

Kbause  V.  Commonwealth. 

[93  Pa.  St.  418;  89  Am.  Rep.  762.] 
In  the  Supreme  Court  of  Pennsylvania,  1880. 

The  Owner  of  Horeee  Delivered  them  to  defendant  nnder  an  agreement  that  the 
defendant  was  to  bny  them,  the  horses  to  remain  the  property  of  the  owner  till  paid  for 
and  to  be  returned  at  a  specified  period  if  not  paid  for.  The  defendant  refused  to  pay 
for  them,  or  return  them.    Held,  not  larceny,  nor  larceny  by  a  bailee. 

Conviction  of  larceny.     The  opinion  states  the  case. 

Butz  A  Schwartz,  and  William  H.  Snowden,  for  plaintiff  in  error. 

Milton  C.  Henninger,  District  Attorney,  fbr  the  Commonwealth. 

Trunket,  J.  The  indictment  contaiaed  two  counts:  (1)  larceny; 
(2)  larceny  by  bailee;  the  alleged  stolen  property  was  the  same  in 
both.  To  the  tir»t  count  Krause  pleaded  a  former  acquittal,  on  which 
plea,  verdict  and  judgment  were  rendered  in  bis  favor.  He  was  then 
tried  and  conAncted  on  the  second. 

In  the  charge  of  the  court  the  Commonwealth's  case,  as  proved,  was 
fairly  8*^ated  thus:  On  December  18,  1878,  the  prosecutor  sold  and 
the  defendant  agreed  to  purcha»«i  the  two  horses ;  that  the  price  agreed 
upon  was  $150,  to  be  paid  on  delivery,  the  prosecutor  to  take  the  horses 
to  the  defendant's  stable,  at  Allentown,  the  next  day  and  receive  the 
money ;  that  other  inten'wws  and  negotiations  followed,  continuing  up 
to  the  Thursday  of  the  next  week,  when  the  horaes  disappeared  from  the 
sti  le,  and  were  sold  or  converted  by  the  defendant  to  his  own  use. 
That  when  the  horses  n<  i^r*  taken  to  the  stable  the  <lefendant  had  only 
^25,  and  it  wab  then  agreed  that  the  horses  should  continue  to  be  the  pro- 


KRAUSE   V.  COMMONWEALTH- 


489 


lation  of 
In  of  the 

Ition  that 
ipon  thr 

It  we  can 

(between 

ial,  and 
court  ia 

o$n€d. 


nt  that  the 

till  paid  for 

tnaed  to  pay 


in  error, 
alth. 
larceny ; 
same  in 
on  which 
was  then 

>ved,  was 
sold  and 
le  agreed 
he  horses 
;eive  the 
nuing  up 
from  the 
own  use. 
lad  only 
1  the  pro- 


perty of  Deemer,  who  would  not  sell  ^bem  except  for  cash ;  that  he  would 
wait  till  the  following  Tuesday  evening  when  if  the  defendant  (should 
not  have  the  money  to  buy  the  horses,  they  were  t<  be  taken  to  Deemer, 
at  Scboenersville,  and  with  this  understanding  Dee^.t j  accepted  the 
$25,  that  on  Tuesday  evening  the  defendant  took  one  of  the  horses  to 
Schoenersville,  and  the  next  evening  went  f^ain,  taking  the  other  horse, 
on  each  occasion  taking  the  horse  back  with  him ;  that  on  Tuesday 
Deemer  went  to  AUentown  for  his  horses  and  offered  to  return  the 
$25  to  the  defendant,  but  he  refused  to  give  them ;  and  that  the  orig- 
inal contract  was  never  changed,  the  horses  were  sold  only  for  cash  and 
the  extension  of  time  was  given  to  enable  the  defendant  to  buy  and  pay 
for  them.  Sucb  were  the  all^^  facts  which  now  must  be  taken  as  true. 
Hnving  ■•  quitted  the  defendant  of  larceny  of  the  horses,  the  Com- 
mou  altu  put  him  to  another  trial  and  convicted  him  of  larceny,  in 
stealing  the  same  horses,  under  section  108  of  the  Crimes  Act  of  1860. 
Villainous  as  his  conduct  was,  this  conviction  ought  not  to  stand  unless 
be  was  a  bailee  witinn  the  intendment  of  the  act.  The  word  "  bailee  " 
is  a  legal  term  to  be  i-nderdtood  in  its  generally  accepted  sense  among 
jurists,  and  if  it  bo  doubtful  whether  a  case  be  included,  it  shall  be  ex- 
cluded, in  the  construction  of  a  criminal  statute.  Blackstone  defines 
bailment  as  "  "  flelivery  of  goods  in  trust  upon  a  contract,  express  or 
implied,  tl>i.t  ih>'  trust  shall  be  faithfully  executed  on  the  pai-t  of  the 
bailee"  ;  Stoij ,  "a  delivery  of  a  thing  in  trust  for  some  special  object 
or  purpose  and  upon  a  contract  express  or  implied  to  conform  to  the 
object  or  purpose  of  the  trust;  "  Jones,  '*  a  delivery  of  goods  in  trust 
on  a  contract,  expressed  or  implied,  that  the  trust  shall  be  duly  executed 
and  the  goods  re-delivered  as  soon  as  the  time  or  use  for  which  they 
were  bailed  shall  have  elapsed  or  be  performed ;  "  and  Kent,  "  a  deliv- 
eiy  of  goods  in  trust  upon  a  contract  express  or  implied  that  the  goods 
shall  be  duly  executed  ^rd  the  goods  restored  by  thp  bailte,  as  soon  as 
the  purpose  of  the  bailmsnt  shall  be  answered."  Mr.  Edwards,  in  his 
work  on  Bailment,^  remarks:  "  These  definitions  agree  in  nearly  all  es. 
scntial  particulars  and  disagree  in  two  or  three  respects.  Jones  and 
Kent  assume  the  property  is  to  be  returned,  while  Blackstone  and  Story 
include  contracts  under  which  no  such  return  is  contemplated.  Story  in- 
tends to  include  among  contracts  of  bailment  a  delivery  of  goods  for 
sale ;  and  Kent  intentionally  limits  his  definition  so  as  as  to  exclude  that 
species  of  contract."  In  general  terms  it  may  be  said  that  the  delivery 
'  f  goods  or  any  other  species  of  personal  estate  for  use,  keeping  or  on 
some  other  trust,  where  the  general  property  does  not  pass,  creates  a 
bailment.  A  delivery  of  chattels  upon  a  sale  made  on  condition  that 
the  title  shall  pass  on  the  payment  of  the  purchase-money  at  a  future 

1  fee.  2. 


490 


LARCENY. 


day,  is  something  more  ttian  a  bailment ;  it  gives  tbe  buyer  a  conditional 
title.  If  the  contract  give  the  buyer  a  definite  credit  or  a  reasonable 
time  within  which  to  pay,  it  gives  him  a  transferable  interest  in  the  chat- 
tels until  the  credit  expires,  and  the  property  in  them  as  soon  as  he  pays 
the  price. 

Authors  of  received  authority  generally  specify  five  sorts  of  bailment, 
namely,  depositum,  mandatum^  commodation,  pledge  and  hiring ;  and  as 
severally  defined,  in  each  the  entire  property  of  the  thing  bailed  remains 
in  the  bailor,  the  possession  only  is  given  to  tbe  bailee,  who  is  to  return 
or  deliver  the  thing  itself  as  soon  as  the  purpose  of  the  bailiscut  shall  be 
answered.  In  this  State  it  is  stated  that  the  bailee  of  goods  wl  o  uses 
and  enjoys  them  as  if  his  own,  can  not  divest  tbe  title  of  the  bailor  by  a 
sale  to  an  innocent  person ;  nor  can  a  creditor  of  the  bailee  seize  them 
in  execution  of  his  debt.  When  delivered  under  a  contract  of  bailment 
the  owner  will  be  entitled  to  them  against  everybody.  But  a  delivery 
on  a  conditional  sale,  the  property  to  remain  in  the  vendor  until  the 
goods  are  paid  for,  with  right  to  reclaim  them,  is  void  as  respects  the 
vendor's  creditors,  or  an  innocent  purchaser  from  him.  The  delivery 
being  on  the  foot  of  a  purchase  the  vendor's  right  as  against  the  ven- 
dee's  creditors  is  regarded  as  a  lien  for  the  purchase-money.^  By  the 
terms  of  the  contract  the  seller  may  retain  the  right  of  pn  'lerty  of  tbe 
goods  till  paid  for,  as  against  the  purchaser,  and  in  default  of  payment, 
he  may  reclaim  them  or  use  civil  remedies  for  recovery  of  possession ; 
but  the  contract  does  not  make  him  a  bailor  as  respects  other  persons, 
nor  the  purchaser  a  bailee  in  the  sense  of  the  word  as  used  in  the  statute. 

Our  statute  as  shown  by  Beade,  J.,  in  Commonwealth  v.  Chathama,^ 
is  taken  from  the  English  statute ;  and  in  that  case  the  interpretation  of 
the  words  "bailee"  and  "bailment"  as  fixed  by  the  English  decisions 
was  adopted,  which  decisions  were  cited,  showing  that  the  words  must  be 
interpreted  according  to  their  ordinary  legal  acceptation,  that  "  bailment 
relates  to  something  in  the  hands  of  the  bailee  which  is  to  be  returned  in 
specie,  and  does  not  apply  to  the  case  of  money  in  the  hands  of  a  party  who 
is  not  under  any  obligation  to  return  it  in  precisely  the  identical  coins  which 
he  originally  received;"  that  "  to  bring  a  case  within  this  clause  in 
addition  to  the  fraudulent  disposal  of  the  property,  it  must  be  proved : 
First.  That  there  \^as  such  a  delivery  of  the  property  as  to  divest  tlie 
owner  of  the  posst  ssion,  and  vest  it  in  the  prisoner  for  some  time ; 
Secondly.  That  at  the  expiration  or  determination  of  that  time  the  same 
identical  property  was  to  be  restored  to  the  owner." 

The  term  "bailee  "  is  one  to  be  used  not  in  its  large  but  in  its  limited 


1  Ohamberlaln  v.  Si^th.  8  Wrifbt.  431; 
Haak  v.  Lir.derman,  64  Pa.  St.  499;  «.  c.  8 
Am.  Rep.  612. 


I  14  Writht,  181. 


R.  V.  BARNES. 


491 


sense  as  Including  simply  those  bailees  Mrho  are  authorized  to  ke,.p  to 
Ian  ;ort  or  to  deLr.  Ind  who  receive  the  goods  honafide  and  hen 
Sulently  co.vert.    Where  it  does  not  appearthat  a  ^ucary  du  y  .s 
losed  on  the  defendant  to  return  the  specific  goods  of  which  the  al .  ged 
baSment  is  composed,  a  bailment  under  the  statutes  -  "oUonstit.  ted.^ 
T^e  bargain  was  struclc  for  a  sale  of  the  horses  for  $150,  payable  on 
delery     Atthetime  stipulated  Deemer  delivered  the  horses  Krause 
nJd  Si  they  agreed  that  the  property  should  continue  m  Deemer, 
Ld  on  Ihe  nexTTuesday  Krause  would  pay  the  balance  or  return 
the  horses.    He  refused  to  do  either.    The  original  contract  was  not 
tanged-timewas  extended  to  Krause  to  enable  him  to  pay  ho  money 
;  Sre  was  a  delivery  at  all  it  wa«  on  the  footing  of  the  sale.    There 
warno  Agreement  to  sell  at  a  future  tune,  a  mere  contract  that    he 
buyer  would  pay  the  balance  of  the  price  or  return  the  Property,  m  the 
mean  time  the  titl«  to  be  in  the  seller.    Payment  would  have  been  a 
riletrperformance.    Krause  was  not  bound  to  return  the  identical 
rperty.    Hehada  cransferable  fnterest  until  the  credit  expired,  and 
or  W»  transferee  would  have  had;  clear  title  the  instant  of  payment^ 
This  was  something  more  than  a  bailment,  and  Krause  was  not  a  bailee 

^rf:rX:^e;ty  of  the  dtlzen,  the  court  may,  and  in  a  proper 
case  should,  declare  the  evidence  insufficient  to  co°vict.^  We  are  of 
opinion  that  the  defendant's  first  point  should  have  been  affirmed 

Judgment  reversed  and  the  record  with  this  opinion  setting  forth  the 
causes  of  reversal  is  remanded  to  the  Court  of  Quarter  Sessions  of 
Lehigh  County  for  further  proceeding.  ^^^^^^^^  accordingly. 


\\ 


LARCENY -MASTER  AND  SERVANT. 

R.  V.  Barnes. 

[10  Cox,  265.] 
In  the  English  Court  of  Criminal  Appeal,  1866. 

of  aU  the  m.n  working  t^Sether  in  one  r^m.  in.We  wWcn  vn«  arrangement 

xien  to  whom  the  money  was  to  be  paid,  and  «>•«'""  °"''  ^     ,„,  the 

,  mong  the  men  in  each  room.  on«  of  them  went  to  ^^^^  ^"eS    The  Jri.oner. 
wage,  of  all  the  men  In  «>\ ^^^  "  iS  in  the  Seurway  by  hl»  fellowworkmen.  and 

Zi';e?^rvS;SrTh^\^:iroreteLv^^^^^^ 


Whart.  Cr.  L.  sec.  1855  (8th  ed.). 


1  Panli  e.  Com.,  8  Sorrl«,  43«. 


IMMM 


■Haaii 


492 


LARCENY. 


^n 


it: 


i&::  ! 


ir 


tho  wages  to  each  absconded  and  appropriated  the  money  to  his  own  U86.  Held,  that 
he  could  not  be  convicted  on  an  indictment  charging  him  with  stealing  the  moneys  of 
his  employers,  (or  the  prisoner  was  the  agent  of  his  fellow- workmen,  and  the  taandini 
the  money  over  to  him  by  the  cashier  was  a  payment  by  the  employers. 

Case  stated  for  the  opinion  of  this  court  by  the  Recorder  of  Bolton. 

Robert  Barnes  was  tried  before  me  ut  the  General  Quarter  Sessions 
of  the  Peace  for  the  borough  of  Bolton,  holden  on  the  12th  April,  1866, 
on  an  indictment  which  charged  him  with  stealing  a  sum  of  £13,  6s,  the 
money  of  Reuben  Smith  and  others. 

The  evidence  was  as  follows :  — 

Reuben  Smith.  On  the  16th  December  last  the  prisoner  was  a  fellow 
workman  with  me  at  Ormrod  and  Hardcastle's.  The  prisoner,  myself, 
and  two  others,  worked  in  the  same  room.  It  had  been  our  custom  for 
one  of  us  to  go  every  fortnight  to  get  the  wages  of  the  four  from  the 
cashier,  and  to  pay  over  the  amount  due  to  each.  We  did  this  by  turns. 
On  the  16th  December  last  it  was  my  turn  to  go  for  the  wages.  The 
wages  due  to  me  on  that  day  came  to  about  £5,  Os,  6d.  I  can  not  speak 
to  the  pence.  The  prisoner  asked  me  if  he  might  fetch  the  wages  this 
time.  I  said:  "Yes;  but  you  must  fetch  them  again  when  it  comes  to 
your  turn."  He  said  be  would.  At  twelve  o'clock  the  prisoner  went 
to  get  the  wages.     He  did  not  come  back,  and  never  gave  me  my  wages. 

Cross-examined.  We  used  to  get  the  four  men's  wages  in  a  lump, 
and  pay  them  over  in  separate  shares. 

Thomas  Unsworth.  I  worked  in  the  same  room  with  prisoner  and 
Reuben  Smith  on  the  16th  December  last.  My  share  of  wages  on  tliat 
day  was  about  £3  18s.  On  that  day  prisoner  went  for  my  wages.  He 
never  paid  them  to  me. 

Peter  Critchley.  I  worked  in  the  same  room  with  the  prisoner  on  the 
16th  December  last.  On  that  day  £4  Ss  1  Id  was  due  to  me  for  wages. 
Prisoner  went  to  get  the  wages.     He  has  not  paid  me  my  share. 

John  Makin.  I  am  cashier  to  Ormrod  &  Co.  On  the  16th  December 
last  the  prisoner  came  to  me  for  his  wages,  and  those  of  the  other  wit- 
nesses. The  account  of  wages  due  to  each  was  made  out  in  my  office 
under  my  superintendence,  but  I  can  not  say  exactly  how  much  was  due 
tx>  each  on  the  day  in  question.  When  the  prisoner  came  to  me,  I  be- 
lieve I  said :  ' '  Wliose  wages  are  you  come  for  ?  "  He  answered :  "No. 
6,  Sovereign."  No.  6  is  the  number  of  the  room  in  wtiich  the  prisoner 
and  the  others  worked,  and  "Sovereign"  is  the  name  of  tke  mill.  I 
had  the  money  in  one  sum  wrapped  up  in  a  paper.  Our  custom  was  to 
wrap  up  the  wages  for  eacli  room  in  a  separate  paper,  inside  which  was 
written  the  names  of  tlic  parties  to  whom  they  were  to  be  paid,  and  the 
sum  duo  to  each,  and  this  was  done  on  the  present  occasion.  On  the 
ICth  December  I  banded  the  money  to  the  prisoner  wrap^ied  up  in  a 
paper  in  the  usual  way.     The  sum  wbick  I  lianded  to  the  prisoner  was 


R.  v.  BARNES. 


493 


i.    Held,  that 

110  moneys  uf 

the  bandini 


of  Bolton, 
r  Sessions 
^prii,  1866, 
;i3,  6s,  the 


as  a  fellow 
er,  myself, 
custom  for 
iir  from  the 
is  by  turns, 
ages.  The 
n  not  speak 
i  -wages  this 
it  comes  to 
•isoner  went 
B  my  wages. 
3  in  a  lump, 

risoner  and 
Eiges  on  that 
wages.    He 

soner  on  the 
e  for  wages, 
lare. 

th  December 
le  other  wit- 
,  in  my  office 
luch  was  due 
to  me,  I  be- 
rered:  "No. 
the  prisoner 
tite  mill.     I 
astom  was  to 
lie  which  was 
paid,  and  the 
aon.     On  the 
pped  up  in  a 
prisoner  was 


£18  6«  Id.  and  it  was  made  up  of  5s  Id  in  copper,  £10  in  silver,  and  £8 
"onthis  evidence  it  was  objected  by  counsel  for  the  defence  that  the 

?nrd  bv  alei  that  the  money  in  question  was  the  property  of 
amended  by  alleging  i  J^  indictment  to  be  amended 

Messrs.  Ormrod  &  Co.,  and  1  o'^^J*"  ,  ^     ^^^  and  an- 

aceordin.lybyins„^^^^^^^^^ 

''t^:^1^t^  p  s^rdidl  address  the  jury  or  call  witnesses, 
but  rcontended  that  the  above  evidence  was  not  in  pom  of  law  s«ffl^ 
cllnt  to  wlrant  a  conviction  on  the  indictment  as  amended,  either  at 
«.,mmr»n  law  or  under  the  24  and  25  Victoria.* 

"nbeo  'ILd  up  t..e  evid^-oe,  .nd  the  Jury  found  the  pr»oner 
Jltrbutoa  the  .ppUoationof  counsel  «ortho  prisoner  I  «in..«ed 
S  11 "  com.  Sp  .or  judgment  ,hen  called  upon,  .nd  I  reserved 
the  above  question  tor  the  opinion  o.  th.  court  ^^  ^   ^^^^^ 

Recorder. 
Sleigh,  for  the  prosecution.    The  conviction  ought  to  be  sustained 
3t  wati^e  custom  for  the  prosecutor's  cashier  to  wrap  up  the  wages  for 
e  men   n  each  room,  in  one  sum,  in  paper,  and  on  the  occasion  m 
nuoron  the  money  so  wrapped  was  delivered  to  the  prisoner,  and  the 
«r  due  to  each  man  was  written  inside.    The  prisoner  had  to  give  out 
a^h  mi's  wies  to  him,  and  until  he  had  so  distributed  it  the  money 
rotTdtollprosecutors.     [Maktik.  B.    Suppose  the  men  had  sued 
!^Ke  prosecutors  for  their  wages,  and  they  had  pleaded  payment,  what 
Tns/i  coS  tlie  men  have  had  to  the  plea?    They  sent  the  prisoner  for 
;rrr  w4es  andthe  prosecutors  paid  him.    That  was  a  discharge    o 
U  mrThe  Present^case  is  like  Lavender^s  C«-,''  where  it  was  he^d 
rja  servant' oing  off  with  money  given  to  ^^-^y  ^^"^^^^^^^^^^  ^-^ 
to  another,  and  applying  it  to  his  own  use,  ^'^^^^;;,\7^^^y  °^^^^^^^^^^ 
So  where  a  prisoner,  who  was  occasionally  employed  by  the  prosecutors 
rcleXhavingrlceivedfrom  them  a  cheque  V^y^^^^  l^-^;^;;, 
a,>nronriated  it  to  his  own  use,  it  was  held  larceny.'    In  Rex  v.  (^ooae, 
Tere  ;  sum  of  money  was  given  to  a  seiW  to  be  disbursed  m  a  par- 
TieuLr  way   and  instead  of  so  disbursing  it,  the  servant  appropriated  it 
to  liis  own  use,  the  servant  was  held  guilty  of  larceny. 


1  Rh.  96,  tec.  3. 

a  a  KMt'»  P.  C,  ch.  18,  iec.  W. 


3  Rex  V.  Metcalrt,  R.  A  Moo.  433. 
«  C.  A  M.  58^ 


■HM 


HMiiMnM 


nwisemmn 


494 


LARCENY. 


Brasiwell,  B.  In  all  those  cases  the  persons  to  whom  the  money 
was  to  be  paid  had  a  claim  on  the  masters  after  the  felony  was  com- 
mitted. It  you  could  make  out  that  the  prisoner  was  the  agent  of  the 
prosecutors  until  the  money  reached  the  several  men,  it  would  be  a  dif- 
ferent matter. 

Shee,  J.  There  is  another  point  here.  Some  of  the  money  was  the 
prisoner's  own,  and  it  was  not  separated  from  the  rest. 

No  counsel  appeared  for  the  prisoner. 

Erle,  C.  J.     We  are  of  opinion  that  the  conviction  should  be  quashed. 
The  prisoner  is  charged  with  stealing  the  money  of  Messrs.  Ormrod  & 
Co.     It  appeared  that  it  was  the  custom  of  Messrs.  Ormrod  &  Co.  to 
pay  their  workmen  on  a  given  day  in  this  way.     The  men  working  to- 
gether in  a  room  sent  one  of  themselves  for  their  wages,  which  he 
brought  back  in  a  lump  sum  wrapped  up  in  paper,  with  the  name  of  each 
man  and  the  amount  he  was  to  receive  written  inside.     On  the  day  in 
question  the  prisoner  was  selected  as  the  man  to  be  sent  for  the  wages 
of  the  room,  and  the  cashier  had  the  sum  wrapped  up  in  paper  ready  for 
him,  and  he  delivered  the  money  so  wrapped  up  to  the  prisoner.    The 
prisoner  was  sent  as  the  agent  of  the  men  in  the  room,  and  he  was  the 
agent  for  all  those  parties.     Messrs.  Ormrod  &  Co.'s  cashier  paid  their 
workman,  and  discharged  themselves  from  further  liability  the  moment 
the  cashier  put  into  tlie  prisoner' s  hands  the  money  belonging  to  the  other 
workmen.     The  prisoner,  therefore,  is  not  rightly  convicted  of  stealing 
the  moneys  of  Messrs.  Ormrod  &  Co. 

The  rest  of  the  court  concurring.         • 

Conviction  g^uuhed. 


dates. 


LARCENY  — MONEY  OBTAINED  BY  FRAUD— ALTBRING  BOOKS. 

R.  V.  Gbben. 

[Dears.  828.] 

In  the  English  Court  for  Crown  Coxes  Rnerved^  1854. 

It  WM  th«  Daty  of  O.  m  0.'«  Mrwnt  to  receive  and  p»y  moneys  for  him  and  enter  them 
in  a  book  which  was  exaiolned  by  O.  from  Ume  to  time.  On  one  examination  Q.  showed 
a  balance  in  hie  favor  of  £8  by  making  outriea  of  false  paymento,  and  thereupon  O.  paid 
him  thU  £S.   a<M,  that  O.  was  not  gnUty  of  the  laioeny  of  the  1%. 

At  the  Quarter  Sessions  for  the  County  of  Cambridge,  holden  on  the 
8d  day  of  January,  1854,  Abraham  Green  wa?  indicted  for  stealing,  on 
the  10th  day  of  September  last,  certain  moneys  of  and  belonging  to  his 
master,  Alexander  Cotton,  Esq.  . 


wm 


B.  V.  GREEN. 


495 


The  prisoner  was  bailiff  to  the  prosecutor,  and  it  was  part  of  his  duty 

fhe        day  of  December  last,  and  the  account  comprised  within  these 
dates,  among  many  items,  the  following  payments,  viz. :  - 

•'  1853,  August  13. 

*'  James  Ludkin  .  •  ^1'  ^s,  Od. 

"Samuel  Pryke  .  •  ^*'  ^'' J"?',, 

••John Brown  .  •  ^*'  *^'  "" 

„d  twelve  other  names  against  which  stood  the  same  amount 

There  was  a  series  of  similar  items  under  dates  of  the  20th  ana  inn 
of  AugusI  and  the  3d,  10th,  and  17th  of  September,  and  on  the  17th 
of  September  this  series  of  payments :  — 


••  James  Ludkin 
•'  Samuel  Pryke 


158,  Od. 
158,  Od" 


and  thirteen  other  names  against  which  stood  the  same  sum  of  15s, 
^^John  Brown  proved  that  he  was  engaged  by  the  prisoner  to  work  for 

.o^rr  «   L  .bout ...  d.y.  .«-  .he  mh  o.  ^P^e;^-.^^ 
priMner  p»d  Mm  £1  in  .ddlttOB,  mdoDg  to  m«M  £1  4s  a  »eek  cor- 

"'jre.'lu'^lwn'praved.ha  h.  -«  ..gaged  by  fte  pH,o«r  to -<>A 

jr pL....o^  during «;.  '"-»^^-"*  r:.?,rrd';*of  i  'gu^ 

„^dhimU.ld  a.donbl,  eompl.iri.g  to.  be  did  .otpay 
irrZ  to  ..r  Z^^  *.  Cber  ..borer,,  to  pri^ner  .aid  it  w- 
because  he  was  working  in  the  bara. 

'Z^t^T::^T.::^'^n.^-<>--^  aayof  Julyto 
the  M  day  of  December  last,  contained  numerous  Items,  amongst  whi^ 
tre  payments  made  for  the  purchase  of  good,  by  the  prisoner  on  ac 
count  of  the  prosecutor. 


■.■Mi*»rt»Si^ii>*tii-  . 


pimuMiWiiwiiirH^^^" 


496 


LAKCENY. 


By  one  of  these  items  the  prisoner  gave  the  prosecutor  credit  for  £1 
8s,  which  it  wa?  stated  by  his  counsel,  though  no  proof  offered  of  it 
he  had  not  in  fact  received.  There  was  no  entry  in  tlie  boolt  in  thj 
handwriting  of  the  prisoner. 

The  prisoner  was  present  during  all  the  time  the  prosecutor  was  ex- 
amining the  account,  and  signed  his  name  to  it  on  tlie  prosecutor  doing 
so ;  but  his  attention  was  not  called  to  any  particular  item.  There  was 
on  the  account  a  balance  of  £2  due  to  the  prisoner,  which  the  prosecu- 
tor  paid  him. 

At  the  conclusion  of  the  evidence  for  the  prosecution,  the  prisoner's 
counsel  contended  on  the  authority  of  Queen  v.  Chajnnan,  that  the 
offense  charged  was  neither  larceny  nor  embezzlement,  and  submitted 
to  the  court  that  on  these  facts  the  court  should  direct  an  acquittal. 

Tlie  chairman  directed  the  jury  that  the  deduction  of  the  five  several 
sums  of  48,  from  the  five  wecltly  sums  of  £1  Ss  to  be  paid  to  Brown,  and 
of  the  several  sums  of  Ss  6d,  from  the  weekly  sums  of  158  to  be  paid 
respectively  to  Ludkin  and  Prylfe,  amounted  to  larceny,  and  told  the  juiy 
that  by  a  recent  act  they  were  enabled  to  return  a  verdict  of  either  lar- 
ceny or  embezzlement,  as  their  minds  might  be  directed  by  the  evidence  • 
on  which  the  jury  found  a  verdict  of  guilty,  whereupon  judgment  was 
postponed,  and  the  prisoner  discharged  on  bail,  to  appear  and  receive 
judgment  at  the  next  Quarter  Sessions  for  this  county.  The  opinion 
of  the  judges  is  asked  whether  the  jury  could  on  these  facts  properly 
convict  the  prisoner  of  larceny. 

Eliot  Thos.  Yobke, 
_,  ,  Chairmun  Q.  S. 

This  case  was  argued  on  the  11th  day  of  February,  18.'>4,  before 

Jeuvis,  C.  J.,  Malle,  J.,  WiGHTMAN,  J.,  WiLMAMs,  J.,  and  Platt,  B 
Tozer,  for  the  prisoner.     Tiiere  was  no  evidence  of  larceny  or  em- 

bezzlement.    There  was  no  evidence  that  he  received  any  money  from 

his  master  except  the  £2. 

Maule,  J.  For  aught  that  appears  the  payments  may  all  have  been 
out  of  his  own  money. 

Williams,  J.  The  prisoner  falsified  the  account,  but  the  question  is, 
was  he  guilty  of  larceny? 

WioHTMAN,  J.  The  evidence  is,  he  entered  monev  as  paid  which  he 
had  not  paid. 

Jervis,  C.  J.  And  that  he  did  so  for  the  purpose  of  obtaining  there- 
by a  portion  of  the  sum  of  £2.  We  are  all  of  opinion  that  the  offense 
of  which  the  prisoner  was  guilty  was  not  larceny,  whatever  else  it  may 
have  been.  ^ 

Conviction  quashed. 


LARCENY 


In 


It  WM  tke  X 

by  E,  on  I 
to  pay  it  < 
appropriai 

The  pris< 
was  reserv( 
ber,  1862, 
NELL,  B.  ai 

Littler,  i 
at  the  trial 
tended  to  li 
and  thereb 
was  a  case 
not  be  susi 
the  intentii 
cisely  in  p( 
ciiarged  wi 
prisoner  wi 
persons  em 
the  end  of 
shearmen,  1 
sum  as,  ac4 
prisoner,  w) 
draw  for  m 
earned  by  tb 
sums  ezcepi 
was  due  to 
the  9tb  of 
in  writing  ii 
llsOd;"  M 
count  of  th 
writing,  whi 
work  they  ] 

1  9  Den.  O.  C 
8  Dkfi 


R.  V.  THOMPSON. 


497 


l.AllCENY  —  FALSE     REPRESENTATION     BY     SERVANT    TO     OBTAIN 

MONEY. 

R.  V.  Thompson. 

[L.  &  C.  288.] 
In  the  English  Court  for  Crown  Cases  Reserved,  1862. 

It  WM  the  Duty  of  T.,  who  waa  a.'«  clerk,  to  MMrtalii  dally  the  amount  of  dues  payable 
by  E.  on  the  exportation  of  E'«  goods,  and  having  obtained  the  money  from  the  cashier 
to  pay  it  over.  T.  falsely  represented  that  a  larger  sum  was  due  on  a  certain  day,  and 
appropriated  the  difference,    arid,  that  he  was  not  guilty  of  larceny. 

The  prisoner  was  convicted  of  larceny  on  the  facta  above,  but  his  case 
was  reserved  for  this  court,  where  it  was  argued,  on  the  16th  of  Novem- 
ber, 1862,  before  Pollock,  C.  B.,  Wiohtman,  J.,  Willuims,  J.,  Chan- 
NELL,  B.  and  Mellor,  J. 

Littler,  for  the  prisoner.  Regina  v.  Barnes,^  which  was  relied  upon 
at  the  trial,  is  very  similar  to  this  case.  There  the  prisoner  falsely  pre- 
tended to  his  masters  that  he  had  paid  a  sum  of  money  on  their  account, 
and  thereby  obtained  the  money  from  them.  The  court  held  that  that 
was  a  case  of  false  pretenses,  and  that  an  indictment  for  larceny  could 
not  be  sustained,  as  the  clerk  delivered  the  money  to  the  prisoner  with 
the  intention  of  parting  with  it  wholly  to  him.  MitcheWs  Case  ^  is  pre- 
cisely in  point.  There  the  prosecutors,  from  whom  the  prisoner  was 
cliarged  with  obtaining  money  by  false  pretenses,  were  clothiers ;  the 
l)risoner  was  a  shearman  in  their  service,  and  to  take  an  account  of  the 
persons  employed,  and  of  the  amount  of  their  wages  and  earnings ;  at 
the  end  of  each  week  he  was  supplied  with  money  to  pay  the  different 
shearmen,  by  the  clerk  of  the  prosecutors,  who  advanced  to  him  such  a 
sum  as,  according  to  a  written  account  or  note  delivered  to  him  by  the 
prisoner,  was  necessary  to  pay  them.  The  prisoner  was  not  authorized  to 
draw  for  money  generally  on  account,  but  merely  for  the  sums  actually 
earned  by  the  shearmen ;  and  the  clerk  was  not  authorized  to  pay  him  any 
sums  except  what  he  carried  in  his  account  or  note  as  the  amount  of  what 
was  due  to  the  shearmen  for  the  work  they  had  done.  The  prisoner  on 
the  9th  of  September,  1796,  delivered  to  the  prosecutor's  clerk  a  note 
in  writing  in  the  following  form:  "  9th  September,  1796,  shearmen  £44 
lis  Od ;"  which  was  the  common  form  in  which  he  made  out  his  ac- 
count of  the  amount  of  their  week's  wages ;  and  in  a  book  in  his  hand- 
writing, which  was  his  business  to  keep  (of  the  men  employed,  of  the 
work  they  had  done,  and  of  their  earnings),  there  were  the  nam  a  of 


1  9  Den.  O.  C.  69 ;  20  L.  J.  M.  C.  34. 
S  Defences. 


S  2  East's  p.  C.  839. 


32 


498 


LAKCKNY. 


several  men  who  had  not  been  employed,  who  wore  entered  as  having' 
earned  different  sums  of  money,  and  also  false  accoiintH  of  the  work 
done  by  those  who  were  employed,  so  as  to  make  out  the  sum  stated  in 
the  note  t<>  be  due  to  the  shearman.  Upon  this  evidence  the  Jury  found 
therisoner  guilty,  and  the  Judges  supported  the  convction. 

Williams,  J.  It  is  impossible  to  particularize  the  coin  which  the 
prisoner  is  alleged  to  have  stolen,  because  some  of  the  money  was  rightly 
paid  to  him. 

Littler.  Yes.  The  prisoner  might  have  been  convicted  of  obtaining 
money  by  false  pretenses.  He  was  not  guilty  of  larceny.  (He  was 
then  stopped. ) 

L.  Temple,  for  the  Crown.  The  false  pretense  made  by  the  prisoner 
was  not  within  the  statute,  inasmuch  as  it  was  a  pretense  as  to  some- 
thing  future  only,  viz.,  that  he  would  pay  a  certain  sum  for  dock  duet. 

Pollock,  C.  B.  There  was  both  a  misrepresentation  of  what  he 
would  do,  and  also  of  what  was  owing  for  dues ;  and  this  latter  was  t 
misrepresentation  as  to  an  existing  fact. 

Temple.  In  Regina  v.  Robins,^  a  quantity  of  wheat  was  in  the  pot* 
session  of  the  prosecutors  as  bailees,  and  was  deposited  in  one  of  their 
storehouses,  under  the  care  of  one  of  their  servants,  who  had  authority 
to  deliver  it  only  on  the  order  of  the  prosecutors  or  their  managing 
clerk.  The  prisoner,  who  was  also  a  servant  of  the  prosecutors,  by  % 
false  statement,  induced  the  servant  under  whose  care  the  wheat  was  to 
allow  him  to  remove  part  of  the  wheat,  which  he  carried  away  and  ap- 
propriated to  his  own  use.  It  was  held  that,  under  those  circuiD> 
stances,  the  prisoner  was  properly  convicted  of  larceny.  In  the  present 
case,  moreover,  the  prisoner  had  only  the  custody  of  the  money,  for, 
being  a  ser^'ant,  his  possession  was  the  possession  of  the  master. 

Wiohtman,  J.    Which  part  of  the  money  do  you  say  that  he  stole? 

Temple.    The  excess  beyond  the  amount  which  he  actually  paid. 

WioHTHAN,  J.    How  can  you  specify  the  coins  he  stole? 

Temple.  In  Rex  v.  Murray,^  the  prisoner  was  indicted  for  embei* 
zling  £1  Os  6d.  The  prisoner,  who  was  clerk  to  the  prosecutors,  had 
received  £5  from  anoth<'r  clerk  to  pay  for  an  advertisement.  The  pris- 
oner paid  only  £1,  but  charged  his  m>\ster  with  £2  Os  6d.  There  it  was 
held  that  the  prisoner  could  not  be  convicted  of  embezzlement  because 
the  receipt  from  the  other  clerk  was  in  fact  a  receipt  from  the  master, 
but  it  seems  to  have  been  admitted  that  he  might  have  been  convicted 
of  larceny. 

Pollock,  C.  B.  The  act  of  the  prisoner  did  not  amount  to  larceny, 
but  to  the  offense  of  obtaining  money  by  false  pretenses. 


1  Dflkn.  C.  0.  418. 


ss . 


p.  145,  note  a. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


/. 


'J.J. 


1.0 


I.I 


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Sciences 
Corporation 


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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  145S0 

(716)  •72-4503 


k^       ^^  ^^    ■y^  CK 


^^^ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  MIcroreproductions  /  Instltut  Canadian  de  microreproductions  historlques 


Wii 

decisis 
tenses 
the  arj 
ticulai 
The 


1.  Lare 

anol 
appi 

2.A,a 
Bell 
sapi 

Fro 
Ha3 

reserv 
Tht 
mules 
acquil 
the  f  0 
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next 


STATE  V.  WINGO. 


499 


Williams,  J.  I  am  of  the  same  opinion ;  and  I  prefer  to  rest  my 
decision  on  the  broad  ground  that  this  was  an  obtaining  by  false  pre- 
tenses, rather  than  on  the  narrower  ground  suggested  in  the  course  of 
the  argument,  that  the  coin  alleged  to  have  been  stolen  can  not  be  par- 
ticularized. 

The  other  learned  judges  concurred. 

Conviction  quashed^ 


LARCENY  —  FARM-HAND  —  SERVANT. 

State  v.  Wingo. 

[89  Ind.  204.] 
In  the  Supreme  Court  of  Indiana,  1883. 

1.  Larceny  ia  the  Felonious  stealing,  taking  &ad  carrying  away  of  the  personal  goods  of 

another.    When  property,  lawfully  in  the  custody  of  an  employee  or  bailee,  is  criminally 
appropriated  to  the  use  of  such  employee  or  bailee,  the  offense  is  not  larceny. 

2.  A,  a  Farmer,  Sent  B.,  his  farm-hand,  to  haul  a  load  of  corn  to  market,  with  orders  to 

sell  it,  B.  using  two  mules  and  a  wagon  for  that  purpose.    B.  sold  the  mules  to  C.  who 
supposed  he  had  a  right  to  dispose  of  thorn.   Httd,  that  B.  was  not  guilty  of  larceny. 

From  Vigo  Circuit  Court. 

Hammond,  J.  This  is  an  appeal  by  the  State  upon  questions  of  law 
reserved  at  the  trial. 

The  appellee  was  charged  in  the  indictment  with  the  larceny  of  two 
mules  from  David  Pugh.  There  was  a  trial  by  jury  and  a  verdict  of 
acquittal.  The  evidence  is  in  the  record,  and  shows  without  conflict 
the  following  facts :  — 

In  the  spring  of  1881,  the  appellee  was  in  the  employ  of  David  Pugh 
as  a  farm  hand,  and  in  hauling  corn  to  market  for  Pugh  to  Terre  Haute. 
On  the  day  of  the  alleged  larceny,  in  March,  1881,  Pugh  sent  him  to 
that  city  with  the  two  mules  and  a  wagon,  loaded  with  corn,  directing 
him  to  sell  the  corn  and  collect  the  money  for  it,  and  return  the  same 
day.  The  appellee  did  not  have  permission  to  sell  the  mules.  On  ' 
reaching  the  city,  before  selling  the  corn,  William  R.  Hunter  met  hira 
and  proposed  to  buy  the  mules.  Appellee  informed  him  that  he  would 
sell  them  after  disposing  of  his  load  of  corn.  Afterwards,  on  the  same 
day,  he  met  Hunter  again,  and  informed  him  that  he  was  ready  to  sell 
the  mules,  and  drove  to  Hunter's  livery  stable.  The  price,  $250,  was 
agreed  upon,  and  he  sold  and  delivered  the  mules  to  Hunter,  and  re- 
ceived for  them  money  through  a  check  on  the  bank.  He  gave  Hunter 
a  bill  of  sale  signed  with  his  own  name.  He  left  the  wagon  and  harness 
at  the  livery  stable,  saying  that  he  would  soon  return  for  them.  When 
next  heard  from  he  was  in  Kentucky. 


S'i^fe:!Si.S^v.:*,^;iJ«U*=- 


600 


LARCENY. 


Hunter  Tvas  acquainted  with  the  appellee  and  with  the  mules,  and 
knew  they  belonged  to  Pugh.  He  supposed  the  appellee  had  a  right  to 
sell  them,  but  made  no  inquiry  of  and  received  no  statement  from  the 
appellee  as  to  his  autliority  in  this  respect. 

The  attorney  for  the  appellant  requested  the  court  to  give  the  jury 
this  charge:  "  If  the  jury  find,  from  the  evidence,  that  the  defendant, 
in  the  yelr,  1881,  in  Vigo  County  and  State  of  Indiana,  was  in  the  em- 
ployment of  David  Pugh,  as  servant  or  teamster,  and  had  in  his  custody 
the  team  of  mules  of  said  Pugh  to  haul  to  the  city  of  Terre  Haute  a 
quantity  of  corn,  and,  on  the  day  of  said  hauling,  was  directed  by  said 
Pugh  to  deliver  the  corn  in  said  city  and  return  the  same  day  with  said 
team  of  mules,  and  that  the  defendant,  while  having  the  mules  In  his 
custody  as  aforesaid,  took  and  carried  or  drove  the  same  lo  the  livery 
stable  of  Foultz  &  Hunter,  in  the  city  of  Terre  Haute,  and  then  and 
there  sold  and  delivered  the  same  to  said  Foultz  &  Hunter,  or  to 
William  R.  Hunter,  without  the  knowledge,  consent  or  authority  of 
said  David  Pugh,  and  with  the  felonious  intent  of   then  and  there 
converting  said  mules  to  his  own  use,  then  he  is  guilty  of  larceny  of 
said  mules,  and  you  should  so  find." 

This  instruction  the  court  refused  to  give,  but  gave  the  jury  at  the 
request  of  the  appellee,  the  following :  — 

«'  1.  If  the  jury  find  from  the  evidence,  that  the  defendant  was  in  the 
employ  of  the  prosecuting  witness,  Pugh,  and  was  working  for  Pugh 
upon  his  farm,  and  that  Pugh  sent  the  defendant  to  Terre  Haute  with  a 
load  of  corn  in  a  wagon,  with  the  mules  charged  to  have  been  stolen, 
and  that  the  defendant  while  he  still  had  possession  of  the  mules  sold 
them,  then  he  is  not  guilty  of  larceny,  and  you  should  find  him  not  guilty. 
"  2.  Larceny  is  the  felonious  stealing,  taking  and  carrying  away  of 
the  personal  goods  of  another.  If  you  find  from  the  evidence  that  the 
defendant  had  the  possession  of  the  mules  with  the  consent  of  the  owner, 
and  sold  them,  you  should  find  for  the  defendant. 

"a.  If  the  defendant  had  the  lawful  possession  of  the  mules  and 
sold  them,  then  there  was  no  such  felonious  taking  as  the  law  requires 
in  a  case  of  larceny,  and  you  should  find  the  defendant  not  guilty. 

"4.  If  the  servant  while  in  the  employment  of  his  master  has  en- 
trusted to  his  care  any  personal  property  of  his  master,  and  he  felonU 
ously  sells  and  converts  the  same  to  his  own  use,  he  is,  under  the  law  of 
Indiana,  guilty  of  embezzlement,  but  is  not  guilty  of  larceny." 

The  refusal  of  the  court  to  give  the  instruction  asked  by  the  State, 
and  the  giving  of  those  requested  by  the  appellee,  were  duly  excepted 
to  by  the  appellant's  attorneys,  and  these  rulings  are  assigned  for  error 

in  this  court. 
The  principle  is  well  settled  that  to  constitute  a  larceny  there  must 


COMMONWEALTH    V.  UPRICHARD. 


501 


the  mules,  and 
e  had  a  light  to 
«iueat  from  the 

0  give  the  jury 
;  the  defendant, 
,  was  in  the  em- 
d  in  his  custody 
P  Terre  Haute  a 
iirected  by  said 
le  da}'  with  said 
the  mules  in  liis 
me  to  tlie  livery 
;e,  and  then  and 
;  Hunter,  or  to 
or  authority  of 
then  and  there 

Ity  of  larceny  of 

5  the  jury  at  the 

indant  was  in  the 
rorking  for  Pugh 
srre  Haute  with  a 
lave  been  stolen, 
f  the  mules  sold 
»d  him  not  guilty, 
carrying  away  of 
evidence  that  the 
lent  of  the  owner, 

of  the  mules  and 

1  the  law  requires 
nt  not  guilty. 

is  master  has  en- 
r,  and  he  felonU 
,  under  the  law  of 
larceny." 
jked  by  the  State, 
sre  duly  excepted 
assigned  for  error 

arceny  there  must 


be  a  felonious  taking  of  the  property.  When  property  which  is  lawfully 
in  the  custody  of  an  employee  or  bailee  is  criminally  appropriated  to  the 
use  of  such  employee  or  bailee,  the  offense  may  be  embezzlement,  but 
it  can  not  be  larceny, ^ 

The  evidence  shows  tnat  the  appellee  was  entrusted  with  the  prop* 
erty  by  the  owner.  There  is  no  evidence  that  he  used  fraud  in  procur- 
ing possession  of  it,  nor  is  there  any  evidence  of  a  criminal  intent 
until  after  he  arrived  in  the  city.  The  criminal  puri)ose  probably  en- 
tered his  mind  for  the  first  time  when  Hunter  proposed  to  purchase  the 
mules.  There  was  an  entire  absence  of  proof  of  a  felonious  taking  of 
the  property. 

As  the  possession  of  the  servant  is  the  possession  of  the  master,  it  may 
be  that  in  the  absence  of  a  statute  upon  the  subject  of  embezzlement, 
the  evidence  in  this  case  would  authorize  a  conviction  for  larceny.  ^  But 
tlie  evidence  clearly  brings  the  appellee's  act  of  converting  to  his  own 
use  his  employer's  property  within  the  provisions  of  the  embezzlement 
act  of  March  21st,  1879,  which  was  in  force  when  he  committed  the 
wrong  complained  of.^  This  act  was  later  than  the  one  then  in  force 
relating  to  larceny,  and  it  can  hardly  be  thought  that  the  Legislature  in- 
tended to  make  the  same  act  criminal  under  different  statutes,  defining 
separate  offenses.  The  rule  is  familiar  that  a  statute,  so  far  as  it  covers 
the  same  subject  matter  of  a  former  statute,  repeals  the  previous  enact- 
ment by  implication. 

Our  conclusion  is  that  the  court  below  did  not  err  in  refusing  the  in- 
struction tendered  by  the  State,  nor  in  giving  those  requested  by  the 
appellee.     The  appeal  is,  therefore,  not  sustained 


LARCENY  —  PROPERTY     STOLEN     IN     A     FOREIGN     COUNTRY    AND 

BROUGHT  INTO  STATE. 

COMMONWiALTH    V.  UPRICHARD. 

[3  Gray,  434.] 

In  the  Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1S55. 

The  Brinrlnv  Into  this  Commonwealth,  by  the  thief,  of  goods  stolen  in  one  of  the  British 
Provinces,  is  not  larceny  in  this  Commonwealth, 

SiiAW,  C.  J.     Tlie  defendant,  together  with  Thomas  Carey,  was  in- 
dicted in  the  Municipal  Court  for  larceny,  in  stealing  a  large  number  of 

1  Kelley  r.  SUte,  U    Ind.  86;   Hart  v.  2  2Bish.  Or.  L.,  sees.  8»3,  886;  2  Whart. 

State,  87  Ind.  1(M ;  Umphrey  r.  State,  63  Ind.  Cr.  L„  sec.  1840. 
223;  Starek  r.  State,  03  Ind.  2«i;  Jones  v.  8  AcU,  special  session  1879,  p.  IM. 

State,  e»  Ind.  229;  Moorse's  Cr.  L.,  sec.  918. 


502 


LARCENY. 


80verei<ms  and  other  gold  and  silver  coins,  properly  enumerated  and  de- 
BcrTbeT'Xindictint  charges  that  the  two  defendants  at  Bos  on 
on  the  27th  of  July  1854,  the  gold  pieces  and  ^tber  corns  the  prp.^ 
of  George  D.  Twinning,  in  his  possession  then  and  there  being,  felom 
«uslv  did  steal,  take  and  carry  away. 

"  The  evidence  faiUng  to  prove  a  joint  possession  of  tb^t^eyroP; 
erty  in  this  Commonwealth,  the  prosecuting  attorney  submitte^l  to  a 
veTdict  in  favor  of  Carey,  and  proceeded  against  Upnchard;  and 
aterwards  a  new  indictment  was  found  by  the  same  g-n<l  ^ury  o 
^Jat  each  was  tried  upon  a  separate  indictment  for  the  goods  found  m 

'^rd^l^ndTt^lXhard  was  convicted  upon  the  evidence  and  under 
.etsLtionsof  ^^^^  ^^^j^^T^:^ 
Zr^oirrrp't^^^  -  behalf,  reported  the  same 

•fni-  the  consideration  of  this  court. 

By  tbTr  port  it  appear,  that  UprioUard  and  Carey  -ere  sold-er,  m 
.heL*c  o,  the  Queen  o.  Englar.d,  at  Sidney,  in  «''  f"--'  » 

oeZnli  said  coins  in  their  possession,  and  were  found  in  this  State, 
each  havin<r  a  part  of  the  stolen  property  in  his  possession. 

Upon  hi  eXionce  offered,  the  counsel  for  the  defendants  asked  the 

courtto  rule  that  the  indictment  could  not  be  supported  by  the  evi- 

dence  •  Because  the  law  in  force  at  Sidney  was  not  proved.     2d^ 

Because  said  property,  if  stolen  at  all,  was  stolen  at  Sidney,  out  of  the 

ftate  0    MassaclLet';,  and  out  of  the  United  States ;  -^  the^"^^^^^^^^ 

of  said  stolen  property  into,  and  the  possession  of  it  in  Boston  wou  d 

^ot  cltttute  the  crime  of  larceny  in  this  Commonwealth,  and  would 

no  support  the  allegation  that  the  coins  and  other  property  were  f  eloni- 

Tusly  Sn  in  this  county ;  and  therefore  the  court  had  ««  junsdiction 

orthetflense.     But  the  court  overruled  the  motion,   and  Lprichard 

"  TirsUbSefly  statod;  but  we  understand,  and  so  it  has  been  under- 
stood in  the  Lgumenl  that  the  court  instructed  the  J-y  that  if  the 
proper  y  was  stotn  by  the  defendant  at  Sidney,  in  Nova  Scotia,  one  of 
ircdonies  and  possessions  of  the  Queen  of  Great  Bntain,  and  the 

1  see  Rex  v.  Barnett.  reported  in  9  Bu.s.  on  Cr.  (7th  Am.  ed.)  117. 


i^^M 


COMMONWEALTH  V.  UPRICHARD. 


008 


ited  and  de- 
,  at  Boston, 
he  proppity 
eing,  feloni- 

stolen  prop- 
)mitte(l  to  a 
•ichard;  and 
and  jury,  so 
lods  found  in 

ice  and  under 
ise  to  involve 
fendant,  and 
rted  the  same 

re  soldiers  in 
Province  of 
•tly  the  prop- 
the  military 
;n,  in  the  care 
aken  from  the 
ession  of  said 
me  time,  with 
1  in  this  State, 

ants  asked  the 
ted  by  the  evi- 
t  proved.  2d. 
ley,  out  of  the 
\d  the  bringing 
Boston,  would 
ilth,  and  would 
rtj'  were  f eloni- 
no  jurisdiction 
and  Uprichard 

las  been  under- 
jury  that  if  the 
I  Scotia,  one  of 
Britain,  and  the 

d.)  117. 


property,  so  stolen,  and  continuing  in  the  possession  of  the  defendant, 
was  brought  by  him  into  this  Commonwealth,  and  into  this  county,  the 
indictment  charging  him  with  stealing  them,  being  in  possession  of  the 
owner,  in  this  county,  was  legally  sustained,  and  that  the  defendant 
could  be  convicted  and  punished  for  this  offense  by  our  laws. 

We  do  not  perceive  that  it  makes  any  difference  whether  the  prop- 
erty, stolen  in  a  foreign  country,  was  the  property  of  the  sovereijjn,  or 
of  a  sul)ject.  Indeed,  it  seems  that  a  part  of  it  was  of  the  one  char- 
acter, and  a  part  of  the  other.  Nor  does  it  make  any  difference  that 
the  defendant  deserted  the  military  service  at  the  same  time  that  he 
plundered  the  property  of  his  sovereign. 

This  case  presents  an  extremely  interesting  and  important  question ; 
and  the  p  ecise  question,  we  think,  comes  up  now  for  the  first  time  in 
this  Commonwealth.     The  main  argument  in  support  of  the  connction 
i8  founded  on  the  well  known  rule  and  practice  of  the  common  law, 
that  all  trials  must  be  had  in  the  county  where  the  offense  is  committed ; 
that  when  property  has  been  proved  to  have  been  stolen  in  one  county, 
and  the  thief  is  found,  with  the  stolen  property  in  hia  possession,  in 
another  county,  he  may  be  tried  in  either  county.     It  proceeds  on  the 
legal  assumption  that  when  property  has  been  feloniously  taken,  every 
act  of  removal  or  change  of  possession  by  the  thief  may  be  regarded  as 
a  new  taWng  and  asportation ;  and  as  the  right  of  possession,  as  well  as 
the  right  of  property,  continues  in  tab  owner,  every  such  act  is  a  new 
•violation  of  the  owner's  right  of  property  and  possession,  and  so  it  may 
be  said,  at  each  removal,  to  be  t-ken  from  his  possession,  i    But  in 
principle  these  cases  are  not  strictly  analogous.     If  the  offense  is  com- 
mitted anywhere  within  the  realm  of  England,  in  whatever  county,  the 
same  law  is  violated,  the  same  punishment  is  due,  the  rules  of  evidence 
and  of  law  governing  every  step  of  the  proceedings  are  the  same,  and  it 
is  a  mere  question  where  the  trial  shall  be  had.     But  the  trial,  wherever 
had,  is  exactly  the  same,  and  the  results  are  the  same.     A  conviction  or 
acquittal  in  any  one  county,  is  a  bar  to  any  indictment  in  every  other ; 
so  that  the  question  as  to  the  place  of  trial  is  comparatively  imma- 
terial.    But  even  in  England,  a  crime,  being  an  offense  against  the  laws 
of  England,  committed  on  the  high  seas,  and  not  within  the  body  of 
any  county,  can  not  be  tried  in  any  county,  but  only  in  the  courts  of 
admiralty  jurisiliction ;  and  a  fortiori  an  offense  committed  in  a  foreign 
country,  by  persons  not  there  amenable  to  the  laws  of  England,  could 
not,  upon  principle,  be  tried  and  punished  in  England ;  and  the  rule, 
that  when  the  goods  are  feloniously  taken  and  brought  into  a  county,  it 
may  be  charged  and  tried  as  an  offense  in  that  county,  did  not  anciently 

1  2  Rus§.  on  Cr.  (7th  Am.  ed.)  113,  IIU. 


504 


LARCENY. 


extend  to  goods  Stolen  in  anyplace  not  within  toe  common-law  juris- 
diction.!     And  a  si.nilar  exception  took  place  in  regard  to  good,  stolen 
in  Scotland  or  Ireland,  and  brought  into  England,  until  altered  by 
statutes  13  George  III.«  and  7  and  8  George  IV.3    And  the  eff.c  o 
these  English  statutes  was,  that  where  goods  were  stolen  in  one  part  of 
the  United  Kingdom,  and  carried  into  another  by  the  thief,  or  received 
by  one  knowing  them  so  to  have  been  stolen,  the  thief  or  receiver  might 
be  indicted  and  tried  in  that  part  of  the  United  Kingdom  where  the 
goods  were  found.     This  was  within  the  principle,  that,  in  whatever 
part  of  the  same  government  the  offense  was  first  committed,  the  same 
law  was  violated,  the  same  rule  and  measure  of  punishment  attached 
and  with  the  same  consequences,  in  whatever  part  of  the  terrUory  of 
the  same  government  the  trial  was  had.     But,  even  under  the  English 
statutes,  one  who  steals  goods  in  Jersey,  and  carries  them  into  England, 
can  not  be  tried  there  for  larceny,  Jersey  not  being  in  the  United  King- 
dom within  the  meaning  of  those  statutes.  ■»  .       .     .        •♦ 
Such  being  the  rule  of  the  English  law,  we  are  next  to  inquire  how  it 
stands  in  this  State,  and  in  the  other  States  of  the  Union.     In  some  of 
the  States  it  is  held  that  according  to  the  English  rule  in  respect  to 
counties,  the  carrying  of  stolen  goods  by  the  thief  into  another  State 
from  the  one  in  which  they  were  stolen,  is  a  new  caption  and  a  new  as- 
portation in  the  State  into  which  they  are  thus  carried.     In  other  States 

a  different  rule  is  held.  '  ,        ^    ^  ,        ^^a^ 

In  Pennsylvania  it  has  been  held  that  such  carrying  of  stolen  goods 

by  the  thief  into  another  State,  and  possession  of  them  there,  is  not 

larceny  in  the  latter.*    So  in  North  Carolina  and  Tennnessee.*    And  in 

T'JfiW  York  « 

But  a  different  rule  has  been  adopted  in  Maryland,^  in  Ohio,9  in  Ver- 

mont,*"  and  in  Connecticut."  ^    , 

The  same  rule  also  that  such  bringing  in  of  stolen  goods  is  larceny, 
has  been  adopted  in  this  Commonwealth,  in  two  cases  next  to  be  cited. 
It  seems  to  have  been  considered  that,  although  the  several  States  are, 
in  their  administration  of  criminal  law,  regarded  as  sovereign  and  inde- 
pendent, yet,  as  they  were  originally  English  colonies^  and  acknowledged 
their  subjection  to  the  common  law  of  England,  and  claimed  its  privi- 
lecres,  and  all  eoually  derived  their  principles  of  criminal  jurisprudence 


1  3  Inst.  113;  1  Hawk.  P.  C,  ch.  33,  sec.  52. 
J  oh.  81,  BBC.  4. 

3  ch.  29,  BCC.  76 ;  Rex  v.  Anderson,  2  East  s 
P.  C.  "72 ;  Rex  v.  Prowei,  1  Moo.  C.  C.  349. 

4  Rex  V.  Prowes,  1  Moo.  C.  0.  349.    See, 
also,  Reg.  V.  Madge,  9  C.  A  P.  W. 

»  Simmons  r.  Com.,  5  Blnn.  617. 


«  State  ».  Brown,  1  Hayw.  100;  Simpson  v. 
State,  4  Humph.  456. 

'  People  t>.  Gardner,  8  Johns.  477 ;  People 
i».  Schenck,  S  Johns.  479. 

•  Curomings  v.  State,  1  Harr.  ft  J.  340. 

•  Hamilton  r.  State,  11  Ohio,  43.1. 

10  State  t'.  Mockridge,  cited  in  11  Vt.  654. 
U  SUte  *.  Ellis,  3  Conn.  186. 


"  -- 


COMMONWEALTH   V.  UPRICHARO. 


60» 


Don-law  juris- 
>  goocU  stolen 
til  altered  by 
1  the  effect  of 
in  one  part  of 
jf ,  or  received 
receiver  might 
lorn  where  the 
;,  in  whatever 
itted,  the  same 
ment  attached, 
he  territory  of 
ier  the  English 
1  into  England, 
e  United  King- 

( inquire  how  it 
n.  In  some  of 
e  in  respect  to 
[)  tinotlier  State 
a  and  a  new  as- 
In  other  States 

of  stolen  goods 
m  there,  is  not 
essee.'    And  in 

n  Ohio,9  in  Ver- 

oods  is  larceny, 
next  to  be  cited, 
sveral  States  are, 
ereign  and  inde- 
nd  acknowledged 
ilaimed  its  pri  vi- 
tal jurisprudence 

layw.  100;  Simpson  v. 

•,  2  Johns.  477 ;  People 

9. 

e,  1  Harr.  ft  J.  340. 

,  11  Ohio,  43.1. 

e,  cited  in  11  Vt.  6M. 

tnn.  185. 


mainly  from  that  source,  and  as  they  had  been,  both  before  and  since 
the  Revolution,  closely  united  for  many  purposes,  there  was  an  analogy, 
more  or  less  strict,  between  the  relations  of  these  States  to  each  other, 
and  those  of  countries  under  the  same  government ;  and  therefore  that 
the  same  rule  might  be  safely  adopted. 

The  first  was  the  case  of  Commonwealth  v.  Collins.^  The  goods  were 
stolen  in  Rhode  Island  and  brought  into  Massachusetts.  The  court  in- 
structed the  iary  that  stealing  goods  in  one  State  and  carrying  them 
into  another  State  was  similar  to  stealing  in  one  county  and  carrying 
them  into  another,  and  was  larceny  in  both ;  and,  therefore,  if  the  facts 
were  proved,  the  jury  would  find  the  defendant  guilty  of  stealing  in 
Massachusetts.     But  this  point  was  not  argued. 

In  Commonwealth  v.  Andrews,^  the  defendaht  was  convicted  of  receiv- 
ing stolen  goods,  which  had  been  stolen  in  New  Hampshire  and  brought 
into  this  Commonwealth ;  and  the  court  held  that  the  stealing  of  them 
was  larceny  in  this  Commonwealth,  and  rendered  the  defendant  an- 
swerable for  receiving  the  goods,  knowing  them  to  be  stolen.  And  in 
the  same  case,  Dana,  C.  J.,  mentioned  the  case  of  Paul  Lord,  tried  in 
York  in  1792,  before  the  publication  of  reports,  in  which  it  was  held 
that  stealing  goods  in  another  State  and  bringing  them  into  this  wore 
larceny  in  this.  And  that  learned  chief  justice  thought  that  many  more 
cases  had  been  determined  on  the  same  grounds.  Some  of  the  judges, 
however,  in  this  case,  were  of  opinion,  upon  the  facts  stated,  that  there 
had  been  a  second  taking  of  the  goods  in  this  State,  so  as  to  make  it 
actual  stealing  Massachusetts. 

It  has  been  argued  that  the  same  rule  ought  to  api%  to  foreign  gov- 
ernments as  to  the  several  States  of  the  Union,  because  in  their  respec- 
tive jurisdictions,  and  in  the  laws  which  regulate  their  internal  police, 
these  are  as  much  foreign  to  each  other  as  each  State  is  to  foreign  gov- 
ernments. Perhaps,  if  it  were  a  new  question  in  this  Commonwealth, 
this  argument  might  have  some  force  in  leading  to  another  decision  in 
regard  to  the  several  American  States.  But  supposing  it  to  be  estab- 
lished by  these  authorities,  as  a  rule  of  law  in  this  Commonwealth,  that 
goods  stolen  in  another  State,  and  brought  by  the  thief  into  this  State, 
are  to  be  regarded  technically  as  goods  stolen  in  this  Commonwealth,  we 
think  this  forms  no  sufficient  ground  for  carrying  the  rule  further,  and 
applying  it  to  goods  stolen  in  a  foreign  Territory,  under  the  jurisdiction 
of  an  independent  government,  between  which  and  our  own  there  is  no 
other  relation  than  that  effected  by  the  laws  of  nations.  Laws  to  pun- 
ish crimes  are  essentially  local,  and  limited  to  the  boundaries  of  the 
State  prescribing  them.     Indeed,  this  case  and  the  cases  cited  proceed 


1  1  Mass.  IKi. 


2  2  Mass.  14. 


50fi 


LARCENY . 


commission  of  the  cnme  m  Nova  ScoUa       ^_^^^^^^  ^^^^^^^.^^^ 
and  did  not  subject  the  ««;"^;^;;;JJ'^^       and  alleges  the  crime  of 
l,w.    This  indictment  P'^^^^^^  °\  ^^^^^^  of  tke  law.  of  this  Common- 
larceny  to  have  been  committed  ^^^f^     j,  .,  ,„iy  ^y  assumingthat 
wealth,  and  within  the  body  «'  *^   ^^J        i„to  this  State  makes  the 
„,nging  stolen  ^^^^'^ ''Zt\TZ^ZZn  be  sustained;  but  th.s 
tlie  act  of  larceny  here  that  this  aUega         ^^^^^  ,^  ^^^^  ^^^^.^^  ^^  ^^, 
involves  the  necessity  o  gomg  to  the  la         ^^^,^^^^^  ^^^^  consequently 
certain  whether  the  act  done  tberej^a  ^^^^^.^^^  ^^^^^^^^^ 

whether  the  goods  were  stolen ;    o  ^^"^^^^  %  J       ^ere.     Were  it  any 

of  the  forces  of  both  law«  ^^^J  *  ^Fch  gives  an  ambulatory  character 
other  offense  than  that  of  larcenjj^hc^^^^  ^^^  g„Uty  possession  of 
to  the  offense,  by  the  movable  charac^^^  ^^^^  ^^^  ^^  ^^^^^^.i, 

the  goods  stolen,  there  could  be  no  c  ouDt  ^^enable  to  pen- 

pretense  that  our  law  had  ^^^^'^ J^tltssCin^^^^^  °'  ^'^ 

Uies  created  by  it.     "^^e  Union  f^^^^^^^^^  clause  provid- 

into  Vermont  the  ^^^  ^  ^^tk  the  case  is  not  supported  by 

that  such  had  been  the  practice  principle. 

the  current  of  '^"t»^«"'>««V*     of  iS^on  of  the  place  where  a  party 

I,  this  was  a  mere  q-;*;"l"  «' ^;^1^^^^^^^^^     technical  question ;  but   t 

should  be  tried,  it  would  be  ««b8tanUaUy  .^  ^^^  ^^  ^^.^^^, 

stands  on  very  different  grounds.     Here  the  q  .^  ^^.^  ^^^^  ^^^^, 

pie,  whetherthe  defendants  have  ^^<?'f  ^/jj^;       ds  in  our  jurisdic- 

Lrimit  a  new  theft,  \y ^'^^  ^^^  Ir ^^^^^l^.  to  our  own  law,  or 

tion.     But  what  are  stolen  Soo^'-J^       ^^at  is  a  felonious  takmg, 

to  the  law  of  Nova  Scotia,  to  f-^^^.T  If  we  look  to  the  law  of 

what  is  the  «"^"»«\>:7^^;  *^Lrent  from  ours,  in  defining  and  pre- 

Nova  Scotia,  and  that  l'-^. -/;2d  on  L  punish  as  a  crime  that  which 

scribing  theft,  tl-^e  ma   be  c^l^d  o  ^^^P^^  ^^^  ^^^^^  ^  ^^^.„        , 

would  be  innocent  here.     If  we  loo  circumstances  which 

carrying  away  of  f  "f^/'^JX^fbe  minishable  here.  Foreigners, 
would  not  be  criminal  there,  ^f^^'J  ^^^  ,,„  iyi„g  with  thecu.- 
coming  within  our  jurisd.  ion  wi^^^^^^^^^^  commit  none  in  removing 
tomary  regulations,  commit  no  offense, 


1  a  vt.  030. 


COMMONWEALTH   V.  UI'BICHAnU. 


507 


liig  State.    The 
,tion  of  our  law, 
•escribed  by  our 
;gc3  the  crime  of 
of  tbis  Common- 
by  assuming  that 
State  makes  the 
itained ;  but  this 
ova  Scotia,  to  as- 
md  consequently 
iinbined  operation 
re.     Were  it  any 
)ulatory  character 
lilty  possession  of 
,  and  no  plausible 
amenable  to  pen- 
ionstitution  of  the 
ntal  clause  provid- 
stice,  and  also  for 
iderbyourgovern- 

ett,^  in  which  it  was 
,y  the  thief  brought 
cted,  on  the  ground 
is  not  supported  by 

)le. 

place  where  a  party 
cal  question;  but  it 
tion  is  one  of  princi- 
It  is  said  that  they 
roods  in  our  jurisdic- 
)k  to  our  own  law,  or 

a  felonious  taking, 
ve  look  to  the  law  of 
,  in  defining  and  pre- 
i  as  a  crime  that  which 

iw,  then  a  taking  and 
circumstances  which 
)le  here.  Foreigners, 
omplying  with  the  cus- 
imitnone  in  removing 


them  from  place  to  place  in  the  same  or  differeut  counties.  If  tiiey 
can  be  iiuHcted  and  punished  here,  on  the  ground  that  such  goods  were 
stolon  goods  when  they  were  brought  in,  it  is  but  another  mode  of 
charging  that  the  goods  were  obtained  by  a  violation  of  the  criminal 
laws  of  another  country,  and  our  courts  must  necessily  take  juris- 
diction of  the  violations  of  the  criminal  laws  of  foreign  inde- 
pendent governments,  and  punish  acts  as  criminal  here,  solely  because 
they  are  in  violation  of  the  laws  of  such  government,  and  which,  but 
for  such  violation,  would  not  be  punishable  here.  It  seema  difficult  to 
distinguish  this  from  judicially  enforcing  and  carrying  into  effect  the 
penal  laws  of  another  government,  instead  of  limiting  our  criminal  juris- 
prudence to  the  execution  of  our  own. 


1  In  Com,  V.  Holder,  9  Gray,  T,  it  wai  held 
by  tlie  game  court  that  stealing  goods  in  an- 
another  of  the  United  States,  formerly  a 
colony  of  Great  Britain,  and  bringing  them 
into  this  Commonwealth,  may  be  punished 
Hslarcony  here.  Thomas,  J.,  dissenting  in 
an  exhaustive  opinton. 

Indictment  for  stealing  at  Hilford  in  this 
county  goods  of  Henry  VV.  Dana.  At  the 
trial  in  the  Court  of  Common  Pleas  there 
wag  evidence  that  the  defendant  broke  and 
entered  the  shop  of  said  Dana  at  SmithOeld, 
in  the  State  of  Rhode  Island,  and  stole  the 
jcoods  mentioned  In  tho  indictment,  and 
brought  them  into  this  county.  The  defend- 
ant asked  that  the  Jury  might  be  instructed 
that  the  indictment  could  not  be  maintained, 
liccause  the  courts  of  this  State  could  not 
take  cognizance  of  a  larceny  committed  in 
another  State.  But  Mellon.C.  J.,  refused  so 
to  instruct  the  Jury,  and  instructed  them  that 
the  evidence.  If  believed,  was  sufficient  to 
support  the  indictment.  The  defendant 
being  convicted,  alleged  exceptions. 

Shaw.C.  J.  A  majority  of  the  court  are 
ot  opinion  that  this  case  must  be  considered 
as  settled  by  the  case  of  Com.  v.  Upriehard, 
3  Gray,  434,  and  the  principles  stated,  and 
the  precedents  cited.  Though  to  some  ex- 
tent these  colonies  beforo  the  Revolution 
were  distinct  governments,  and  might  have 
(UtTerent  laws,  it  was  not  unreasonable,  as 
they  all  derived  their  criminal  Jurlspm- 
(lence  from  the  English  common  law,  to  re- 
sard  the  rule  applicable  to  a  theft,  in  an 
Knglish  county  of  goods  carried  by  the  thief 
into  another,  as  analogous,  and  adopt  It. 
We  are  of  opinion  that  Massachusetts  did 
adopt  It,  and  this  is  established  by  judicial 
precedent,  before  and  since  the  Revolution, 
and  is  now  settled  by  authority  as  the  law 
of  this  State. 


Neio  trial  ordered. 


TBOHA8,  J.  The  real  question  in  this  case 
is,  whether  the  defendant  can  be  indicted, 
convicted,  and  punished  in  this  Common- 
wealth for  a  larceny  committed  in  the  State 
ot  Rhode  Island.  If  it  were  a  new  question, 
it  would  be  enough  to  state  it.  The  obvious, 
the  concluslvr  tnswer  to  the  indictment 
would  be,  thai  the  oifense  was  committed 
within  the  jurisdiction  of  another,  and,  so 
far  as  this  matter  is  concerned,  independent 
State,  ot  whose  law  only  it  was  a  violation, 
and  ot  which  its  courts  have  exclusive  cog- 
nizance. By  the  law  of  that  State  tho  of- 
fense is  defined  and  its  punishment  meas- 
ured. By  the  law  which  the  defendant  has 
violated  he  is  to  be  tried.  Whether  the  acts 
done  by  hi-n  constitute  larceny,  and,  if  so, 
of  what  degree,  must  be  determined  by  that 
law.  Its  penalties  only  he  has  incurred. 
Its  means  ot  protection  and  deliverance  he 
may  justly  invoke,  and  especially  a  trial  by 
a  jury  of  bis  peers  in  the  vicinage  where  the 
oifense  was  committed. 

This  obvious  view  ot  the  question  will  be 
found  upon  the  reflection,  I  think,  to  be  the 
only  one  consistent  with  the  reasonable 
security  ot  the  subject  or  the  well  defined 
relations  ot  the  States.  It  is  well  known  that 
the  laws  of  the  States  upon  the  subject  ot 
larceny  materially  diifer.  In  most  ot  them 
the  common  law  of  larceny  has  been  greatly 
modifled  by  statutes.  The  jurisprudence  of 
all  is  not  even  based  on  the  common  law. 
In  sev.,ral  the  civil  law  obtains. 

In  cases  where  a  difference  of  law  exists, 
by  which  law  is  the  defendant  to  be  ad- 
Judged ;  the  law  where  the  o6fense  (it  any) 
was  committed,  or  where  it  is  tried?  For 
example,  the  defendant  Is  charged  with 
taking  with  felonious  intent  that  which  is 
parcel  of  the  realty,  as  the  gearing  of  a  mill 
or  fruit  from  a  tree.    By  ihe  S'it.  o£  18B1,  ch. 


508 


LARCENY. 


LARCENY- BRINGING  INTO  STATE  PROPERTY  STOLEN  IN  A  F0R3IGN 

COUNTRY. 

Stanley  v.  State. 

[24  Ohio  St.  166.1 
In  the  Supreme  Court  of  Ohio,  1873. 

One  can  not  be  Convicted  of  larceny  in  Ohio,  for  bringing  into  Ohio  property  Jtolen  by 
him  in  Canada. 

McIlvaine,  J.  At  the  November  term,  1873,  of  the  Court  of  Com- 
mon Pleas  of  Cuyahoga  County,  the  plaintiff  in  error,  William  Stanley, 
was  convicted  of  the  crime  of  grand  larceny,  and  sentenced  for  a  term 
of  years  to  the  penitentiary. 


154,  the  act  is  larceny  In  this  Commonwealth. 
H  it  appears  that  in  the  State  where  the 
act  was  done  it  was,  as  under  the  common 
law,  but  a  trespass,  which  law  has  the  de- 
fondant  violated,  and  by  which  is  he  to  be 
tried?    Or  suppose   the  defendant   to  be 
charged  with  the  stealing  of  a  slave  —  a 
felony  in  the  State  where  the  act  is  done, 
but  an  offense  not  known  to  our  laws.    The 
difficulty  in  both  cases  is  the  same.    You 
have  not  only  conflicting  Jurisdietioni,  but 
different  rules  of  conduct  and  of  judgment. 
But  supposing  the  definitions  of  the  of* 
fense  to  be  the  same  in  the  two  States,  the 
punishment  maybe  very  different.   Where 
■uch  difference  exists,  which  penalty  has 
the  defendant  justly  incurred,  and  which  is 
he  to  suffer?   For  example,  the  offense  Is 
punishable    by    imprisonment    in    Rhode 
Island,  say  for  a  year ;  in  this  Slate  the  same 
offense  is  punishable  by  imprisonment  from 
one  to  fivo  years ;  is  the  defendant  liable  to 
the  heavier  punishment?   Or  suppose  he 
has  been  convicted  'n  Rhode  Island,  and  in 
consideration  of  his  having  Indemnified  the 
owner  for  the  luil  value  of  goods  taken,  his 
punishment  has  been  more  mercifully,  meas- 
ured to  him,  can  be,  after  he  hab  suffered 
the  punishment,  and  because  the  goods 
were,  after  the  larceny,  brought  into  thia 
State,  be  made  to  suffer  the  penalty  of  our 
law  for  the  same  offense?   Or  suppose  him 
to  have  been  convicted  in  Rhode  Island  and 
a  full  pardon  extended  to  him,  can  he  be 
tried  and  convicted  and  punished  here? 

Again ;  the  power  to  indict,  convict  and 
punich  the  offense  in  this  State  proceeds 
upon  the  ground  that  the  original  caption 
was  felonious.  If  the  original  taking  was 
innocentor  buta  trespass,  the  bringing  into 


this  State  would  not  constitute  a  larceny. 
You  must  therefore  leok  at  the  law  of  the 
State  where  the  first  caption  was  made. 
And  how  is  the  law  of  another  State  to  be 
ascertained?  What  is  the  law  of  another 
State  is  a  question  of  fact  for  the  Jury.  The 
jury  in  this  way  are  in  a  criminal  case  made 
not  only  to  pass  upon  the  law,  but  to  pass 
upon  it  as  a  matter  of  evidence,  subject, 
strictly  speaking,  neither  to  the  direction 
nor  the  revision  of  the  court. 

Again :  the  defendant  is  indicted  here  for 
the  larceny  committed  in  Rhode  Island; 
while  in  custody  here  awaiting  his  trial,  he 
is  demanded  of  the  executive  of  this  State 
by  the  executive  of  Rhode  Island  as  a  fugi- 
tive from  the  justice  of  that  State,  under  the 
provisions  of  the  Constitution  of  the  United 
States,  art.  4,  sec.  2,  and  the  U.  8.  Stat,  of 
1793,  ch.  46.    Is  he  to  be  tried  here,  or  sur- 
rendered up  to  the  State  where  the  offense 
was  committed  and  tried  there?   Or  It  he 
has  been  already  tried  and  convicted  and 
punished  in  this  State,  is  he  to  be  sent  bark 
to  Rhode  Island  to  be  tried  and  punished 
again  for  the  same  offense?   And  would  his 
conviction  and  punishment  here  be  any 
answer  to  the  indictment  there?   Or  if  he 
has  been  fully  tried  and  acquitted  here  and 
then  demanded  by  the  executive  of  Rhode 
Island,  is  he,  upon  requisition,  to  be  spnt  to 
that  State  to  be  again  tried,  to  be  twice  put 
in  jeopardy  for  the  same  offense?   It  is  quite 
plain  no  ground  in  law  would  exist  for  a  re- 
fusal to  surrender. 

The  defendant  was  indicted  for  larceny, 
not  for  the  offense  of  bringing  stolen  goodi 
into  the  Commonwealth.  He  was,  under  the 
instruction  of  the  presiding  judge,  tried  for 
the  larceny  in  Rhode  Island,  was  convicted 


rtrfi 


STANLEY   V.  8TATK. 


509 


IN  A  FOREIGN 


The  indictmont  upon  which  he  was  convicted  clmrj?cd  "  that  William 
Stanley,  late  of  the  county  aforesaid,  on  tho  twentieth  day  of  June,  in 
tlie  year  one  thousand  eight  hundred  and  seventy-three,  at  thd  county 
aforesaid,  with  force  and  arms,"  certain  silverware,  "  of  the  floods  and 
chattels  and  property  of  George  P.  Harris,  then  and  there  being,  tlicn 


property  ttolen  by 

Court  of  Com- 
illiam  Stanley, 
ced  for  a  term 


nititute  a  larceny. 
[  at  the  law  of  the 
aption  was  made, 
nother  State  to  be 
le  law  of  another 
t  tor  the  Jury.  The 
criminal  case  made 
he  law,  but  to  paBS 
I  evidence,  eabjcct, 
er  to  the  direction 
ourt. 

is  Indicted  here  for 
In  Rhode  Island; 
ivaltlng  his  trial,  he 
cutiveof  this  State 
de  Island  as  a  tugl- 
hat  State,  under  the 
tntlon  of  the  United 
id  the  U.  S.  Stat,  of 
3  tried  here,  or  sur- 
,e  where  the  otFense 
ed  there?   Or  if  he 
and  convicted  and 
!•  he  to  be  sent  bark 
tried  and  punished 
ise?   And  would  his 
iment  here  be  any 
snt  there?   Or  if  he 
1  acquitted  here  and 
executive  of  Rhode 
lisltion,  to  be  ipnt  to 
rled,  to  be  twice  put 
9  offense?   It  is  quite 
wouldezlBtforare- 

ndlcted  for  lareeny. 
Tinging  stolen  goodi 
I.  He  was,  under  the 
Iding  Judge,  tried  for 
Bland,  was  convicted 


for  the  larceny  in  Rhode  Island,  and  must  be 
punished,  if  at  all,  (or  the  loroeny  in  Rhode 
Island.  And,  under  the  rule  given  to  the 
Jury,  is  presented  a  case  where,  (or  one  and 
tho  sumo  moral  act,  (or  one  and  the  same 
violation  of  the  rights  of  property,  the  sub- 
ject may  bo  twice  convicted  and  punished. 
Nny  more,  if  a  man  had  stolen  a  watch  in 
Kliodo  Island  and  traveled  with  it  into  every 
Stnto  o(  the  Union,  he  might,  under  the  rule 
given  to  tlio  jury,lf  his  life  endured  so  long, 
be  indicted  and  punished  in  thirty-two 
States  (or  one  and  the  same  offense. 

And  it  Is  well  to  observe  that  It  la  the 
retention  of  the  property  which  Is  the  cause 
o(  the  now  offense,  and  the  carrying  of  It 
from  the  place  of  capton  into  another  State. 
I(  the  de(cndant  had  stolen  property  in 
Khode  Island,  and  consuir  jO  k  destroyed 
it,  and  then  had  removed  to  Massachusetts, 
l)iit  one  offense  wmild  have  been  committed, 
and  that  in  Rhodb  Island. 

Such  are  some  of  the  more  obvious  dUB- 
cu!ties  attending  the  position  that  an  of- 
fense committed  in  one  Gtate  may  be  tried 
ftiul  punished  in  another.  The  doctrine 
violates  the  first  and  most  elementary  prin- 
ciples of  government.  No  State  or  people 
cun  assume  to  jiunlsh  a  man  for  violating 
tho  laws  of  another  State  or  people.  The 
surrender  of  fugitives  from  Justice,  whether 
under  tho  law  of  nations,  treaUus  with  forr 
eigii  powers,  or  the  provisions  of  the  Con- 
stitution of  the  United  States,  proceeds 
upon  the  ground  that  the  fugitive  can  not 
be  tried  and  punished  by  any  other  Jurisdic- 
tion than  the  one  whose  laws  have  been  vio- 
lated. Even  in  cases  of  the  invasion  of  one 
country  by  the  subjects  of  another,  it  is  the 
violation  of  its  own  laws  of  neutrality,  that 
the  latter  country  punishes,  and  not  the 
violation  of  the  laws  of  the  country  invaded. 
The  exception  of  piracy  is  apparent  rather 
than  real.  Piracy  may  be  punished  by  all 
nations,  because  it  is  an  offense  against  the 
law  o(  nations  upon  the  seas,  which  are  the 
highways  of  nations. 

The  ruling  of  the  learned  chief  Justice  of 
the  Common  Pleas  was,  I  may  presume, 
based  upon  the  decisions  of  this  court  In 
Com.  V.  CuUins,  1  Mas*.  116,  and  Com.  v.  An- 
drews, 2  Mass.  11. 

It  is  certainly  the  general  duty  of  the 


court  to  adhere  to  tho  law  as  decided.  Es- 
pecially is  this  the  case  where  a  change  in  the 
decision  would  impair  the  tenure  by  which 
the  rights  and  property  of  the  subject  are 
held.  But  even  with  respect  to  those,  whore 
it  is  cinar  a  case  has  been  decided  against 
the  well  iiettled  principles  of  law  and  of 
reason,  it  Is  the  duty  and  tho  practice  of  tho 
courts  to  revise  such  decision;  and  to  re- 
place the  law  on  its  old  and  solid  founda- 
tion. This  is  peculiarly  the  duty  of  the 
courts  where  such  decision  works  its  injus- 
tice by  impairing  the  personal  rights  of  iln 
citizen,  or  by  subjecting  him  to  burdens  and 
penalties  which  he  never  Justly  Incurred. 

In  my  Judgment,  the  courts  o(  tlii  um- 
monwealth  have  not,  and  never  lia>i,  under 
the  Constitution  o(  the  Unite  i  States  or 
otherwise,  the  rightful  power  to  try  a  mau 
for  an  offense  co.nmitted  in  another  Stntc. 
It  is  in  vain,  it  seems  to  me,  to  attempt  to 
preserve,  and  make  rules  of  conduct,  decis- 
ions founded  upon  wholly  erroneous  views 
of  the  relations  which  the  States  of  the 
Union  bear  to  each  other  under  the  Consti- 
tution, and  in  conflict  with  well  settled  priu- 
ciples  of  constitutional  and  international 
laws. 

I  should  be  content  to  rest  my  dissent 
from  the  Judgment  of  the  court  in  the  case 
at  bar  upon  the  principles  afHrmed  in  the 
recent  case  of  Com.  v.  Uprichard,  3  (jrny, 
434;  ant;  p.  3*1.  In  effect  that  case  over- 
rules, as  its  reasoning  thoroughly  under- 
mines, the  earlier  cases.  They  can  not 
stand  together. 

But  as  the  decision  in  the  case  at  bar  rests 
upon  the  authority  of  the  case  in  the  first 
and  second  of  Massachusetts  Reports,  it 
may  be  well  to  examine  with  care  the 
grounds  upon  which  they  rest.  Such  an  ex- 
amination will  show,  I  think,  not  only  that 
the  cases  were  put  upon  erroneous  views  as 
to  the  relation  of  the  States,  but  that  they 
were  also  unsound  at  common  law. 

In  the  case  of  Com.  v.  Culllns,  a  Jury  trial 
where  three  Judges  of  the  court  were  pres- 
ent, the  evidence  showing  that  the  goods 
were  taken  in  the  State  of  Rhode  Island, 
Mr.  Justice  Sedgwick,  who  charged  the  Jury, 
said  that "  the  court  were  clearly  of  opinion 
that  stealing  goods  in  one  State  and  convey- 
ing stolen  goods  into  another  State  was 


510 


LARCENY. 


and  there  uulawfully  ind  feloniously  did  steal,  take  and  carry  away," 
etc. 

The  following  facts  were  proven  at  the  trial :  — 

1.  That  the  goods  described  in  the  indictment  belonged  to  Harris, 
and  were  of  the  value  of  one  hundred  and  sixty-iive  dollars. 


Bimilnr  to  stcalin,i;  goods  in  one  county  and 
conveying  the  stolen  goods  into  another, 
which  was  always  holden  to  be  lelony  in 
both  counties."  Whatever  the  points  of 
similarity,  there  was  this  obvious  and  vital 
difference,  to  wit,  that  conviction  in  one 
county  was  a  bar  to  convi«tion  in  another, 
and  that  conviction  in  one  State  is  no  bar  to 
conviction  in  another  State. 

It  was  a  doctrine  of  the  common  law, 
that  the  asportation  of  stolen  goods  from 
one  county  to  another  was  a  new  caption 
and  felony  in  the  second  county ;  a  legal  Ac- 
tion devised  for  greater  facility  in  convict- 
ing the  offender  where  it  was  uncertain 
where  the  ffrst  caption  took  place.  The 
foundation  of  the  rule  was  that  the  posses- 
sion of  the  owner  continued,  and  that  every 
moment's  continuance  of  tlie  trespass  may 
constitute  a  ca|<tion  as  well  as  the  first 
tailing.  But  in  what  respect  was  the  taking 
in  one  State  and  conveying  into  another 
State  similar  to  the  taking  in  one  county  and 
conveying  inio  another  county?  It  could 
only  be  "  similar"  because  the  legal  relation 
which  one  State  bears  to  another  is  similar 
to  that  which  one  county  bears  to  another; 
because,  under  another  name,  there  was  the 
same  thing.  If  a  man  is  to  be  convicted  of 
crime  by  analogy,  the  analogy  certainly 
should  be  a  close  one.  Here  it  was  but  a 
shadow.  In  the  different  counties  there 
was  one  law,  one  mode  of  trial,  the  same 
interpretation  of  the  law  and  the  same 
punishment.  The  rule,  mode  of  trial,  and 
jurisdiction  were  not  changed. 

The  States  of  the  Union,  it  is  quite  plain, 
bold  no  such  relation  to  each  other.  As  to 
their  internal  police,  their  law  of  crimes 
and  punishments,  they  are  wholly  Inde- 
pendent of  each  other,  having  no  common 
law,  and  no  common  umpire.  The  provis- 
ion, indeed,  in  the  Constitution  of  the 
United  States  for  surrendering  up  fugitives 
from  Justice  by  one  State  to  anotlicr  is  a 
clear  recognition  of  the  independence  of 
the  States  of  each  other  in  these  regards. 
It  excludes  the  idea  of  any  jurisdiction  in 
one  State  over  crimes  committed  in  another, 
and  at  the  same  time  eaves  any  necessity  or 
reason  for  such  jurisdiction.  Nor  is  there 
any  p.-ovieion  in  the  Constitution  of  the 
United  States,  which  impairs  such  indei)en- 


dence,  so  far  as  the  internal  police  of  the 
State  is  concerned.  On  the  other  hand,  the 
widest  diversity  exists  in  the  institutions, 
the  internal  police  and  the  criminal  codes 
of  the  several  States,  some  of  them,  as 
Louisiana  and  Texas,  having  as  the  basis  of 
their  jurisprudence,  the  civil  and  not  the 
common  law.  In  the  relation  which  Louisi- 
ana holds  to  this  State  can  any  substantial 
analogy  be  found  to  that  which  Surrey  bears 
to  Middlesex? 

An  analogy  closer  and  more  direct  could 
have  been  found  in  the  books  when  Com.  v. 
Cullins  was  decided.    It  was  that  of  Scot- 
land to  England,  subject  both  to  one  crown 
and  one  Legislature;  yet  it  had  'jcon  de- 
cided that  when  one  stole  goods  in  Scotland, 
and  carried  them  to  England,  he  could  not 
be  convicted  in  the  latter  country.    Kcx  v. 
Anderson  (1763)  2  East's  P.  C.  772 ;  2  Rusa.  on 
Cr.  (7th  Am  ed.)  119.    Or  an  analogy  might 
have  been  found  in  the  cases  of  ^oods  stolon 
on  the  high  seas  and  brought  into  the  coun* 
ties  of  England,  of  which  the  courts  of  com- 
mon law  refused  to  take  cognizance,  because 
they  were  not  felonies  committed  within 
their  Jurisdiction,  1  Hawk.  P.C,  ch.  83,  sec. 
62 ;  3  Inst.  113.    In  these  cases  a  test  would 
have  been  found,  applicable  to  the  alleged 
larceny  of  Cullins,  to  wit,  the  offense  was 
not  committed  in  a  place  within  the  jurisd:  .:| 
tion  of  the  court,  but  In  a  place  as  foreign 
to  their  jurisdiction,  so  far  as  this  subject! 
matter  was  concerned,  as  England  or  thf 
neighboring  provinces.   The  case  of  Con 
V.  Cullins  has  no  solid  principle  to  rest  upod 
The  cabe  of  Com.  v.  Andrews,  two  yean 
later,  may  be  held  to  recognize  the  rule  laij 
down  in  Com.  v.  Cullins,  though  it  was 
indictment  against  Andrews  as  the  receivd 
of  goods  stolen  by  one  Tuttle  in  NewHamJ 
shire;  and  though  there  is,  at  the  leaa 
plausible  ground  for  saying  that  there  wl 
a  new  taking  by  Tuttle  at  Harvard  in  tl 
county  where  the  defendant  was  indict^ 
•nd  tried.    Indeed,  Mr.  Justice  Parker  I 
this  precise  ground ;  though  he  adds  tl^ 
"  the  common -law  doctrine  respecting  cou 
ties  may  well  be  extended  by  analogy  to  tl 
case  of  States,  united,  as  these  are,  untf 
one  general  government."    If  that  uni| 
was  with  reference  to   or  concerned 
internal  police  or  criminal  jurlspruded 


STANLEY   V.  STATE. 


511 


take  and  carry  away," 

at  belonged  to  Harris, 
five  dollars. 


•B  tbe  internal  police  of  the 
rned.  On  tJje  otlier  hand,  the 
lity  exiBts  in  the  InstltutionB. 
police  and  the  criminal  codes 
il  States,  some  ot  them,  as 
d  Texas,  having  as  the  basis  oJ 
udence,  the  civil  and  not  the 
In  the  relation  which  Louisl- 
this  State  can  any  substantial 
,und  to  that  vrhich  Surrey  bears 

y  closer  and  more  direct  could 
und  in  the  books  vf  hen  Com.  v. 
decided.    It  waB  that  ot  Scot- 
and.  subject  both  to  one  croven 
gi8lature;yetit  had  "jcon  de- 
hen  one  stole  goods  in  Scotland, 
them  to  England,  he  could  not 
I  In  the  latter  country.    Bex  t>. 
i763)  2  East's  P.  C.  772 ;  2  Russ .  on 
ed.)119.   Or  an  analogy  might 
jund  in  the  cases  of  goods  stolon 
seas  and  brought  Into  the  coun- 
anJ,  ol  which  the  courts  ot  com- 
^sed  to  take  cognizance,  because 
not  felonies  committed  within 
notion.  lHawk.P.C.,ch.83,Bec. 
113    In  these  cases  a  test  would 
found,  applicable  to  the  alleged 
CuUins,  to  wit,  the  offense  was 
ited  in  a  place  within  the  Jurisd:  > 
,  court,  but  in  a  place  as  foreign 
irisdiction,  so  tar  as  thia  subject- 
,B  concerned,  as  England  or  the 
ig  provinces.   The  case  ot  Com. 
,as  no  solid  principle  to  rest  upon, 
e  ot  Com.  V.  Andrews,  two  years 
be  held  to  recognize  tha  rule  laid 
3om.«.  CuUins.  though  itwaa  an 
It  against  Andrews  as  the  receiver 
tolen  by  one  Tuttle  in  New  Hamp- 
a  though  there  is,  at  the  least, 
ground  for  saying  that  there  was 
king  by  Tuttle  at  Hansard  in  the 
rhere  the  defendant  was  indicted 
Indeed,  Mr.  Justice  Parker  takes 
Ue  ground;  though  he  adds  that 
imonlaw  doctrine  respecting  coun- 
weU  be  extended  by  analogy  to  the 
States,  united,  as  these  are,  under 
eral  government."    "  t""*  »7" 
ta  reference  to  or  concerned  the 
police  or  criminal  Jurisprudence 


2.  Tl\at  they  were  stolen  from  Harris  on  the  20th  of  June,  1873,  at 
the  city  of  London,  in  the  Dominion  of  Canada. 

3.  Tliat  they  were  afterwards,  on  the  2Gth  day  of  same  month,  found 
in  the  possession  of  the  defendant,  in  said  county  of  Cuyahoga.  It  is 
also  conceded  that,  in  order  to  convict,  the  jury  must  have  found  that 
the  goods  were  stolen  by  the  defendant  in  the  Dominion  of  Canada,  and 
carried  thence  by  him  to  the  State  of  Oliio. 

Upon  this  state  of  facts,  was  the  prisoner  lawfully  convicted?     In 


of  the  several  States ;  If  it  was  not  obviously 
tor  other  different,  distinct  and  well  defined 
purposes ;  and  if  wo  could  admit  the  right 
ol  the  court  to  exten'l  by  analogy  the  pro- 
visions ot  the  criminal  law  and  so  to  enlarge 
its  Jurisdiction ;  there  would  be  force  in  the 
suggestion.  As  it  is.  we  must  be  careful  not 
to  be  misled  by  tho  errors  ot  wise  and  good 
men. 

Judge  Thatcher  puts  the  case  wholly  on 
the  felonious  taking  at  Harvard. 

Mr.  Justice  Sedgwick,  though  having  the 
same  view  as  to  the  taking  at  Harvard,  does 
not  rest  his  opinion  upon  it,  but  upon  the 
ground  that  the  continuance  of  the  tres- 
pass is  as  much  a  wrong  as  the  first  taking. 
This  doctrine  applies  as  well  where  the 
original  caption  was  in  a  foreign  country,  as 
in  another  State  of  the  Union.  If  you  hold 
that  every  moment  the  thief  holds  the  prop- 
erty he  commits  a  new  felony,  you  may 
multiply  his  offenses  ad  infinitum;  but  in  so 
carrying  out  what  is  at  the  best  a  legal  Ac- 
tien,  you  shock  the  common  sense  ot  men 
and  their  sense  of  Justice.  Mr.  Justice 
Sedgwick  will  not  admit  the  force  of  the  ob- 
jection that  the  thief  would  be  thus  twice 
punished,  but  regards  with  complacency 
such  a  result.  But  as  we  are  to  presume 
that  tbe  punishment  is  graduated  to  the  of- 
fense, and,  as  tar  as  punishment  may,  expi- 
ates the  wrong,  the  mind  shrinks  from  sush 
a  consequence.  But  saying  that  whatever 
he  might  think  upon  this  question  it  it  were 
rta  inttgra.be  puts  his  decision  upon  the 
case  ot  Paul  Lord  decided  in  1792,  and  that 
of  Com.  V,  Collins. 

Chief  Justice  Dana  relies  upon  the  cases 
before  stated  and  a  general  practice,  and 
also  upon  the  principle  that  every  moment's 
felonious  possession  is  a  new  caption. 

Such  was  the  condition  ot  the  law  in  this 
State  when  the  case  ot  Com.  v.  Uprichard 
came  before  the  court.  In  that  case  the 
original  felonious  taking  was  in  the  province 
ot  Nova  Scotia.  The  bringing  ot  tho  stolen 
goods  into  tblB  Commonwealth  wap  held  not 
to  be  a  larceny  here.  But  it  it  be  true  that 
every  act  of  reofoval  or  change  ot  possession 


is  a  new  caption  and  asportation ;  t  hat  every 
moment's  continuance  of  tli«  trespass  is  a 
new  taking;  if  this  legal  fiction  has  any  life. 
It  is  dUflcult  to  B«3  why  the  bringing  ot  the 
goods  within  another  Jurisdiction  was  not  a 
new  offense.  No  distinction  in  principle 
exists  between  this  case,  and  a  felonious 
taking  in  another  State  nnd  bringing  into 
this.  So  tar  as  the  lawo  <-■ ;  crimes  and  pun- 
ishments  is  concerned,  the  States  are  as  in- 
dependent ot  each  other  as  are  the  States 
and  the  British  Provinces. 

The  case  of  Com.  v.  Uprichard  rests,  I 
think  immovably,  upon  the  plain  grounds 
that  laws  to  punish  crimes  are  local  and 
limited  to  the  boundaries  ot  tbe  States 
which  prescribe  them ;  that  the  commission 
ot  a  crime  in  another  State  or  country  is  a 
violation  of  our  law,  and  does  not  subject 
the  offender  to  any  punishment  prescribed 
by  our  law.  These  are  principles  ot  univer- 
sal Jurisprudence,  and  as  sound  as  they  are 
universal. 

dt  is  sometimes  said  that  after  all  the 
offender  is  only  tried  and  convicted  for  tlie 
offense  against  our  laws.  This  clearly  is  not 
so.  It  is  only  by  giving  force  to  the  law  ot 
the  country  of  the  oriKinal  caption,  that  we 
can  establish  the  larceny.  It  In  the  continu  - 
ance  ot  thecaptici  felonious  by  the  law  of 
the  place  of  caption.  In  the  directions  given 
tc  the  Jury  such  effect  is  given  to  the  laws 
ot  Rhode  Island.  The  Jury  were  instructed 
that  it  the  defendant  broke  and  entered  into 
the  shopot  Henry  W.  Dana  in  Smithfield  in 
Rhode  Island,  and  thence  brought  the  goods 
into  this  county,  the  Indictment  could  be 
maintained.  The  felonious  taking  in  Rliode 
Island  is  tbe  inception  and  groundwork  of 
the  offense.  The  proceeding  is  in  substance 
and  effoct  but  a  mode  ot  enforcing  the  laws 
ot  and  assuming  Jurisdiction  over  offenses 
committed  in  another  State. 

For  the  reasons  thus  imperfectly  stated, 
I  am  ot  opinion  that  the  instructions  of  the 
Court  ot  Common  Pleas  were  erroneous, 
that  (he  exceptions  should  be  sustained,  the 
vordict  set  aside  and  a  new  trial  granted. 
Sxetption*  overruled. 


512 


LARCENY. 


common  law  oi  not,  ii  must  uo  ..  „„ ,   „_  __  outhoritative  expo- 

I,  ha,  .tood,  unchallenged  .»d  ""I""  °°'«' "  »  ^^"i  no  e.p««, 

r:-rorhrd:r3.ri-:p-.^aa.....ed,inii.e 

"t^J.":' pS-'r b-  decided  the  «o>e  ,.y  In  .ever..  .«bse,uen. 

.rrMJ^ach-...  ^e^e..^,^^^^^^^^^ 

has  not  been  decided  by  tb«  court    ana  w  extended  to 

z::^^x:^r:^^'^^  -  -.ende..ov. 

'm".;;  unwilling  ««.ctIon  the  doctrine  or  to  "f ->P'. ««  P"^.""^; 
whTreCr.  crime  cLmitted  in  a  fomgn  country,  .nd  m  volet^n  of  the 
rato/thatconutryonly^^.^y^eon.™^^ 

irtrrrrrrThrg":  .ere  .tou .  c^.  -., 


1  11  Ohio,  485.  _     . 

t  State  V.  EUU.  3  Conn.  186 ;  State  «.  Bart- 
lett  11  Vt.650;  State  v.  Underwood.  49  Me. 
m;  Wationi;.  State,  36  Miss.  693;  State  v. 


Johnson.  S  Ore.  IM;  State  ••  B"""**' " 
Iowa,  479 ;rerrel  ...  Oom.,1  D«v.  IW;  Com. 
V.  CoUiOB,  1  Maaa.  116. 


■te^ 


STANIiET  V.  STATE. 


518 


iurisdiction  of 
ight  into  this 
in  this  State? 
itries  and  this 
property  from 
id,  I  may  add, 
,te.     In  resolv' 
former  decision 
held  by  a  ma- 
a,  in  this  State, 
.  of  the  Union, 

round,  "  that  a 
ite,  had  settled 
t  to  convict  in 

rinciples  of  the 
ihan  thirty  years 
ihoritative  expo- 
eived  no  express 
in  our  ciiminal 
^orernment,  that 
o  be  overruled; 
sustained,  in  like 

5  added  that  the 
;he  couila  of  sev- 

sveral  subsequent 
er,  now  before  us 
mously  of  opinion 
ot  be  extended  to 
independent  sov- 

lopt  the  practice, 
in  violation  of  the 
a  mere  fiction,  be 
i  in  violation  of  the 
n  Canada.    They 

i;  State  v.  Bennrtt.  M 
Oom.,1  D»v.  IW;  Com. 
6. 


were  there  taken  from  the  custody  of  the  owner  into  the  custody  of  the 
tliief.  The  change  of  possession  was  complete.  The  goods  were  after- 
ward carried  bj'  the  thief  from  the  Dominion  of  Canada  to  the  State  of 
Ohio.  During  the  transit  his  possession  was  continuous  and  uninter- 
rupted. Now,  the  theory  upon  which  this  conviction  is  sought  to  ^e 
sustained  is,  that  the  legal  possession  of  the  goods  remained  all  (be 
while  in  the  owner.  If  this  theory  be  true,  it  is  true  as  a  fiction  of  the 
law  only.  The  fact  was  otherwise.  A  further  theory  in  support  of  the 
conviction  is,  that  as  soon  as  the  goods  arrived  within  the  State  of  Ohio, 
the  thief  again  took  them  from  the  possession  of  the  owner  into  his  own 
possession.  This  theory  is  not  supported  by  the  facts.,  nor  is  there  any 
presumption  of  law  to  sustain  it. 

That  the  right  of  possession,  as  well  as  the  right  of  property,  re- 
mained all  the  time  in  the  owner  is  true,  as  matter  of  law.  And  it  is 
also  true,  as  a  matter  of  .fiction,  and  the  possession  of  the  thief,  al- 
though exclusive  as  it  must  have  been  in  order  to  make  hi;in  a  thief,  is 
regarded  as  the  possession  of  the  owner,  for  some  purposes.  Thus, 
stolen  goods,  while  in  the  possession  of  the  thief,  may  be  again  stolen 
by  another  thief ;  and  the  latter  may  be  charged  with  the  taking  and 
carrying  away  the  goods  of  the  owner.  And  for  the  purpose  of  sus- 
taining such  charge,  the  por-^ssion  of  the  first  thief  will  be  regarded 
as  the  possession  of  the  true  owner.  This  fiction,  however,  in  no 
way  changes  the  nature  of  the  facts  which  constitute  the  crime  of 
larceny. 

What  we  deny  is,  that  a  mere  change  of  place  by  the  thief,  while  he 
continues  in  the  uninterrupted  and  exclusive  possession  of  the  stolen 
property,  constitutes  a  new  "taking"  of  the  property,  either  as  a  mat- 
ter of  fact,  or  of  law. 

Larceny  under  the  statute  of  this  State,  is  the  same  as  at  com- 
mon law,  and  may  be  defined  to  be  the  folonious  taking  and  carrying 
away  of  the  personal  property  of  another.  But  no  offense  against  (his 
statute  is  complete  until  every  act  which  constitutes  an  essential  ele- 
ment in  the  crime  has  been  committed  within  the  limits  of  this  State. 
The  act  of  "  taking  "  is  an  essential  element  in  the  crime,  and  defines 
the  act  by  which  the  possession  of  the  property  is  changed  from  the 
owner  to  the  thief.  But  the  act  of  "taking"  is  not  repeated,  after 
the  change  of  possession  is  once  complete,  and  while  the  possession  of 
the  thief  continues  to  be  exclusive  and  uninterrupted.  Hence,  a  bailee 
or  finder  of  goods,  who  obtains  complete  possession  without  any  fraud- 
ulent intent,  can  not  be  convicted  of  larceny  by  reason  of  any  subse- 
quent appropriation  of  them. 

We  fully  recognize  the  common-law  practice,  that  when  property  is 
stolen  in  one  county,  and  the  thief  is  afterward  found  in  another 
3  Drfrncbs.  8A 


^mmsmmkaMm^iakita: 


'.-6iM!agi^a5i^ 


014 


LARCENY. 


county  with  the  stolen  property  in  liis  possession,  he  may  be  indicted 
and  convicted  in  either  county,  but  not  in  both.     This  practice  ob- 
tained, notwithstanding  the  general  rule,  that  every  prosecution  for  a 
criminal  cause  must  be  in  the  county  where  the  crime  was  committed. 
The  reason  for  the  above  exception  to  the  general  rule  is  not  certainly 
known,  nor  is  it  important  in  this  case  that  it  should  be  known,  as  it 
relates  to  the  matter  of  venue  only,  and  does  not  affect  the  substance 
of  the  offense.     We  are  entirely  satisfied,  however,  that  the  right  to 
prosecute  the  thief  in  any  county  wherein  he  was  found  in  possession 
of  the  stolen  property,  was  not  asserted  by  the  Crown,  because  of  the 
fact  that  a  new  and  distinct  larceny  of  the  goods  was  committed  when- 
ever and  wherever  the  thief  might  pass  from  one  county  into  another. 
His  exemption  from  more  than  one  conviction  and  punishment,  makes 
this  proposition  clear  enough.     The  common  law  provided  that  no  per- 
son should  be  twice  vexed  for  the  same  cause.     It  was  through  the 
operation  of  this  principle  that  the  thief,  who  stole  property  in  one 
county,  and  was  afterward  found  with  the  fruits  of  his  crime  in  another, 
could  not  be  tried  and  convicted  in  each  county.     He  was  guilty  of 
one  offense  only,  and  that  offense  was  complete  in  the  county  where  the 
property  was  first  "  taken  "  by  the  thief,  and  removed  from  the  place 
in  which  the  owner  had  it  in  possession. 

When  goods  piratically  seized  upon  the  high  seas,  were  afterwards 
carried  by  the  thief  into  a  county  of  England,  the  common-law  judges 
refused  to  take  cognizance  of  the  larceny,  "  because  the  original 
act,  namely,  the  taking  of  them,  was  not  any  offense  whereof  the 
common  law  taketh  knowledge,  and  by  consequence  the  bringing 
them  into  a  county,  could  not  make  the  same  a  felony  punisliable  by 

our  law."  ^ 

Tlie  prisoner  was  charged  with  larceny  at  Dorsetshire,  where  he  had 
possession  of  the  stolen  goods.  They  had  been  stolen  by  him  in  the  Island 
of  Jersey  and  afterward  he  brought  them  to  Dorsetshire.  The  prisoner 
was  convicted.  All  the  judges  (except  Raymond,  C,  B.,  and  Taunton, 
J.,  who  did  not  sit)  agreed  that  the  conviction  was  wrong.^  Property 
was  stolen  by  the  prisoner  in  France,  and  was  transported  to  London, 
where  it  was  found  in  his  possession.  Park,  B.,  directed  the  jury  to 
acquit  tlie  prisoner  on  the  ground  of  the  want  of  jurisdiction,  which  was 
done.3 

A  similar  decision  was  made  in  a  case  where  the  property  was  stolen 
in  Scotland,  and  afterward  carried  by  the  thief  into  England. < 


I  13  Coke,  68;  3  Inst.,  113;  1  Hawk.,  ch. 
19,  sec.  .12. 

1  Rex  V.  Prowes,  1  Moo.  C.G.  349. 


>  Reg.  t'.  Hadge,  9  Cow.  A  P.,  29 

*  8  East's  P.  0.,  p.  772,  cb.  16,  leo.  106. 


STANLEY   V.  STATE. 


515 


y  be  indicted 
practice  ob- 
ecutioa  for  a 
s  committed, 
not  certainly 
known,  as  it 
the  substance 
the  right  to 
in  possession 
ecause  of  the 
imitted  when- 
into  another. 
Iiment,  makes 
1  that  no  per- 
a  through  the 
operty  in  one 
ne  in  another, 
was  guilty  of 
mty  where  the 
Tom  the  place 

ire  afterwards 
on-law  judges 
I  the  original 
I  whereof  the 
the  bringing 
punishable  by 

where  he  had 
m  in  the  Island 
The  prisoner 
,  and  Taunton, 
jg.3  Property 
;ed  to  London, 
;ed  the  jury  to 
ion,  which  was 

^rty  was  stolen 
land." 


.ftF.,20 

cb.  16,  leo.  1B(. 


whereby  prosecutions  were  authorized  in  any  county  in  which  the  thief 
was  found,  in  possession  of  property  stolen  by  him  in  any  part  of  the 
United  Kingdom.  In  Commomvealth  v.  Uprichard,^  the  property  had 
been  stolen  in  the  province  of  Nova  Scotia,  and  thence  carried  by  the  thief 
into  Massachusetts.  The  defendant  was  convicted  of  larceny,  charged  to 
have  been  committed  in  the  latter  State.  This  conviction  was  set  aside 
by  a  unanimous  court,  although  two  decisions  had  been  made  by  the 
same  court  affirming  convictions,  where  the  property  had  been  stolen  in 
a  sister  State,  and  afterward  brought  .ly  the  thief  into  that  Common- 
wealth. Without  overruling  the  older  cases.  Chief  Justice  Shaw,  in 
delivering  the  opinion  of  the  court,  distinguished  between  the  two 
classes  of  cases.  Tlie  following  cases  are  in  point,  that  a  State,  into 
which  stolen  goods  arc  carried  by  a  thief  from  a  sister  State,  has  no 
jurisdiction  to  convict  for  the  larceny  of  the  goods,  and  a  fortiori  when 
the  goods  were  stolen  in  a  foreign  country :  — 

In  New  York :  People  v.  Gardner,^  People  v.  Schenk.^  The  rule  was 
afterward  changed  in  that  State  by  statute.  New  Jersey :  State  v.  Le 
Blanch.*  Pennsylvania:  Simmons  v.  Commonwealth.^  North  Caro- 
lina: Staie  V.  Brown.^  Tennessee:  Simpson  v.  State.^  Indiana:  BeaU 
V.  State,^  State  v.  RounalU.^ 

There  are  two  cases  sustaining  convictions  for  larceny  in  the  States, 
where  the  property  had  been  stolen  in  the  British  provinces.^o  In  Bar- 
letl's  Case,  the  principle  is  doubted,  but  the  practice  adopted  in  cases 
where  the  property  was  stolen  in  a  sister  State  was  followed,  and  the 
application  of  the  application  of  the  principle  thereby  extended.  Under- 
wood's Case  was  decided  by  a  majority  of  the  judges.  After  reviewing 
the  cases,  we  think  the  weight  of  authority  is  against  the  conviction  and 
judgment  below.  And  in  the  light  of  principle,  we  have  no  hesitancy 
in  holding  that  the  court  below  had  no  jurisdiction  over  the  offense 
committed  by  the  prisoner.  The  judgment  below  is  wrong,  unless 
every  act  of  the  defendant,  which  was  necessary  to  complete  the  offense, 
was  committed  within  the  State  of  Ohio,  and  in  violation  of  the  laws 
thereof.  This  proposition  is  not  disputed.  It  is  conceded  by  the  pro- 
secution that  the  taking,  as  well  as  the  removal  of  the  goods  anim.ofur- 
atidi,  must  have  occurred  within  the  limits  of  Ohio.  It  is  also  conceded 
that  the  first  taking,  as  well  as  the  first  removal,  of  the  goods  alleged 
in  this  case  to  have  been  stolen,  was  at  a  place  beyond  the  limits  of  the 
State,  and  within  the  jn.risdiction  of  a  foreign  ond  independent  sover- 


1  3  Gray,  434. 
!S  Johns.  477. 
3  2  Johns.  479. 

*  2  Vroom,  88. 

•  6  Bin.  617. 

'  1  Bayw.  100. 


'  4  Humph.  4S6. 
»  15  Ind.  378. 
•  14  La.  An.  278. 

10  State  V.  BarUett,  11  Vt.  660;  and  State 
V.  Underwood,  49  Me.  181. 


516 


LARCENY. 


elgnty.    No",  the  rtoot.ne  "«»'"-  ^  ^    the  prisoner  mast 

have  been  under  sueh  «''™"'f°°''*'t,„re  they  »ere  brought  i'-'-o 
p<».ession  of  the  good,  by  ^^^"^1  ^^  ^,  I  pretense  that  the 

Canada  by  the  pnaoner.  „hPther  the  act8  of  the  prisoner, 

By  what  rule  shall  it  be  determined  ^^^^ejl^e  ^^^^^^^^^^ 

.Jeby  he  acquired  the  po^e^^^^^ 

the  crime  of  larceny?  Bj  the  »a^»  "  territorial  operation.  If  the 
criminal  laws  of  this  State  ^'^J^J^^l'^'^e.^on  of  the  property 
acts  of  the  prisoner,  whereby  he  «»™«  >^ J  ^^^  ^^^,  of  Canada, 

described  In  the  Indictment,  ^^^l^^'J^^Xrlny  there.    It  matters 

it  is  perfectly  clear  ^^l^^l^^^^^X^.^^\^^^^^^  ^^  *^«  *^- 
not  that  they  were  such  as  would  nave 

action  had  taken  place  In  this  State.  ^^  ,,       ^^^       p^^  ^^  ^,y 

Shall  the  question,  whether  or  not  ^^^J^^^  ,y^,  ^^^,  of  that 

the  prisoner  was  a  -me  In^Ca-f ^' ^^  d  t^-ne^  J  ^„  ^^,,,,,,, ,,,. 
country?    If  this  ^e  grante^he"  ^n^^^  ^^^^^ 

xuent  in  the  comblnaUon  ^'^^^nl^^^^^^^^^  of  this  State,  and  It  was 
in  yiolatlon  of  the  laws  of  Canada,  dux  ^     ^goner  was  con- 

"ecause  the  laws  of  Canada  -^2,:Xf2^  Cerent,  though  the 
vlcted.  If  the  laws  of  *^^^/°";*'[.  fine  be  could  not  have  been 
conduct  of  the  prisoner  'llXZ^^^^oucXn^^n,  and  if  It  be 

::^-fiirsi:s^2— af^^ 

-  r ;S^  ^i^r;r:=::S  tls  .ate  a^amst  the  laws 

thereof.  ,     .  ,  4.  .„  «,5„ht  make  It  a  crime  for  a  thief  U* 

I  have  no  doubt  the  ^^^g^'^'^^^^^^^^^^  country,    i^vi 

bring  into  this  State  V^o^^^  ^^^^  ^^^Id  be  necessary  to  pmve 
in  order  to  convict  of  «-^;"^,^\;  J„7%he  existence  of  such  .. 

°r:::re:rr::rs:^er  ueon-istsu..^^. 


1  oh.  31,  sees.  4, 7. 


«  cU.  29,  sec.  76. 


"  -^ 


MARTINEZ   V.  STATE. 


517 


1,  in  respect  to 
8  George  IV.  ,^ 
original  "  tak- 
!  prisouer  must 
rceuy.    H  the 
re  brought  i-to 
•etense  that  the 
Bi3  merely  torti- 
f  the  conviction 
ty  was  stolen  in 

of  the  prisoner, 
ada,  constituted 
tainly  not.  The 
eration.  M  the 
of  the  property 
laws  of  Canada, 
>ere.  It  matters 
ceny  if  the  trans- 

[  the  propel  y  by 
f  the  laws  of  that 
s  an  essential  ele- 
found  guilty,  was 
State,  and  it  was 
prisoner  was  con- 
erent,  though  the 
uld  not  have  been 
usion,  and  if  It  be 
foreign  country,  as 
I  his  offense;  there- 
ite  against  the  laws 

crime  for  a  thief  to 
jign  country,    i^vi 

jessary  to  pw)ve  ^j., 

:istence  of  such  ^^^  J 

r  offense.    Buc.  t'  || 

1  reason  that  larc*;  y  a 

insists  in  taking  and  J 

.78. 


carrying  away  the  goods  of  another  person  in  violation  of  the  rules  of 
the  common  law,  without  reference  to  any  other  law,  or  the  laws  of 
any  other  country.  It  may  be  assumed  that  the  laws  of  meum  et  tuum 
prevail  in  every  country,  whether  civilized  or  savage.  But  this  State 
has  no  concern  in  them  furiber  ihua  to  discbarge  hucIi  uiiUch  uh  are 
imposed  upon  it  by  the  laws  of  nations,  or  through  its  connection  with 
the  general  government,  by  treaty  stipulations. 

Our  civil  courts  are  open  for  the  reclamation  of  property  which  may 
have  been  brought  within  our  jurisdiction,  in  violation  of  the  rights 
of  the  owner;  but  our  criminal  courts  have  no  jurisdiction  over 
offenses  committed  against  the  sovereignty  of  foreigL  and  independent 

States. 

Judgment  reversed,  and  cause  remanded. 
Day,  C.  J.,  Welch,  Sroms  and  White,  JJ.,  concurring. 


LARCENY  FROM  HO  USB  — PROPERTY  OUTSIDE  OF  STORE. 

Martinez  v.  State. 

[41  Tex.  126.] 
In  the  Supreme  Court  of  Texas,  1874. 

BttwUng  Property  Haxurlnff  at  and  outaide  of  a  store  door  is  simple  larceny,  and  not 
larceny  from  a  boase. 

Reeves,  A.  J.  The  only  question  in  this  case  is  presented  in  the 
brief  for  the  State :  *'  Is  an  indictment  for  theft  from  a  house,  sustained 
by  proof  that  the  stolen  prowerty  was  taken  while  hanging  at  and  out- 
side of  the  store  door  on  a  piece  of  wood  nailed  to  the  door,  facing  and 
projecting  towards  the  street?  " 

Burglary  at  common  law  is  an  offense  against  the  security  of  the 
habitation,  the  protection  of  the  property  being  an  incident,  not  the 
leading  object.  The  precinct  of  the  dwelling,  the  place  where  the  oc- 
cupier and  his  family  resided,  included  only  such  buildings  as  were  used 
v?ith  and  appurtenant  to  it,  and  these  only,  were  the  subjects  of  burg- 
lary at  common  law,  and  to  constitute  this  offense  there  must  have  been 
an  actual  or  constructive  breaking  and  entry  into  the  bouse.  The  English 
definition  of  burglary  has  been  modified  by  statute  in  this  and  other  States 
so  as  to  include  offenses  committed  in  the  daytime  as  well  as  in  the  night 
under  certain  circumstances,  and  in  other  buildings  than  the  dwelling 


518 


LARCENY 


house.  The  idea  of  regarding  tlie  liouso  as  a  place  of  security  for  the 
occupants,  and  a  place  of  deposit  for  his  goods,  underlies  all  these 
statutes.  By  our  code,  burglary  is  constituted  by  entering  a  house  by 
force,  threats,  or  fraud  at  night,  or  in  like  mannpr,  by  entering  a  horse 
during  the  day  and  remaining  concealed  therein  until  night,  with  the  in- 
tent Tn  either  case  of  committing  a  felony.*  It  is  not  necessary  that 
there  should  be  any  actual  breaking,  except  when  the  entry  is  made  in 
daytime.* 

The  code  provides  different  degrees  of  punishment  for  theft  without 
regard  to  place.  Tlie  article  under  which  tiie  defendant  was  indicted  is 
as  follows :  "  If  any  person  shall  steal  property  from  a  house  in  such  a 
manner  of  that  the  offense  does  not  come  within  the  definition  of 
burglary,  he  shall  be  punished  by  confinement  in  the  penitentiary  not  less 
than  two  nor  more  than  seven  years."  »  Where  the  house  entered  is  a 
dwelling-house,  the  punishment  of  burglary  is  imprisonment  in  the  pen- 
itentiary not  less  tlian  throe  nor  more  than  ten  years.  Where  the  house 
entered  is  not  a  dwelling-house,  the  punishment  is  not  less  than  two  nor 
more  than  five  years.  In  these  cases  the  punishment  is  greater  than  that 
for  the  theft  in  general,  as  defined  by  the  code,  where  the  property  is 
under  the  value  of  twenty  dollars. 

We  are  of  opinion  that  the  goods  were  not  under  the  protection  of 
the  house,  so  as  to  make  the  taking  theft  from  a  house  in  the  meaning 
of  the  statute,  r.  ml  that  the  defendant  was  only  liable  to  the  punishment 
prescribed  for  simple  theft.  The  goods  were  not  deposited  in  the  house 
for  safe  custody,  but  tlie  witness  says  they  were  hanging  out  to  attract 
customers  or  purchasers. 

The  statutes  of  the  States  cited  in  the  brief  of  counsel,  in  general, 
punish  theft  in  a  he  use,  while  other  statutes  referred  to  punish  theft  from 
a  house  as  does  our  code,  and  they  seem  to  use  these  terms  as  meaning 
the  same  thing.  A  different  rule  would  not  adm't  of  any  definite  appli- 
cation. 

A  construction  that  would  make  the  stealing  of  goods  while  exposed 
on  the  street,  and  not  in  the  house,  the  same  offense  as  stealing  from 
the  house,  w^uldbe  to  lose  sight  of  the  distinction  between  different  of- 
fenses and  the  different  grades  of  punishment,  and  would  introduce  a 
latitude  of  construction  too  uncertain  to  be  followed  in  the  administra- 
tion of  the  criminal  laws. 

The  judgment  is  reversed  and  case  remanded. 

Reversed  ana  remanded. 


1  Pai.  Dig.,  art.  3359. 
S  arts.  2360, 2361. 


3  art.  2408. 


^rfM 


MIDDLETON  V.  STATE. 


619 


rity  for  the 
!S  all  tbeae 
a  house  by 
ina  ahorse 
with  the  in- 
essary  that 
'  is  made  in 

left  without 
i  indicted  is 
3C  in  such  a 
eilnitioa  of 
ary  not  less 
entered  is  a 

in  the  pen- 
■etlie  house 
lan  two  nor 
cr  than  that 

property  is 

rotection  of 
;he  meaning 
punishment 
in  the  house 
it  to  attract 

in  general, 
ih  theft  from 

as  meaning 
ifinite  appli« 

hile  exposed 

bealing  from 

different  of- 

introduce  a 

administra- 


remanded. 


LARCENY  FROM  HOUSE  —  PROPERTY  OUTSIDE  OF  WAREHOUSE. 

MiDDLETON   V.  StATE. 

[53  Ga.  248.] 

/))  t?ie  Supreme  Court  ofOeorgiu,  1ST4. 

1.  A  Baleof  Cotton  was  stolen  from  annlleywayoutsidoof  awarclinuseand  not  in  a  ware- 

house ;    htUl,  llmt  the  defenduiit  wus  guilty  ouly  of  siniplo  larceny. 

2.  The  Court  Charered  that "  if  the  bale  of  rotton  was  in  front  of  the  warehouse,  and  under 

its  control  and  protection,  stealing  it  is  tlio  snnio  offense  as  if  the  bale  of  cotton  were 
actually  within  the  walls  of  the  warehouse ;"  Held,  error. 

Warner,  C.  J.  The  defendant  was  indicted  for  the  offense  of  "  lar 
ceny  from  the  house,"  and  on  the  trial  thereof  tlie  jury,  under  the 
charge  of  the  court,  found  the  defendant  guilty.  A  motion  for  a  new 
trial,  on  the  ground  of  error  in  the  charge  of  the  court  to  the  jury,  and 
because  the  verdict  was  contrary  to  1'  ir  and  the  evidence,  whicli  motion 
was  overruled  and  the  defendant  excepted.  The  defendant  is  charged 
in  the  indictment  with  having  taken  and  carried  awaj'  from  the  ware- 
house of  the  prosecutor  one  bale  of  cotton,  tlie  said  warehouse  being 
a  place  where  valuable  goods  were  stored,  with  intent  to  steal  the  same. 
The  evidence  in  the  record  shows  that  the  bale  of  cotton  was  not  in  the 
warehouse,  but  outside  of  it,  in  an  alley  way.  The  court  charged  the 
jury  "  that  if  they  found  from  the  evidence  that  the  bale  of  cotton  was 
in  front  of  the  warehouse  and  under  its  control  and  protection,  it  would 
be  the  same  criminally  as  if  within  its  walls,  and  would  be  a  taking  from 
upon  the  same  basis  as  if  a  storekeeper  places  goods  in  front  of  his 
store,  and  a  thief  take  them  therefrom,  it  would  be  laaceny  from  the 
house."  The  forty-four  hundred  and  thirteenth  section  of  the  code 
defines  larceny  from  the  house  to  be  the  breaking  or  entering  said  house, 
stealing  therefrom  any  money,  goods,  clothes,  wares,  merchandise,  or 
anything  or  things  of  value  whatever.  The  forty-four  hundred  and 
fourteenth  section  defines  the  penalty  for  stealing  in  any  of  the 
bouses  described  in  that  section.  Simple  theft  or  larceny  is  the  wrong- 
ful and  fraudulent  taking  and  carrying  away  by  any  person,  of  the 
personal  goods  of  another,  with  intent  to  steal  thesame.^  Tlie  dis- 
tinction between  simple  larceny  and  larceny  from  the  house  will  be 
readily  perceived.  The  evidence  in  the  record  before  us  does  not  show 
that  the  defendant  was  guilty  of  the  offense  of  larceny  from  the  house 
inasmuch  as  it  does  not  iSihowthat  the  cotton  alleged  to  have  been  stolen 


I  Code,  439S. 


kS"sf-,-jl*l<'SA, 


"M- 


520 


LABCENT. 


was  in  any  house,  or  that  it  was  taken  by  the  defendant  therefrom. 
The  charge  of  the  court  in  view  of  the  evidence  contained  In  the  record. 
wa«  error.  ^^  ^^^  judgment  of  the  court  below  be  revernd. 


LARCENY  FROM  THE  PERSON  -  SIMPLE  LARCENY. 

Kino  v.  State. 

[64  Ga.  184.] 
Jn  the  Supreme  Court  of  Georgia,  1875. 

On.  can  not  b.  Convlot«l  ola.lmple  larceny  on  cTWenc.  which  •.UblUhe.  a  larceny 
from  'he  person. 

WABimn,  C.  J.  The  defendant  was  indicted  for  the  offense  of 
-Bimple  larceny,"  under  the  forty-four  hundred  and  sixth  section  of 
the  code,  and  charged  with  having  wrongfully,  fraudulently  and  pri- 
vately taken  and  carried  away,  with  intent  to  stea  the  J««°«;««^^ 
described  United  States  national  currency  notes,  of  the  value  of  twelve 
dollars.  The  evidence  upon  the  trial  proved  a  technical  "larceny  from 
the  person."    The  jury,  under  the  charge  of  ihe  court,  found  the  de- 

nto^fwas  made  for  a  newtrial,  on  the  ground  that  the  court 
erred  in  charging  the  juiy  that  they  could  find  the  defendant  gmlty  of 
Staple  larceny,  L  defined  by  the  forty-four  hundred  and  sixth  section 
of  L  code,  notwithstanding  the  evidence  showed  that  it  was  a  techni- 
cal  larceny  from  the  person.    The  court  overruled  the  motion,  and  the 

defendant  excepted.  .^  .    j    i    „j 

By  the  forty-four  hundred  and  sixth  section  of  the  code,  it  "declared 
that  if  any  person  shaU  take  and  carry  away  any  bond,  note,  bank-bill, 
or  due  bill,  or  paper  or  papers,  securing  the  payment  of  ""o^ey;  «*«; ' 
with  intent  to  steal  the  same,  such  person  shall  be  guilty  of  "'-Ple  l"'' 
cenv  Bv  the  forty-four  hundred  and  tenth  section,  theft  or  larceny 
from  the  person  is  defined  to  be  the  wrongful  and  fraudulent  taking  of 
money,  goods,  chattels  or  effects,  or  any  article  of  value  from  the  per- 
son of  another  privately,  without  his  knowledge,  in  any  place  whatever, 

with  intent  to  steal  the  same.  j!o*:„«t 

"  Simple  larceny,"  and  -  larceny  from  the  person     are  two  distinct 

offenses  under  the  code.    It  is  true  that  if  any  person  shall  take  and 

carry  away  any  bond,  note,  bank-bill,  etc.,  with  intent  to  steal  the 


"  -*- 


KINa   V.  STATE. 


521 


,nt  therefrom, 
in  the  record, 

I>«  rvuerrti. 


ENY. 


gtoblisbesalaroany 

the  offense  of 
jixth  section  of 
ilently  and  pri- 
le  same,  certain 
value  of  twelve 
I  "larceny from 
t,  found  the  de- 

l  that  the  court 
endant  guilty  of 
nd  sixth  section 
i  it  was  a  techni- 
motion,  and  the 

de,  it  is  declared 
,  note,  bank-bill, 
tof  money,  etc., 
Ity  of  simple  lar- 
theft  or  larceny 
[idulent  taking  of 
lue  from  the  per- 
f  place  whatever, 

'  are  two  distinct 
ion  shall  take  and 
tent  to  steal  the 


same,  such  person  is  guilty  of  simple  larceny ;  and  it  is  also  true, 
that  if  any  person  shall  wrongfully  and  fraudulently  take  and  carry 
away  the  personal  goods  of  another,  other  than  bonds,  notes,  bank- 
bills  etc.,  with  intent  to  steal  the  same,  he  would  bo  guilty  of  sim- 
ple larceny,  but  it  does  not  follow  that  if  bonds,  notes,  bank-bills, 
etc.,  are  taken  from  the  person  of  another  privately  and  without  his 
knowledge,  that  the  party  defendant  so  taking  the  same  may  be  in- 
dicted and  punished  for  the  offense  of  simple  larceny.  If  one  should 
take  and  carry  away  a  box  of  jewelry,  with  intent  to  steal  the  same,  he 
would  be  guilty  of  simple  larceny,  but  if  one  should  take  it  box  of  jew- 
elry from  the  person  of  another,  privately,  without  his  kiiof>  ledge,  with 
intent  to  steal  the  same,  he  would  be  guilty  of  larceny  ircn  the  person. 
So  in  this  case,  if  the  defendant  had  not  taken  the  c^irrency  '  Uls  from 
the  person  of  another  piivately,  and  without  his  knowledge,  he  might 
have  been  indicted  and  punished  for  the  offense  of  simple  larceny,  but 
as  the  evidence  shows  that  he  was  guilty  of  larceny  from  the  person,  he 
should  have  been  indicted  and  punished  for  that  offense. 

Simple  larceny  and  larceny  from  the  person,  as  before  remarked,  are 
two  distinct  offenses  and  the  punishment  is  different.  Simple  larceny 
of  currency  notes  under  the  forty-four  hundred  and  sixth  section  of  the 
code,  is  punished  as  a  felony  by  imprisonment  in  the  penitentiary  for 
not  less  than  one  year  nor  longer  than  four  years,  whereas,  strange  as  it 
may  appear,  larceny  from  the  person  of  currency  notes  is  only  punish- 
able as  a  misdemeanor  under  the  provisions  of  the  act  of  1866,  reducing 
certain  crimes  below  felonies.  The  result,  therefore,  is,  in  relation  to 
the  case  now  before  us,  that  the  defendunt  has  been  indicted  and  found 
guilty  of  a  felony,  for  which  he  may  be  punished  by  imprisonment  in  the 
penitentiary  for  not  less  than  one  year  nor  longer  than  four  years, 
when  if  he  had  been  indicted  for  larceny  from  the  person,  the  offense  of 
which  it  is  admitted  the  evidence  proved  him  to  have  been  guilty,  he 
could  only  have  been  punished,  as  the  law  now  stands,  as  for  a  misde- 
meanor. It  might  be  a  convenient  way  to  indict  the  defendant  for 
simple  larceny  and  punish  him  as  for  a  felony  under  the  forty-four  hun- 
dred and  sixth  section  of  the  code,  when  the  evidence  proved  he  was 
guilty  of  larceny  from  the  person,  and  could  only  be  punished  therefor 
as  for  a  misdemeanor.  The  simple  objection  to  this  course  of  proceed- 
ing is,  that  the  penal  laws  of  the  State  do  not  authorize  it.  There  are 
four  distinct  classes  of  larceny  recognized  by  the  penal  code  of  this 
State:  Ist.  Simple  larceny.  2d.  Larceny  from  the  person.  3d.  Lar- 
ceny from  the  house.  4thj  Larceny  after  a  trust  or  confidence  has  been 
delegated  or  reposed.^ 

1  Code,  sec.  4392. 


599 


LARCENY. 


or  any  article  of  va  -    rcn         .  ^-        ^^^^   J^^^  ^^  ^^  ..^  ,, 
out  his  kuowlclge,  In  any  piatt  wiio^i       ,  indicted  there- 

the  offense  of  larceny  from  ti.e  l>erson,  and  ^^^'^^^^ 
for  and  puninhed  a.  proscribed  »^y  »';;;/«;^f:;,^r  other  vaU.ahle 
sou  Bhall  steal  and  carry  -^^ -;;^;"j;«^yjr  1  from  the  per.on 
thiag  as  described  in  section  .'^Z^^' /^^^^  J^^^^.^^  ,.,d  sbould  be 
of  another,  such  person  is  gmlty  of  «"^P»«  7;  ^^'^^^  that  offense, 
indicted  therefor,  and  V-^^^fj^^^^^^^^^^  in  this 

Penal  lavs  are  to  be  construed  strictly,  ^'''''f  °  y„„„j,i,,d  for  the  of- 

defendant's  motion  for  a  new  trial. 
Let  tbe  judgment  of  the  court  below  be  reversed. 


GB.ND  ..RCENY-IN8UF.ICIENCY  O.  EVIDENCE  .OR  CONVICTION. 

People  v.  Wono  Ab  You. 

[6  West  Coaflt  Rep.  *88.] 

i»  the  .Supreme  Court  of  California,  1885. 

AP.»..  from  .  iudgmen.  o,  .he  S»>«'^' f  ^tt^Ltlt ITS 

ion  states  the  facts. 

a  B   Darwin,  for  the  appellant. 


STATE   V.  ORAVKS. 


523 


109  In  ftcllon, 
.vatcly,  with- 

la  guilty  of 
idicted  there- 

If  any  per- 
ither  vftUiahle 
m  the  person 
nd  should  be 
r  that  offense, 
endant  in  this 
ed  for  the  of- 
il  sixth  section 
proved  that  he 
which  is  not  a 
anor  under  the 
3  such,  in  that 
i  of  tlie  penal 

overruling  the 


statement  that  when  ho  returned  from  Sr.nday-school  he  found  the  door 
th.'OURh  which  lie  entered  the  houi-c,  open,  while  a  witness  who  was  iu 
the  liuusc  at  the  time,  testified  that  tlio  defendant  unlocked  the  door  he- 
fore  entering?.  Thera  is  no  evidenco  tliat  the  stolen  property,  or  any 
portion  of  it,  was  ever  in  the  possession  of  the  defendant,  or  that  he 
knew  wliere  it  was  kept.  The  evidence  is,  that  none  of  it  has  ever  been 
diseovered  sliiec  it  was  first  missed.  Therefore  tlio  statement  of  the 
defendant  tliat  he  found  the  door  open,  was  not  made  for  the  purpose 
of  explaining  his  possession  of  the  stolen  property.  The  must  that  can 
be  claimed  is,  that  lie  made  it  for  the  purpose  of  averting  suspicion 
from  himself.  That  lie  would  naturallj'  desire  to  do,  whether  guilty  or 
innocent.  It  is  not  claimed  that  his  unlocking  the  door  had  any  connec- 
tion with  the  alleged  crime.  Nor  is  it  claimed  that  he  had  not  a  right 
to  unlock  it,  or  that  he  had  not  been  furnished  with  a  key  for  that  pur- 
po'se.  He  had  been  a  servant  in  the  house  for  a  jieriod  of  twenty-seven 
months,  and  seems  to  have  been  very  much  trusted. 

We  think  that  the  bare  circumstance  of  his  having  made  a  false  state- 
ment in  regard  to  a  matter  in  no  way  connected  with  the  crime  of 
which  he  is  accused,  insufHcient  to  justify  the  veidict,  and  for  thatrea- 
son  his  motion  for  a  new  trial  should  have  been  granted. 

Judgment  and  order  reversed  and  cause  remanded  for  a  aew  trial. 

Myrick,  J.,  and  ThoiiNTON,  J.,  concurred. 


R  CONVICTION. 


5. 

more  proof  that  the 
ig  property  was  kept, 
regard  to  a  matter  In 


e  city  and  county 
the  defendant  of 
trial.    The  opin- 


ent. 

having  access  to 
ney  was  kept,  the 
;ainst  him,  is  his 


LARCENY  — POSSESSION  OF  STOLEN  PROPERTY. 

State  v.  Graves. 

[72  N.  C.  482.] 
In  the  Supreme  Court  of  North  Carolina,  1875. 

On  a  Trial  for  Burgrlary  and  larceny,  evidence  was  given  that  the  respondent  was  found 
ill  possession  of  the  watch  and  chain  stolen,  within  forty  hours  after  the  burglary.  The 
court  charged  that  if  they  believed  this  fact,  the  law  presumed  that  he  wan  ttie  thief  and 
that  he  had  stolen  the  watcti  and  chain,  and  be  was  bound  to  explain  satisfactorUy  how 
he  came  by  them.    Held,  error. 

Indictmeitt  for  burglary,  tried  before  Kerr,  J. ,  at  December  term, 
1874,  Guilford  Superior  Court. 

The  burglary  alleged  was  the  breaking  into  and  entering  the  house  of 
J.  I.  Scales,  in  the  city  of  Greensboro,  North  Carolina,  on  the  night  of 
the  8th  of  August,  with  the  intent  to  steal,  and  stealing  and  carrying 
away  a  watch  and  chain,  the  property  of  J.  I.  Scales. 


524 


LARCENY. 


There  was  evidence  tending  to  prove  that  between  nine  o'clock  on 
that  night  and  two  o'clock  a.  m.  of  the  9th  of  August,  Mr.  Scales' 
house  was  entered  by  some  one  forcing  open  the  blinds  and  raising  the 
window  sash  of  a  room  called  the  nursery ;  that  between  that  ro'^m  and 
the  bed-chamber  was  the  dining-room ;  that  a  lamp  was  left  burning  in 
the  dining-room,  from  which  a  light  shone  into  both  the  nurEiery  and  bed- 
chamber. That  Scales  wtr.t  to  bed  about  nine  o'clock,  and  hung  his 
coat  and  vest  on  the  back  of  a  chair  in  his  bed-room,  the  watch  being 
in  the  vest  pocket,  and  attached  thereto  by  the  chain.  That  Jennie 
Stevens,  a  colored  servant  girl,  was  in  the  bouse  when  Scales  went  to 
bed,  at  what  time  she  left  the  house  is  not  shown,  further  than  she  left 
during  the  night  and  went  to  her  usual  place  of  sleeping.  It  wm 
further  in  evidence  that  the  prisoner  was  in  Danville,  in  the  State  of 
Virginia,  on  the  10th  of  August,  and  had  the  watch  and  chain  in  his 
possession,  and  swapped  them  off  for  another  watch  and  chain,  gettlbg 
boot.  It  was  in  evidence  that  the  prisoner  was  in  Rockingham  County 
on  the  6th  of  August,  at  the  election,  and  also  on  the  night  of  the  6tb, 
and  that  be  said  on  that  night  that  he  was  going  to  Greensboro  the  next 
day,  end  did  leave  the  house  at  which  he  was  stopping  the  next  day. 

There  was  no  evidence  that  he  was  in  Greensboro  on  the  night  la 
which  the  alleged  burglary  was  cojimitted. 

The  prisoner  was  arrested  about  the  4th  of  September,  in  Rocking- 
ham, and  brought  to  Greensboro  jail.     When  arrested,  the  prisoner 
denied  the  charge.     When  in  prison,  the  prisoner  told  Scales  that  he 
got  the  watch  and  chain  from  John  and  Dennis  Sellars  on  Sunday  night,  I 
the  9th  of  August,  and  that  they  told  him  to  take  them  to  Danville  and 
trade  them  off.    The  prisoner  at  first  told  Scales  that  he  did  not  knowl 
the  watch,  but  in  a  few  minutes  afterwards,  admitted  that  he  did  knowl 
the  watch  as  soon  as  he  saw  it ;  that  he  had  seen  Scales  wear  it  a  hun-[ 
dred  times.     It  was  proven  that  the  prisoner,  preceding  and  up  to  July  J 
bad  been  a  servant  of  Scales,  and  often  in  his  house  and  the  rooms 
thereof.     That  on  the  first  or  second  day  after  the  watch  was  stolen] 
Scales  had  Jennie  Stevens,  his  servant,  and  one  Jim  Edwcll,  arrestee 
on  the  charge  of  committing  the  crime.     That  on  the  night  of  the  alleged 
burglary,  Jim  Edwell  was  seen  about  dark  dodging  behind  a  tree  at  thj 
corner  of  the  house,  near  the  window  alleged  to  have  been  broken  open 
That  he  was  halted  by  a  servant  man  twice  before  he  did  so,  near  thl 
front  gate  of  the  residence  of  Scales.     That  some  hour  or  two  after 
wards,  this  servant  and  Jennie  Stevens  went  out  of  the  front  gate  an] 
saw  Edwell  alone  again  passing ;  that  he  walked  before  them  a  half  mlle^ 
and  Jennie  Stevens  had  a  conversation  with  him  which  the  witness  di| 
not  hear.     That  Jennie  Stevens  had  a  small  bundle  which  she  gave 
witness  to  hold  while  she  talked  witli  Edwell.     That  about  an  hot] 


STATE   V.  GRAVES. 


525 


etween  nine  o'clock  on 
[)f  August,  Mr.  Scales' 
B  blinds  and  raising  the 
between  that  ro^m  and 
mp  was  left  burning  in 
oth  the  nursery  and  bed- 
s  o'clock,  and  hung  his 
J-room,  the  watch  being 
be  chain.    That  Jennie 
se  when  Scales  went  to 
rn,  further  than  she  left 
e  of  sleeping.    It  was 
>anville,  in  the  State  of 
watch  and  chain  in  his 
cratch  and  chain,  getting 
\  in  Rockingham  County 
on  the  night  of  the  6th, 
5  to  Greensboro  the  next 
stopping  the  next  day. 
ensboro  on  the  night  iB 

September,  in  Rocking- 
n  arrested,  the  prisoner 
soner  told  Scales  that  he 
s  Sellars  on  Sunday  night, 
ake  them  to  Danville  and 
les  that  he  did  not  know 
.dmitted  that  he  did  know 
een  Scales  wear  it  a  hun- 
preceding  and  up  to  July, 
his  house  and  the  rooms 
ter  the  watch  was  stolen, 
one  Jim  Edwell,  arrested 
on  the  night  of  the  alleged 
dging  behind  a  tree  at  the 
to  have  been  broken  open, 
before  he  did  so,  near  the 
t  some  hour  or  two  after- 
out  of  the  front  gate  and 
:ed  before  them  a  half  mile, 
him  which  the  witness  did 
bundle  which  she  gave  to 
rell.    That  about  an  hour 


afterwards,  witness  saw  Edwell  in  about  one  hundred  yard-,  of  Scales' 
house  talking  to  a  colored  man.  It  was  also  in  evidence  that  when  the 
l)ri3oner  had  the  watch  in  his  possession  and  was  offering  to  exchange 
it  for  another,  he  said  that  he  had  bought  it  of  a  broker  for  $40,  and  in 
a  few  minutes  he  told  another  person  that  he  gave  $48  for  it,  and  said 
that  he  made  a  mistake  when  he  said  he  gave  $40.  It  was  also  shown 
that  when  the  prisouci  was  arrested,  he  was  concealed  under  a  bed,  and 
had  tried  to  escape  up  a  chimney. 

His  honor,  among  other  things,  charged  the  jury  that  if  they  be- 
lieved from  the  evidence  that  the  prisoner  was  in  possession  of  the  watch 
and  chain  la  Danville,  Virginia,  on  the  Monday  after  the  watch  was 
stolen  on  Saturday  night,  the  law  presumed  that  he  was  the  thief,  and 
that  he  wab  bound  to  explain  satisfactorily  how  he  came  by  it. 

The  prisoner  excepted.  The  prisoner's  counsel  asked  his  honor  to 
charge  'Hhatif  there  was  any  reasonable  hypothesis  arising  out  of  or 
suggested  by  the  evidence  by  which,  taking  all  the  facts  proven  to  be 
true  and  he  not  guilty,  that  the  jury  should  acquit  the  prisoner."  His 
honor  charged  the  jury  that  in  giving  to  the  prisoner  the  benefit  of  the 
reasonable  doubt,  they  should  not  be  controlled  by  mere  conjecture 
that  some  one  else  did  the  deed ;  that  they  must  be  fully  satisfied  that 
the  prisoner  did  the  deed."  Prisoner  excepted.  There  was  a  verdict 
of  guilty,  rule  discharged,  judgment  of  death  pronounced,  and  the 
prisoner  appealed. 

Scott  &  Caldwell,  for  the  defendant.  Attomey-Greneral  Hargrave, 
for  the  State. 

Peakson,  C.  J.  The  fact  that  the  "  watch  and  chain  "  were  found 
in  the  possession  of  the  prisoner  at  Danville,  on  the  Monday  after  the 
burglary  on  the  Saturday  night  preceding,  at  Greensboro,  connected 
with  the  fact  that  he  was  offering  to  dispose  of  the  articles  at  much  less 
than  their  value,  and  made  contradictory  statements  as  to  how  he  got 
them,  were  matters  tending  to  show  either  that  the  prisoner  was  the 
man  who  broke  and  entered  the  dwelling  h.  .je  and  stole  the  watch  and 
chain,  or  else  ^hat  he  had  received  the  goods,  knowing  them  to  have 
been  stolen.  These  facts,  taken  in  connection  with  the  evidence  of  the 
mysterious  movements  of  Jim  Edwell  and  Jennie  Stevens,  about  the 
premises  on  the  night  of  the  burglary,  were  fit  subjects  for  the  consid- 
eration of  the  jury. 

His  honor  committed  manifest  errors  in  taking  the  case  from  the 
jury  and  ruling  that  "if  the  jury  believed  from  the  evidence  that  the 
prisoner  was  in  possession  of  the  watch  and  chain  in  Danville  on  the 
Monday  after  tlie  watch  and  chain  were  stolen  on  Saturday  night  in 
iJrecnsboro,  the  law  presumed  he  was  the  thief,  and  had  stolen  the  watch 
and  chain,  and  that  the  prisoner  was  bound  to  explain  satisfactorily  how  he 


526 


LARCENY. 


oamo  by  the  goods."  The  rule  is  this:  "  Where  goods  are  stolen,  one 
found  in  possession  so  soon  thereafter,  that  he  could  not  have  reason- 
ably got  the  possession  unless  he  had  stolen  them  himself,  the  law  pre- 
sumes he  was  the  thief." 

This  is  simply  a  deduction  of  common  sense,  and  when  the  fact  is  so 
plain  that  there  can  be  no  mistake  about  it,  our  courts,  following  the 
practice  in  England,  where  the  judge  is  allowed  to  express  his  opinion 
as  to  the  weight  of  the  evidence,  h.ave  adopted  it  as  a  rule  of  law,  which 
the  judge  is  at  liberty  to  act  on,  notwithstanding  the  statute,  wliich  for- 
bids a  judge  from  intimating  an  opinion  as  to  the  weight  of  the  evidence. 
But  this  rule,  like  that  of  falsum  in  uno,falsum  in  omnibus,  and  the 
presumption  of  fraud,  as  a  matter  of  law,  from  certain  fiduciary 
relations,!  has  been  reduced  to  very  narrow  proportions,  and  is 
never  applicable  when  it  is  necessary  to  resort  to  other  evidence  to 
support  the  conclusion ;  in  other  words  the  fact  of  guilt  must  be  self- 
evident  from  the  bare  fact  of  being  found  in  the  possession  of  the  stolen 
goods,  in  order  to  justify  the  judge  in  laying  it  down,  as  a  presumption 
made  by  the  law,  otherwise  it  is  a  case  depending  on  circumstantial 
evidence,  to  be  passed  on  by  the  jury. 

In  our  case,  so  far  from  the  fact  of  guilt  to  wit:  that  the  prisoner 
broke  and  entered  the  house  and  stole  the  watch  and  chain,  being  self- 
evident,  it  is  a  matter  which,  under  the  circumstances  proved,  admits 
of  grave  doubt,  for  it  may  well  be  that  the  prisoner  merely  received  tlie 
watch  and  chain  after  some  one  else  had  committed  the  burglary,  which 
would  change  the  grade  of  the  crime  very  materially.  As  the  case  goes 
back  for  another  trial,  it  is  a  matter  for  the  solicitor  of  the  State  to  con- 
sider whether  it  will  not  be  well  to  send  a  new  bill  containing  other  counts 
to  meet  the  difterentaspects  of  the  case,  as  it  may  be  looked  upon  by  the 

jury- 
gjPQj.^  Venire  de  novo. 

larceny  — effect  of  recent  possession. 
State  v.  Walker. 

[41  Iowa,  217.] 
Jn  the  Supreme  Court  of  Totoa,  1875. 

A  Ohar^a  which  In«traota  the  Jury  that  proof  ol  po8ieg»ion  of  part  of  the  itolen  goodi, 
four  months  after  the  commlsBion  of  the  crime,  no  reasonable  explanation  being  given 
of  the  poaieavlon,  ahoald  be  regarded  as  raising  a  strong  presumptloa  of  goUt,  ia 
•rroneoai. 

MiLtER,  C.  J.    The  court,  among  other  instructions  to  the  Jury, 
charged  as  follows :  — 

"  If  you  find  that  the  store  of  witnesses,  S.  E.  &  John  Johnson,  was 

1  See  Pearce  t>.  Lea,  68  N.  C.  90. 


■te^M 


TAXES   V.  STATE. 


527 


3  stolen,  one 
have  reason- 
the  law  pre- 

;he  fact  is  so 
following  the 
3  his  opinion 
at  law,  which 
e,  wiiich  for- 
^he  evidence. 
bits,  and  the 
ain  fiduciary 
ons,    and  is 

evidence  to 
must  be  self- 
of  the  stolen 

presumption 
ircumstantial 

the  prisoner 
n,  being  self- 
oved,  admits 
■  received  the 
rglary,  which 
the  case  goes 
State  to  con- 
;  other  counts 
I  upon  by  the 


burglariously  entered,  about  the  niglit  of  the  3d  of  Feoruary,  1873,  and 
a  large  quantity  and  variety  of  goods  stolen  therefrom,  and  that  the 
following  June  different  portions  and  varieties  of  the  same  goods  were 
found  in  the  premises  of  the  accused,  and  you  further  find  that  the 
defendant  has  been  unable  to  give  any  reasonable  explanation  of  how 
he  came  by  such  possession,  then  such  facts  should  be  regarded  by  the 
jury  as  raising  a  strong  presumption  that  the  defendant  was  himself 
guilty  of  feloniously  taking  the  property." 

This  instruction  is  erroneous.  Tiie  rule  is  well  settled  that  the  recent 
possession  of  stolen  property,  unaccounted  for,  is  a  strong  presumption, 
or  prima  facie  evidence,  of  guilt.^ 

What  is  to  be  termed  recent  possession  depends  very  much  upon  the 
character  of  tlie  goods  stolen.  If  they  are  such  as  pass  readily  from 
hand  to  hand,  the  possession,  in  order  to  raise  a  presumption  of  guilt, 
sliould  be  much  more  recent  than  if  they  were  of  a  class  of  property 
that  circulated  more  slowly,  or  is  rarely  transmitted. 

There  may  be  cases  where  the  possession  is  so  long  after  the  commis- 
sion of  the  crime  that  a  court  will  refuse  to  submit  the  question  to  the 
jury  —  deciding,  as  a  matter  of  law,  that  the  possession  is  not  recent  — 
but  in  all  other  cases  the  question  is  one  of  fact,  to  be  submitted  to  the 
iury.2 

The  instruction  was  erroneous,  in  that  it  directed  the  jury  that,  as  a 
matter  of  law,  proof  of  possession  of  part  of  the  stolen  goods  four 
months  after  the  commission  of  the  crime  was  recent  possession,  from 
from  which  a  strong  presumption  of  guilt  arose,  unless  the  possession 
was  satisfactorily  explained.  The  judgment  must,  therefore,  be 
reversed,  and  a  new  trial  ordered. 

Revened. 


ire  de  novo. 


t  the  stolen  goodi, 
latiou  being  given 
ptios  of  guilt,  it 


I  to  the  Jury, 
Johnson,  was 


larceny  — effect  of  becf.nt  fossession. 
Yates  v.  State. 

[87  Tex.  202.] 
In  the  Supreme  Court  of  Texas,  1872. 

Poaaeaalon  of  a  Stolen  Feather  bod  and  80me  bed  clothin;;,  Are  months  after  they  were 
atcien,  is  not  each  recent  possession  as  of  itself  to  raise  a  legal  presumption  that  the 
party  in  possession  is  the  thief. 

OoDEN,  J.    The  first  clause  of  the  charge  of  the  court  in  this  cases  is 
in  these  words :  ' '  Property  recently  stolen  being  found  in  the  possession 


1  Warren  «.  State,  1 G.  Greene,  106;  State 
V.  Taylor,  2S  la.  %73;  State  v.  Brady,  27  Id. 
126;  Jones  «.  People,  13  111.  269 ;  Com.  «.  Mil- 
lard, 1  Mass.  6 ;  Qreenl.  Et.,  sees.  SI,  32, 83. 

1  See  Rex  «.  Partridge,  7  C.  A  P.  6S1; 


SUte  V.  Bennett,  3  Brev.  S14 ;  SUte  «.  Jonei, 
8  Dot.  a  B.  122;  Rex  «.  Adams,  8  O.  A  P. 
600;  Reg.  V.  Cruttenden.eJur.  207;  Com.  v. 
Montgomery,  11  Mete.  B84;  Bnglenuui  «. 
SUto,SInd.ei: 


•««fe*aifjjSU..'..*Sk;t!ii..vs''S' 


:i»l 


928 


LARCEKT. 


Of  a  person,  the  law  presumes  that  pe«on  ^toJ«  ^^^^^^^^^^^ 

perso!  n.ust  rebut  the  PJ-^?*^- .^.^  ^^^^^^^  '^-S^ 

property  in  a  P«Wic  m«°°«r;  ,  J;"^;^ oven  on  the  trial  of  ItA.  case, 
especially  when  -^^''ll'^X!rZot%Zml>er  or  first  day  of  Janu- 
Easter  Waggoner,  on  the  last  day  oi  i^  unknown  to  her,  a 

„y,  had  taken  from  ^^l}^^^J  ::ronZZr^  J^ne  mo.in, 
feather  bed  and  ^^'"^^t?  "1' Trttles  in  appellant' shou^^  Five 
the  deputy  sheriff  found  the  °»»««^"8 j''^^^^^^^^  ,,om  the  house 

months  had  elapsed  since  the  property  had  ^«  °  ^  «^^^^^  ^ant,' 

of  the  owner,  before  is  was  ^^^'^'l^"  ^f^.^^^^^^^^^^  period;  and 

and  it  may  have  ^^^^g^^^^^^/^^^ltinrwn  b^^^^  court,  that  the 
we  can  not  subscribe  to  the  ^^^^^ J*f  ^^^J^een  stolen,  was  so 
possession  of  this  property,  "'^'"^^^"S^t  to^^^^^^^^^^ 

Utafterthe  theft  as  J,  7;    VXtl^Z^which  might  ve^^ 

in  possession  is  the  t^^";    "  ^  j^  connection  with  other  evi- 

properly  have  been  submitted  *°  *f !  ^^^^^  of  possession,  alone, 

dence  of  guilt;  but  we  do  no    ''^'ll'^l.^f^'^ 

sufficient  to  warrant  a  conviction,  and  yet  the  charge  o 

appear  to  give  it  that  degree  of  ^^^^^^^^^         ,,^^  ,^^  date  of  the 

ing  mind.  ^^^„„  „,«„v  decisions  on  this  question,  seems 

however  recent  after  the  then,  aoes  n 

Bumption  of  guilt  to  warrant  a  «««^<'*^»  *°'^^^^^^^  attending  that 

there  are  nearly  always  other  ^'^'''^^^^""^^^"thTe^^^^^^^^^  given  or 
possession,  such  as  the  character  of  *^^^Pf  J' J^^^^Je^^^  dim- 
refused,  or  attempts  at  concealment,  which  may  greatiy  increase 

inish  the  presumption  ^''f^^j'^^^''^:^:Zm.ol.  importance  to  the  I 
We  think  the  charge  of  ^^^/^l^Jodnv?  months  after  the  same 
simple  fact  of  the  possession  of  stolen  g°°^«  ^^^  ^^^^^^^  ^  „i,iead  the 

Sbjrrrer.    T.eiurypj.ldth.tthel^^ 

possessor  of  Btolen  property,  recentWter«-^^^^^ 

Ld  hemust  rebut  that  ^^^^^^^^I Z^r^T^^^^^^  '^A 


PEOPLE   V.  NORKGEA. 


629 


e  thief,  and  such 
laving  bought  the 
or  in  this  charge, 
trial  of  iHis  case. 
Irst  day  of  Janu- 
nltnown  to  her,  a 
of  June  following 
anfshouse.    Five 
jed  from  the  house 
[1  of  the  appellant; 
ig  that  period ;  and 
the  court,  that  the 
een  stolen,  was  so 
rtion  that  the  party 
,  which  might  verj' 
ition  with  other  evi- 
»f  possession,  alone, 
e  of  the  court  would 

■cm  the  date  of  the 
lilty  possession ;  but 
3h  as  time  elapses, 
ession  upon  a  reflect- 

this  question,  seems 
lion  of  stolen  goods, 
iflSciently  strong  pre- 
crime.  But  he  says 
ddence  attending  that 
explanation  given  or 
eatly  increase  or  dim- 

ich  importance  to  the 
months  after  the  same  I 
julated  to  mislead  the  | 
re  is  still  more  objec- 
'the  law  presumes  the  I 
theft,  to  be  the  thief; 
3h  as  having  purchased 

r  comprehend  the  force  I 
rstand  why  a  purchase 
,  would  not  protect  the  I 
sen  made  publicly. 


There  is  much  conflict  in  the  testimony  in  this  case,  and  therefore  it 
becomes  highly  important  that  the  jury  should  have  the  law  plainly  and 
correctly  given  them,  as  a  guide  for  their  verdict. 

The  judgment  of  the  District  Court  is  therefore  reversed,  and  the 
cause  remanded. 

Reversed  and  remanded. 


LARCENY— :;ffect  of  recent  possession. 
People  v.  Nokegea. 

[48  CaL  123.] 
In  the  Supreme  Court  of  California,  1874. 

1.  On  a  Trial  fcr  Larceny,  the  only  evidence  was.  that  respondent  was  found  m  poisei. 

s.on  of  the  stolen  horse  a  few  hours  after  it  was  stolen.    Held,  not  sufficient  to  lustifr 
a  conviction.  v—"«j 

2.  On  a  Trial  tor  Larceny,  evidence  of  the  recent  possession  of  stolon  property  is  not  of 

itself  sufficient  to  Justify  a  conviction.  i  crij  «  uomi 

Rhodes,  J.  The  defendant  was  convicte''  - ''  grand  larceny  for  the 
stealing  of  a  horse.  The  only  evidence  of  defendant's  guilt  was,  that  the 
stolen  horse  was  found  in  his  possession  a  few  hours  after  it  was  taken. 
People  v.  Chambers,^  and  People  v.  Ah  Ki^  hold  that  the  possession  of 
stolen  property  is  a  circumstance  to  be  considered  l)y  the  jury,  but  it 
is  not,  of  itself,  sufficient  to  warrant  a  conviction.  It  is  said  by  Green- 
eaf :  3  "It  will  be  necessary  for  the  prosecution  to  add  to  the  proof 
of  other  circumstances  indicative  of  guilt,  in  order  to  render  tue  naked 
possession  of  a  thing  available  towards  a  conviction." 

The  evidence  discloses  no  circumstances  of  that  character.  The 
riding  of  the  horse  several  miles  beyond  the  point  where  he  wm  first 
seen  in  possession  of  it  is  only  his  continued  possession  of  it,  and  is 
not  a  further  circumstance  indicative  of  guilt.  The  leaving  of  the 
saddle  with  the  inn-keeper  does  not  tend  to  prove  a  larceny  of  the 
I  horse. 

There  may  be  an  abundance  of  authority  to  sustain  the  point  of  the 
attorney-general,  that  the  court  erred  in  excluding  evidence  as  to  the 
defendant's  confession,  after  the  preUminary  evidence  as  to  its  having 
been  voluntary ;  but  the  point  does  not  arise  in  the  defendant's  appeal. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial. 

Remittitur  forthwith. 
Neither  Mr.  Chief  Justice  Wallace,  nor  Mr.  Justice  McKinstrt  ex- 
pressed  an  opinion. 


'  18  Oal.  382. 

3  Defences. 


'  20  Id.  178. 

84 


3  3  Greenl.  £?.,  sec.  8L 


maBm-' 


530  ^^'^^^^^- 

LARCENY-POSSESSION  OF  STOLEN  PROPERTY. 

Galloway  u.  Si  ate. 

[41  Tex.  289.] 
In  the  Supreme  Court  of  Texas,  1874. 

1,  „r  ffin  dav«  alter  it  was  stolen,  ia  connecMo* 

..e  ..enaant  was  convictea  ^  -^"^^^1:^^^^^^^^^^ 
house  of  a  pipe  of  the  value  of  two  dollars ,  P 

two  years  in  the  penitentiary.  ^^^^  ^.^^.^  ^^^^^^  ^o^tha 

The  prosecution  Proved  by  A.  u.  ,  ^^  .^  ^^  ^^^^  ^^^^^er 

next  before  the  -^^^f '  ^;^^;  J^/ro^t  half  an  hour  afterwards 
in  hia  storehouse  in  Rusk  <;««°*y '  j'J^  .^.  ^e  of  losing  it  to  sov- 
he  looked  *orthepipe,butcouldnotfind  t    SI  ^^^^^  ^^^^.^^^^ 

eral  persons  at  ^^;;Xj^::',VZ::mnot  see  the  defendant  in 
passing  in  and  out  of  the  house  ^^  ^^^^ .  ^^^^  ^^p, 

or  about  the  store  on  the  day  the  pipe  ^^^j^^.^.  j^^ 

taken  without  bis  knowledge  or  ---^;  ^  J\,,  ,,  j.  A.  Poe,  a 

^^rs^ed  ---r  ;:^^::- --- -- 

offered  to  buy  it;  defendant  said  he  -uld^  ^^^  ^.^^  ^^^^^^ 

dollar's  worth  of  cigars  for  it;  defendant  wa  ^      ^^^^^^^_  ^^^^ 

in  the  town  of  Henderson,  -«^^«^|^  J.^g  'iness  in  the  town  of 
Stroud,  who  had  1««^  *^;,7^.;r;,  Writhe  "had  foun^^  ^ut 

Henderson ;  ^ef-danUold  ^^^^^^^^  ^,  ,  „,g,„  .hose  name  he 
after  talking  awhile  said  he     haa  d     g  ^.^^^^^  ^^^^  ^^ 

same  day  he  got  it  from  defendant. 
No  counsel  for  appellant. 

Broivn,  for  the  State.  aiieaed  theft;  the  char- 

Moo..,  A.  J.    The  ptae  »a  .^nMr  «.  the  ri^g        ^  ^^^^^^  ^  ^, 

„,.,  .„d  vJue  of  the  -78  f'^^,  !'"„„.  person  to  ■o.othe, 
..ciUty  with  which  ''  rL'',7J^,t»  „e„.bl.  Vn«.ttoprov. 


-^A"^uv»  :s"5i*lr^"&.«-'"* 


,  _„gfigt*mtisutm»m'iit=^'^'>'-"-'-'-' 


rtiAl 


OABLICK   V.  PEOPLE. 


531 


rY. 


)len,  in  conneotlOft 
)1  guilty. 

?r  theft  from  a 
jhment  fixed  at 

1  twelve  months 
t  on  the  counter 
hour  afterwards 
losing  it  to  sev- 
le  store  trading, 
the  defendant  in 
st;  the  pipe  waa     I 
two  dollars;  he 
by  J-  A.  Poe,  a 
Q  Poe  brought  it 

lily  grocery  a  few 
lad  lost  his  pipe ; 
Stroud's;  witness 
atness  gave  him  a 
ig  the  pipe  openly 
the  streets;  that 
ess  in  the  town  of 
md  the  pipe,"  but 
ro,  whose  name  he 
;;  witness  went  to 
,m  he  got  it  on  the 


ed  theft;  the  char- 
l  to  be  stolen;  the 
person  to  another 
5  appeUant  to  prove 
^hom  he  may  have 


gotten  it ;  the  slight  value  attached  to  it ;  the  open  manner  in  which  he 
used  and  exhibited  it  in  the  immediate  vicinity  of  the  place  where  it  was 
said  to  be  stolen ;  the  length  of  time  which  had  elapsed  after  the  pipe  was 
missing  until  it  was  found  in  his  possession,  with  his  statement  when 
asked  how  and  where  he  got  it,  tbat  he  bought  it  from  a  negro,  whose 
name  he  did  not  now  remember,  if  not  sufficient  to  rebut  all  presump- 
tion of  guilt  arising  from  the  bare  proof  of  possession  of  the  stolen 
property,  warrants  at  least  such  a  well  founded  doubt  of  appellant's 
guilt,  that  the  court  below  should  have  granted  a  new  trial. 
The  judgment  is  reversed  and  the  case  remanded. 

Reversed  and  remanded. 


LARCENY— POSSESSION  OF  STOLEN  PROPERTY. 

Gablick  V.  People. 

[40  Mich.  292.] 

In  the  Supreme  Court  of  Michigan,  1879. 

Mere  Poaseasion  of  etolen  property  raises  alone  no  presumption  of  the  guilt  of  taking  it. 

Error  to  Berrien. 

Clapi)  &  Fnfe,  for  tlie  plaintiff  in  errorr.     Attorney-General    Otto 
Kirchner,  for  the  People,  confessed  error. 

CooLEY,  J.  Plaintiff  in  error  was  convicted  of  the  larceny  of  certain 
articles  of  clothing  from  a  car  of  the  Michigan  Central  Railroad  Com- 
pany. The  larceny  took  place  on  or  about  the  fourteenth  day  of 
September,  1877,  while  the  car  was  in  transit  west  from  Jackson.  Tlie 
most  important  evidence  supposed  to  connect  plaintiff  in  error  with 
the  larceny,  was  several  of  the  articles  being  found  on  premises  occu- 
pied by  him,  and  some  of  them  in  his  bed.  The  finding  took  place  in 
January,  1878.  As  to  the  articles  found  in  the  bed,  it  appeared  that 
search  was  made  for  them  in  the  house  the  day  before  without  success, 
but  on  going  a  second  time,  the  officer  discovered  them.  To  break  tlie 
force  of  the  evidence  of  this  discovery,  plaintiff  in  eiTor  called  as  a 
witness  John  Gablick,  who  had  previously  pleaded  guilty  of  the  same 
larceny,  and  he  testified  that  he  placed  the  articles  where  they  were 
found  after  fhe  first  search  was  made,  and  that  plaintiff  in  error  had 
nothing  to  do  with  the  larceny,  or  with  the  concealment  of  the  goods. 
It  also  appeared  from  his  evidence  and  that  of  others,  that  John  Gab- 
lick occupied  another  part  of  the  same  house  in  which  the  things  were 
found.     This  being  the  evidence,  the  court  was  requested  to  instruct 


532 


LARCENY 


the  jiiiv  that  "  the  fact  of  possession  of  stolen  property,  standing  ulone 
and  unconnected  with  any  otlier  circumstance,  affords  but  slight  pre- 
sumption of  guilt,  for  the  real  criminal  may  have  artfully  placed  the 
property  in  the  possession,  or  on  the  premises  of  an  innocent  person 
the  better  to  conceal  his  own  guilt."  This  request  the  court  refused, 
but  the  jury  were  instructed  that  they  must  consider  all  the  circum- 
stances, and  allow  the  evidence  such  weight  as  they  believed  it  de- 

served. 

We  think  the  plaintiff  in  error  was  entitled  to  the  instruction  re- 
quested. It  is  perfectly  true  that  the  jury  must  jud-e  of  the  proper 
weight  of  the  evidence;  but  when  evidence  is  laid  before  them  wluch 
only  indirectly  tends  to  raise  an  inference  of  guilt,  and  the  importance 
of  which  must  depend  altogether  upon  circumstances,  it  is  the  right  of 
the  respondent  to  have  the  jury  instructed  how  these  circumstances 
bear  upon  the  presumption  of  guilt. 

Possession  of  stolen  property,  if  immediately  subsequent  to  the  lar- 
ceny, may  sometimes  be  almost  conclusive  of  guilt  ;i  but  the  presump- 
tion weakens  with  the  time  that  has  elapsed,  and  may  scarcely  arise  at 
all  if  others  besides  the  accused  have  had  equal  access  with  himself  to 
the  place  where  it  is  discovered.  A  jury  may  or  may  not  attach  im- 
portance  to  these  circumstances ;  but  as  the  law  permits  the  inference 
of  guilt  to  be  drawn  under  some  circumstances,  and  not  under  others, 
the  jury  should  have  some  instruction  how  to  deal  with  these  circum- 
stances when  they  are  placed  before  them. 

This  is  the  only  error  we  discovered  in  the  record.     The  judgment  w 
reversed,  and  a  new  trial  ordered. 
The  other  justices  concurred. 


PRESUMPTION  FROM  POSSESSION  OF  RECENTLY  STOLEN  PROPERTY. 

State  v.  Hale. 

[7  West  Coast  Rep.  141.] 

In  the  Supreme  Court  of  Oregon,  1885. 

The  Pr«.umptton  Raised  by  the  poesesslon  by  the  priaoner  of  recently  f  °>"  P^Pf;*^ 
1,  o"  oXt  from  which  the  Jury  may  Inter  guilt.  And  it  I.  error  for  the  court  to  in- 
.tTctthem  M  a  matter  of  law.  to  conTiot.  upon  Buch  poseeaslon  being  unexplained. 

Appeal  from  Umatilla  County.    The  opinion  states  the  facts. 
Wm.  Ramsey,  for  the  appellant. 

1  See  Walker  t'.  People,  88  Mich. 


||nHfi^tM)0BiHVli^<v•b.'^!yi,«'>«-^s£r•^.ull;v^ 


A^ 


inding  hlone 
t  slight  pre- 
f  placed  the 
)ceiit  person 
)urt  refused, 
the  circum- 
ieved  it  de- 
struction re- 
f  the  proper 
J  them  whicli 
e  importance 
s  the  right  of 
ircumstancea 

nt  to  the  lar- 
the  presump- 
ircely  arise  at 
ith  himself  to 
lot  attach  im- 
the  inference 
under  others, 
these  circum- 

e  judgment  is 


!N  PROPERTY. 


;ly  Btolen  property 
for  the  court  to  in- 
ig  unexplained. 

le  facts. 


STATE   V.  HALE. 


533 


Morton  D.    CUfford,  District-Attorney,  and  IF.  11.  Holmes,  for  the 
respondent. 

LoKD,  J.     The  defendant  was  indicted  for  tlie  larceny  of  certain  cat- 
tle, tried  and  convicted,  and  from  the  judgment  of  conviction  brings 
this  appeal  to  this  court.     There  are  numerous  assignments  of  error, 
but  after  an  attentive  examination  of  them,  we  are  satisfied  that  there 
is  but  one  material  error.     The  court  instructed  the  jury  that  "  when 
property  recently  stolen,  is  found  in  the  possession  of  any  person,  such 
possession  raises  a  presumption  of  guilt,  and  unless  he  shows  that  he 
came  honestly  into  the  possession  of  said  property,  the  law  will  pre- 
sume  that  he  stole  the  same."    The  objection  to  this  instruction  is, 
that  the  weight  to  be  given  to  fact  or  circumstance,  is,  under  our  stat- 
ute, to  be  left  to  the  jury ;  that  the  court  is  not  authorized  to  pass 
upon  the  weight  to  be  given  to  any  circumstance,  or  to  direct  tlie  jury 
in  reference  thereto.     It  is  often  stated  that  the  recent  possession  of 
stolen  property  by  the  prisoner  unexplained,  raises  the  presumption 
that  he  is  the  thief,  and  that  this  presumption  shifts  the  burden  from 
the  State  to  the  prisoner.     But  the  presumption  raised  by  such  circum- 
stances is  one  of  fact,  from  which  the  jury  may  infer  guilt.     There  is 
no  legal  presumption  of  guilt  from  the  recent  possession  of  stolen 
property.     In  Conkenright  v.  People,^  it  was  held  error  to  instruct  a 
jury  upon  a  trial  for  larceny,  that  possession  of  stolen  property  soon 
after  it  is  stolen,  is  of  itself  prima  facie  evidence  of  theft  by  the  pos- 
sessor and  the  burden  of  proving  his  possession  to  have  been  honest,  is 
there  thrown  upon  him.     The  question  is  undoubtedly  a  vexatious  one ; 
and  upon  it,  as  Mr.  Bishop  says,  "  all  sorts  of  utterances  are  to  be 
found  in  the  books."  *    But  we  regard  it  as  a  question  of  fact  and  not 
of  law,  to  be  submitted  to  the  jury  and  for  them  to  determine  whether 
the  defendant  is  the  guilty  party  or  not.     In  Curtis  v.  State,^  the  court 
say:  "  The  possession  of  such  chattel  as  a  horse,  two  months  after  the 
theft,  is  a  circumstance  to  be  considered  by  the  jury,  but  it  does  not, 
even  unexplained,  raise  a  conclusive  presumption  of  the  prisoner's 
guilt.        The  jury  may,  and  should,  give  it  proper  thought  as  evidence, 
but  the  matter  is  for  them,  and  they  are  not  bound  in  such  case  to 
convict  the  prisoner  unless  they  are,  upon  the  whole  evidence,  satisfied 
by  his  guilt."     In  State  v.  Hooye*  this  whole  subject  and  the  authori- 
ties upon  it,  is  ably  and  thoroughly  reviewed,  and  the  result  there 
reached  is  in  conformity  with  our  views.     We  think  the  instruction  was 
error.    The  judgment  must  be  reversed  and  a  new  trial  ordered. 


I  35  111.  264. 

«  Bish.  Cr.  Pr.,  sec  740. 


"  6  Col. 
<60N.  H.610. 


.  iCTi-.;-!..-..;;*? 


534 


^ARCENy. 


LARCENY- VOLUNTARY  RETURN  OF  STOLKN  PROPERTY. 

Allen  v.  State. 

[12  Tex.  (App.)  too.] 
//,  the  Court  of  Appeals  of  Texas,  1SS2. 

well  as  the  spirit  ot  repentance  and  restitution. 

Appeal  from  the  County  Court  of  WilUamaon.     Tried  below  before 
the  Hon.  George  W.  Glasscock,  County  Judge. 

The  indictment  charged  the  appellant  with  the  theft  of  five  dollars 
the  property  of  Goodson  Bryson,  on  December  9,  1881.     The  jury  found 
him  guiltv,  and  assessed  his  punishment  at  imprisonment  for  one  hour 
in  the  county  jail.     The  material  evidence  appears  in  the  opmion  of 
this  court.     Appellant  was  a  boy  about  sixteen  years  of  age. 
Mackemion,  Fisher  &  Price,  for  the  appellant. 
H.  Chilton,  Assistant  Attorney-General,  for  the  State. 
Huux,  J.  The  appellant  was  convicted  of  the  theft  of  five  dollars. 
The  record  presents  but  two  questions  deemed  by  us  necessary  to  be 
passed  upon  in  order  to  a  proper  disposition  of  the  case:  (1st)  Were 
the  confessions  of  the  defendant  admissible;  and  (2d)  was  the  money 
voluntarily  returned? 

The  following  were  the  facts  bearing  upon  these  two  questions:  Mrs. 
Bessy  Bryson,  wife  of  the  prosecutor,  in  response  to  the  question,  "  I 
the  five  dollars  was  returned  to  her,"  answered,  "  Yes,  it  was  returned 
to  me  that  evening  by  the  defendant,  Earnest  Allen;  he  brought   it 
to  me  and  said,  'Here  is   your  money,  Mrs.  Bryson;  this  is  all  I 
J,,,     »    »    *    II  The  defendant  was  at  my  house  about  an  hour 
before  he  brought  the  money  back  to  me,  and  made  a  statement  about 
It     I  did  not  threaten  him  to  make  him  confess.     My  little  boy  told 
him  somebody  had  been  in  our  house  and  robbed  it;   and  defendant 
said  'Is  that  so?'  and  I  told  him,  'yes,'  and  that  we  had  evidence 
enough  to  find  out  who  it  was.     I  also  told  him,  unless  it  was  stopped, 
we  would  have  to  send  for  Esquire  Ward  and  have  the  matter  investi- 
eated     I  did  not  threaten  to  have  any  one  arrested,  but  said  if  the 
money  was  not  brought  back  we  would  have  to  send  for  Ward  and  have 
the  matter  investigated.    The  defendant  then   told  me  he  took  the 
money  from  the  house,  and  he  went  off  and  after  a  while  came  back 
and  handed  me  the  five  dollars,  and  said,  '  Here  is  your  money,  this  is 
all  I  got,  Mrs.  Bryson ;  don't  tell  ma,  for  I  would  not  have  her  to  know 


-mf^^a^f^mmssm 


fiiSt^^ft'it^F^-^P'^^'^'  ^  W«*i>»l*ilWWi'*'i* 


^iH 


ALLEN   V,  STATE. 


535 


OPERTT. 


Brty.  — The  return 
lu  TiS  of  the  renal 
and  puuiihment  an 


tl  below  before 

of  five  dollars, 
Tiie  jury  found 
nt  for  one  hour 

the  opinion  of 

age. 


of  five  dollars, 
neceasary  to  be 
96:  (l8t)  Were 
was  the  money 

questions:  Mrs. 
le  question,  "  If 
,  it  was  returned 
;  he  brought  it 
n;  this  is  all  I 
!  about  an  hour 

statement  about 
ly  little  boy  told 
;  and  defendant 
ve  had  evidence 
3  it  was  stopped, 
e  matter  investi- 
,  but  said  if  the 
)rWard  and  have 

me  he  took  the 
while  came  back 
ur  money,  this  is 
have  her  to  know 


this  for  anything.'  I  told  him  I  would  not  tell  his  mother,  or  any  one 
else,  if  I  cculd  lielp  it,  and  unless  compelled  to  do  ho;  uiul  I  did  not 
tell  her  until  alio  asked  tiio  question  direct.  Tiie  money  had  fresli  dirt 
on  it  wlii-n  he  came  hack  and  hundtul  it  to  me,  as  if  it  hud  been  Imried." 

Were  these  confessions  admiHsiblo?  Upon  this  subject  the  Code  of 
Criminal  I'roccdure,'  provides  that  "the  confession  of  a  defendant 
may  be  used  in  evidence  against  him,  if  it  appear  that  the  same  was 
freely  made,  without  compulsion  or  persuasion,  under  the  rules 
hereinafter  preseriijed."  "The  confession  must  be  freely  made;" 
tills,  however,  is  modified  by  that  which  follows,  viz, :  "  Without  com- 
pulsion or  persuasion."  Here,  if  there  was  no  compulsion  or  pcrsua- 
sion,  in  express  terras  or  circumstantially,  wo  would  conclude  that  the 
confession  w.as  freely  made.  There  was  no  persuasion  in  tliis  case,  nor 
was  the  defendant  threatened,  directly  or  indirectly.  It  is  true  we 
may  infer  that  Mrs.  Bryson  suspected  some  person,  and  threatened  an 
examination  into  the  matter,  but  that  her  remarks  pointed  to  the  defend- 
ant is  an  inference  not  supported  by  the  evidence.  That  the  defendant, 
liiiving  taken  back  tlie  money,  believed  that  he  was  the  suspected  i)arty, 
we  have  no  doubt;  but,  it  will  never  do  to  hold  that,  when  the  defend- 
ant believes  that  he  is  suspected  and  is  in  great  danger  of  a  prosecution, 
liis  confession  is  the  result  of  compulsion.  There  should  be  some  rela- 
tion or  connection  between  the  forces  used  and  the  result,  that  is,  the 
confession.  In  this  case  there  was  nothing  said  or  done  tending  to 
comi)el  the  defendant  to  the  confession,  save  his  own  knowledge  of 
guilt  and  his  belief  that  he  had  been  discovered.  The  confession  was 
adinls8il)le. 

2d.  Did  the  defendant  voluntarily  return  the  property?  It  may  be 
thought  that  the  conclusion  reached  on  the  first  question  settles  this. 
This,  however,  does  not  follow.  Under  article  759,  Penal  Code,  "If 
property  taken  under  such  circumstances  as  to  constitute  theft  be  vol- 
untaril)-  returned  within  a  reasonable  time,  and  before  any  prosecution 
is  commenced  therefor,  the  punishment  shall  be  by  fine  not  exceeding 
one  thousand  dollars." 

The  return  must  be  before  prosecution  was  commenced.  This  was 
the  case.  Was  it  voluntary?  This  is  the  question:  If  the  return  is 
eaused  by  the  fear  that  discovery  has  been  made  and  a  prosecution  will 
he  set  on  foot,  would  it  be  voluntary?  Are  the  causes  and  motives  in- 
ducing the  return  to  govern?  If  so,  of  what  character  or  quality  must 
these  be?  Suppose  fear  of  detection  and  punishment  is  the  moving 
cause.  Does  it  follow  that  the  return  is  not  voluntary?  Admitting 
that  it  does,  suppose  that  repentance  and  a  desiie  for  reparation,  to- 

1  art.  749. 


!iSC, 


LARCENY. 


gcthcr  with  fear  of  dptootlon  and  punisliment,  all  contribute  the  acting 
causes  prompting  the  defendant  to  return  the  property ;  will  he  not  be 
entitled  to  this  generous  provision  of  our  code?  This,  we  think,  waw 
precisely  the  position  of  defendant  when  he  confessed  that  ho  tools  the 
money.  The  intention  to  return  it  was  present ;  and,  while  it  may  be 
true  that  fear  of  punishment  waa  a  factor,  taking  all  of  the  facta  to- 
gether and  giving  thera  a  close  examination,  we  believe  tlio  conclusion 
will  be  reached  that  there  were  other  motives,  besides  fear  of  punish- 
ment, prompting  defendant  to  restore  the  property. 

Tlie  punishment  assessed  waa  imprisonment  in  the  county  Jail.  This 
punishment  was  not  supported  by  the  evidence,  and  tlie  judgment  is 
therefore  reversed  and  the  cause  remanded. 

Bever&^J  and  remanded. 


VOLUNTARY  RKTUIIN  t)F  STOLEN  PKOPKRTY. 

Bird  v.  State. 

[16  Tex.  (App.)  628.J 
Ih  the  Court  of  Appeals  of  Texas,  1884. 

1.  Volnntary  Return  of  Stolen  Property,  such  as  under  the  provisions  of  article  878 

of  tlie  Penal  Code  will  operate  to  reduce  a  theft  from  the  grade  of  felony  to  misde- 
meanor, must  be  made  under  the  following  circumstances:  1.  The  return  must  be 
Toluntar>,that  is,  willingly  made;  not  matie  under  the  influence  of  compulsion,  fear 
of  punishment  or  threats.  If,  however.  It  ue  made  under  tli4  influence  of  repentance 
for  the  crime,  and  with  the  desire  to  make  reparation  to  the  injured  owner,  It  will  be 
voluntary,  although  it  may  also  bo  inf-^enced  by  fear  of  punishment.  2.  It  must  be 
made  within  a  reasonable  time  after  tlm  .heft,  and  before  prosecution  for  the  theft  has 
been  commenced.  3.  It  must  be  an  actual,  not  merely  a  constructive  return  of  the 
property  Into  the  possession  of  the  owner.  4.  The  property  returned  must  be  the  Iden- 
tical proiierty,  unchanged  and  all  of  It,  that  was  slolen. 

2.  Case  Stated.— In  this  case  the  defendant  drove  thrj  stolen  animal  about  ten  miles  from 

its  range,  and  attempted  to  sell  it.  Pending  negotia<r>ng  of  sale,  it  was  discovered  by 
parties  acquainted  with  it,  when  the  paity  with  whom  (ho  sale  was  being  negotiated 
told  the  defendant  to  turn  it  loose,  and  that  they  would  ^^t  it  at  another  time.  In  a  few 
days  the  owner  told  the  defendant  that  all  ho  \  iUitjd  was  the  animal,  and  that  if  fc- 
would  drive  It  back  home,  he,  the  owner,  vcoviM  tot  prosecute  him,  the  defendant. 
Soon  after  thin  the  owner  found  the  animal  on  Its  accustomed  range.  Beld,  that  undur 
such  circumstances  the  court  should  have  given  In  charge  the  Issue  as  to  the  voluntary 
return  of  the  animal  by  the  defendant;  that,  while  not  strictly  a  return  of  actual  pos- 
session. It  was  such  as  was  demanded  by  the  owner,  and  therefore  sufllcient. 

Appeal  from  the  District  Court  of  Milam.     Tried  below  before  the 

Hon.  W.  E.   COLLARD. 

The  conviction  was  for  the  theft  of  one  head  of  cattle,  the  property 
of  Sam.  McCassling,  in  Milam  County,  Texas,  on  the  tenth  day  of  De- 


MIKD   V.  STATE. 


537 


«  the  acting 
ill  lie  not  be 
?o  think,  woH 
;  ho  took  the 
lo  it  muy  be 
;he  facta  to- 
e  conclusion 
ir  of  punish- 

y  jail.  This 
judgment  is 

remanded. 


The  penalty  awarded  was  a  term  of  tw?  years  in  the 


ons  of  article  S78 
felony  to  misde- 
I  return  must  be 
compulsion,  fear 
CO  of  repentance 
owner,  It  will  be 
it.  2.  It  must  be 
1  for  the  theft  has 
Ive  return  of  the 
must  be  theiden- 

int  ten  miles  from 
vas  discovered  by 
being  negotiated 
er  time.  In  a  few 
lal,  and  tliut  If  t~ 
n,  the  defendant. 
Held,  that  under 
3  to  the  voluntary 
rn  of  actual  pos- 
Qcient. 

ow  before  the 


,  the  property 
ith  day  of  De- 


ceinlter,  ISh;}. 
penitentiary. 

J.  K  Bryant  was  the  llrst  witness  for  tlio  State.  IIo  testified  in  sub- 
stance, tliat  on  the  night  of  tlio  tenth  day  of  December,  18«;5,  lie  got 
homo  from  the  town  of  Rogers  and  found  the  defendant  and  Gran- 
ger Elliot  in  bed  at  his  house.  Next  moniii  g  the  defendiint  told  wit- 
ness that  he  had  brouglit  a  steer  to  sell  him,  and  that  the  steer  was 
tied  on  the  side  of  tlio  road  near  liy.  Defendant,  Elliot  and  witness 
started  down  the  road  to  look  at  tlio  animal.  Witness  saw  that  the 
animal  was  not  fat  enough  for  beof,  declined  to  buy  it,  and  told  the 
boys  to  release  it.  The  animal  was  a  white  and  black  pided  steer, 
bninded  SA^IY  on  the  ribs.  En  route  to  the  point  where  tlie  steer  was 
tied,  the  party  saw  Pinkney  Bird,  James  Cook  and  another  man  looking 
at  tho  steer.  Witness  and  the  two  boys  did  not  then  go  to  the  steer. 
It  was  then  that  the  witness  told  tho  boys  that  they  had  better  turn  the 
steer  loose,  and  they  would  get  it  some  other  time.  The  boys  did  re- 
lease tho  steer. 

Sam.  McCasland  testified,  for  the  State,  in  substance,  that  he  lived 
in  Bell  County,  and  owned  a  small  stock  of  cattle  in  the  SAMY  brand 
Among  them  was  a  two  year  old  white  and  black  pided  steer.  He 
learned  that  this  steer  had  been  seen  by  Pink.  Bird  and  others  tied 
to  a  tree  near  J.  B.  Bryant's  in  Milam  County.  He  then  went  to  de- 
fendant and  told  him  that  he  had  heard  of  his  driving  the  sveer  to 
Jesse  Bryant's.  Defendunt  said :  "  Yes,  I  did  drive  one  "of  your  steers 
to  Jesse  Bryant's."  Witness  asked  him  why  he  did  so.  He  replied 
tliat  Bryant  had  promised  him  twelve  dollars  and  a  half  to  bring  him  a 
steer,  and  that  tlie  witness'  steer  was  the  first  one  he  found.  He  told 
tho  witness  that  ho  and  Granger  Elliot  drove  the  steer  to  Bryant's,  tied 
it  out  over  niglit,  and  started  next  morning  with  Bryant  to  see  it,  but 
saw  Pink.  Bird,  Jim  Cook  and  some  one  else  looking  at  it,  when  Bryant 
told  them  they  had  better  turn  it  loose  and  get  it  some  other  time. 
Defendant  made  these  statements  to  witness  voluntarily,  without  threat 
or  persuasion.  Witness  afterwards  told  him  that  he  only  wanted  the 
steer  and  that  if  he  would  drive  it  back,  he  would  not  prosecute,  unless 
forced  to  do  so  by  the  grand  jury.  Bryant  lived  in  Milam  County, 
about  ten  miles  from  the  steer's  range.  Witness  never  consented  that 
the  defendant,  Elliot,  or  any  one  else,  should  drive  the  steer  off.  A 
few  days  after  the  interview  with  defendant,  witness  found  his  steer  on 
its  accustomed  range.  Witness*  name  was  Sam.  McCasland,  but  be 
was  equally  well  and  generally  known  as  Sam.  J'TriCassling.' 

Pinkney  Bird  testified,  for  the  State,  that  he  saw  the  steer  described 
tied  to  a  tree  on  the  road  near  J.  B.  Bryant's,  on  the  morning  of  De- 
cember 11,  1883.     He  saw  Bryant,  defendant  and  Elliot  near  it.     De- 


'■tmmmmmKa 


538 


LARCENY. 


fondant  turned  the  steer  loose.  Witness  saw  that  animal  again  late 
that  evening,  about  one  hundred  yards  from  where  lie  saw  it  in  the 
morning,  feeding  along  in  a  hollow. 

The  motion  for  a  new  trial  raised  the  issues  considered  in  the  opin- 
ion.    The  newly  discovered  evidence  referred  to  in  the  last  head-note 
of  this  report  was  to  the  effect  that  the  witnesses  L.  G.  and  W.  W. 
McDaniel  would  testify  on  another  trial  that,  on  the  25th  day  of  De- 
cember, 1883,  they  had  a  conversation  with  Sam  McCasland ;  that  in 
that  conversation  McCasland  told  them  that  he  went  to  see  the  defend- 
ant about  the  alleged  theft  of  the  steer ;  that  he  told  the  defendant 
that  he  had  heard  that  he,  defendant,  had  driven  off  one  of  his  steers ; 
that  he  wanted  him,  defendant,  to  acknowledge  that  he  did  so,  and 
bring  the  animal  back,  and  that  if  he  would  do  so  he,  McCasland,  would 
not;  indict  him,  unless  he  was  forced  to  do  so  by  the  grand  jury,  and 
that  thereupon  the  defendant  acknowledged  that  he  drove  the  steer  off, 
and  promised  to  bring  it  back.     The  witnesses  L.   G.  and  W.  W. 
McDaniel  were  called  as  witnesses  of  the  State  and  placed  under  the 
rule,  and  had  heard  none  of  the  evidence  when  they  testified  in  the  • 
case.     Since  the  trial  they  had  heard  that  McCasland  testified  that 
defendant's  confession  or  statement  was  made  voluntary  and  without 
comi)ulsion  or  persuasion,  and  it  was  only  since  the  trial  that  they  had 
informed  defendant's  counsel  of  their  conversation  with  McCasland. 
The  affidavits  of  L.  G.  and  W.  W.  McDaniela  were  attached  to  the  mo- 
tion. 

Jt.  Lyles  and  E.  H.  Lott,  for  the  appellant. 
J.  H.  Bvrts,  Assistant  Attorney-General,  for  the  State. 
WiLLsoN,  J.  1.  Sam.  McCassling,  the  alleged  owner  of  the  animal 
charged  to  have  been  stolen,  was  as  well  known  by  that  name  as  by  his 
true  name,  Sam.  McCasland,  and  there  was,  therefore,  no  fatal  variance 
between  the  name  of  the  owner  as  alleged  and  the  evidence  of  owner- 
ship.* 

2.  If  property  taken  under  such  circumstances  as  to  constitute  theft 
be  voluntarily  returned  within  a  reasonable  time,  and  before  any  prose- 
cution is  commenced  therefor,  the  offense  is  a  misdemeanor,  punishable 
by  fine  not  exceeding  one  thousand  dollars.^  A  return  of  stolen  prop- 
erty, influenced  by  threat  of  prosecution  for  the  theft,  is  not  a  voluntary 
re  I  a  within  the  meaning  of  the  statute.  3  Where  a  defendant  had 
driven  a  stolen  cow  about  thirty  miles,  and  was  overtaken  in  possession 
of  the  animal,  and  told  that  he  must  return  her  to  hei  range,  and  he 


I  Code  Crim.  Proc,  art.  425;  Rye  v.  State, 
8  Tex.  (App.)  163;  Cotton  i'.  State,  4  Tex. 
260;  Hart ».  State,  38  Tex.  382;  BeU  v.  State, 


25  Tex.  671;  WeUs  v.  State,!  Tex. 
20. 

2  Penal  Code,  art.  73S. 

3  Owen  V.  State,  44  Tex.  248. 


(App.) 


>«l 


BIRD   V.  STATE. 


539 


at  animal  again  late 
ere  he  saw  it  in  tlie 

msidered  in  tlie  opin- 
in  tlie  last  bead-note 
jes  L.  G.  and  W.  W. 
the  25th  day  of  De- 
McCasland;  that  in 
;nt  to  see  the  defend- 
le  told  the  defendant 
off  one  of  his  steers ; 
that  he  did  so,  and 
he,  McCasland,  would 
f  the  grand  jury,  and 
ie  drove  the  steer  off, 
J  L.  G.  and  W.  W. 
vnd  placed  under  the 
I  they  testified  in  the 
Dasland  testified  that 
voluntary  and  without 
the  trial  that  they  had 
,tion  with  McCasland. 
re  attached  to  the  mo- 


ae  State, 
owner  of  the  animal 
l)y  that  name  as  by  his 
jfore,  no  fatal  variance 
ihe  evidence  of  owner- 

s  as  to  constitute  theft 
and  before  any  prose- 
sdemeanor,  punishable 
return  of  stolen  prop- 
heft,  is  not  a  voluntary 
here  a  defendant  had 
)vertalven  in  possession 
r  to  iiei  range,  and  he 


drove  her  about  ten  miles  back  in  the  direction  of  where  he  had  taken 
her  from,  and  tliere  left  her,  it  was  held  that  this  was  not  a  voluntary 
return  within  the  meaning  of  the  statute, '  In  Cfrant  v.  State,^  this  court 
said,  referring  to  this  provision  of  tlie  Code,  that  "  it  never  contem- 
plated that  a  thief,  caught  in  possession  of  property  stolen  by  him,  could 
reduce  a  felony  to  a  misdemeanor  by  simply  then  offering  to  give  up  the 
stolen  property  or  pay  for  it."  In  that  case  the  defendant  while  he  wsa 
caught  in  the  act  of  skinnirg  a  hog  lie  had  stolen,  and  he  then  offered 
to  return  it  to  the  owner  or  pay  for  it.  In  Moore  v.  State,^  this  court 
in  discussing  this  subject,  said:  "  To  entitle  the  thief  to  the  mitigated 
penalty  for  a  voluntary  return  of  tlie  stolen  property  within  a  reasona- 
able  time,  the  return  must  be  actual,  and  demonstrating  in  itself  a  con- 
trition for  the  act,  and  not  a  clandestine  return  and  constructive 
redelivery  of  the  propert}-.  The  purpose  of  the  statute  is  to  extend 
the  grace  and  favor  of  the  law  to  such  wrong-doers  as  promptly  repent 
of  their  acts,  and  endeavor  to  mak^  all  the  reparation  in  their  power  to 
the  party  injured.  In  such  cases  the  law  looks  with  mercy  upon  the 
penitent,  and  administers  a  modified  punishment  for  its  infraction. 
But  when  the  thief  fails  in  his  purpose  to  realize  from  tlie  stolen  prop- 
erty, and,  as  in  this  case,  releases  the  stolen  animal,  which,  of  its  own 
motions,  returns  to  its  accustomed  range,  the  law  delivers  the  prisoner 
to  justice,  who  sits  blindfolded  and  inexorable,  and  sternly  metes  out 
the  puisliment  affixed  for  the  original  transgression."  In  Allen  v. 
/Sfo^e,*  this  court,  in  again  treating  upon  this  subject,  said:  "  If  the 
return  ia  caused  by  fear  that  discovery  has  been  made,  and  a  prosecu- 
tion will  be  set  on  foot,  would  it  be  voluntary  ?  Are  the  causes  and 
motives  inducing  the  return  to  govern?  If  so,  of  what  character  or 
quality  must  they  be?  Suppose  fear  of  detection  and  punishment 
is  the  moving  cause.  Does  it  follow  that  the  return  is  not  volun- 
tary? Admitting  that  it  does,  suppose  that  repentance  and  a  desire 
for  reparation,  together  with  fear  of  detection  and  punishment,  all 
contribute  the  acting  causes  prompting  the  defendant  to  return  the 
property,  will  he  not  be  entitled  to  this  generous  provision  of  our 
Code!  "  It  was  held  in  that  case  that  if  the  return  of  the  property 
was  actuated  by  repentance,  in  connection  with  a  fear  of  proseution 
and  punishment,  it  was  nevertheless  a  voluntary  return  within  the 
meaning  of  the  law. 

We  deduce  from  the  decisions  upon   this  question,  and  from  the 
statute  itself,  that  a  voluntary  return  of  stolen  property,  within  the 


/ells  t>.  state,  4  Tez.   (App.) 

B,  art.  738. 

tate,  44  Tex.  248. 


1  Brill  V.  .State,  1  Tex.  (App.)S72. 
3  2  Tex.  (App.)  103. 


'8 Tex.  (App.)4iH5. 
♦  12  Tex.  (App.)  190. 


'"«a««Baisaaiw«s8aaift«iB.M,iswiTii.**'"»  i 


540 


LAKCENY. 


meaning  of  the  article  of  the  code  cited,  must  be  under  the  following 
circumstances :  — 

1.  It  must  be  voluntary,  that  is,  willingly  made;  not  made  under 
the  influence  of  compulsion,  threats,  or  fear  of  punishment.  If,  Kow- 
ever,  it  be  made  under  the  influence  of  repentance  for  the  crime,  and 
with  a  desire  to  make  reparation  to  the  injured  owner,  it  will  be  volun- 
tary, although  it  may  also  be  influenced  by  fear  of  punishment. 

2.  It  must  be  made  within  reasonable  time  after  the  theft,  and  before 
prosecution  for  the  theft  has  been  commenced. 

3.  It  must  be  an  actual,  and  not  merely  a  constructive,  return  of  the 
property  into  the  possession  of  the  owner. 

4.  The  property  returned  must  be  the  identical  property,  unchanged, 
and  all  of  it,  that  was  stolen. 

In  this  case  defendant  drove  the  animal  from  its  range  a  distance  of 
about  ten  miles,  and,  while  endeavoring  to  sell  it,  was  discovered  by  some 
persons  who  were  acquainted  with  it,  and  thereupon  defendant  was  told 
by  the  man  to  whom  he  was  negotiating  its  sale  to  turn  it  loose,  and 
they  would  get  it  again  at  some  other  time.  Defendant  turned  the  ani- 
mal loose.  In  a  few  days  thereafter,  McCasland,  the  owner  of  the 
animal,  told  the  defendant  tliat  all  he  wanted  was  the  animal,  and  that 
if  he,  defendant,  would  drive  it  back  home,  he  would  not  prosecute 
him.  Soon  after  this,  the  animal  was  found  by  McCasland,  in  its  ac- 
customed range. 

We  are  of  the  opinion  that,  under  the  peculiar  facts  of  this  case,  the 
court  should  have  submitted  to  the  jury  the  issue  as  to  a  voluntary  re- 
turn of  the  animal  by  the  defendant.  We  think  there  was  evidence 
sufflcient  to  demand  instructions  from  the  court  upon  this  issue.  If  de- 
fendant did,  in  fact,  return  the  animal  within  a  reasonable  time,  and  in 
such  manner  as  to  satisfy  the  owner  thereof,  and  in  accordance  with  the 
owner's  directions,  and  if,  in  so  doing,  defendant  was  actuated  by  a 
feeling  of  penitence  for  his  wrongful  act,  and  a  desire  to  make  repar- 
ation therefor,  we  think  he  would  be  within  thebenign  operation  of  this 
merciful  provision  of  our  code.  While  such  return  would  not  be 
strictly  into  the  actual  possession  of  the  owner,  still,  if  it  was  such  a 
return  as  the  owner  desired,  and  as  he  was  satisfled  with,  we  think  it 
should  bo  held  sufficient.  The  learned  judge  did  not  charge  upon  this 
issue,  nor  did  the  defendant  request  him  to  do  so,  or  except  to  the 
charge  because  of  such  omission ;  but  the  matter  was  called  to  the  at- 
tention of  tlie  court  in  a  motion  for  a  new  trial.  We  think  a  charge 
upon  this  issue  was  a  part  of  the  law  of  this  case,  and  that  the  failure, 
to  give  it  was  such  error  as  was  calculated  to  injure  the  rights  of  the 
defendant,  and  is  therefore  reversible  error. 


■'t4:-Ait--:i..'.-at-'iir-i^m-l"Sii^&M>/*iliKt'.^^^^ 


^^m 


de  following 

made  under 
t.  If,  '.ow- 
crime,  and 
ill  be  volun- 
ent. 
,  and  before 

Bturn  of  the 

unchanged, 

distance  of 
sred  by  some 
ant  was  told 
t  loose,  and 
ned  the  ani- 
wner  of  the 
lal,  and  that 
3t  prosecute 
id,  in  its  ac- 

119  case,  the 
oluntary  re- 
!&s  evidence 
sue.  If  de- 
time,  and  in 
ince  with  the 
Btuated  by  a 
make  repar- 
ation of  this 
)uld  not  be 
was  such  a 
we  think  it 
ge  upon  this 
[cept  to  the 
id  to  the  at- 
ink  a  charge 
:  the  failure, 
rights  of  the 


LARCENY  —  A  TAKING  ESSENTIAL. 


541 


We  are  also  of  the  opinion  that  the  court  sliould  have  granted  de- 
fendant a  new  trial  upon  the  ground  of  newly  discovered  evidence. 
The  evidence  set  out  in  the  afHdavits  uccompaying  the  motion  was  ma- 
terial to  show  that  defendant's  confession,  which  had  been  admitted  in 
evidence  against  him  on  the  trial,  had  been  made  under  the  influence  of 
promises  and  persuasion,  and  therefore  was  not  admissible.  We  think 
it  was  sufficiently  shown  that  this  evidence  had  been  discovered  since 
the  trial,  and  that  its  not  having  been  discovered  sooner  was  not  attrib- 
utable to  any  want  of  diligence  on  the  part  of  defendant.  We  think, 
also,  that  this  evidence  would  probably  change  the  result  of  the  verdict 
on  another  trial.  It  would,  perhaps,  have  the  effect  to  exclude  from 
the  evidence  the  confession  of  the  defendant,  and  should  it  have  this 
effect  there  is  no  other  inculpatory  evi<lence  against  the  defendant,  so 
far  as  is  disclosed  by  the  record,  except  that  of  the  witness  Bryant, 
who  was,  unquestionably  to  our  minds,  an  accomplice  in  the  theft,  and 
whose  testimony  is  without  corroboration,  except  by  defendant's  con- 
fession. 

It  appears  from  this  record  that  defendant  is  a  boy  of  tender  yean, 
about  sixteen  years  of  age,  and  that  in  the  commission  of  this  theft  he 
was  aided  by  another  person,  and  also  acted  under  the  instructions  of 
the  witness  Bryant,  who  was  carrying  on  the  butchering  business,  and 
to  whom  he  had  taken  the  animal  to  be  used  by  Bryant  as  a  beef,  and 
for  which  Bryant  had  promised  to  pay  the  boy  twelve  dollars  and  fifty 
cents.  It  seems  that  this  man  Bryant  has  been  permitted,  in  consider* 
ation  perhaps  of  his  own  escape  from  just  punishment,  to  testify  against 
this  boy,  t-ud  thus  destroy  evidence  which  would  perhaps  cause  him, 
instead  of  .he  defendant,  to  be  incarcerated  in  the  penitentiary  for  this 
crime. 

Because  of  the  errors  we  have  mentioned,  and  because  we  believe  that 
justice  demands  that  the  defendant  should  have  another  trial,  the  judg- 
rafcQt  is  reversed  and  the  cause  is  remanded. 

Reversed  and  rcTnanded, 


NOTES. 

§  483.  LKToeny  — Taking  Neosssary  —  Property  ICuat  be  Removatf.— The 
property  must  be  taken; '  some  asportatlou  is  necessary.*  Turning  a  barrel  of 
turpentine,  which  was  standing  on  its  head  over  on  its  side,  is  not  a  sufflclent 


<  Anable  v.  Com.,  34  Oratt.  963  (1878) ;  B. 
V.  Weekes,  10  Cox,  224  (I86G);  State  v.  Car- 
penter, 74  N.  C.  233  (1876) ;  B.  v.  Gardner,  L. 


A  C.  343  (1862);  R.  v.  Walker,  Dears.  380 

(18M). 

*  People  V.  Murphf,  47  Cat.  103  (187S) ; 
State  V.  Hardy,  Dudl.  236  (1838). 


kiineRiw^»w.'«ia«r«K.&'v«c\ 


542 


LARCENY. 


taking ;  >  nor  is  sliooting  a  cow  and  cutting  off  its  ears  a  sufflcieot  taking  ot 
the  cow,'  or  coaxing  a  liog  by  bait.' 

In  Wolf  V.  State,*  a  witness  "  beard  a  gun  fire  in  the  woods  and  immediately 
afterwards  heard  a  hog  squeal ;  he  saw  the  prisoner  soon  afterwards  cba'<iDg 
the  hog  and  pursued  him;  the  prisoner  chased  the  hog  about  one  hundred  yards 
and  was  in  the  act  of  striking  it  with  his  gun  when  witness  came  up  end  asked 
him  what  he  was  doing;  he  replied  that  he  had  shot  a  squirrel  and  hit  the  hog, 
and  he  wanted  to  see  where  the  hog  was  shot."  This  was  held  not  a  sufficient 
aaportavit  of  the  liog  to  convict  the  prisoner  of  larceny. 

In  State  v.  Seagler,^  the  prisoners,  after  chasing  and  shooting  a  hog  belonging 
to  A.,  fled  ut  his  approach  without  taking  it.  It  was  held  that  the  offense  was 
not  complete.  "  If  the  defendants,"  said  Evans,  J.,  "  after  shooting  the  hog 
had  voluntarily  gone  off  and  left  it,  I  presume  the  act  would  have  been  nothing 
more  than  a  trespass.  Does  the  circumstance  that  they  fled  on  the  approach  of 
the  witness,  Rogers,  without  removing  the  hog,  make  it  felony,  if  the  shooting 
was  with  the  felonious  intent  to  appropriate  the  hog  to  their  own  use?  All  the 
authorities  seem  to  concur  tliat  the  offense  is  not  complete  without  some 
removal.  In  Cherry's  Case,*  tlie  prisoner  was  indicted  for  stealing  a  wrapper 
and  some  pieces  of  linen  cloth,  and  it  appeared  the  linen  was  packed  up  in  a 
wrapper,  in  the  common  form  of  a  long  square,  which  was  laid  lengthwise  in  a 
wagon.  The  prisoner  set  up  the  wrapper  on  one  emi,  in  the  wagon,  for  the 
greater  convenience  of  taking  the  linen  out,  and  cut  the  wrapper  all  the  way 
down  for  that  purpose,  but  was  apprehended  before  he  had  taken  anything. 
All  the  judges  agreed  this  was  no  larceny,  although  his  intention  to  steal  was 
manifest;  for  the  carrying  away,  in  order  to  constitute  felony,  must  be  a 
removal  of  the  goods  from  where  they  were,  and  the  felon  must,  at  least,  for 
an  instant,  be  in  the  entire  possession  of  the  goods.  There  are  other  cases  in 
East,  all  illustrative  of  the  same  principle,  that  the  offense  is  incomplete 
without  some  removal  of  the  goods ;  and  in  this  particular  I  think  my  instruc- 
tion was  wrong,  and  a  new  trial  is  ordered.  " 

In  Hardeman  v.  State,'  it  was  said;  "  Black  Hardeman  was  convicted  of  the 
theft  of  a  steer,  the  property  of  Mrs.  Jennie  May.  The  evidence  falls  to  show 
that  the  steer  was  ever  in  the  possession  of  the  defendant.  To  constitute  tlieft 
there  must  be  a  fraudulent  taking  by  some  person.  In  this  case  the  defendant 
did  not  take  the  animal,  nor  did  Calvin  Wear,  to  whom  defendant  sold  the  ani- 
mal ;  and  if  Wear  had  taken  the  property,  his  taking  would  not  have  been 
fraudulent,  but  honest,  he  having  bought  and  paid  for  it,  and  received  the  bill 
of  sale  for  the  steer.  This  steer,  running  on  the  range  all  the  while  was  not 
taken  fraudulently  or  otherwise  by  any  person;  hence  there  was  no  theft." 

In  R.  v.  Lyon,^  the  prisoner  has  been  in  the  habit  of  buying  and  selling  com 
for  his  employers,  and  to  apply  to  the  purpose  of  payments  for  purchases  nuide 
on  their  behalf  as  well  moneys  which  he  received  on  their  account  as  moneys 
which  he  received  from  them  for  that  purpose;  he  falsely  entered  the  price  of 
some  corn  which  he  had  purchased  and  paid  for  as  amounting  to  a  larger  rate 
by  fid  a  comb  than  it  really  did  and  retained  the  difference.  It  was  held  that 
this  was  not  larceny.     "  This  is  no  case  of  larceny,"  said  Wightman,  J.,  "  as  It 


I  state  V.  Jones,  6S  N.  C.  39S  (1871). 
«  St»tc  V.  Butler,  M  N.  C.  .S09  (1871). 
3  Edmonds  v.  State,  70  Ala.  8  (1881). 
*  41  Ala.  412  (1868). 


>  1  Rieb.  30  (1844). 

•  S  East's  F.O.tse. 

'  12  Tex  (App.)  207  (1882). 

•  1  F.  A  F.  54  (1858). 


LARCENY  —  A  TAKING  ESSENTIAL. 


543 


lent  taking  of 

1  immediately 
vards  cha'dng 
luudrcd  yards 
up  end  asked 
d  hit  tlie  hog, 
ot  a  sufflcieut 

bog  belonging 
le  offense  was 
oting  the  hog 
been  nothing 
e  approach  of 
[  the  shooting 
use?  All  the 
>vithout  some 
lug  a  wrapper 
acked  up  in  a 
ingthwisc  in  a 
vagoD,  for  the 
er  all  the  way 
ken  anything. 
Q  to  steal  was 
f,  must  be  a 
t,  at  least,  for 
other  cases  in 
is  incomplete 
ik  my  instruc- 

avicted  of  the 
falls  to  show 
institute  theft 
the  defendant 
t  sold  the  ani- 
ot  have  been 
ceived  the  bill 
while  was  not 
no  theft." 
id  selling  com 
irchases  made 
unt  as  moneys 
id  the  price  of 
0  a  larger  rate 
was  held  that 
IAN,  J.,  "as  It 


was  impossible  to  distlngnish  the  moneys  which  the  prisoner  received  of  his 
employers  from  that  which  he  received  for  them." 

Irx.B.  V.  Frampton,^  A.  assisted  by  B.  had  done  work  for  the  father  of  C.  and 
C.  told  A.  and  B.  that  If  they  would  bring  a  stamped  receipt  they  should  be  paid. 

B.  bought  a  stamp  with  the  money  of  A.  and  they  together  went  to  C.  and  the 
blank  stamp  was  given  to  C.  to  write  a  receipt  on  it.  C.  did  so  and  as  the 
stamp  lay  on  C.'s  desk,  A.  signed  the  receipt  and  B.  witnessed  it,  but  neither  of 
them  ever  had  the  stamp  In  his  possession  after  the  receipt  was  written  on  it. 

C.  under  pretense  of  fetching  his  father's  check-book,  took  away  the  receipt 
and  would  not  pay  the  money  it  was  given  for.  This  was  held  no  larceny. 
"  The  stamp,"  said  Wight.max,  J.,  "  was  given  by  the  creditor  to  the  debtor  for 
a  special  purpose,  namely,  to  prepare  the  receipt;  and  it  never  was  in  the  pros- 
ecutor's possession  after  the  receipt  was  In  a  complete  state." 

In  R.  v.  JSird,»an  indictment  charged  the  stealing  of  "  nineteen  shillings  in 
money,"  of  the  moneys  of  A.  B.  It  appeared  that  A.  B.  got  into  a  merry-go- 
round  at  a  fair  and  handed  the  prisoner  a  sovereign  in  payment  for  the  ride, 
asking  her  to  give  change.  The  prisoner  gave  A.  B.  lid,  and  said  she  would 
give  the  rest  when  the  ride  was  finished.  After  the  ride  was  over,  the  prisoner 
said  A.  B.  only  gave  her  Is,  and  refused  to  give  her  the  19s  change.  Held, 
that  the  prisoner  could  not  be  convicted  upon  this  indictment  of  stealing  198. 
CocKBURX,  C.  J.,  said:  "The  majority  of  the  judges  are  of  opinion  that  the 
prisoner  was  not  properly  convicted  of  stealing  the  19s  charged  in  the  indict- 
ment, for  she  had  not  taken  them  from  the  prosecutrix,  and  could  not  therefore 
be  convicted  on  this  indictment.  The  majority  of  the  judges  do  not  say  that 
she  might  not  have  been  convicted  on  an  indictment  charging  her  with  stealing 
the  sovereign  if  the  issue  had  been  properly  left  to  the  jury.  Upon  the  present 
mdictraent,  however,  she  must  be  discharged." 

In  R.  V.  Wadsworth,'  the  prisoner  was  indicted  for  stealing  a  mare  and  a  hal- 
ter. George  Muck,  the  prosecutor  said :  "  I  am  a  baker  at  Woolwich,  the  pris- 
oner has  been  a  commercial  traveler.  About  six  months  ago  he  intrusted  a 
mare  to  me  to  keep  for  him.  I  had  the  privilege  of  using  it  for  the  keep.  I  aft- 
erwards  saw  the  prisoner  in  company  with  Swift  and  Sayer.  I  had  three  or 
four  meetings  with  them  about  accepting  a  bill  of  exchange,  at  the  latter  end  of 
July.  The  prisoner  owed  Swift  some  money,  and  they  drew  a  bill  and  asked 
me  to  accept  it.  I  refused  three  or  four  times  because  the  mare  was  pnt  up  to 
a  rafile.  It  was  in  my  possession  at  the  time.  At  last  I  accepted  the  bill,  and 
they  asked  me  to  take  an  I.  O.  U.  for  the  amount  of  the  bill.  I  said  no;  an  I. 
O.  U.  was  of  no  use,  and  the  prisoner  then  said  I  should  have  the  mare  until 
the  bill  was  due,  if  I  accepted  it  for  Swift.  It  was  agreed  that  the  mare  should 
be  my  property  until  the  bill  was  due,  and  on  that  I  accepted  the  bill.  The 
words  Wadsworth  used  were,  "  You  won't  lose  much,  you  have  got  the  mare." 
I  would  not  have  done  it  upon  anything  else.  He  went  to  the  place  where  the 
raffle  was  to  be  and  stopped  It.  I  had  afterwards,  on  the  second  of  this  month, 
to  meet  the  bill.  I  have  it  not  with  me  now.  I  bad  it  yesterday;  I  have  sent 
down  to  Woolwich  for  it." 

Sleigh  submitted  that  even  supposing  it  to  be  proved  that  the  prisoner  did 
take  the  mare,  yet  there  was  no  case  to  go  to  the  jury,  as  he  had  never  parted 
with  his  property  in  it.  . 


\ 


1  2  0.  ft  K.  48  (1846). 
a  12  Cojc,  287. 


10  Cox,  .W7  (1867). 


544 


LARCENY. 


Daly  contended  that  it  was  not  necessary  that  the  property  should  be  .  ntlrely 
divested.  If  tlie  mare  was  lodged  as  a  security,  and  got  buck  by  a  contrivance, 
that  would  amount  to  a  larceny.  He  referred  to  Begina  v.  Wakin$on,\  and 
Begina  v.  Bramley? 

The  recorder  did  not  stop  the  case  on  this  objection;  but  at  its  closa,  tne 
bill  not  being  produced,  he  was  of  opinion  that  without  it  there  wa*  no  caie, 
therefore  directed  a  verdict  of  -Z^*"  »«»">'• 

§  484.  Ooods  must  be  Taken  f'um  Owner  —  Ohani^ngr  Piles  of  Ore  or 

Manufactured  Property. -Thus  for  miners  to  remove  ore  from  the  heaps  of 
other  miners  to  their  own,  in  order  to  increase  their  wages,  the  ore  still  remain- 
ing in  the  possession  of  the  owner,  is  not  larceny.  And  the  same  has  been  held 
as  to  manufactured  gloves.'  In  B.  v.  Wehh  &  Moyle,*  the  indictment  charged 
them  with  stealing  one  hundred  pounds  weight  of  copper  ore,  the  property  of 
Stephen  Davey  and  others.  It  appeared  in  evidence  that  Stephen  Davey  and 
others  werethe  adventurers  in  a  mine  called  the  Consolidated  Mine.  The  pris- 
oners and  twc  oVwv"  -  "re  tributers  In  their  mine,  but  not  adventurers.  The 
prosecutors  <  f  the  . .nt  were  Cornish,  and  three  others,  who  were  also 

tributers  in  the  u:  'i      ■■  adventurers.    It  appeared  that  tributers  (gener- 

ally In  companies  of  I'jur;  t^ke  from  the  adventurers  a  certain  number  of  yards 
in  the  mine,  called  a  pitch,  from  which  they  dig  out  ore,  and  throw  Into  a  Leap 
or  pile  in  some  i.:  i'.,  w'lence  tl  ey  convey  it  along  the  level  to  a  shaft,  and  so  up 
to  the  surface.  There  ..  -  tak  ,  the  adventurers,  and  the  tributers  do  not 
interfere  further.  The  t.lbutcift  a;?  paid  according  to  their  agreement,  so 
much  in  the  pound  on  the  selling  pi  ice  of  the  ore;  where  it  is  very  good  they 
receive  a  smaller  sum  than  where  if  is  Inferior,  because  the  quantity  of  labor 
(which  la  what  they  contribute)  produces  a  more  valuable  commodity  in  the 
one  case  than  the  other.  The  prosecutor's  pitch  contained  better  ore  than  the 
prisoner's.  The  prosecutors  received  £2  4d  in  the  pound  from  the  adventur- 
ers ;  the  prisoners  6s  6d. 

It  was  proved  satisfactorily  that  the  prisoner  had  taken  a  large  quantity  of 
ore  from  the  prosecutors'  pile  and  added  it  to  tbeir  own. 

Ealcomb,  for  the  prisoners,  contended,  (1)  that  the  property  was  not  c*'- 
rectlylaid;  for  that  whether  the  ore  belonged  partly  to  the  adventurers  and 
partly  to  the  tributers  (as  the  captain  of  the  mine  had  stated  in  his  evidence), 
or  to  the  adventurers  only,  yet  they  were  not  partners,  or  a  joint  stock  com- 
pany, or  joint  tenants,  or  tenants  in  common,  within  the  Statute  7  George  IV .« 
The  learned  judge  thought  there  was  nothing  in  this  objection;  but  as  he  re- 
served the  second  point,  he  mentioned  this  also.  2.  That  by  taking  ore 
out  of  one  pile  and  putting  it  In  another,  the  prisoners  did  not  steal  from  the 
adventurers,  for  both  piles  remain  in  tne  possession  of  the  adventurers,  If  the 
tributers  be  but  servants;  and  if  the  tributers  be  tenants  In  common,  still  as 
both  piles  were  intended  to  come,  and  ultimately  would  come.  Into  the  hands  of 
the  adventurers,  there  could  be  no  stealing  from  them. 

Bogitra,  for  the  prosecutors,  answered,  that  the  adventurers  were  cheated, 
for  they  would  have  to  pay  5s  6d  In  the  pound  on  the  ore  removed  to  the  prls- 
oners'  pile,  whereas  if  it  had  remained  in  the  prosecutors'  pile,  they  would  pay 


1  B.  ft  R.  470. 

S  8  Cox,  C.  C.  468. 

»  R  ».  Pool,  D.  4  B.  845  (1867). 


«  1  Moody  431. 
>  ch.  64,  lec.  14. 


,'S«>S6SS^!S!»«6s.«5^*«»«l<ia*«»«** 


^rfM 


lid  be  1  ntlrely 
I  contrivance, 
ilkin$on,\  and 

its  close,  the 
;  vm"  no  caae, 
Not  guilty. 

Ilea  of  Ore  or 
n  the  heaps  of 
re  still  remain- 
has  been  held 
ment  charged 
lie  property  of 
len  Davey  and 
ne.    The  pris- 
snturers.    The 
who  were  also 
ibuters  (gener- 
imber  of  yards 
ow  into  a  Leap 
haft, and  soup 
rlbuters  do  not 
agreement,  so 
very  good  they 
lantity  of  labor 
mmodity  in  the 
lev  ore  than  the 
n  the  adventur* 

itge  quantity  of 

y  was  not  c<"* 
idventurers  and 
1  his  evidence), 
oint  stock  com- 
te  7  George  IV.' 
n;  but  as  he  re- 
by  taking  ore 
it  steal  from  the 
renturers,  if  the 
common,  still  as 
nto  the  hands  of 

9  were  cheated, 
oved  to  the  prls- 
,  they  would  pay 


TAKING   MUST   BE   AGAINgT   OWNER'S   MILL  545 

only  28  4.1  la  the  pound;    and  besides  that  the  unauthorized  removal  of  the 

IZrnnl     V.^'^TT""' ''"'  "^  ''"  P''''°°*"'  ^'"^  "  fraudulent  luteutlon  to 
appropriate  It  to  their  own  benefit,  constituted  a  larceny  the  moment  it  was 
removed,  which  could  not  be  cured  by  returning  it  in  any  way  to  the  adventurers 
The  learned  judge  was  of  opinion  that  the  property  was  correctly  laid,  and 
of  the  judges  on  both  points.  "I'lmou 

In  Easter  Term  182.5,  this  case  was  considered  by  Lord  Dknman.  C.  J  .  Tin- 

WunlV:     T**'^  ■'■'  ^'"^'=''*^«'  J-.  GA88ELEB.  J.,  BOSANQUET.J,  ALDKHSON,  B, 

irnt;;:;^  "'" '•'""'  ''^^  '^^^'^  theconv,ct.on  wrong;  P.xxksok;  J..' 

f  J^tf^hlT  ^•■°^*°«  Property  From  Thief  -The  purchasing  of  property 
from  a  thief  with  notice,  is  not  a  taking.*  J'^l'on.y 

mp!.*ht\rT^~^*'?''  Must  be  Converted  by  Prisoner.  -  An  agree- 
menl  by  the  bearer  of  goods  to  accept  a  certain  sum  offered  for  them,  ifnot 
Buch  a  conversion,  U  the  party  who  makes  the  offer  does  not  intend  toTurchLe 

remlVd!'  ""'''  *'  *"  ''"  ^^""""^  '"'''  '*«•**  °'  *»"«  ^^'^'^^  ^»'"»  "« 

§487.  — Must  be  'Aeralnat  the  Will  of  the  Owner  -  Not  Larceny  where 

?ZTL  l^^^T  *^'**'"'  '""'*  Property.  -It  is  not  larceny  where  the  owner 
Intends  to  part  with  the  property.*  "  "wuer 

"If  the  owner  of  the  goods  alleged  to  have  been  stolen  parts  with  both  the 

possession  and  the  title  to  the  goods  to  the  alleged  thief,  then  neither  the  tai! 

mg  nor  the  conversion  is  felonious.    It  can  but  amount  to  a  fraud  "  » 

As  where  goods  are  obtained  by  purchase  through  fraud  • 

As  where  A.  Induced  B.  to  loan  him  $50  upon  depositing  with  him  certain 

spunous  pieces  of  gold  coin,  and  which  he  represented  trJe  sucrthe  tl" 

rrc:sir:^r'  -^^  *^^  -^-^^  ^^^^  "'>-"•  -^^^^  ^«  •^^^^  -  ^o. 

Where  a  person  employed  by  another  is  intrusted  with  a  horse  and  wagon,  and 
appropriates  them  to  his  own  use,  this  not  larceny  but  embezzlement* 

So  if  a  servant  appropriates  to  his  own  use  bank  bills  drawnfrom  a  bank  on  a 
check  given  by  his  master.* 

So  where  money  Is  given  to  a  person  to  obtain  change  for  It  and  he  convert. 
It  to  his  own  use,  this  is  not  larceny. ■»  ^""verw 


1  The  conviction  was  held  wrong  on  the 
•eeodd  point. 

2  McAfee  V.    State,  14  Tex.    (App.)  668 

'  K.  V.  Brooks,  8  0.  4  P.  896  (1837). 

'  R.  V.  Barnes,  1  Den.  A  P.  66  (1860) ; 
Lewer  v.  Com.  15  8.  A  R.  »3  (1826) ;  Felter  v. 
State.  9  Yerg.  397  (1838) ;  White  ».  State.  20 
W'l*.  236  (1866) :  Wilson  t>.  State,  1  Port.  118 
(1^5) ;  B.  V.  Wilson,  8  C.  4  P.  IH  (1837) ; 
Miller  V.  Com.,  78  Ky.  16  (1879) ;  B.  v. Barnes. 
»  Cox,  113  (1850) :  B.  v.Copeland.  6  Cox,  299 
(1851) ;  E.  V.  Braokett,  4  Cox,  874  (1850) ;  B.  v. 
Jacobs,  12  Cox.  151  (1872) ;  B.  t..  Goodenongh. 
6 1  ox.  809  (1S53);  B.  r.  Williams.  7  Cox.  356 
3  Dkkkxcks.  35 


(1857) ;  B.  V.  EB8ex.7  Cox,  384  (1857) ;  R.  t».  Gar- 
rett, 8  Cox.  886  (1880)  ;B.  v.  North,  8  Cox,  433 
(19S1);  B.  ».  Nicholson,  3  Leach,  698  (1791); 
B.  V.  Parkes,  2  Leach,  703  (1794) ;  B.  f.  Vai- 
mer,  2  Leach,  790  (1795) ;  B.  v.  Jackson,  1 
Moo.  119  (1826);  B.  v.  Smith.  1  Moo.  473 
(18;{6). 

'Welsh    V.  People.    17  111.    339    (1865); 
Stinsoii  f.  People,  43  111.  897  (1867). 

•  Boss  r.  People,  5  Hill,  294  (1843). 
'  KelJy  V.  People. «  Hun.  509  (1876). 

•  Ennls  V.  State,  3  G.  Greene,  67  (1881). 

•  Com.  V.  King.  9Cui>h.  2S4  (1852). 
io  B.  t>.  Beynoldit.  2  Cox.  170  (1847). 


546 


LARCENY. 


In  R  V.  Savage,^^  A.  went  B.'s  shop  and  asked  for  shawls  for  Mrs.  D.  to  look 
at  B  Riive  her  live,  ol  which  she  pawned  two,  and  three  were  found  at  her 
lodgings.  Mrs.  D.  was  not  called  as  a  witness.  It  was  held  that  A.  was  not 
gnllty  of  larceny —  the  possession  of  the  goods  being  in  her. 

Ini?  V    Bileij,-'  the  prosecutor  having  b'^en  decoyed  into  a  tavern  by  the  pris- 
oner was  induced  to  lend  him  money  /or  the  purpose  of  paying  certain  losses 
which  he  appeared  to  the  incurring  at  a  game  of  cards  with  one  whom  the  jury 
found  to  be  a  confederate.    The  prisoner  stated  that  he  was  about  to  receive 
other  funds,  and  would  then  repay  the  prosecutor.    This  was  held  not  larceny. 
In  B   V.  Lerj/,'  the  prisoner  was  Indicted  for  stealing  a  watch.    It  appeared 
that  the  prosecutor  and  the  prisoner  had  met  together  at  a  public  house ;  when 
the  prosecutor  said  to  the  prisoner:  "My  watch  wants  repairing,  I  wish  you 
would  take  it  and  repair  it."    The  prisoner  took  the  watch,  promising  to  return 
it  in  two  or  three  days.    A  week  afterwards,  the  prosecutor  asked  the  pris- 
oner for  the  watch,  when  the  latter  said,  it  was  not  ready;  and  when  the  pros- 
ecutor saw  him  again,  he  said  he  had  sold  It.    To  this  the  prosecutor  replied: 
"  I  will  have  my  watch  or  the  money."    The  prisoner  said:  " I  will  give  you 
either  the  watch  or  the  money  to-morrow. 

Smith,  for  the  prisoner,  submitted  that  this  was  no  felony :- the  prosecu- 
tor  had  delivered  the  watch  to  the  prisoner  to  be  repaired,  and  on  learning  that 
it  had  been  sold,  had  acquiesced  in  the  sale. 

Vaughn,  B.  I  think  it  would  be  too  much  to  construe  this  to  be  a  felony. 
It  would  have  been  different  If  the  prisoner  had  obtained  the  watch  by  trick  or 
fraud.    Here  it  was  voluntarily  delivered  to  him.  ^^^^^^^^  ^^^  ^^^^^ 

In  JB.  V.  flareej/,*  the  prosecutor  had  sent  his  servant  with  his  horse  to  Har- 
lowbush  fair,  in  order  to  sell  It.  The  prisoner  met  the  prosecutor,  to  whom  he 
was  personally  known.  "Uiear"  says  the  prisoner,  "you  have  ahorse  to 
sell.  I  think  he  will  suit  my  purpose ;  and  if  you  will  let  me  have  him  at  a  bar- 
gain, I  will  buy  him."  The  prisoner  and  the  prosecutor  walked  together  into 
the  fair;  and  upon  a  view  of  the  horse,  the  prosecutor  said  to  the  prisoner: 
"You  shall  have  the  horse  for  eight  pounds;"  and  calling  to  his  servant  he  or- 
dered  him  to  deliver  the  horse  to  the  prisoner.  The  prisoner  immediately  mounted 
the  horse,  saying  to  the  prosecutor  that  he  would  return  immediately  and  pay 
him.  The  prosecutor  replied:  "Very  weU,  very  well."  The  prisoner  rode 
away  with  the  horse  and  never  returned. 

The  Court.  It  is  impossible  by  any  construction  whatsoever  to  make  this 
case  a  felony.  The  case  In  Kelylng's  Reports,  where  a  man  rides  away  with  a 
horse  which  he  had  obtained  on  pretense  of  trying  its  pace,  was  conditional  de- 
livery Major  SempWB  Case,  which  is  the  most  recent  of  the  kind,  and  included 
in  it  a  consideration.  King  v.  Pear,  was  a  delivery  for  a  special  purpose, 
or.  rather  a  contract  of  unlimited  duration.  But  in  the  present  case  the  deliv- 
ery was  unconditional,  and  the  contract  was  completed.  It  was  a  sale  and  the 
possession  as  well  as  the  property  was  entirely  parted  with.  The  prisoner  has 
defrauded  the  prosecutor  of  the  price  of  the  horse,  but  not  of  the  horse  itself; 
and  the  only  remedy  the  prosecutor  has  is  by  action  to  recover  the  eight  pounds 
but  the  prisoner  can  not  be  Indicted  for  a  felony. 

And  the  prisoner  was  accordingly  discharged. 


1  6  O.  ft  P.  143  (1831). 
>  1  Cox,  98  (1814). 


3  4  CAP.  Ml  (1880). 

4  2  Leach.SSS  (1788). 


Ts.  D.  to  look 
c  found  at  her 
liat  A.  was  not 

•n  by  the  pris- 
;  certain  losses 
whom  tho  jury 
jout  to  receive 
Id  not  larceny. 
I.  It  appeared 
c  house ;  when 
ng,  I  wish  you 
Qising  to  return 
asked  the  pris- 
when  the  pros- 
ecutor replied; 
I  will  give  you 

—  the  proseco- 
m  learning  that 

I  to  be  a  felony. 
Itch  by  trick  or 

ct,  notjuiilty. 
a  horse  to  Har- 
;or,  to  whom  he 
lave  a  horse  to 
ve  him  at  a  bar- 
ed together  into 
to  the  prisoner: 
is  servant  be  or- 
idiately  mounted 
ediately  and  pay 
,e  prisoner  rode 

ver  to  make  this 
Ides  away  with  a 
s  conditional  de- 
ind,  and  included 
special  purpose, 
at  case  the  deliv- 
as  a  sale  and  the 
The  prisoner  has 
the  horse  itself ; 
the  eight  pounds 

itgly  discharged. 


TAKING   MUST  BB   AGAINST  OWNER's   WILL.  547 

In  R.  Adamg,^  the  prisoner  was  Indicted  for  stealing  a  hat,  the  pronertv 
in  one  count  of  Robert  Beer,  in  another  of  John  Paul.^  The  substanc  ,'  Je 
evidence  was  that  the  prisoner  bought  a  hat  of  Robert  Beer,  a  hat  maimer  at 

TlTL^  :'  Z  *'.'  T  *"  •'""'"'^  ""'  '=*"^''  '-  "'  «»''  «^»  told  U  wouW 
fn,?t  WMf  k'  ^""  '"  **""  *"  '"°"'' ''"'  ^«  ^°"''»  »°'  '"^^^  »'  without  paying 
Zl  f  T  !  T"'"*  '"'"  Beer,  Beer  showed  him  .  hat  which  he  had 

made  for  one  John  Paul ;  the  prisoner  said  he  lived  next  door  to  him,  and  asked 

noon  In  half  an  hour  or  an  hour.  He  then  went  away,  saying  he  would  send  his 
brother's  Wife  for  his  own  hat.  Soon  after  he  went^he  me?  a  boy  ^wiom  he 
was  not  known,  the  prisoner  asked  the  boy  If  he  was  going  to  iLlnrter,  and 
being  told  he  was  going  thither,  he  asked  him  if  he  knew  Robert  Beer  here 
telling  hin.  that  John  Paul  had  sent  him  to  Beer's  for  his  hat,  but  added  that  a, 
he    he  prisoner,  owed  Beer  for  a  hat  which  he  had  not  mone;to  pay  for,  he  dJd 

for  his  trouble),  to  take  the  message  from  Paul  and  bring  Paul's  hat  to  him  the 
prisoner;  he  also  told  h.m  that  Paul  himself,  whom  he  Ascribed  by  his  p  kson 
w„«;''.T  ?^  of  dress,  might  perhaps  be  at  Beer's,  and  If  he  was  tL  boj 
was  not  to  go  m.  The  prisoner  accompanied  him  part  the  way  and  then  tbf 
boy  proceeded  to  Beer's,  where  he  delivered  his  message,  and  received  the  hat 

r":^e.ver.tT''".V' '"''  °'  ^'^  ""''  '°^  "'«  P^'^^^  *>'»"«  desire  the  pr.sone; 
received  It  from  him,  saying  he  would  take  it  himself  to  Paul.    The  fraud  was 

discovered  on  Paul's  calling  for  his  hat  at  Beer's  about  half  an  hour  after  Z 
boy  had  left  the  place ;  and  the  prisoner  was  found  with  the  hat  in  his  possession 
and  apprehended.  From  these  and  other  circumstances,  the  falsity  ol  the 
prisoner's  representation  and  his  fraudulent  purpose  were  sufficiently  estab- 
lished; but  It  was  objected  to  on  the  part  of  the  prisoner,  that  the  offense  was 
not  larceny,  and  that  the  Indictment  should  have  been  upon  the  statute  for 
obtaining  goods  upon  false  pretenses. 
The  prisoner  was  convicted,  but  the  learned  judge  forbore  to  pass  sentence. 

AnT  "!/;,, rr^fV^'  *"'  °P'"'°"  °'  the  judges.    In  Easter  term.  26th  5 
April,  1812,  all  the  judges  were  present  (except  Lord  ELLrNBORouoH.  Mans- 
FIKI.D  C.  J.,  and  Lawrence.  J.),  when  they  held  that  the  conviction  was  wrone 
that  it  was  not  larceny,  but  obtaining  goods  under  a  false  pretense, 

§488.  Larceny— Property  Parted  with  through  a  Fraud.— Nor  Is  it 

larceny,  though  the  property  be  parted  with  through  a  fraud.»  In  JB  v  Adanu 
and  Hayden,»  the  prisoners  were  indicted  for  stealing  a  quantity  of  hams  and 
bacon  It  was  proved  that  tho  prisoner,  Adams,  came  .to  the  shop  ol  one  Aston, 
and  said  he  had  come  from  Mr.  Barker  lor  some  hams  and  bacon,  and  at  the 
time  produced  a  note  in  the  following  terms :  — 

"Have  the  goodness  to  give  the  bearer  ten  good  thick  sides  ol  bacon,  and  four 
good  showy  hams  at  the  lowest  price.  I  shall  be  In  town  on  Thursday  next 
and  will  call  and  pay  you. 

"Yours  respectfully, 

"T  Parker  " 
Aston,  believing  the  note  to  be  the  genuine  note  ol  Mr.  Parker,  who  occasion. 
ally  dealt  with  him,  delivered  the  hams  to  Adams,  and  they  were  afterward. 


>  B.  •.  R  9M  (18U). 

8  Felter  v.  State.  9  Yerg.  397  (1846) ;  K«l- 
'ogg  t>.  State.  36  Ohio  St.  15. 


1  Den.  38  (18M). 


548 


LARCENY. 


received  and  sold  by  Hadeu.  under  clrcum.tauce.  whlcU  showed -nfflclently  a 

CaL.UUat  tie  oflense  did  not  ->--*;°;:3\'',"'o:tL  oX'i        ^ex.  v. 
that  opinion.    The  ioUowln«  cas^'«  wc.e  r^  r  ed  to  o^^         ^  ^^^^  ^^^^  ^^^^^  ^^ 

Campbe«,«B«x  v-  »''  -'-' J^^  ^^  p^^'  .^held  such  a  case  to  amount  to 
which  It  was  said,  that  Baron  ramo 

larceny.  .  »    .{je  Jurv,  who  found  both  the 

The  learned  judge,  therefore,  le  the  ^l^^'^^  ^^^^^  ^^^^ence.  There  was 
prisoners  guilty,  but  the  learned  judge  ^^J^^^^J^^  ^^^^^,  ^.^er.  on  which 
T^:;S^r^^:^^^^^  '-  requested.  Whether  the 
ollense  of  Adams  was  a  larceny^  ^^^^^^^^  ^^  ^^^  the  judges,  except 

pr;:o::V.toK:i™:a  J.    They  were  an  of  opinion  that  the 

Cheat  the  complainant,  induced  him  t^shpgo^^^^         him.^^Ul^^  ^^^  ^^^^^^^^ 

ownership,  on  t^VS'^^^^^^J'^.^f '  Je^^^^^^^^^         the  freight.    The  prisoner 
sell  the  goods,  and  account  for  *»»«  P™f  ^'!!  *  ^eld  not  larceny. 

larceny.' 

5  489.  —  intent  to  Steal  B^eutlal.-To  constitute  larceny  an  Intent  to 

steal  IS  necessary.'  and  must  be  found  by  t^e  J^-J-  ^„„^    lekeled  pork. 

in  E.  V.  ^*r''-^«'7^r?r::ru  app  r^^^^^^^^^  the  shop  of  the 

some  knives  and  a  ^-^ /'^J^^^;    "  ■'^C^onUwo  minutes  he  returned,  re- 
prosecutor  and  ran  away  with  the  porK.    ^° ""  .     ^        y  t^e  whole 

'placed  the  pork  In  a  '^o-^-Jf^J,^^:^^^^^^^^^^^  In  about  half 

together,  threatening  de«truct  on  to  ^nj  °°«  ^  ^„^  ^^^k  away  the  loaf. 

an  hour  after,  he  «-™«  J^^f  *V?u8t  ceTiT^^^^^^^  the  jury  that  the 

Thi  prisoner  was  acquitted,  Mr.  Justice  i-ixiwi. 

felonious  Intent  was  not  «»f  f,«»«/^^^^^^^^^^^  convicted  of  the  larceny  of  a 

In  Blunt  V.  Commonmalth,^^  if,  ™el  asked  the  instruction  that  If  the 
watch,  on  the  trial  the  ^'^^''''^'ll^'^^ZLTt^Te ^^^tch  x^\th  Jolmson's 
jury  Should  find  that  the  ^^'^^^''^'^IZ^^tZXl  he  would  pay  for  It 
Jlerk.  who  delivered  It  to  hm  <>;  J^J^^j;  ^^J^^^^ay  with  him  and  failed 
immediately,  and  that  ^^' ^'''°''''J'"^'^'^"  "'^^t  L  Lrt  refused  to  give 
to  pay  for  It.  in  ^-^^^^ed  thITurihrt  f'^^^^^^^^^  that  the  prisoner  had 
rdratrrwIh^TrorcK  f^the  wa^h.  in  pursuance  Of  wh^^^ 


1  2  Buss.  p.  1"  (2d.  ed.) ;  3d.  ed.  p.  84. 
i  Moo.  C.  0. 1"9. 
3  Id.  15S. 

»  2  Buss.  120  (2d.  ed.)  (»).  M  ed.,  p.  ". 
•  77  N.Y.  114(1879). 


I  United  Stotes  v.  Bob«twn,  6  Cranch  C. 

"■  fwitt  V.  State.  9  Mo.  761  (1846) ;  SUte  v. 
Newman,  9  Nev.  48  (If  73). 

•  B.  V.  Deerlng.  U  Cox.  298  (1869) . 

1041c.  *  P.  388(1830). 

a  4  Leigh.  680;  20  Am.  Doc.  341  (18S4). 


INTENT  TO  APPROPBIATE   EU8ENTIAL. 


549 


3d  Bufflclently  a 

ty  of  Atkinaon't 
ed  Judj?e  vas  of 
ir  side:  Bex.  v. 
ise  v.as  cited  lu 
to  amount  to 

found  both  the 
ace.  There  was 
I  order,  on  which 
ted,  whether  the 

e  judges,  except 
opinion  that  the 

with  a  design  to 
Ith  the  indicia  o! 
unce  the  freight, 
tit.  The  prisoner 
jt  larceny. 
3.,  and  pretended 
;he  cigars  and  ap- 
was  not  guilty  of 


•ceny  an  intent  to 

)me  plckeled  pork, 
red  the  shop  of  the 
es  he  returned,  re- 
ok  away  the  whole 
ilm.  In  about  half 
look  away  the  loaf, 
5  the  jury  that  the 

of  the  larceny  of  a 
truction  that  If  the 
tchwith  Jolinson's 
he  would  pay  for  it 
with  him  and  lalletl 
urt  refused  to  give 
lat  the  prisoner  had 
suance  of  which  the 

Robwtaon,  B  Craneh  C. 

Mo.761(lM6);  SUteii. 
If 73). 
Cox.  298  11869). 

BO). 

Am.  Doc.34l(18St). 


watch  was  delivered  upon  his  promise  to  pay  the  price  immediately.  Intending 
thnt  the  prisoner  might  take  the  watch  away  and  return  Immediately  autl  pay 
lor  It,  then  he  was  not  guilty  of  larceny;  but  If  the  jury  should  llnd  that  the 
prisoner  obtained  the  watch  by  a  false  and  fraudulent  pretense  of  buying  it  for 
cash  and  then  carried  it  away,  without  the  consent  or  knowledge  of  the  owner'« 
clerk,  then  he  was  guilty  of  larceny.    The  prisoner  excepted. 

May,  J.,  delivered  the  resolutions  of  the  court.  1.  That  the  instruction* 
asked  by  the  prisoner's  counsel  was  properly  refused;  because  if  the  prisoner 
acquired  possession  of  the  watch  In  the  manner  therein  stated,  with  a  felonious 
intent  at  the  time  to  carry  It  away,  and  appropriate  It  to  his  own  use,  v.iihout 
paying  for  It,  ho  may  have  been  guilty  of  laM  *  ny  in  so  doing.  2.  That  the 
prisoner's  counsel  having  applied  to  the  court  lor  an  Instruction  on  the  law, 
and  the  court  having  refused  to  give  It  in  the  precise  form  in  which  It  was  asked, 
it  was  correct  that  the  court  should  give  one  with  such  .nodlfleatlon  ns,  In  its 
opinion,  was  legal  and  proper.  For  the  court  may  at  all  times  Instruct  the 
jury  on  any  question  of  law  arising  In  a  cause  If,  In  Its  opinion,  justice  shall  re- 
quire such  Interposition.  8.  That  the  Instruction,  however,  which  was  given, 
was  erroneous  in  this  that  although  the  prisoner  may  have  obtained  possession 
of  the  watch  in  the  frauduMmt  manner  Indicated  lu  the  latter  i)art  of  the  In- 
struction; yet  unless  he  so  obtained  it  and  carried  it  away  with  a  felonious 
intent  at  the  time,  he  was  not  guilty  of  larceny. 

The  judgment  is  therefore  reversed  »nd  the  cause  sent  back  to  the  Circuit 
Superior  Court  of  Henrico  for  a  new  trial  to  be  bad ;  In  which  trial  If  any  In- 
struction shall  be  moved  for  on  the  same  subject,  or  the  evidence  shall  require 
it,  the  court  Is  directed  to  Instruct  the  jury,  that  if  they  shall  find  from  the 
evidence,  that  the  prisoner  with  a  felonious  Intent  obtained  possession  of  the 
watch  by  false  and  fraudulent  pretenses,  and  afterwards  carried  away  the  same 
without  the  consent  of  the  owner  or  his  clerk,  then  the  prisoner  is  guilty  of 
larceny. 

§  490.  Goods  Must  be  Taken  with  Intent  to  Appropriate  them  to 

Prtaoner'B  Own  Use.  — In  R.  v.  Van  Alttyen,'  the  prisoner  was  tried  on  an  In- 
dictment for  stealing  linen,  geneva  and  other  articles,  in  a  vessel  called  the 
Paulina  Maria,  in  the  port  of  Weymouth,  a  port  of  entry  and  discharge,  con- 
trary to  the  statute.  The  goods,  specilled  in  tlie  Indictment  composed  part  of 
the  cargo  of  the  Paulina  Maria,  a  Prussian  ship  of  which  the  prisoner,  a  natlTe 
of  the  United  Provinces,  but  a  subject  of  Prussia,  was  master,  and  which  had 
been  captured  by  a  British  ship,  called  the  Diana.  The  first  count  of  the  In- 
dictment alleged  the  property  of  the  goods  to  be  in  the  owners  of  the  Diana; 
the  second  count,  In  the  master  of  the  Diana;  the  third  count,  in  the  agents  of 
the  Diana;  the  fourth  count,  in  one  Saxton,  who  had  been  appointed  the  ship, 
keeper  for  the  prize ;  and  the  fifth  count,  in  the  king. 

The  Paulina  Maria  was  taken  under  Prussian  colors  on  the  6th  of  October, 
1806,  betwixt  which  day  and  the  9th  of  October  she  was  brought  Into  Wey- 
mouth. She  was  taken  on  suspicion  of  being  Dutch  property.  The  Diana  had 
letters  of  marque  and  reprizal  granted  to  her  on  the  eight  of  October,  but  they 
were  not  against  Prussian  vessels.  On  the  8th  of  November,  1806,  there  was 
a  decree  in  the  Court  of  Admiralty  for  restitution ;  on  the  (ith  of  April,  1806,  an 
embargo  was  laid  on  Prussian  vessels;  on  the  Uth  of  May,  following.  His  Ma- 

1  R.  AR.  nsdsoti). 


«8WS^IIft:tJr«ffi&i7»S«8«?-fl*W*<«*A',  ^  vift^^'^f." 


650 


LAKCKXY 


je8tv'8  proclamation  Issued  for  reprl/.al8  against  Prussia,  «°;\°»  ^h^  JOf  " 
of  July   the  Court  of  A.lmlralty  rescinded  the  decre.  of  restl  ut  on  of  the  8  h 
of  Noveu.ber.  pronounced  the  vensel  and  cargo  at  the  tln.e  of  the  cap  are  to 
have    belonged  to  Prussian  owners,  and  condemned  them    as   prize   to   the 
Wng  taken  before  the  commencement  of  the  hostilities  against  Prussia.    It 
appeared  that  the  prisoner,  who  had  lodgings  In  Weymouth    ^'j  f^-^rut 
on  board  the  prize,  and  was  seen  there  on  the  10th  or  lUhof  Ju  y.    About 
nine  of  the  crew  and  two  of  the  custom-house  officers  were  kept  on  boa'd  t  the 
cargo  was  kept  below  the  main  hatches,  which  were  locked  np  and  Saxton, 
who  on  the   10th  of  October,  1805.  was  appointed  the  ship-keeper,  kept  the 
leyZ  the  hatches.    Betwlx't  the  10th  and  Uthand  the  10th  of  July,  the  prop- 
erty in  the  indictment  was  conveyed  away  from  the  ship,  some  violence  hav^^ ng 
been  used  In  breaking  a  bulk-head  to  get  at  part  of  It,  and  the  loss  was  dis- 
covered on  the  15th.  on  which  day  the  prisoner  had  purchased  two  trunks  and 
on  the  same  day  had  sent  the  trunks  to  a  carrier  to  be  forwarded  to  London 
the  direction  being  of  the  prisoner's  handwriting.    On  the  16th  some  sea  chests 
dlrec  ed  in  the  sle  manner  had  also  been  sent  by  the  prisoner  to  the  same 
caSr     The  chests  and  trunks  were  forwarded  to  Dorchester,  to   he  ware- 
hoe  of  the  London  carrier  there  on  the  15th  and  on  the  16th,  on  which  atter 
day  a  search  was  made  at  the  carrier's  warehouse  at  Dorchester  and  great  part 
of  the  stolen  property  was  found  in  the  trunks  and  chests,  and  some  Russian 
colors,  which  the  prisoner  on  his  apprehension  said  he  had  taken  from  the 
ship  wc^e  also  found  on  searching  his  lodgings  at  Dorchester.    The  Prlsone 
was  found  guilty,  but  upon  a  doubt  whether  his  regaining  the  possession  in  the 
manner  above  described,  of  the  goods,  which  ha.l  belonged  to  his  owners,  and 
had  been  entrusted  to  his  care  as  master  of  the  vessel,  ««"»d  b«  <:onsidered  as  a 
larceny,  Chambre,  J.,  forbore  to  pass  sentence,  and  reserved  the  point  for  the 
oplnionof  the  judges.  .„„   t  \   «« 

At  ameetmgof  all  the  judges  (except  Mansfield,  C.  J.,  and  H^ath,  J  ),  n 
Michaelmas  term,  the  15th  of  November.  1806.  the  majority  of  ^'^"^^-^^^J  *° 
think  that  if  the  prisoner  had  taken  the  goods  for  the  purpose  o  converting 
them  to  his  own  private  use,  it  would  have  been  larceny  but  not  otherwls  . 
And  there  was  no  evidence  to  show  whether  he  took  them  for  his  own  benefit 
or  for  his  ownars.  The  judges  did  not  come  to  any  formal  decision  on  the 
point,  and  no  judgment  was  given,  but  it  was  agreed  to  be  proper  that  the 
prisoner  should  be  recommended  lor  a  free  pardon. 

I  491.  open  Taking. -Therefore  an  open  Uklng  negatives  the  Idea  of 

an  iubcui  to  steal.' 

§  492.  intent   to  tJae  and  Return   Property. -A  party  taking  property 
Intending  to  use  and  return  It  is  not  guilty  of  larceny." 

8  493    TaklnB  Horse  with  Intent  to  Return  It.  -  In  ffumphrey  v.  SUxte,* 

the  evidence  tended  to  show  that  the  prisoner  took  a  horse  intending  to  borrow 
if  that  he  turned  It  loose,  after  riding  It  some  distance,  and  headed  It  toward 


1  Stuart  V.  People,  73  111.  CO  (1874) ;  Wat- 
kins  V.  State,  60  MU».  323  (18S2) ;  McDanicl  v. 
State.  3S  Tex.  420  (1870) ;  Ltttlelohu  t>.  State, 
69  Mias.  27S  (1881). 


«  Com.  V.  WllBon,  1  Phlla.  80  (1860) ; 
State  t'.  South, 28  X.  J.  (I-)  2S  (1869) ;  Stote  v. 
SeH,  1  Bay,  243  (1793) ;  LitUeJolin  v.  State.  69 
Mi88.  278(1881). 

3  63  Iiid.  223. 


mamiimmmmem-.' 


ii^ai 


INTENT   TO   Al'PUOl'KIATE   K88KNTIAL. 


651 


on  the  10th  of 
Hon  of  the  8tli 
the  capture  to 
prize  to  the 
8t  Prussia.    It 
cnt  sometimes 
[  July.    About 
,  on  board ;  the 
up  and  Saxton, 
epcr,  kept  the 
July,  the  prop- 
rlolence  having 
e  loss  was  dln- 
wo  trunks,  and 
ded  to  London, 
lome  sea  cheats 
dur  to  the  same 
;r,  to  the  ware- 
on  which  latter 
,  and  great  part 
cl  some  Russian 
taken  from  the 
,    The  prisoner 
ossession  in  the 
his  owners,  and 
considered  as  a 
le  point  fertile 

1  HiiATH,  J.),  in 
«,hcm  seemed  to 
se  of  converting 
t  not  otherwise, 
his  own  benefit, 
I  decision  on  the 
proper  that  the 


tires  the  idea  of 


taking  property 


tmphrey  v.  State,* 
ending  to  borrow 
headed  it  toward 


Phila.  80  (1860); 
J.)  2S  (1889);  stater. 
itUe]ohn  v.  State,  59 


home,  thinking  it  would  return  thither,  and  nothing  appeared  to  Indicate  any 
felonious  Intention  In  the  taking  of  the  horse.  It  was  held  thiit  a  conviction  of 
hirceny  could  not  be  sustained.  So  In  an  English  case  It  was  held  not  larceny 
totaVx  a  horse  and  ride  hini  forty  miles,  and  then  leave  him,  there  being  no  at- 
tempt to  sell  or  dispose  of  hliii  ■ 

In  Berg  v.  State,^  it  was  held  that  tho  fraudulent  appropriation  was  not 

proved,  Winklkr,  J.,  saying:  "Theft  Is  the  fraudulent  taking  of  corporeal 

nal  property,  belonging  to  another,  from  his  possession,  or  from  the  pos. 

.on  of  some  person  holillug  the  same  for  hlin,  without  hU  consent,  with  In- 

tfut  to  deprive  tho  owner  of  the  value  of  the  same,  and  to  appropriate  it  to  the 

use  or  bencflt  of  the  person  taking." 

•'  The  general  rule  Is  that '  the  taking  must  bo  wrongful,  so  that.  If  tho  prop- 
erty came  into  the  possession  of  the  person  accused  of  ♦'  tlieft  by  lawful 
means,  the  subse(|uent  appropriation  of  It  is  not  theft.' 

"But  if  tho  taking,  though  originally  lawful,  was  obtained  by  any  false  pre- 
text, or  with  an  Intent  to  deprive  the  owner  of  the  viihio  thereof,  and  appro- 
priate tho  property  to  the  uso  and  benefit  of  the  person  taking,  and  the  same  is 
so  appropriated,  the  offense  of  theft  Is  complete.' « 

"  Where  the  taking  is  originally  lawful,  the  article  of  the  code  quoted  above 
requires,  not  only  that  the  possession  be  obtained  by  means  of  .some  false  pre- 
text, or  with  an  intent  to  deprive  the  owner  of  the  value  thereof,  and  appro- 
priate the  property  to  the  use  and  benefit  of  the  person  taking,  but  also  that, 
in  order  to  render  the  offense  complete,  the  property  mu.st  be  so  approprlati-d, 
as  set  out  In  the  article  quoted. 

"  In  order  to  a  proper  understanding  of  this  opinion,  the  following  extract  Is 
■in  from  the  testimony  of  the  prosecuting  witness.  He  snys:  "  I  know  the 
idant;  he  came  to  my  stable  on  the  morning  of  the  23d  of  last  August 
V  .6),  and  said  he  wanted  to  hire  a  horse  to  ride  to  the  San  Pedro  Springs,  and 
would  be  gone  from  an  hour  to  an  hour  and  a  half.  I  had  the  bay  mare  saddled 
up  for  him,  and  he  rode  off.  Before  leaving,  he  asked  mo  if  it  made  any  differ- 
ence If  he  paid  me  then  or  on  his  return.  I  told  him  that  It  mar'-j  no  difference. 
He  h*d  a  bundle  in  his  hand,  and  asked  if  he  could  leave  it  until  his  return.  I 
told  him  he  could;  he  loft  the  bundle  on  my  desk.  I  waited  for  the  defendant 
to  return  until  about  noon.  I  then  went  to  see  if  I  could  find  him  or  hear  any- 
thing of  him.  I  found  he  had  not  been  to  the  San  Pedro  Springs  at  all  that  day 
I  could  not  find  him  anywhere.  I  did  not  see  him  again  until  after  he  was  ar- 
rested and  brought  back  from  Austin.  In  eight  or  ten  days  after  the  defendant 
got  the  mare,  I  received  a  telegram  from  New  Braunfels,  from  a  friend  of  mine, 
stating  that  my  mare  was  there,  In  the  stable  of  a  boardlng-houso  or  hotel.  I 
sent  for  the  mare  and  recovered  her.  Tho  defendant  had  left  New  Braunfels 
and  gone  on  to  Austin.  The  mare  Is  now  In  my  possession.  •  *  •  I  never 
authorized  the  defendant  to  ride  tho  maro  to  New  Braunfels,  or  any  other  place 
than  San  Pedro  Springs.  This  mare  was  worth  seventy-five  dollars.  •  •  • 
All  this  transaction  took  place  in  this  (Bexar)  county,  in  August  of  the  present 
year"  (1875). 

"  One  of  f^ar  witness  testified  in  the  case,  who  corroborated  the  statements  of 
the  prosecuting  witness  as  to  the  circumstances  under  which  the  accused  ob- 


1  R.V.  AddU,  1  Cox,  78  (1844;.    And  see 
Jobnion  v.  State,  36  Tex.  373  (1871J. 
»2Tex.  (App.)  148(1877). 


•  Penal  Code,  art.  74.1 ;  Pasc.  Dig.,  art.  2381. 

*  Penal  Code,  art.  748 ;  Pasc.  Dig. ,  art.  2381. 


552 


JUAUCENY. 


tained  the  mare,  and  the  purpose  for  which  he  said  he  wanted  a  horse  — 
namely,  to  rkle  to  Sau  Pedro  Springs.  This  is  substantially  the  testimony,  so 
far  as  it  relates  to  the  connection  of  the  accused  with  the  mare,  and  the  cir- 
cumstances under  which  he  obtained  possession  of  her. 

"  One  of  the  grounds  of  the  motion  for  a  new  trial  is  set  out  in  the  motion,  as 
follows :  '  Because  the  verdict  of  the  jury  was  contrary  to  the  law  a  id  contrary 
to  the  "evidence.' 

"  If  one  person  hire  or  borrow  of  another  a  horse  or  other  animal  to  ride,  the 
possession  acquired  in  such  a  manner  would  be  a  lawful  possession ;  but  if  such 
possession  was  obtained  by  the  use  of  any  false  pretext,  by  which  the  owner 
was  misled  or  deceived,  and  induced  to  part  with  the  possession  of  his  prop- 
erty, and  with  the  intent  mentioned,  this  would  not  amount  to  theft  unless  the 
taker  of  the  property  thus  acquired  would  go  one  step  further,  and  make  an  ap- 
propriation of  the  property  so  taken  to  the  taker's  use  and  beneflt,^which  might 
be  done  in  various  ways  known  to  the  law,  so  as  to  deprive  the  owner  of  its 
value. 

"  In  the  present  ca  je,  whilst  the  evidence  shows  that  the  accused  obtained  the 
possession  of  the  mare  under  the  false  pretext  of  vr^shing  to  ride  to  the  San 
Pedro  Springs,  and  that  he  did  nut  go  to  the  place  mentioned,  but  instead  went 
to  another  and  different  place,  and  to  a  greater  distance  from  the  place  where 
he  obtained  the  animal,  and  from  which  the  jury  might  well  have  found  that; 
either  at  the  time  or  soon  after  he  obtained  possession,  he  intended  to  fraudu- 
lently appropriate  the  property  to  bis  own  use,  and  thus  deprive  the  owner  of 
its  value,  still,  the  possession  having  been  obtained  with  tiie  consent  of  the 
owu  jr,  he  can  not  legally  be  Convicted  of  the  theft  of  the  mare,  for  the  reason 
that  the  evidence  does  not  show  an  appropriation  of  the  property,  which  is  an 
Indispensable  ingredient  of  the  offense  of  theft  of  property,  the  possession  of 
which  is  thus  acquired. 

"  Interpreting  the  intentions  of  the  accused  by  his  acts  and  conduct  in  relation 
to  the  animal  in  question,  the  proof,  we  think,  tends  to  show  an  intention  to 
ride  to  a  different  place  than  the  one  mentioned  when  he  hired  the  mare  rather 
than  an  intent  to  appropriate  the  property  to  his  own  use,  or  to  permanently 
deprive  the  owner  of  its  value  —  to  steal  a  ride  rather  than  to  steal  the  animal. 
There  is  no  proof  that  an  appropriation,  in  contemplation  of  law,  was  made  of 
the  property,  nor  proof  of  any  fact  or  circumstance  which  would  have  author- 
ized the  jury  to  infer  that  such  appropriation  was  made. 

"The  case  would,  doubtless,  have  been  different  if  the  party  had  been  taken 
with  the  property  in  his  possession,  and  conveying  it  in  a  different  direction 
or  to  a  greater  distance,  than  was  made  known  to  the  owner  at  the  time  he 
parted  with  the  possession,  as,  in  that  event,  the  jury  might  well  have  inferred 
from  the  conduct  of  the  accused  an  intent  to  deprive  the  owner  of  his  property 
or  its  value,  and  have  interpreted  his  acts  as  an  appropriation;  but,  when  It  is 
shown  that  he  had  parted  with  the  property  under  such  circumstances  as  tend 
to  show  an  absence  of  an  appropriation,  the  verdict  was  contrary  to  the  law  and 
the  evidence.  Wc  hold,  therefore,  that  the  court  erred  in  refusing  a  new  trial, 
and  for  this  error  the  judgment  must  be  reversed. 

"  On  the  trial  below,  an  instruction  was  asked,  by  the  counsel  for  the  accused, 
to  be  given  to  the  jury,  which  embraced  a  correct  principle  of  law  applicable  to 
the  case,  and  which  was  refused  by  the  court.  In  this  we  find  no  error,  for  the 
reason  that  the  substance  of  the  charge  asked  and  refused,  was  given  in  the 


^rfta 


INTENT  TO   STEAL   ESSENTIAL. 


553 


I  he  wanted  a  horse  — 
itially  the  testimony,  so 
I  the  mare,  and  the  cir- 

set  out  in  the  motion,  ae 
to  the  law  and  contrary 

other  animal  to  ride,  the 
1  possession ;  but  if  such 
jxt,  by  which  the  owner 
possession  of  his  prop- 
ount  to  theft  unless  the 
further,  and  malce  an  ap- 
md  beneflt,^which  might 
eprive  the  owner  of  its 

the  accused  obtained  the 
ling  to  ride  to  the  San 
tioned,  but  instead  went 
ce  from  the  place  where 
lit  well  have  found  that; 
,  he  intended  to  fraudu- 
lis  deprive  the  owner  of 
rith  tiie  consent  of  the 
the  mare,  for  the  reason 
he  property,  which  is  an 
operty,  the  possession  of 

ts  and  conduct  in  relation 
to  show  an  intention  to 
he  hired  the  mare  rather 
m  use,  or  to  permanently 
than  to  steal  the  animal, 
tion  of  law,  was  made  of 
'hich  would  have  author- 
le. 

the  party  had  been  taken 
in  a  different  direction 
lie  owner  at  the  time  he 
might  well  have  Inferred 
the  owner  of  his  property 
>priation;  but,  when  it  is 
jh  circumstances  as  tend 
as  contrary  to  the  law  and 
d  In  refusing  a  new  trial, 

le  counsel  for  the  accused, 
iciple  of  law  applicable  to 
:s  we  find  no  error,  for  the 
refused,  was  given  In  the 


rca.u  charge  of  the  court.  In  view  of  another  trial,  however,  and  the  peculiar 
facts  of  this  particular  case,  should  the  evidence  still  be  the  same,  the  court 
might  well  give  more  prominence  in  its  charge  to  the  subject  of  an  appropria- 
tion  of  the  property,  which  is,  we  thinls,  the  vital  point  In  the  case. 

"  Counsel  for  the  appellant  insist,  in  argument,  that  the  indictment  in  the  case 
is  sufficient  to  support  a  conviction,  under  the  peculiar  circumstances  of  the 
case,  as  developed  by  the  evidence,  and  whilst  It  is  conceded  that  it  would  be 
sufficient  to  charge  an  ordinary  theft,  yet,  Inasmuch  as  the  proof  shows  the  or- 
iginal taking  to  have  been  lawful,  and  could  only  have  become  criminal  on  ac- 
count of  the  intention  and  subsequent  acts  of  the  accused,  the  indictment  should 
have  stated  the  facts  as  they  existed;  and,  in  support  of  this  proposition,  we 
are  referred  to  the  case  of  Marahall  v.  State.^  In  reply  to  this  position,  we 
deem  it  sufficient  to  say  that  in  more  recent  decisions,  the  ruling  in  MarshaWs 
Case,  has  not  been  followed,  either  by  the  Supreme  Court  or  by  this  court. 
We  regard  the  law  as  being  settled  against  the  position  contended  for.  It  is 
sufficient  for  the  Indictment  to  charge  theft  in  the  usual  form,  and  under  such 
an  indictment  proof  could  be  admitted  of  a  fraudulent  appropriation  of  prop- 
erty,  the  possession  of  which  had  been  lawfully  acquired,  but  under  circum- 
stance? otherwise  amounting  to  theft.  The  subject  is  one  of  proof,  not  of 
pleaoing.    See  Jtfaddox  v.  iS«a«e,*  and  authorities  there  cited. 

"  For  reasons  above  stPl-  \  the  judgment  is  reversed  and  the  cause  remanded 

"Bfiversed  and  remanded." 

J  494.  Intent  to  Steal  Kssentlsl  — other  Motives— Alarm.  — In  JTad- 

ley's  Case,' the  prisoner,  intending  to  steal  fowls,  brolce  open  a  hen  house  in  the 
night,  but  being  detected,  fled,  carrying  away  the  padlock  in  his  hand.  It  was 
held  that  if  he  carried  it  away  from  fear  or  alarm,  or  any  other  motive  except 
to  steal,  he  could  not  be  guilty  of  the  larceny  of  the  padlock. 

§  4!»5.  Aldlngr  to  Bacape.  —  So  a  person  stealing  otlier  property  and 

tailing  a  horse,  not  to  keep  it,  but  to  aid  his  escape,  is  not  guilty  of  stealing  the 
horse.* 

In  State  v.  Tor*,' an  Indentured  servant,  to  escape  from  his  master,  mounted 
a  horse  which  he  found  hitched  on  the  road,  and  after  riding  him  to  the  nearest 
town,  abandoned  him.    This  was  held  not  larceny. 

§  496.  TWdner  In  a  Joke.  —  In  Devine  v.  People,'  the  prisoner  was 

drinking  in  A.'s  saloon,  when  one  of  the  party  gave  a  dollar  bill  to  the  bar- 
tender, who  gave  back  the  change  and  put  the  bill  in  the  money  drawer,  which 
was  left  open.  While  the  bartender  was  stooping  down  to  get  a  bottle  from 
under  the  counter,  tlie  prisoner  reached  over  and  took  the  bill  from  the  drawer. 
He  made  no  attempt  to  secrete  it,  but  at  once  released  It  with  the  remark  that 
it  wac  done  In  fun.  This  was  held  no  larceny.  ««The  defendant,"  said  the 
court,  "  on  the  trial  swore  that  he  took  the  bill  In  fun,  and  all  the  circumstances 
surrounding  the  act  tend  to  support  his  assertion.  Similar  acts  of  taking 
money  or  small  articles  of  property  from  associates  in  joke  situated  as  these 
.  ersons  were  at  a  saloon  counter  on  a  drinking  bout,  are  of  almost  daily  occur- 


1  31  Tex.  471. 

2  41  Tex.  «06. 

3  5  City  Hall  Rec.  H  (1820). 


*  R.  t>.  Cramp,  1  C.  ft  P.  6S8  (1825). 
»  6  Harr.  473(1851). 

•  20IIun,98(1880). 


554  LARCENY. 

rence.  Such  conduct  is  silly,  and  frequently  leads  to  altercation,  but  it  falls  far 
short  of  larceny  in  the  absence  of  all  proof  of  secret  action,  or  of  evidence 
tending  cleur'v  to  show  an  intent  to  deprive  the  owner  of  his  property. 

§  497    Intent  to  Induce  Criminal  Oonneotlon.  —  In  R.  v.  Dickiraon,^ 

the  prisoner  w.w  Indicted  for  stealing  a  straw  bonnet  and  some  other  articles  of 
female  apparel.  It  appeared  that  ho  had  entered  the  house  where  the  things 
were  la  the  night,  through  a  window  which  had  been  left  open,  and  took  the 
things  which  belonged  to  a  very  young  girl  whom  he  had  seduced,  and  carrl.d 
them  to  a  hay  mow  of  his  own  where  he  and  the  girl  had  twice  before  been. 
The  iury  thought  the  prisoner's  object  was  to  Induce  the  girl  to  go  again  to  the 
hay  mow  that  he  might  again  meet  her  there,  and  tliat  he  did  not  mean  ulti- 
mately  to  deprive  her  of  them.    It  was  held  that  he  could  not  be  convicted. 

§  498    Taking  Part  ot  OoodB  Seised  on  Breoution.  —  So  the  owner  of 

goods  attached  Uklng  part  of  them  from  the  officer,  but  intending  to  leave 
enough  to  satisfy  the  claim.  Is  not  guilty  of  larceny." 

8  499    servant  OlvlnB  Away  Ooods  in  Charity.  -  So  when  a  servant 

gave  away  certain  old  and  used  property  of  his  master  as  an  act  of  charity.  It 
was  held  no  larceny  by  the  servant.'  The  court  said:  This  was  a  prosecution 
upon  information  for  petit  larceny.  The  information  charges  the  defendant 
with  stealing  one  set  of  butcher's  iron  scales,  and  one  butcher's  meat  saw,  the 
property  of  George  Nicholas,  the  prosecutor.  On  the  trial  the  prosecutor  tcs- 
tlfled  in  substance  that  he  was  a  butcher,  that  the  defendant  was  In  his  employ- 
ment in  February,  1873,  and  had  charge  of  his  slaughter-house  and  everything  In 
if  that  among  other  things  there  was  a  set  of  butcher's  scales;  that  he  looked 
for  them  to  have  them  repaired,  and  asked  defendant  if  he  knew  where  they 
were,  and  he  replied  that  he  did  not  know;  there  was  also  an  old  butcher  s  saw, 
which  was  broken,  bat  the  bow  remained ;  that  he  missed  that  at  the  same  time. 
On  the  9th  of  April  he  saw  these  articles  In  the  possession  of  Christ  Meyer,  a 
butcher  keeping  a  stall  in  the  Mound  Market  in  St.  Louis. 

Christ  Meyer  was  then  introduced,  and  in  substance  testified  that  he  was  a 
butcher;  that  some  time  in  January,  1873,  he  went  to  the  shiughter-house  of 
prosecutor  where  defendant  was  employed;  that  he  had  before  that  time  done 
some  work  there,  and  on  this  occasion  he  told  defenfant  he  was  about  to  com- 
mence butchering  for  himself,  and  as  he  was  poor  he  weald  be  thankful  to  him, 
if  be  would  assist  him  a  little.  He  asked  whether  there  were  not  some  old 
tools  there  which  he  did  not  use.  Defendant  replied  there  were  an  old  set  of 
scales  and  a  butcher's  saw  lying  around  there,  which  he  did  not  use  and  that 
witness  could  have  them.  Witness  afterwards  called  and  defendant  gave  him 
tlie  scales  and  saw,  and  he  took  them  and  repaired  them  and  used  them;  he 
paid  91 .26  for  repairing  the  scale  and  H  for  repairing  the  saw.  When  he  got 
them  they  were  useless,  broken  and  battered.  After  they  were  repaired  they 
were  as  good  for  use  as  new  tools.  Afterwards,  about  two  weeks  before  the 
trial,  the  prosecutor  came  to  witness'  pUU  at  Mound  Market,  and  said  the 
scales  and  saw  were  his.  Witness  replied  that  he  could  have  them  if  he  would 
pay  for  the  repairs;  the  defendant  who  gave  them  to  witness  took  them  away. 


1  B.  V.  R.  419(18205. 

S  Com.  f.  Greene,  111  Mm«.  8M  (1873). 


3  Bute  V,  Fritchler,  54  Mo.  434  (1873). 


^^m 


INTENT   TO   APPROPRIATE    PIJOPERTY. 


555 


but  it  falls  far 
or  of  evidence 
ipcrty." 

.  V.  Dickirson,^ 
ther  articles  of 
here  the  things 
I,  and  took  the 
ed,  and  carried 
:e  before  been, 
go  again  to  the 
not  mean  ulti- 
e  convicted. 

So  the  owner  of 
inding  to  leave 


when  a  servant 
ct  of  charity,  It 
is  a  prosecution 
I  the  defendant 
>s  meat  saw,  the 
prosecutor  tes- 
ts In  his  employ- 
nd  everything  In 
;  that  he  looked 
mew  where  they 
d  butcher's  saw, 
it  the  same  time. 
Christ  Meyer,  a 

ed  that  he  was  a 
aughter-house  of 
■e  that  time  done 
as  about  to  com- 
thaukful  to  him, 
•re  not  some  old 
ere' an  old  set  of 
lOt  use  and  that 
endant  gdve  him 
d  used  them ;  he 
N,  When  he  got 
!re  repaired  they 
weeks  before  the 
ket,  and  said  the 
them  if  he  would 
took  them  away. 

4  Mo.  434  (18T3). 


Christ  Hill  was  introduced  as  a  witness  and  testified  in  substance  to  the 
same  purport  as  the  preceding  witness. 

This  was  all  the  evidence  given  or  offered  on  the  part  of  the  State.  The  de- 
fenflanii  aoked  the  court  to  declare  tliat  upon  the  evidence  given  he  was  not 
guilty  of  larceny.  The  court  refused  this  instruction.  The  defendant  then  in- 
troduced several  witnesses  who  testified  to  his  good  character  for  honesty,  etc. 
At  the  close  of  ail  the  evidence,  the  defendant  asked  the  court  to  declare  the 
law  to  be  that  "  if  it  appear  from  the  evidence,  that  the  defendant  while  in  the 
employ  of  the  prosecuting  witness,  did  in  good  faith  and  out  of  charity,  give  the 
articles  in  the  complaint  mentioned  to  a  poor  person  in  need  of  assistance,  and 
that  these  scales  were  of  no  value  or  of  very  small  value,  and  not  being  used  or 
needed  by  his  employer  and  without  any  intent  to  convert  them  to  his  own  use, 
then  he  is  not  guilty  of  larceny." 

The  court  refused  this  declaration  and  found  the  defendant  guilty,  the  case 
having  been  submitted  to  it  sitting  as  a  jury. 

Thfi  defendant  excepted  to  the  several  rulings  of  the  court,  and  filed  a  motion 
for  a  new  trial  which  was  overruled,  and  he  has  appealed  to  this  court. 

■There  is  not  a  particle  of  evidence  in  this  record  to  establish  the  defendant's 
guilt,  there  Is  a  total  want  of  proof  of  the  animus  furdndi,  the  very  gist  of  the  of- 
fense charged.  It  is  the  very  soA  of  evidence  upon  which  he  might  have  re- 
lied to  rebut  the  charge,  if  there  had  been  any  proof  to  establish  it.  It  is  very 
true  that  he  had  no  legal  right  to  exercise  charity  on  the  credit  of  his  em- 
ployer; but  in  doing  so  he  only  laid  himself  liable  to  a  civil  action  for  the  value 
of  the  goods,  there  being  no  felonious  Intent  whatever  to  convert  them  to  his 
own  use. 

The  court  erred  in  overruling  the  demurrer  to  the  evidence,  and  also  in  re- 
fusing the  instructions  asked  by  the  defendant  at  the  close  of  the  evidence. 

Judgment  reversed  and  the  cause  remanded.    The  other  judges  concur. 

§  600.  Intention  to  Deprive  Owner  of  ProiMrty  Permanently  Neoas- 

•iry.  —  In  R.  v.  Guernsey,^  the  prisoner  was  indicted  for  stealing  ten  pieces  of 
paper,  value  one  penny,  the  property  of  the  Queen.  A  dispatch  of  a  very  Im- 
portant character  had  been  received  by  the  government  from  Sir  John  Young, 
the  Lord  High  Commissioner  of  the  Ionian  Islands,  on  the  10th  of  June, 
1857,  and  another  on  the  14th  of  July,  1868,  which  came  Into  the  hands  of  Sir 
Edwayd  Lytton,  the  Colonial  Minister,  In  the  month  of  August.  A  certain  num- 
ber were  printed  at  the  private  printing  office  of  the  government,  and  which  were 
marked  '<  private  and  confidential,"  and  were  Intended  for  distribution  among 
the  members  of  the  Cabinet ;  and  twenty-eight  copies  of  these  dispatches  were 
delivered  at  the  office  of  the  librarian  at  the  Colonial  Office  for  that  purpose,  and 
given  to  the  sub-librarian.  He  placed  them  on  a  table  in  the  office.  The  pris- 
oner frequently  visited  Mr.  Miller  at  the  Colonial  Office,  and  they  were  on  ex- 
tremely intimate  terms.  About  the  28d  of  October  the  prisoner,  it  appeared, 
called  upon  him  at  the  Colonial  Office ;  and  after  that  they  had  had  some  con- 
versation together  he  had  occasion  to  leave  the  library  for  a  short  time,  and 
when  he  went  out  Guernsey  was  standing  by  the  flre.  Mr.  Miller  returned  In 
a  few  minutes,  and  at  this  time  he  observed  that  the  prisoner  was  standing  close 
to  the  table  apon  which  the  dispatches  were  lying,  with  a  large  book  upon 
tbem;  and  when  the  prisoner  daw  hlni,  he  exclaimed,  <■  I  have  not  been  prying 

1  IF.  AF.  :»4(1»8). 


t£jai''fcitlIli<M>i. 


mHHam»¥"n^ 


556 


LAKCENY. 


into  your  secrets;  "  to  which  Mr.  Miller  replied,  that  he  did  not  suspect  that 
he  was  doiug  so.  The  prisoner  remained  a  short  time  longer  with  Mr.  Miller, 
and  they  Ijoth  left  together. 

Shortly  afterwards  the  prisoner  sent  one  of  these  printed  copies  to  the 
editor  of  the  Daily  News  newspaper,  with  a  note  signed  by  the  prisoner  and 
marked  "  private,"  requesting  that  the  dispatch  might  be  Inserted  in  the  Daily 
News,  and  stating  that  no  other  journal  had  received  a  copy.  The  editor  had 
not  had  any  previous  acquaintance  with  the  prisoner.  Before  he  gave  directions 
that  the  dispatch  should  appear  In  the  Dally  News,  he  wrote  to  the  prisoner  at 
the  address  in  Regent  Square,  mentioned  in  his  letter,  and  received  a  reply  from 
him  sUting  that  it  was  "  all  right,"  but  he  did  not  wish  his  name  to  be  men- 
tioned in  any  way  as  connected  with  the  publication  of  the  document.  After 
the  receipt  of  this  letter  the  editor  directed  the  publication  of  the  dispatches  in 
the  Daily  News,  aud  they  appeared  on  the  12th  of  November.  About  the  middle 
of  the  following  week,  the  editor  having  previously  received  a  communication 
from  the  Colonial  OfBce,  wrote  to  the  prisoner,  requesting  him  to  call  upon  him. 
The  prisoner  called  on  him,  and  introduced  himself  as  the  person  who  had  sent 
the  Ionian  dispatches.  T je  prisoner  then  stated  that  a  person  had  left  them  at 
his  house,  and  he  pressed  the  witness  not  to  give  any  further  Information. 

The  witness  who  produced  the  paper,  stated  that  the  only  object  for  which 
the  dispatches  were  sent  to  him  as  he  understood,  was  that  they  might  be  pub- 
lished in  the  Dailv  News. 

There  was  no  pecuniary  inducement  for  the  act,  buf  it  rather  appeared  that 
the  prisoner  bore  some  resentment  to  the  Colonial  Minister  for  the  refusal  of  an 
appointment. 

Parry,  Serjeant,  submitted  there  was  an  utter  absence  of  any  felonious  in- 
tention on  the  part  of  the  prisoner,  and  that  it  was  clear  that  the  only  object  he 
bad  in  view  was  that  the  contents  of  the  dispatches  should  be  made  public.  He 
urged  that  there  was  no  evidence  to  show  that  the  prisoner  intended  perma- 
nently,  to  deprive  the  Colonial  Office  of  the  property  in  the  dispatches,  and  cited 
Regina  v.  Thornton. 

Martin,  B.  It  is  a  question  for  the  jury,  with  what  intent  the  prisoner  took 
the  dispatches.  The  question  you  have  to  decide  is,  whether  the  prisoner,  in 
taking  these  dispatches  in  the  manner  it  appears  to  be  admitted  he  did  it,  was 
guilty  of  the  offense  of  larceny.  The  offense  consists  in  the  taking  away  th* 
property  of  another  without  his  consent,  and  with  the  intention  at  the  time  to 
convert  that  property  to  the  use  of  the  taker.  Such  documents  as  those  are 
clearly  the  subject  of  larceny,  and  inasmuch  as  the  stealing  of  the  paper  itself 
would  have  been  a  felony,  the  fact  of  the  paper  being  printed  on,  makes  no 
difference,  and  Indeed  this  fact  might  In  a  great  many  instances  materially  in- 
crease the  value.  And  the  only  question  you  have  to  decide  is,  whether  the 
evidence  establishes  to  your  satisfaction,  that  at  the  time  the  prisoner  took  the 
documents  away  from  the  Colonial  Office,  he  intended  to  deprive  that  office  of 

all  property  In  them,  and  to  convert  them  to  his  own  use. 

*^    "^     '  Verdict,  not  guilty. 

I  601. Intent  Must  Exist  at  Time  of  Taking.  —The  intention  to  convert 

the  property  to  the  person's  own  use  must  exist  at  the  time  of  the  taking.' 


1  R.  •.  Hore,  8  F.  4  F.  815  (18*8) ;  R.  v. 
Manh,  8  F.  *  F.  Ka  (1868) ;  R.  »'.  l-eppard,  4 
T.  A  F.  51  (1864) ;  State  v.  Stone,  68  Mo.  101 


(1878) ;  WUion  v.  People,  89  N.  T.  469  (1868) ; 
Langley'B  Case,  4  City  Hall  Rec.  189  (1819); 
Spivey  V.  SUte,  26  Ala.  90  (1885) ;  Fulton  ». 


•^^  yiA^fk^fi^iil 


:iS*v^)a!B!i!«SBSIS*»l««fWJ»«^^ 


^rfH 


INTENT   MUST   EXIST   AT   TIME   OF   TAKING. 


557 


uot  suspect  that 
with  Mr.  MlUer, 

id  copies  to'  the 
he  prisoner  und 
irtcd  in  the  Daily 
The  editor  bad 
le  gave  directions 

0  the  prisoner  at 
ived  a  reply  from 
name  to  be  men- 
iocuraent.  After 
the  dispatches  in 
About  the  middle 
a  communication 
to  call  upon  him. 
son  who  had  sent 

1  had  left  them  at 
Information. 

r  object  for  which 
liey  might  be  pub* 

her  appeared  that 
r  the  refusal  of  an 

'  any  felonious  in- 
the  only  object  he 
made  public.  He 
r  intended  perma- 
ipatches,  and  cited 

the  prisoner  took 
er  the  prisoner,  in 
tted  he  did  it,  was 
le  talcing  away  th* 
tion  at  the  time  to 
ments  as  those  are 
of  the  paper  itself 
ited  on,  makes  no 
ices  materially  in- 
de  is,  whether  the 
)  prisoner  took  tlie 
prlve  that  office  of 

'erdiet,  not  guilty. 

itention  to  convert 
of  the  taking.! 

ile,89N.T.«9a868); 
^Hall  Rec.  lS9(18ie); 
i.  90  (18SS) ;  Fulton  *. 


Thus,  where  property  was  delivered  to  the  prisoner  under  a  contract  of  sale, 
part  of  the  purchase-money  to  be  paid  on  time,  and  the  purchaser  to  retain  and 
use  the  property  meanwhile,  and  there  was  no  pretense  that  at  the  time  of  the 
sale  he  had  a  felonious  intent,  he  could  not  be  held  guilty  of  larceny  from  the 
fact  that,  after  keeping  and  using  the  same  for  several  months,  under  the  con- 
tract, he  carried  it  away  without  completing  the  payment.*  So,  where  tlie 
prisoner  received  certain  material  to  be  made  up  into  coats  and  return  to  the 
party  furnishing  it,  and  he  made  it  up,  but  was  afterwards  persuaded  to  sell  it 
to  a  peddler  and  absconded  with  the  proceeds,  he  was  held  not  guilty,  if  at  the 
time  he  received  the  goods  be  did  not  Intend  to  steal  them.'  So,  one  who, 
after  selling  and  transferring  a  note  and  mortgage  executed  to  him,  and  after 
notice  of  the  transfer  given  to  the  mortgagor,  receives  the  amount  due  on  the 
mortgage,  and  converts  it  to  his  own  use,  is  not  guilty  of  stealing  the  money.' 
Where  a  cotton  picker  had  the  right  to  retain  possession  of  what  he  picked 
until  it  was  weighed  at  tlia  close  of  the  day,  the  mere  fact  that  after  picking  it 
he  secreted  it,  did  not  justify  a  finding  that  he  had  the  intent  to  steal  It  at  the 
time  of  picking  it.* 

A  person  hiring  a  horse  from  a  livery  stable  and  taking  It  away  and  afterwards 
selling  it  is  not  guilty  of  larceny,  unless  at  the  time  he  hired  it  he  intended  to  steal 
it.^  So  where  a  person  is  overpaid  money  but  does  not  discover  it  until  subse- 
quently when  he  converts  it  he  is  not  guilty  of  larceny.*  For  a  gamekeeper  to 
take  a  gun  from  a  poacher  and  afterwards  to  convert  it  to  his  own  use  is  not 
larceny.'  If  a  man  takes  a  letter  sbpposing  it  to  be  for  him,  and  on  finding  it 
is  not,  appropriates  property  it  contains,  this  does  not  make  him  guilty  of  lar- 
ceny, there  being  no  animutfurandi  when  he  first  received  the  letter.* 

In  B.  V.  Jones,*  the  prisoner,  who  was  not  before  in  A.'s  service,  was  em- 
ployed by  A.  to  drive  six  pigs  from  B.  to  C.  On  the  way  he  left  one  at  D.*a 
stating  that  it  was  tired,  which  he  subsequently  told  A.  A.  then  told  the  pris- 
oner to  go  out  and  ask  D.  to  keep  the  pig  for  him.    A.  went  and  sold  the  pig  to 

D.  This  was  held  no  larceny.    So  in  B.  v.  Evans,^'*  A.  delivered  a  waistcoat  to 

E.  to  take  to  R.  to  be  washed.  E.  delivered  it  to  R.  as  his  own,  and  it  having 
been  washed  and  returned  to  E.,  he  converted  it  to  his  own  use.  There  being 
no  intention  on  E.'s  part  to  convert  it  when  he  obtained  the  possession  from  A., 
it  was  held  no  larceny. 

InR.v.  Bank,^^  the  prisoner  borrowed  a  horse  under  pretense  of  carrying  a  child 
to  a  neighboring  surgeon.  Whether  he  carried  the  child  thither  did  not  ap- 
pear; but  the  day  following  after  the  purpose  for  which  he  borrowed  the  horse 
was  over,  he  took  the  horse  in  a  different  direction  and  sold  it.  The  prisoner 
did  not  offer  the  horse  for  sale,  but  was  applied  to  to  sell  it,  so  that  it  was  pos- 
sible he  might  have  had  no  felonious  intention  till  that  application  was  made. 


State,  13  Ark.  168  (18B2) ;  People  v.  Stone,  IR 
Cal.  369  (1860) :  People  v.  Smith,  16  Cal.  280 
(l^:t) ;  People  «.  Jersey,  18  Cal.  837  (1861) ; 
Uinphrey  v.  SUte,  63  Ind.  228  (1878) ;  Snell ». 
State,  SO  Oa.  210  (1873) ;  Hart  v.  State,  67  Ind. 
103  (1877) ;  Beatty  v.  State,  61  Mite.  18  (1883) ; 
Wilson  V.  People,  1  Cow.  Cr.  Rep.  U9 
(1«W). 

1  state  V.  Shermer,  S5  Ho.  618  (1874) ;  R.  v. 
Threutle,  2  C.  A  K.  842  (1840).  In  this  case  A. 
delivered  his  watcb  to  B.,awRtGbinaker,  to 


regulate.    B.  converted  it  to  bis  own  use. 
It  was  beld  not  larceny. 

*  Abrams  v.  People,  6  Hun,  491  (1876). 

a  SUte  V.  McDougal,  20  Wis.  482  (1866). 
4  Lyon  V.  Sute,  61  Ala.  924  ( 1878) . 
»  R.  V.  Cole,  2  Oox.  841  (1847). 

•  Bailey  v.  SUte.  68  Ala.  41S  (1877). 

7  R.  V.  Halloway.  5  C.  A  P.  534  ( 1833) . 

•  R. ».  HueUow,  1  Moo.  160  (1827). 

*  C.AM. 612  (1842). 
I"  C.  A  51.  032  (1842). 
11  B.  A  R.  421  (1821). 


MwflWW™^*^"' 


•^'"^tuvsMmKiimm  i»mm 


■W'JMMWl  "WB»fr^ 


558 


LARCENY. 


The  iury  thought  the  prisoner  had  no  felonious  intention  when  he  took  the 
horse ;  but  as  ft  was  borrowed  for  a  special  purpose,  and  ^^at  purpose  ^as  over 
when  the  prisoner  took  the  horse  to  the  place  where  he  so  d  It,  the  learned 
7ud"e  thought  it  right  upon  the  authority  of  2  East's  Pleas  of  the  Crown,«  and 
Kseivfo  submit  to  the  consideration  of  the  judges  whether  the  »uj'^«^qj°t 
'^  disposing  of  the  horse,  when  the  purpose  for  which  it  was  borrowed  was  no 
longer  in  view,  did  not  include  in  it  a  felonious  takiug. 

In  Easter  te™,  1821,  the  judges  were  of  opinion  that  the  doctrine  aid  down 
on  this  lub  ect  'm  2  East's  Pleas  of  the  Crown,*  and  2  Russell/  was  no 
correct.  They  held  that  If  the  prisoner  had  not  a  felonious  intention  when  he 
originally  took  the  horse,  his  subsequent  withholding  and  dispos  ng  of  It  did 
not  cottimte  a  new  fei;nlou8  taking,  or  make  him  gnilty  of  felony;  conse- 
auently  the  conviction  could  not  be  supported. 

^  in  Lck  V.  State,^  it  appeared  that  a  ^^^^  »»«»f  <^''™;  ^^J^! '^s  she  re 
land  and  herded  with  his  cattle;  that  at  first  he  drove  her  off,  but  as  she  re- 
turned,  he  flnaUy  kept  her.  Held,  that  to  constitute  larceny,  it  must  appear 
that  the  respondent  intended  to  appropriate  the  heifer  to  his  own  use  when  he 
first  took  possession  of  her.  Held,  also,  that  a  charge  which  o^'y  "»«  «J  ^^j 
if  the  respondent  had  such  intent  when  the  heifer  first  came  npon  his  land  he 
was  guilty  of  larceny,  tended  to  mislead  the  jury,  since  it  did  not,  of  necessity, 
rggS  the  conclusion  that  if  the  Intent  was  formed  afterward,  the  conversion 

''t'i'v^S'the  evidence  showing  that  the  defendant  had  borrowed  a 
wagon  and  horses  and  afterwards  attempted  to  convert  them  to  his  own  use, 
TeW.  that  no  conviction  could  be  sustained  on  the  indictment,  founded  on  sec- 
tion 26.  page  466.»  unless  the  State  showed  that  the  intent  to  stea  existed  when 
the  property  was  taken ;  that  no  conviction  could  be  had  on  this  in- '  .t 
though  the  evidence  might  have  warranted  a  conviction  had  there  bee-.  ,.  unt 
in  the  indictment  founded  on  section  37.  page  469.» 

in  So«  V.  Stau,*  it  was  held  that  the  intent  at  the  time  ol  taking  was  not 
proved.  The  indictment  was  for  the  theft  of  a  horse.  Henry  Brown,  for  Jie 
State,  testified  in  substance  that  he  lived  in  Lampasas  County;  that  he  got  ac- 
quain\ed  with  the  defendant  on  the  « trail; "  that  about  Januaiy  »«  •  "f ' Jf; 
defendant  was  living  at  witness'  house,  and  had  a  horse  in  his  lot  ^"ch  d^^^^^^^^ 
ant  intended  riding  to  Belton.  Bell  County,  to  see  his  mother ;  that  his  horse 
sot  out  of  the  lot,  and  the  witness  loaned  the  defendant  his,  the  witness',  horse 
Shun  for  defendant's.  The  defendant  searched  for  two  days  without  success, 
^dtoen  importuned  the  defendant  to  lend  him  his  horse  to  ride  to  Belton  on  a 
Xlt  to  his  mother,  promising  to  return  in  a  week  The^itne-s  refused  a* 
aZ  bnt  his  wife  interceding  with  him  for  the  d«*e°i''»t.  ^e  flnaUy  con.ent,d 
a."  directed  the  defendant  to  occupy  two  days  in  making  the  trip  to  Belton.  as 
the  disSnce  was  too  great  for  a  single  day's  ride.    The  witness  heard  nothing 


1  pp.  090, 694. 

i  pp.  1089,  lono.  In  2  Rusi.  1089  it  !■  said 
that  "In  the  case  ot  a  delivery  ol  a  horse  upon 
hire  or  loan,  if  such  a  delivery  were  obtained 
bona  fide,  no  BubBequeut  wrongful  conver- 
sion pending  the  contract  will  amount  to 
felony;  and  bo  ol  other  goodB.  Bnt  when 
the  purpose  ol  the  hiring,  or  loan,  for  which 
the  delivery  was  made,  has  been  ended,  fel- 


ony may  be  committed  by  a  conversion  of 
the  goods. 

3  pp.  690, 69S. 

«  pp.  1089,  1090. 

>  63  Ind.  28S. 

•  68  Ho.  101. 
'  Wag.  Stat. 
«  Wag.  Stat. 

*  V.  Tex.  (App.)  3M  (1882). 


MM 


^^M 


FINDER   OF  LOST  GOODS. 


559 


lien  be  took  the 
arpose  was  over 
it,  the  learned 
bhe  Crown,'  and 
>  the  Bub'jequent 
irrowed  was  no 

itrlne  laid  down 
issell/  was  not 
tention  when  he 
iposing  of  it  did 
t  felony;  conse- 

the  respondent's 
Ef,  but  as  she  re- 
,  it  must  appear 
>wn  use  when  he 
only  btated  that 
pon  bia  land,  he 
lot,  of  necessity, 
1,  the  conversion 

had  borrowed  a 
I  to  his  own  use, 
,  founded  on  sec- 
leal  existed  when 
I  this  In-"  ^t, 
lere  ber- r      /-  Jnt 

of  taking  was  not 
ry  Brown,  for  the 
;  that  be  gotac- 
lary  Ist,  1882,  the 
lot  which  defend- 
er; that  bis  borse 
he  witness',  borse 
I  without  success, 
Ide  to  Belton  on  a 
rltness  refused  at 
flnaUy  consented, 
trip  to  Belton,  as 
ess  beard  nothing 

I  by  a  conversion  of 


of  the  defendant  or  his  horse  for  two  or  three  weeks,  and  grew  uneasy.  He 
wrote  to  Belton  several  times  but  failed  to  get  replies  to  his  letters.  He  finally 
received  a  letter  from  B.  D.  Johnson,  saying  that  Ills  horse  was  sick,  but  he 
would  return  him  as  soon  as  lie  could  travel  to  Lampasas.  The  witness  after- 
wards  got  his  horse  from  Mr.  Markley. 

A.  Markley  testified  for  the  State  that  he  bought  the  horse  in  question  from 
the  defendant.  When  he  bought  him  he  was  so  poor  that  he  could  scarcely 
stand  on  his  feet.  The  witness  had  seen  the  defendant  riding  the  horse  for  two 
or  three  week*.    The  defendant  claimed  that  the  horse  was  bis. 

White,  P.  J.  It  is  well  settled  in  this  State  that  under  an  ordinary  Indict- 
ment  for  theft  a  conviction  may  be  had  on  proof  wliicb  shows  that  the  taking, 
though  with  the  owner's  consent,  was  obtained  by  false  pretense,  or  with  intent 
to  deprive  the  owner  of  the  value  of  the  property,  and  appropriate  It  to  the  use 
and  benefit  of  the  taker.' 

But  it  is  also  equally  as  well  settled  that,  in  order  to  sustain  a  prosecution 
for  theft  when  the  taking  was  originally  lawful,  the  proof  must  show  that  the 
taklns  was  obtained  by  some  false  pretext,  or  with  intent  to  deprive  the  owner 
of  the  value  of  the  property  and  appropriate  it  to  the  use  and  benefit  of  the 
taker.'  The  Intent  is  the  gist  of  the  offense,  and  sucb  Intent  must  exist  at  the 
time  of  the  taking;  for  If  the  ln*nt  did  not  exist  at  the  time  of  the  taking,  no 
subsequent  felonious  Intention  will  render  the  previous  taking  felonious." 

Whilst  there  was  no  error  in  the  portion  of  the  charge  of  the  court  which  is 
complained  of,  — the  same  being  in  harmony  with  the  rules  of  law  above  enun- 
ciated, —we  are  of  oplnlnlon  that  the  facts  shown  In  evidence  do  not  establish 
a  fraudulent  Intent  at  the  time  appellant  obtained  possession  of  the  horse,  nor 
do  they  esUblisb  the  fact  that  the  borse  was  obtained  by  means  of  a  false 
pretext. 

Becanse  the  evidence  Is  Insufficient  to  support  the  verdict  and  judgment,  the 
judgment  Is  reversed  and  the  cause  remanded. 

Ber>«r$ed  attd  remanded. 

§  602.  liOBtOooda— Finder  not  Oulltyof  likrceny.  —  Stated  broadly 

(the  cases  below  illustrate  the  limits  of  the  rule)  a  finder  Is  not  guilty  of 
larceny.* 

In  B.  V.  MartKa  Leaves,^  the  child  of  the  prisoner  found  six  sovereigns  In  the 
street  which  she  brought  to  the  prisoner.  The  latter  counted  it,  and  told  some 
bystanders  that  the  child  had  found  a  sovereign,  and  offered  to  treat  them. 


(1882). 


I  Penal  Code,  art.  727;  White  v.  State,  11 
Tex.  769;  Smith  v.  State,  35  Tex.  738;  Mad- 
(lox  V.  State,  41  Tex.  20S ;  Reed  v.  State,  8  Tex. 
(App.)  40;  Spinki  v.  State,  8  Tex.  (App.)  1?9; 
Jones  V.  SUte,  8  Tex.  (Apr.)  648;  Uudion  v. 
State,  10  Tex.  (App.)  216. 

<  Hornbeck  v.  State,  10  Tex.  (App.)  408. 

•  Billiard  v.  State,  30  Tex.  868;  Johnson 
V.  State,  1  Tex.  (App.)  118. 

*  B.  V.  Hatchinson,  1  Lewin,  196  (1828) ;  JR. 
V.  Milburne,  1  Lewin,  251  (1829) ;  R.  v.  Mole,  1 
C.  ft  K.  417  (1844) ;  Brooks  v.  SUte,  86  Ohio 
St.  46  (1878) ;  Ransom  v.  State,  22  Conn.  158 
(1692) ;  Lane  V.  People,  10  III.  306  (1848) ;  Por- 
ter V.   SUte.   1  ^art.  ft  Terg.   226  (1827); 


Com.  V.  Titus,  116  Mass.  42  (1874) ;  State  ^>. 
Coaroj,  18  Mo.  821  (186S);  BiUard  v.  State, 
80  Tex.  S69  (1867) ;  State  •.  OlilTord,  14  Nev. 
72  (1879) ;  Hunt  v.  Com.,  M  Gratt.  867  (1866) ; 
Tanner*.  Com.  14  Gratt.  636  (1837) ;  Bailey 
«.  SUte,  62  Ind.  462  (1876) ;  R.  o.  Scully,  1  Cox. 
189  (1845) ;  R  v.  Shea,  7  Cox,  148  (1856) ;  R.  v. 
Dixon,  Dears.  680  (1866) ;  B. «.  Davies,  Dears, 
640  (1890) ;  R.  v.  Thnrbom,  Temp.  A  M.  67 
(1849) ;  R. «.  Christopher.  Bell,  C.  C.  77  (1858) ; 
R.  V.  Preston,  1  Den.  ft  P.  361  (1861) ;  R.  v. 
Knight,  12  Cox,  lOS  (1871) ;  People  v.  Ander- 
son, 14  Johns.  294  (1817) ;  SUte  v.  Dean,  44 
la.  7S  (18«7). 

'  11  Cox,  227  (1869). 


••W«>5'«'a«Wlf »*«•**•»"•»•»«'****'  ■• 


560  I-ARCENV. 

The  prisoner  and  the  chlM  then  went  down  the  street  to  the  place  where  the 
child  had  found  the  money,  and  found  a  half  sovereign  and  a  b  i;,'.  Two  hours 
afterwards  the  owner  made  hue  and  cry  of  hU  loss  in  the  vicinity.  On  the 
same  evening  the  prisoner  was  told  that  a  woman  had  lost  money;  the  prisoner 
told  her  Informant  to  mind  her  own  business,  and  gave  her  half  a  sovereign  for 
herself  It  was  held  that  there  was  no  larceny,  as  there  was  nothing  to  show 
that  at  the  time  of  the  finding  the  prisoner  had  reason  to  think  that  the  owner 

could  be  found.  .        .      . 

InR  V.  Matthews,^  the  prisoner  found  two  heifers  which  had  strayed,  and  put 
them  on  his  own  marshes  to  graze.    Soon  afterwards  he  was  informed  by  S. 
that  thev  had  been  put  on  his,  S.'s,  marshes  and  had  strayed,  and  a  few  days 
after  that  that  they  belonged  to  H.    Prisoner  left  them  on  his  marshes  for  a 
day  or  two,  and  then  sent  them  a  long  distance  away  as  his  own  property  to  be 
kept  for  him.    He  then  told  8.  that  he  had  lost  them,  and  denied  all  knowledge  of 
them.    The  jury  found  (1)  that  at  the  time  the  prisoner  found  the  helfershe  had 
reasonable  expectation  that  the  owner  could  be  found,  and  that  he  did  not  believe 
that  they  had  been  abandoned  by  the  owner ;  (2)  that  at  the  time  of  finding  them 
he  did  not  Intend  to  steal  them,  but  that  the  intention  to  steal  came  on  him  sub- 
sequently ;  (3)  that  the  prisoner,  when  he  sent  them  away,  did  so  for  the  purpose 
and  with  the  Intention  of  depriving  the  owner  of  them  and  appropriating  them  to 
his  own  use.    Held,  that  a  conviction  of  larceny,  or  of  larceny  as  bailee,  could  not 
be  sustained  under  the  above  circumstonces.    Bovill,  C.  J.    "  We  have  consid- 
ered this  case,  and  have  come  to  the  conclusion  that  the  conviction  must  be 
quashed.    The  jury  have  found  that  at  the  time  the  prisoner  found  the  heifers  he 
had  reasonable  expectation  that  the  owner  could  be  found,  and  that  he  did  not 
believe  that  they  had  been  abandoned  by  the  owner.    But  at  the  same  time  they 
have  found  that  at  the  time  of  finding  the  heifers  the  prisoner  did  not  Intend 
to  steal  them,  but  that  the  Intention  to  steal  came  on  him  subsequently  to  the 
first  interview  with  Stiles.    That  being  so,  the  case  is  undistinguUhable  from 
Beg  V   Thurbom*  and  the  cases  which  have  followed  that  decision.    Not  having 
any 'intention  to  steal  when  he  first  found  them,  the  presumption  Is  that  he  took 
them  for  safe  custody,  aud  i^nless  there  was  something  equivalent  to  a  bailment 
afterwards,  he  could  not  be  convicted  of  larceny.    On  the  whole,  we  think  there 
was  not  sufficient  to  make  this  out  to  be  a  case  of  larceny  by  bailee. 

"  Conviction  quashed." 

In  Tyler  v.  PeopW  the  Supreme  Court  of  Illinois,  In  reversing  a  conviction  of 
larceny  say  •  "  The  whole  of  the  evidence  establishes  clearly  that  the  article  of 
property  for  which  he  Is  charged  with  stealing  was  found  In  the  highway  and 
was  a  pair  of  saddle  bags.  It  was  further  proven  that  there  were  no  marks  by 
which  the  owner  could  be  distinguished.  Larceny  is  defined  by  the  books  to  be 
the  felonious  taking  and  carrying  away  of  the  personal  goods  of  another.  The 
original  taking  then  in  this  case  can  not  by  any  feasible  construction  that  can 
be  given  It,  be  construed  to  be  with  a  felonious  Intent." 

In  People  v.  Gogdell,*  the  prisoner  had  been  convicted  of  stealing  the  pocket- 
book  of  John  Warren,  with  six  hundred  dollars  in  bills  therein  contolned. 
The  book  and  contents  having  been  lost  In  the  highway,  Cagdell  found  and  at 
once  concealed  them.    The  other  facts  appear  In  the  opinion  of  the  court 


1  12  Cox,  489. 
*  3  Cox,  0.  0. 453. 


3  Braeie,  893(1830). 

*  1  HIU,  94;  37  Am.  Dec.  297  (18*1). 


FINDER   OP   LOST   OOODS. 


561 


ace  where  the 
;.  Twi>  hours 
tnlty.  On  the 
:  i  the  prisoner 
a  sovereign  for 
othlng  to  show 
that  the  owner 

:rayed,  and  put 
informed  by  S. 
and  a  few  days 
I  marshes  for  a 
I  property  to  be 
ill  knowledge  of 
e  heifers  he  bad 
)  did  not  believe 
of  finding  them 
me  on  him  sub- 
I  for  the  purpose 
prlatingthemto 
>ailee,  could  not 
We  have  consid- 
victlon  must  be 
nd  the  heifers  he 
I  that  he  did  not 
B  same  time  they 
r  did  not  Intend 
sequently  to  the 
nguliihable  from 
ion.    Not  having 
>n  is  that  he  took 
isnt  to  a  bailment 
e,  we  tbinlt  there 
aitee. 

ctioH  quashed." 
g  a  conviction  of 
bat  the  article  of 
the  highway  and 
rere  no  marks  by 
y  the  books  to  be 
of  another.  The 
xuction  that  can 

laling  the  pocket- 
lerein  contained. 
;dell  found  and  at 
f  the  court 


>ec.  297  (IMl). 


StHMHWlK*' 


By  the  court,  Cowen,  J.  There  was  abundant  proof  of  the  concealment  and 
frau.lulent  conversion  of  the  money  after  it  had  been  found.  This  was  undoub^ 
clly  under  unconsciousness  In  the  prisoner  that  it  was  accldentaiyZt     u 

ZdT'ht .?  ^r""'''^.  °'  '""  ''^  ^'^^  °''»''^'  ^'"^  «-P-t«<«  '«'«  having 
found  It,  but  the  prisoner  denied  the  finding  and  concealed  the  bills.    By   2 

owner's  good  fortune,  they  were  traced  to  the  hands  of  the  prisoner  and  flnall^ 

;;  „?n   ,      ?  '  T  """'  "  '""'^^  °'  «^''«'°"  '"'^  concealment!  plainly  2 
eating  his  fraudulent  intent  to  keep  the  money  if  possible 

It  did  not  appear  In  evidence  that  the  pocket-book  or  money  had  any  mark  by 

which  the  prisoner  could  have  discovered  Warren  to  be  the  owner    hough  he 

must  have  been  conscious  that  the  owner,  whoever  he  might  be.  won  d  maL  an 

effort  to  find  the  money.    He  did  make  such  effort,  oiering  a  reward  to  the 

prisoner  personally.    In  short,  the  loss  and  finding  were  pureraccidental 

Everything  after  that  done  by  ths  prisoner  was  characteristic  of  the  thief    a^d 

f  he  can  escape  the  legal  consequences  of  the  conviction  of  larceny,   t  must  Je 

solely  because  that  crime  is  not  predicable  of  a  taking  and  conversion  inder  the 

clrcums  ances  mentioned.    Singular  as  it  may  seem  toone  reason  ng  upon  prt 

ciple,  this  appears  to  be  the  settled  doctrine  of  the  law,  and  was  considered  to 

be  so  by  this  court  in  People  v.  Anderson.^    It  Is  supposed.  I  perTelle  by  the 

counsel  for  the  State,  that  from  what  was  said  in  People  v.  iJc^rJen  Hv^m' 

be  considered  as  holding  It  a  duty  to  disregard  the  adjudication  in  CH 

^«de«on  Which  is  not  denied  to  be  a  point  blank  case  agllnst  the  prosecuMon' 

But  ne  ther  the  decision  nor  any  dictum  In  People  v.  m(£rren,  nor  trcTur i  ^f 

reasoning  In  that  case.  W«  at  all  to  countenance  such  an  expectation     All  w« 

asserted  Uiere  was  that  probably  the  rule  must  be  conLedTol  ch  a  case?, 

te  present,  where  it  does  not  appear  that  the  prisoner  knew  or  Sad  the  means 

of  knowing  the  true  owner;  the  cases  were  cited  to  that  effect     0^0™ 

bT  rabr  r'^'Tf  "'""'  '"'' ''"'''''  ""'^«''  -"•>  owner's  n^me.  the  fin dS 
being  able  to  read.    Such  cases  themselves  Imply,  that  if  the  owner  has  nul:? 

no  mark  about  the  property,  and  none  exists  j;;hich  the  Ldercandis  over 

made  a  test  the  doctrine  of  People  v.  ..nVSs'lnS  ^one     Sca"e7an; 
finder  could  fail  in  his  search;  and  this  being  generally  obvIousTaiurv 
they  would  hardly  ever  fall  to  convict  for  that  reison.    The  rule  would  th./,  7' 
practice,  be  brought  down  to  a  very  narrow  exception  ' '" 

.«  "h  Tl  ^^J""^  """"""  *°  P*"'**^*  *°  ««»°d  morals*  why  this  should  not  be 
so;  but  that  Is  no  argument  lor  disregarding  a  settled  rule  of  llw 

caiiea  thereto  by  the  exclamation  of  a  bvsUnder  «« Th«r«  i-  »    k      ,  ..  u  ^ 
si.aken  the  dirt  from  it.  placed  It  on  the  chairsl^Mng^he^p  ^uto^^^^^^ 
cages  of  the  animals,  and  leaned  his  body  over  U.    A^tlrs tne  iS  tt 


«  14  Johns.  294;  7  Am.  Deo.  462. 
*  17  Wend.  480. 

8  Defences. 


»  a  Dev.  L.  478;  24  Am.  Dec.  2B8  (18S2). 


86 


5G2 


LARCKNY. 


4  11  «f  unnrtitoro     After  a  short  lapse  of  time  the  defendant  secreted 

11  Mtho  time  he  took  tlie  sliavvl  the  owner  w..  within  «)»»'>  of  his  »ol». 

'^JTf'°""r:Tl.''^:'^^^U  -a  ro..»oU  U,cen,  Is  <.e..e. 
«.  h.  "  the'  Lnsln  or  Zd»lc«t  taking  .nd  carrying  .»ay  h,  an,  peraon  «1 
1  Lre  Lr  "n.T  good.  o<  another,  Iron,  any  place,  with  a  Monloo.  Intent  . 
ITr   t,^r.o  hf.  (the  taker'.)  own  »..,  and  -»V^«"  "' -"S:": 

:»rc*.-:odi,r-o.Lrnrrotnero:r9^^^^^^^ 
r.'ratrt^rx"rc-od7k:2^^^^^^ 

not  lost.*    In  the  case  before  the  court  it  ^PP^"*'*'*'**  *^! 'J^^^'  ^s  ^  sha^l; «' 
that  the  defendant  took  it  up  after  a  bystander  had  ^^   J^  -  ^^  sh^  ^^  ,^^ 

that  he  shook  the  dirt  off  it,  and  then  laid  It  on^»^«  J"^*"^^^^^^^  \  ^he  shawl 

afew  moments  and  then  secreted  it  in  ^''^J'^J^^^^^^J^^^^^^^^^^  but  it  had 

had  not  been  placed  by  the  owner  where  ^^^^'^^^^^''''^l^'^^^^^^  m  a  pub- 

accidentally  fallen  there  and  was  lost,  the  <i«  ^"^'^"^^^^^^^^^^  t,n,e 

licmannerwasignorantoftheowner;hecontinuedthns^nm^^^^^^^^ 

after  he  had  left  the  ring.    The  ^i-T^^^T    °L  not  altTr  th^^  does 

ing  to  the  crowd  that  he  hrd  found  a  shawl.  f°««  "^^^'^^'J^Jj^g^    ,or  a  short 
the  circumstance  of  his  laying  the  «»»''^\°"  f/^^^'''"  Xln^^^^^^^ 
space  of  time,  and  returning  and  t^«"  *»J  "«/      ""jf^^^^^^^^^^ 
wllhafeloniouslntent.    The  owner  had  lost  it;  «;«h»^^°°*/5^^^  place  (I 

of  It,  nor  did  the  defendant  know  the  owner.    The  t»""8  J"*™  "i  ,u„k 

mean  the  chain),  was  not  a  taking  from  the  possession  of  the  owner. 

s  FuRfs  r    C.  664;  liar's  Case,  215  n.;  1 
sec.  1 ;  1  Bu8B.  96.  "*  cartwright  v.  Green,  8  Vea.  405. 


;:;j3^^'^irjiiii^^g)^v$Siiin&i#«S&i^^ 


FINDfeH    Ol"    LOHT   OOODM. 


563 


endant  sccrctod 
I,  hid  .t  beneath 
lo  larceny  here, 
3  was  enlHled  to 
1  the  shawl  was 

or  was  not  with 
I  the  shawl  from 
knowledge  as  to 
et  he  was  guilty, 
his  voice. 

irceny  is  defined 
ly  any  person,  ot 
ilonious  Intent  to 
lis  own  property 
actual  taking  or 
1  the  ground  that 
iss  In  taking  the 
X  general  maxim, 
it  if  the  owner  or 
or  constructively 
ay.    Therefore,  U 
3  taking  was  bona 
wards  feloniously 
e  larceny.    But  If 
owner,  the  subse- 
knowledge  of  the 
tie  evidence  to  be 
il  taking  was  with 
au  to  be  repaired, 
ase  the  money  was 
hawl  was  lost,  and 
here  is  a  shawl;*' 
i  leaned  over  It  for 
e  ring.    The  shawl 
it  from,  but  it  had 
I  took  It  up  In  a  pub- 
ant  until  some  time 
g  out  and  proclaim- 
B  case,  neither  does 
aving  it  for  a  short 
and  carrying  it  away 
regained  possession 
from  that  place  (I 
the  owner.    I  thin^ 

Lear's  Case,  215  n. ;  1 
I.  V.  Walters,  2  Burn's 

ccn,  8  Ves.  405. 


from  the  time  the  defendant  took  the  shawl  from  tlie  around  until  ho  delivered 
it  t.)  the  owner,  It  was  in  his  postessimi.  As  tliu  original  takin:?  of  tlii'  lost 
;;()()(ls  was  without  ii  felonious  intent,  tlie  subsequent  felonious  asportiition  will 
not  make  the  defendant  guilty  of  larceny.  I  think  a  new  trial  .xhould  be 
granted. 

llr.xDKKSON,  C.  J.    This  case  does  not  present  the  question  whether  lost 
piojHTty  is  the  object  of  larceny;  for  the  original  taking  of  the  shawl  from  the 
gioiind  was  not  atten<led  by  any  circumstance  from  which  a  felonious  Intent 
lould  be  inferred ;  it  was  not  done  clam  rtaecrete,  but  openly  and  publicly.    The 
secret  conversion  of  it  afterwards  to  the  defendant's  use  could  not  impress  a 
larcenous  characteron  the  original  takinfj;  at  most  itwonlilonly  be  evidence  of 
the  orli^lnal  intent,  and  the  open  and  public  manner  in  wjiich  the  act  was  done 
precludes  all  idea  of  a  larcenous  intent  and  shows  too  i)laiiily  to  be  controverted 
that  such  Intent  If  It  ever  exlbted,  was  au  afterthought.    So  far  therefore  as  the 
secret  and  fraudulent  withdrawal  of  the  shawl  from  the  chair  gave  a  larcenous 
char.icter  to  the  first  taking.  It  is  to  be  entirely  discarded  from  the  case,  as 
even  those  that  think  that  loet  goods  are  the  object  of  larceny,  admit  that  the 
ori^'lutti  taking  must  be  with  a  larcenous  Intent  — that  no  afterthought  or  after 
act  can  convert  it  Into  a  felony.    For  my  own  part,  thinking  that  there  must  be 
an  unlawful  taking  from  the  possession  of  the  owner  to  constitute  a  larceny,  I 
am  of  opinion  that  lost  goods  are  not  the  object  of  larceny.    Some  of  my  rea- 
sons, given  in  a  much  piore  forcible  manner  than  I  can  give  them,  are  to  be 
found  in  Judge  Spencer's  opinion  in  the  case  of  People  v.  Anderson.^    Runaway 
slaves  do  not  fall  within  the  description  of  lost  property,  for  from  their  nature, 
being  intelll:?ent  beings,  they  are  incapable  of  becoming  astrays,  in  the  legal  or 
technical  meaning  of  the  word,  which  class  of  lost  property  they  In  their  run- 
away state  more  closely  resemble  than  any  other.    Po.    'h  -'  this  exception  to 
the  general  rule  may  be  founded  In  policy,  as  no  vigilance  of  the  owner  can  pre- 
vent their  absconding,  and  the  law  attaches  some  degree  of  negligence  to  the 
owner  in  losing  his  property  and  therefore  does  not  protect  it  when  lost  by  high 
penal  sanctions.    If  the  removal  of  the  shawl  from  the  chain  was  a  continuous 
act  of  the  possession  acquired  by  the  defendant  when  he  took  It  from  the 
^  firound,  and  not  a  distinct  Independent  acquisition  it  was  entirely  immaterial 
whether  he  then  knew  who  was  the  owner,  or  whether  she  was  there  within  the 
ring,  or  within  the  sound  of  his  voice ;  in  neither  case  could  it  be  a  larceny.    To 
constitute  it  a  larceny  there  must  have  been  an  abandonment  of  the  possession 
liy  the  finder  before  it  was  taken  from  the  chain.    Whether  there  had  been  such 
abandonment  should  have  been  submitted  to  the  jury.    It  is  true  It  is  a  ques- 
tion of  law,  to  be  decided  by  the  courts,  but  the  facts  upon  which  it  arises  are 
to  be  ascertained,  either  by  the  admission  of  the  party  upon  record,  or  by  the 
verdict  of  the  jury. 

The  facts  then  are  in  no  way  ascertained,  for  abandonment  is  an  Intent  of  the 
mind,  evidenced  It  is  true  by  an  overt  act,  from  which  as  in  the  present;case  the 
jury  alone  is  competent  to  make  the  inference.  There  is  no  fact  stated  upon 
the  record  from  which  the  law  can  draw  the  inference.  The  quo  animo  with 
which  the  defendant  placed  the  shawl  on  the  chain,  standing  by  or  near  to  it, 
is  for  the  jury  and  not  for  the  court,  and  I  would  not  add  a  single  instance  of 
an  inference  of  fact  to  be  drawn  by  the  law;  and  very  clearly  this  is  not  a  case 
where  any  judge  would  do  so.    The  act  is  too  equivocal  and  subject  to  too 

1  U  JohDii.  S»4;  7  Am.  Dec.  4C2. 


mmmm: 


iAaHMMi 


5G4 


LAUCKNT. 


manr  Hl.ades  of  difference,  to  Infer  from  it  any  rule  of  intent  applicable  to  all 
Z-H  ami  eaeh  ca«e  ™u«t  be  left  to  l,e  Uecide.i  according  to  its  own  part  culur 
and  mlnue  circumstances,  that  Is.  according  to  the  actual  Intent  n  each  par- 
u"  ulT     use     I  am  of  opinion  therefore  that  the  defendant  is  entitled  to  a  new 
ll    because  the  Intention  >vlth  «hlch  he  placed  the  shawl  on  the  chair  was  not 
submit  tTto  the  jury,  and  without  an  abandonment  of  possession  by  him,  no 
matter  inder  what  circumstances  he  afterwards  withdrew  it  from  the  chain,  no 
n      ZtixZ  he  knew  who  was  the  owner  or  not  or  -hether  she  was  or  ,^s 
not  within  the  sound  of  his  voice;  such  withdrawal  was  not  alarceny.    Shoul. 
the  lury  be  of  opinion  that  there  had  been  an  abandonment  of  the  possession,  I 
am  iot'prepareS  to  say  that  the  article  was  then  placed  in  a  situation  to  be^he 
object  of  larceny.    Did  such  abandonment  by  hanging  It  on  th    ch*l J;^^'^*  J- 
an  abandonment,  restore  the  possession  to  the  owner,  without  b" /'"O^'"'*^^ 
Iml  did  It  merely  cease  to  be  lost  property?    Or  did  it  only  restore  it  to  its 
Bltuatlon  when  it  was  first  discovered  on  the  ground? 

These  are  questions  I  leave  to  future  discussion,  If  the  occasion  should  re- 
quire  it,  lor  as  1  said  before.  I  am  not  prepared  to^eclde  il.e^^  ^^^^^ 

Pbb  Cubiam. 

5  603.  —Finder Keeping ArtlcletlllRewardUOffered for ItsBeturn.- 
Inif  V  For^t.'the  prisoner  was  tried  upon  an  Indictment  which  »«'««" 
count  charged  him  with  feloniously  stealing  one  sliver  watch,  and  In  the  second 
Zl  wSecelvlng  the  said  watch.  welUnowlng  the  --  t°  5:;:^  Te  w^  ' 
The  evidence  against  the  prisoner  seemed  to  prove  that  ».  had  found  the  watch, 
Id  had  subsequently  appropriated  It  to  hU  own  use.  It  was  therefore  cou- 
Lnded  on  the  part  o,  Z  prosecution,  that  If  at  the  time  the  prisoner  found 
he  watch  he  toolc  possession  of  It  with  a  view  of  stealing  It  or  if  he  found  the 
watch  and  Intended  to  detain  and  keep  It  until  a  reward  wa  P^ld  fo  th 
Tame  he  was  guilty  of  larceny.  The  jury,  after  hearing  counsel  on  behalf  of 
Zp^lsonTr!  ired  to  consider  their  verdict,  and  upon  their  return  into  court, 
iellv  red  the  fo  lowing  special  verdict  in  writing,  the  words  in  Italics  having 
Seen  rubsequeutly  added  by  the  jury  after  explanation  by  the  court  with  the 

^"  «  Not  guilty  of  stealing  the  watch,  but  guilty  of  keeping  possession  of  It  In 
the  hone  of  reward  /  om  the  time  he  first  had  the  watch." 

T^^^'second  count  was  abandoned  by  the  counsel  ^"^  t'^^  P[«''«-f;"' ^'f^, 
verdict  of  "  Not  guilty  "  was  entered  thereon.    The  counsel  for  the  prisoner 
Ihen  moved  fhe  c^ourt'that  the  prisoner  should  be  forthwith  discharged,  the 
special  verdict  being  one  which  amounted  in  law  to  a  verdict  of  acquittal 

The  court,  after  argument,  decided  that  the  verdict  amounted  to  a  verdict  h 
gulUy  and  the  following  entry  was  made  in  the  record :    .'Gulty^   Judgment 
fo  be  Reserved  until  the  next  Sessions,  lu  the  meantime  a  case   o  be  submitted 
Tthel^dges.    The  prisoner  to  be  admitted  tc  ball  himself  In  £100  am.  one 
surety  m  £60.  conditioned  for  the  appearance  of  the  said  George  \o. 
pear  at  the  next  Sessions,  and  abide  the  judgment  of  the  court.       The 
with  a  surety  then  In  open  court,  forthwith  entered  Into  the  required         gm- 
Tancesand  was  discharged,  and  the    facts  of  the  case  were  dlrec  ed  he 

court  to  be  laid  before  the  judges  to  determine  whether  the  opinion  of  the 
court  upon  the  said  finding  of  the  jury  was  or  was  not  correct. 

I  aC.  &  K  ,  341 ;  1  Den.  343  (187S). 


^^m 


WHAT  NOT  SUBJECTS   OF    LAUCENY. 


565 


applicable  to  nil 
s  owu  particular 
(eut  in  each  par- 
entitled  to  a  new 
he  chair  woh  not 
98lon  by  him,  no 
oin  the  chain,  uo 
r  she  was  or  was 
larceny.  Should 
the  possession,  I 
ituatlon  to  be  the 
0  chain,  if  it  was 
t  her  Isnowiedge. 
y  restore  it  to  its 

^aslon  should  re- 

I. 

Igment  retened. 

tor  Its  Return.  — 
which  in  the  first 
and  in  the  second 
(have  been  stolen, 
i  found  the  watch, 
ras  therefore  cou- 
he  prisoner  found 
or  if  he  found  the 

was  paid  for  the 
insel  on  behalf  of 

return  into  court, 
Is  in  italics  having 
the  court  with  the 

possession  of  it  in 

prosecution,  and  a 
jl  for  the  prisoner 
th  discharged,  the 
,  of  acquittal, 
ited  to  a  verdict  in 
Guilty.    Judgment 
ise  to  be  submitted 
elf  in  £100  and  me 
George  Yoi ' 
itt."    Tlie 
e  required         gui- 
're  directed        the 
the  opinion  oC  the 
ct. 


This  case  was  argued  on  the  9th  of  December,  1848,  in  the  Eschequi-r  Cham- 
ber,  before  Pollock,  C.  B.,  Pahkk,  B.,  Pattkson,  J.,  Cuesswell,  J.,  E.  V. 

WiLUAMS,  J. 

Flood,  for  the  prisoner,  was  not  called  upon  by  the  court. 
Macmilay  was  heard  in  support  of  the  conviction.  He  contended  that  the 
finding  of  the  jury  ought  not  to  be  regarded  as  a  special  verdict;  It  was  in 
truth  an  Irregular  statement  of  the  result  of  a  desultory  colloquy  between  the 
court  and  the  jury;  that  the  words  not  guilty  of  stealing  the  watch  were  mere 
surplusage,  being  inconsistent  with  that  part  of  the  finding  which  followed; 
that  the  finding,  properly  stated,  would  be  this,  that  the  prisoner  from  the  first 
held  It  dishonestly,  with  the  Intention  of  getting  something  from  the  rightful 
owner;  and  not  simply  with  a  view  of  restoring  it. 

Pollock,  C.  B.  It  It  submitted  to  us  as  the  finding  of  the  jury;  if  it  Is 
Irregular  this  court  can  not  amend  it. 

Parkb  B.    If  a  man  finds  a  thing  can  he  be  guilty  of  larceny? 

Macaulay.  The  jury  do  not  say  that  he  found  it,  and  even  If  he  had  done 
so,  the  facts  of  the  case  seem  to  bring  It  within  the  qualification  of  the  rule, 
that  a  finding  is  not  such  a  taking  as  amounts  to  larceny.  In  Merry  v.  Gretn, 
Parke,  B.,  said  during  the  argument:  "  Suppose  a  person  finds  a  check  In  the 
street,  and  In  the  first  I nitonce  takes  it  up  merely  to  see  what  it  is;  if  after- 
wards he  cashes  it,  and  appropriates  the  money  to  his  own  use,  that  is  a  felony 
though  he  is  a  mere  finder  till  he  looks  at  It.** 

Here  the  words  •'  from  the  time  he  first  had  the  watch,'*  merely  show  that 
the  dishoaest  Intent  of  appropriating  the  watch  and  holding  it  as  his  own  till 
he  could  extort  a  reward  from  the  rightful  owner  was  the  first  idea  that  occur- 
red to  his  mind  after  he  took  it  up;  it  seems  to  come  precisely  within  Baron 
Parke's  dictum. 

Pollock,  C.  B.  We  can  not  reason  upon  what  the  jury  intended  to  find. 
Their  verdict  is  "not  guilty  of  stealing;  '*  there  is  no  stotement  that  he  feloni- 
ously  took  It.    They  have  absolutely  acquitted  him. 

Parke,  B.  It  seems  clear,  taking  the  finding  In  conjunction  with  the  facts, 
that  the  prisoner  can  not  be  deemed  to  have  committed  the  offense  of  larceny. 

The  rest  of  the  court  concurred;  and  it  was  therefore  held  that  the  prisoner 
ought  not  to  have  been  convicted. 

§  604.  What  Not  Subjects  of  Iiaroeny  —  Oboaes  in  Action.  —At  common 

law  cboses  in  action  were  not  the  subjects  of  larceny .^ 

§  506.  Bank  Notes.  —  It  Is  not  larceny  at  common  law  to  steal  a  bank 

note.' 

<■  'm.  BaUroad  Ticket.— And  so  a  railroad  ticket  is  not  the  subject  of 

arccu>,  at  common  law.* 

§  607. BUlsof  Bzcbanse.  —  County  orders  are  not  "  bills  ol  exchange '» 

within  .1      itute.* 


>  7M.  AW.  829. 

3  Gulp  V.  Statt,  1  Port.  (Ala.)  33 ;  26  Am. 
Dec.  867  (1884) ;  Warner  v.  Com.,  1  Pa.  8t, 
IM;  44  Am.  Dec.  114  (18  ^  R.  ».  Wattl, 
Dears.  827  (18S4). 


3  U.  8.  c.  Bowen,  2  Cranch,  O.  C.  143;  U. 
6.  V.  Camot,  2  Cranch,  C.  0. 469. 

«  Stote  V.  Hill.  1  Honst.  C.  C.  420  (1874). 

»  AVarner  v.  Com.,  1  Pa.  St  IM;  44  Am. 
Dec.  114  (1849). 


566 


LARCENY. 


§  50S. Bills  of  Exchange  —  Orders  for  the  Payment  of  Money  —  Prop. 

©rty  not  In  Proseoucor.  —  In  B.  v.  Hart,^  the  prisoner  was  indicted  and  ac- 
quitted of  larceny  under  the  facts  as  detailed  in  the  opinions  of  the  judges  fol- 
lowing: LiTTLKDALK,  J. :  It  appedfs  to  me  that  there  is  not  enough  In  this  case 
to  make  out  a  charge  of  felony;  however,  I  do  not  say  anything  respecting  any 
other  prosecution  that  may  be  instituted.    (His  lordship  stated  the  different 
counts  of  the  indictment.)    With  respect  to  the  flr.st,  second,  and  third  counts 
I  am  of  opinion,  tliat,  when  these  acceptances  were  taken  from  tlie  prosecutor, 
they  were  neither  bills  of  exchange,  orders  nor  securities  for  riic  ney.    It  appears 
that  Mr.  Astley,  in  consequence  of  what  he  saw  in  a  newspaper,  wrote  a  letter, 
and  that  lie  afterwards  had  an  Inter^'lew  with  the  prisoner,  when  the  latter  pro- 
duced these  stamps,  upon  which  the  prosecutor  wrote  the  words,  "  Payable  at 
Messrs.  Preads,  No.  189,  Fleet  Street,  Loi  :lon,"  and  as  soon  as  that  was  done, 
the  prisoner  received  them  from  Mr.  Astley,  and  carried  them  avay;  and  it 
seems  that,  singularly  enough,  little  or  nothing  was  said  as  to  wha  .  was  to  be 
dune  with  the  papers.    It  then  appears  that  it  was  found  that  Mr.  Astley's 
name  was  not  put  upon  them;  and  at  another  ir  eting,  the  prisoner  again  pro- 
duc'. !  the  stamps,  pnd  Mr.  Astley  wrote  the  words  "Accepted  "and  "F.  D. 
Astley,"  there  being  at  that  time  on  the  papers  neither  the  name  of  any  drawee 
nor  any  sum  or  date ;  but  it  seems,  that  in  the  course  of  the  discussion,  it  was 
stated  ih.-t  ihe  stamps  were  to  be  used  for  bills  of  £500  each.    The  papers  were 
again  taken  away  by  the  prisoner;  and  it  appears  to  me,  that  when  they  were 
so  taken  away,  they  were  neither  bills  of  exchange  nor  orders  for  the  payment 
of  mouey,  but  were  only  in  an  embryo  state,  there  being  the  means  of  making 
them  bills  of  exchange.    The  statute  7  a  d  8  Geoige  IV. ,^  enacts,  that  if  any 
person  shall  steal  any  "bill,  note,  warrant,  order,  or  other  jc^curity  what, 
soever  for  money,  or  for  payment  of  money,  whether  of  this  kingdom  oi 
any  other  State,"  the  party  is  to  be  punished  as  he  would  be  for  stealing 
a  chattel  of  like  value.    Now,  bow  could  this  be  said  to  be  of  any  value j 
And  of  what  value  can  it  be  said  to  be?    If  these  papers  had  been  stolen  from  : 
dwelling-liouse,  could  they  be  charged  to  ,e  of  the  value  of  £500  each?    Ther| 
is  no  sum  mentioned  on  them,  and  none  drawn;  and  they  being,  as  I  before  ob 
served,  but  a  kind  of  embryo  security,  I  am  oi  the  opinion  that  the  first  ( 
counts  of  this  indictment  are  not  proved.    There  is,  however,  a  fourth  counll 
which  describes  the  p:i'>er?  as  ten  pieces  of  paper,  each  having  a  six  shllliul 
stamp;  and  upon  this  count  the  question  is,  whether  the  prisoner  csn  be  sail 
to  have  stolen  tlie  property?    As  to  the  first  three  counts,  I  think  the  case  turiT 
upon  a  mere  question  of  law,  which  is,  I  thln.i,  entirely  for  the  court,  as  thea 
papers  do  not  come  within  the  description  contained  in  the  statute  7  and! 
George  IV.'    The  fourth  count  correctly  describes  them;  but  it  seems  to  be  thl 
the  clrcumstft'jces  under  which  they  were  obtained  by  the  prisoner  were  nJ 
such  as  to  make  the  prisoner  liable  for  a  felony.    If  a  person  by  false  represcl 
tation  obtains  the  possession  of  the  property  of  another,  intending  to  convert  f 
to  his  own  use,  this  is  felony;  but  the  property  must  have  previously  been  in  tl 
po.ssesslon  of  the  person  from  whom  It  Is  charged  to  have  been  stolen.    Now! 
ihink  that  these  paper.«,  In  the  state  in  which  they  were,  were  the  property  of  t| 
prisone-.    He  took  them  from  his  pocket,  and  Mr.  Astley  never  had  them,  exec 
for  the  purpose  of  writing  on  them.    They  were  not  out  of  the  prisoner's  sigl 


3  6C.  &  P.  107  (!»::>;. 
»  ch.  29,  sec.  2. 


a  ch.  29. 


"ORDERS   Ton  THE   P4VMENT   OF   MONEY." 


5(57 


yment  of  Money  —  Prop- 
ter was  indicted  and  ac- 
oplnions  of  tlie  judges  fol- 
.  is  not  enough  in  ttiis  case 
vy  anytliing  respecting  any 
rdslilp  state  a  tlie  different 
t,  second,  and  third  counts 
talcen  f  r<im  tlie  prosecutor, 
tics  for  mcney.    It  appears 
newspaper,  wrote  a  letter, 
isouer,  when  the  latter  pro- 
)te  the  words,  "  Payable  at 
i  as  soon  as  that  was  done, 
carried  them  avay;  and  it 
3  said  as  to  whawastobe 
as  found  that  Mr.  Astley's 
ilug,  the  prisoner  again  pro- 
ds "  Accepted  "  and  "  F.  D. 
;lier  the  name  of  any  drawee 
rse  of  the  discussion,  it  was 
;500  each.    The  papers  were 
to  me,  that  when  they  were 
8  nor  orders  for  the  payment 
!  being  the  means  of  making 
01  ge  I  v., 2  enacts,  that  if  any 
ert  or  other  Jt^curlty  what, 
•hether  of  this  kingdom  or 
ks  he  would  be  for  stealing 
16  said  to  be  of  any  value? 
apers  had  been  stolen  from  a 
e  value  of  £500  each?    There 
,nd  they  being,  as  I  before  ob- 
e  opinion  that  the  first  three 
is,  however,  a  fourth  count, 
•r,  each  having  a  six  shilling 
Bther  the  prisoner  can  be  said 
counts,  I  think  the  case  turns 
itlrely  for  the  court,  as  these 
italned  in  the  statute  7  and  8 
them;  but  it  seems  to  be  that 
ned  by  the  prisoner  were  not 
If  a  person  by  false  represen- 
nother,  intending  to  convert  It 
usthave  previously  been  in  the 
I  to  have  been  stolen.    Now,  I 
were,  were  the  property  of  the 
.  Astley  never  had  them,  except 
lot  out  of  the  prisoner's  sight 


29. 


giig^fe«e4^^e58^' ^ 


J 


Mr.  Astley  writes  on  them,  as  was  intended,  and  the  prisoner  Immediately  has 
them  again.  I  tliiuk  the  prisoner  can  not  be  considered  as  having  committed  a 
trespass  in  the  taking,  as  they  never  were  out  of  his  posesslon  at  all.  The  case 
cited  was  a  case  In  trover;  and  to  maintain  trover.  It  is  not  necessaay  that  the 
party  should  have  manual  possession  of  the  goods;  If  he  has  a  right  of  posses- 
sion  that  Is  sufficient.  To  support  an  indictment  there  must  be  such  a  posses- 
sion as  would  enable  the  party  to  maintain  trespass.  It  has  been  Incidentally 
mentioned  that  these  stamps  might  be  charged  In  account  to  Mr.  Astley;  but 
that  could  only  be  if  the  transaction  was  completed.  However,  we  must  only 
take  into  conslder.uiou  that  which  occurred  on  the  lust  occasion,  when  the 
words,  "Accepted,"  and  "F.  D.  Astley"  were  written.  Indeed,  it  appears  to 
me,  that  on  neither  of  the  occasions  when  these  parties  met,  can  the  prosecutor 
be  said  to  '  ave  either  the  property  or  the  possession  of  these  papers,  so  as  to 
make  the  prisoner  guilty  of  larceny  'i  taking  the  papers  out  of  the  house.  I  do 
not  say  whether  or  not  there  is  a  fruud,  but  I  am  of  opinion  that  this  is  not  a 
case  of  felony. 

Holland,  B.  If  I  entertained  any  doubt  in  this  case,  I  should  certainly 
have  requested  my  brother  I.ittledalc  to  have  reserved  It  for  the  opinion  of  the 
judges.  The  first  three  counts  are  for  stealing  bills  of  exchange,  securities 
for  money,  or  orders  Itor  the  payment  of  money.  I  will,  to  simplify  the  argu- 
ment, put  It  as  If  one  only  of  these  papers  was  taken.  Instead  of  the  ten.  Is 
the  paper  a  olll  of  exchange?  No;  It  was  at  first  a  six-shilling  stamp,  with 
the  words,  "  payable  at  Messrs.  Pread  &  Co.'s,  No.  18i>  Fleet  Street,  London," 
written  upon  It.  In  its  then  state,  no  piece  of  paper  could  be  more  useless. 
However,  it  is  brought  to  Mr.  Astley  again,  and  the  word  '<  accepted  "  and  his 
signatures  are  added;  and  It  is  In  that  state  when  it  is  charged  to  have  been 
taken  away.  Can  it,  then,  be  called  a  bill  of  exchange?  I  should  say,  certainly 
not.  In  the  next  count  it  is  called  an  order  for  payment  of  money;  and  that  it 
clearly  is  not,  as  by  it  no  money  is  directed  to  be  paid;  and  It  certainly  can 
not  be  called  a  security,  as  no  money  is  even  mentioned  in  it.  Then  comes  the 
fourth  count,  which  states  that  there  were  papers  bearing  certain  stamps,  and 
th.at  the  prisoner  stole  the  papers  with  the  stamps  upon  them.  This  question 
then  arises,  —whether  these  papers  were  the  property  of  Mr.  Astley  or  of  the 
prisoner.  And  on  that  point  the  case  stands  thus :  The  prisoner  being  solicited 
by  the  prosecutor  to  come  into  Hampshire,  he  does  so;  and  the  prisoner  pro- 
duces these  stamps,  and  a  negotiation  takes  place.  In  which  It  is  ultimately 
arranged  that  the  prisoner  Is  to  provide  the  prosecutor  with  money,  at  the 
exorbitant  rate  of  £6  per  cent.  There  is  no  agreemeu  that  Mr.  Astley  Is  to 
pay  for  the  stamps. 

BosAN'QUET,  T.  I  am  of  the  same  opinion;  but  after  v  hat  has  been  said  by 
my  learned  brothers,  I  shall  not  give  my  reasons  at  any  great  length.  The 
question  Is  not  whether  the  piisoner  Is  guilty  of  fraud,  or  whether  he  has 
acted  improperly,  but  whether  he  has  committed  a  felony.  The  thing  stolen 
(for  I  will  take  it  as  If  there  were  only  one)  Is  charged  to  be  a  bill  of  exchange, 
an  order  for  the  payment  of  money,  and  a  security  for  the  payment  of  money. 
I  do  not  think  that  at  the  time  It  was  taken  It  fell  within  either  of  these 
descriptions.  There  was  no  money  mentioned  in  it,  »nd  no  parties;  and  it 
seems  to  me  quite  impossible  that  the  words  written  on  It  by  Mr.  A.stley  can 
bring  It  within  the  terms  of  either  of  the  earlier  counts  of  this  Indictment. 
The  counsel  for  the  prosecution  feeling  this,  rely  on  a  count  whloh  charges  it 
to  be  a  piece  of  paper  with  a  star.p  on  it.    It  then  becomes  material  to  con- 


568 


LARCENY. 


aider  Tvhether  tlie  prisoner  stole  ttiat  from  tlie  prosecator,  as  it  is  essential,  to 
support  tliat  ctiarge,  that  tlie  thing  talien  was  the  property  of  the  prosecutor, 
and  stolen  from  him.  Now  we  find  that  the  paper  itself  was  produced  by  the 
prisoner,  and  that  the  stamp  on  it  wao  bis.  He  h?d  purchased  it,  and  it  does 
not  appear  that  the  prosecutor  ever  paid  for  it.  The  prisoner  produces  it 
when  both  parties  are  In  the  room  together,  the  prosecutor  writes  soma  words 
on  it,  and  the  prisoner  then  takes  it  away.  Is  that  a  stealing  from  the  prose- 
cutor? It  is  in  the  possession  of  the  prisoner  before  it  is  ever  placed  before 
the  prosecutor;  and  even  if  we  talie  it  that  it  was  ever  in  the  possession  of 
Mr.  Astley  at  all,  it  is  given  by  him  again  to  the  prisoner.  But  as  it  is  pro- 
duced by  the  prisoner,  and  he  stays  all  the  time  Mr.  Astley  is  writing,  and 
when  the  writing  is  done  he  takes  the  paper  up  again,  It  seems  to  me  that  the 
stamp  never  was  out  of  the  possession  of  the  prisoner.  The  case  of  Mr. 
Phipoe  bears  very  strongly  upon  the  present,  only  In  that  case  the  instrument 
was  a  complete  promissory  note;  and  there  the  judges  were  of  opinion  that, 
however  atrocious  the  circumstances,  and  atrocious  in  that  cab'b  they  certainly 
were,  it  was  not  a  case  in  which  she  could  be  convicted  according  to  law ;  and 
nine  of  the  judges  held  that  the  note  was  procured  by  duress  and  not  by 
stealing.  In  that  case,  Mrs.  Phipoe  produced  the  stamp  and  made  Mr.  Oourtry 
put  his  name  upon  it.  I  tlierefore  concur  with  my  learned  brothers  in  thinking 
that  the  charge  of  taking  can  not  be  made  out. 

L1TTLEDAI.E,  J.,  decided  on  acquittal.  Verdict,  not  guilty, 

$  609.  •^—  "  Ooods  and  Otaattels."  —  Bank-notes  are  not  "  goods  and  chat- 
tels; "  1  nor  is  money;  ^  nor  are  bonds,  bills  and  notes.* 

§  610.  "Lawful  Money  of  the  United  States."— Lawful  money  of  the 

United  States  does  not  include  national  bank  notes.* 

§611.  "Money." — Bank  notes  are  not  "money"  within  this  word  In  a 
statute.' 

§  612.  "Money,  Oooda.  Wares  or  Merchandise."  —  A  promissory  note 

IS  not  "  money,  goods,  warets,  or  merchandise."* 

§  613.  "Order  for  the  Payment  of  Money"  — "Oerl'dflcate  for   tbe 

Payment  of  Money "—" Public  Security."— A  lottery  ticket,  before  the 
drawing,  is  not  within  these  phases.? 

§  614.  "Personal  Goods."- And  choses  in  action  are  not  "personal 

goods."  * 

5  616.  "  Promissory  Notes."  —And  a  statute  making  promissory  notes 

the  subject  of  larceny  will  not  include  bank-notes.* 

§  616.  Wliat  Is  a  "Direction  In  Writing  as  to  tbe  AppUoation  or  Dis- 
position of  Moneys"  within  the  English  stotute.>* 


I  R.  V.  Morrit,  2  Leitch,  S37  (1787). 
1  R.  V.  Guy,  1  Leooh,  877  (1782), 

*  U.  S.  V.  Morgan,  1  Cranch.O.  O.  278 . 

*  Hamilton  v.  State,  60  Ind.  19S  (1877). 

*  Johnson  v.  State,  11  Ohio  St.  324  (1860). 

*  R.  V.  Major,  2  L«acb,  89t  (1796). 


'  Heale7'sOa«e,40ityHaU  B«o.  M  (1818). 

•  U.  8.  V.  Davit,  a  Maaa.  166  (1829). 

*  Culpv.  SUte,l  Port  3S;  M  Am.  Deo. 
387  (1834). 

v>  See  B.  v.Brownlow,  14  Cox,  216  (1878). 


THINGS  ATTACHED  TO  THE  REALTY— MINERALS. 


56a 


essential,  to 
i  prosecutor, 
duced  by  the 
and  It  dnes 
produces  it 
B0ID9  words 
m  the  prose- 
laced  before 

)08SC88ion  of 

as  it  is  pro- 
writing,  and 
>  me  that  the 
case  of  Mr. 
e  instrument 
tpinion  that, 
liey  certainly 
to  law ;  and 
I  and  not  by 
Mr.  Oourtry 
s  in  thinking 

not  guilty, 
ds  and  chat- 


Ate  for  tb« 
,  before  the 


tion  or  Dla- 


§  617. Thlngrs  Attacbed  to  or  Savorincr  of  Realty.  —  So  things  attached 

to  or  savoring  of  realty  are  not  the  subjects  of  larceny  —  as  cabbage  in  the 
ground'  or  copper  pipes  part  of  a  machine  in  a  manufactory .»  It  is  not  felony 
to  take  and  carry  away  rails  from  a  fence,  If  the  severance  and  carrying  away 
are  one  continuous  act.' 

§  618.  Nuggets  of  Gtold.  —  So  of  a  nugget  of  gold.    In  State  v.  Burt,*  the 

court  said:  "  Nuggets  of  gold  are  lumps  of  native  metal  and  are  often  found 
separated  from  the  original  veins.  When  this  separation  is  produced  by  nat- 
ural causes,  there  is  no  severance  from  the  realty,  but  such  nuggets  will  pass 
under  a  conveyance,  like  ores  and  minerals  which  are  embedded  in  the  earth. 
When  ores  and  minerals  are  taken  out  of  mines,  with  expense,  skill  and  labor 
to  be  converted  into  metals,  or  used  for  the  purposes  of  trade  and  commerce', 
they  become  personal  property,  and  are  under  the  protection  of  the  criminal 
law. 

'•  In  England,  ores,  even  before  they  are  taken  from  the  mines  are  protected 
by  highly  penal  statutes.*  Loose  nuggets  which  are  occasionally  found  in  gul- 
lies  and  branches,  and  in  woods  and  fields,  are  hardly  considered  by  the  law  as 
the  subjects  of  determinate  property;  until  they  are  discovered  and  appropri- 
ated, and  then  they  become  personal  goods,  and  are  the  subjects  of  larceny. 
In  this  respect  they  somewhat  resemble  trove,  waifs,  etc.,  in  the  criminal  law 
of  England. 

"  It  is  an  ancient  rule  of  the  common  law,  that  things  which  savor  of,  or  ad- 
here  to  realty,  are  not  the  subjects  of  larceny.  In  this  recoect  the  common 
law  was  very  defective,  and  did  not  afford  sufficient  protection  to  many  valuable 
articles  of  personal  property  which  were  constructively  annexed  to  the  realty. 
These  defects  have,  in  some  degree,  been  remedied  by  a  number  of  sUtutes  in 
this  country  and  In  England. 

"  These  beneficial  changes  were  Induced  by  the  necessities  of  progressive  civ- 
ilization, which  required  many  valuable  species  of  personal  property  to  be  an- 
nexed to  realty,  to  be  used  for  the  purposes  of  trade  and  manufacture,  and  in 
the  arts;  and  which  needed  the  constant  protection  of  the  criminal  law. 

"  In  a  case  like  ours,  there  is  no  necessity  for  the  court  to  depart  from  the 
ancient  technical  strictness  of  the  common  law,  and  there  Is  no  need  of  any 
additional  legislation  upon  such  a  subject.  In  public  estimation  it  has  never 
been  regarded  as  larceny  for  the  fortunate  finder  of  a  nugget  of  gold,  or  a 
precious  stone,  to  appropriate  to  his  own  use,  although  found  upon  the  land  of  ' 
another  person.  Hundreds  of  Instances  of  this  kind  have  doubtless  occurred,  and 
yet  no  case  can  be  found  of  a  prosecution  for  larceny  or  .his  account,  either  In 
the  courts  of  this  country  or  of  England.  This  fact  sustains  us  in  the  opinion, 
that  for  cases  like  the  one  before  us  there  is  no  necessity  to  depart  from  the 
ancient  landmarks  established  by  the  fathers  of  our  criminal  jurisprudence. 
The  nugget  was  found  upon  a  loose  pile  of  rocks  by  one  of  the  defendants  and 
the  taking  and  carrying  away  was  one  continued  act,  and  did  not  amount  to 
larceny,  but  was  only  a  civil  trespass.* 


I  B«0.  86  (1818). 

I  (1829). 

;  M  Am.  Dec. 

ox,  218(1878). 


1  Bute  t».  f  oy,  89  N.  C.  679  (1880). 
»  State  V.  Hall,  5  Harr.  *»l  (18S3). 
3  U.  8.  V,  Wasner,  1  Crancb,  C.  0.  Sli;  V. 
8.  tf.  Smith,  1  Cranch,  C.  C.  475. 
*  64  N.  U.  619  (1870). 


•  8UU.  7  A  8  Geo.  XIV,  amended  by  U 
and  25  Vict. 

•  1  Hale's  P.  0. 510 ;  2  Eut'i  P.  0. 687  ;Ro8- 
ooe  Cr.  Kv.  450;  9  Baas,  on  Or.  186;  3  Bisb. 
Or.  L.,  MC.  779. 


''8liiBMSiisi)fe»ft^fea»ai.ijaftiH->i'fc4ri^^ 


570 


LARCENY. 


..  There  was  no  error  in  the  ruling  of  his  honor,  and  the  judgment  must  be 
affirmed.  it  judgment  afflrmed." 

5  519. sea  Weed. -So  drifted  and  ungathered  sea  weed  cast  ox  tiie 

«liore  is  not  the  subject  of  larceny .» 

§  620.  —  "  Peraonal  Property."  -  A  growing  crop  of  corn  is  not  "  personal 
property  "  within  the  Alabama  statute." 

r",r"reKotS;C\X:^...  or......  court  O.M...go».^ 

Co»ro<  petit  Urcenj,  lor  .u^allng,  »  ch^wd,  "*'«'«»'' ""'"/^'J.^S 
,tog»d.  .ndchatKla  ol  O.  B.  White,  tb.  pro»eut„t,  ''tT^^.Z' 

Ishment  awarded  to  each.     It  is  true,  in  a  s^^s^^"'''  ,  .  r^^^^  j„ 

reib"lr.rtag  them  torn  the  eUh,  .nd  ..t.,™rd.  picked  »p  th.  ,.,.■ 

°'~H.'"ons:^u°°»T:jr-^^^^^^^^^^ 

Zt  ,X™  t; JSv-ere  the  •  «t  o<  ..other  p.r.o.,  or  «,  .Iter  th.  »..,..c. 
but  II  th.  ~«er.iic.  Y  '  ,  I       tlta^,  .lt.r  which  h.  returned  ..d  took 

r.n!'r.»;.s.r.s':...d  >^^ou>.>^  .,.dut..ct  „«,«,. 
rL  t-cTreis-  M-r-d  -irrriTtrir.:: 

H  the4  be  .^  toll  V.1  between  hi.  .e.erl.g  ..d  t.l.l.g  then,  .J.,,  «.  h«  U 


1  U. .'.  Clinton.lr.  Bep.  4  0.  L.  6  (1869). 
a  MoCall  v.  State,  69  Ala.  «27  (1881). 
3  4  Baxt.  429  (18T4). 
« leo.  163. 


6  Citing  1  B.  H»l«'8  P.  C.  810;  2  BMt'8  P. 

C.  687. 
•  p.  878. 


ANIMALS    NOT   SUBJECT   OF   LARCENY 


571 


Igment  must  be 
ent  affirmed.^' 
sd  cast  01  the 

s  not  "  personal 


)ortatlon  must 
tiff  iu  error  was 
of  Montgomery 
8weet  potatoes, 
sentenced  to  the 
judge  was  erro- 
Ing  of  bis  charge 
ind  correctly  in- 
eny,  and  the  pun- 
his  Instructions, 
says:  'The  jury 
rsonal  property.' 
owing  In  or  upon 
;t  of  larceny,  and 
Dther,  entering  to 
ound,  or  cut  a  lot 
eked  up  the  vege- 
e  larceny.' 
>rding  to  the  rule 
If  the  severance 
3  only  a  trespass; 
fter  the  severance 
returned  and  took 
distinct  acts,  it  is 

d:' Things  though 
y  by  being  severed 
od  be  cut,  fruit  be 
ill  be  the  case,  not 
r  the  thief  himself, 
sm  away,  so  that  it 
le  thief  sever  them 
are  converted  Into 
on  whose  soil  they 
are  so  turned  Into 
t  severs  a  copper, 
it  remain  after  it  i» 

sF.  C.SlOi  2  BMt'sF. 


severed  any  time,  and  comes  back  and  takes  it,  then  the  removal  of  it  becomes 
a  felony;  and  so  of  a  tree  that  has  been  severed.' 

"  The  principle  is,  that  where  the  severance  and  asportation  constitute  one 
continuous  act,  then  it  is  a  trespass  only,  but  if  the  seveiaucc  is  a  distinct  act, 
and  not  Immediately  connected  with  or  followed  Uy  the  asportation  it  is  a 
larceny. 

"To  dig  potatoes,  whereby  they  are  cast  upon  the  surface  of  the  earth,  and 
Immediately  to  pick  them  up,  and  put  them  In  a  bag  and  carry  them  away, 
would  be  one  cont..iUous  act,  although  the  picking  up,  necessarily,  was  after 
the  digging,  and  after  they  had  lain  upon  the  ground.  Tha  act  would  be  con- 
tinuous, without  cessation,  until  the  asportation,  as  well  as  the  severance  was 
completed,  and  thus  a  trespass  only.  And,  so,  also,  of  cutting  a  '  lot  of  cab- 
bages,' 'severing  them  from  the  earth,' the 'severing' necessarily  precedes 
the  taking  away,  yet,  when  the  taking  away  Immedlatoly  follows.  It  Is  a  « contin- 
uous act,'  and  is  trespass  only. 

"It  Is  argued  by  the  attorney-general,  that  the  taking  of  vegetables  s  vered 
from  the  ground,  and  the  carrying  of  stolen  goods  into  another  county,  seem 
to  stand  upon  the  same  footing,  although  it  Is  considered  that  the  authorities 
hold,  as  to  the  first  mentioned,  that  the  possession  is  not  in  the  owner  as  per- 
sonalty, and  in  the  latter,  that  the  legal  possession  still  remains  in  him.  The 
trespasser  holds  the  severed  property,  as  personalty,  but  he  can  not  be  con- 
victed of  larceny,  for  he  did  not  obtain  that  possession  feloniously.  No  felony 
was  committed  In  the  taking  tmd  carrying  away  from  the  owner,  but  a  trespass 
only.  In  the  case  of  an  original  felonious  taking  and  carrying  away,  every 
moment's  continuance  of  the  trespass  and  felony  amounts  to  a  new  caption 
and  asportation,!  and  the  offense  is  considered  as  commlted  in  every  county  or 
jurisdiction  into  which  the  thle.?  carries  the  goods."  It  is  difficult  to  see  any 
difference  In  the  moral  guilt  of  one  who  takes  and  carries  away  immediately 
upon  the  severance  from  the  freehold  and  one  who  severs  at  one  time  and  takes 
away  at  another,  but  the  Leglslatme  has  not  altered  the  distinction  made  by 
the  common  law,  and  It  is  still  in  forat  in  Tennessee. 

"  The  Judgment  of  the  Criminal  Court  will  be  reversed.'* 

§  522.  Animals  Not  Subject  of  Larceny— Ferrets.  — At  common  law, 

animals  are  not  the  subject  of  larceny.'    Ftrrets  though  tame  and  salable,  are 
not  the  subject  of  larceny,  nor  rabbits.* 

§  623.  "Cow.  Sheep,  Hogr,  or  Other  Animal."  —  This  phrase  in  the 

Alabama  statute,  means  the  live  animal  and  not  iti>  carcass.' 

§  624.  Doves.  —So  doves  are  ferce  naturm  .and  not  the  subject  of  lar- 
ceny.—In  Commonwealth  v.  CAose,*  Pabkek,  C.  J.,  said:  "  It  is  held  in  all  the 
aulhorllics,  that  doves  are  ferce  nature,  and  as  such  are  not  subjects  of 
larceny,  except  when  in  a  dove-cot  or  pigeon-house,  or  when  In  the  nest  before 
they  are  able  to  fly.  If,  when  thus  under  the  care  of  tho  owner  they  are  taken 
furtively.  It  is  larceny.    The  reason  of  this  principle  is,  that  it  Is  difficult  to 


1  8  Arch.  Cr.  Pr.  ft  PI.  34S,  note  1. 
»  Ibid. 

3  R.  V.  SflarlDK,  R.  ft  R.  3fiO  (1818.) 
•  R.  V.  Towuley,  12  Co«,  69  (1871) ;  R.  v. 
retch.  U  Oox.  116  (1871.) 


>  Hunt  I).  State,  SS  Ala.  138  (1876). 
•  !)  Pick.  IS  (1829) ;  n  as  of  murtlDS  in  trap. 
Narton  r.  Ladd,  B  N.  H.  903  (1830). 


KmmeisiikBBii-timmmmmMmmmmawsimmi^'nm, 


572 


LARCENY. 


..stmguiBh  then,  fro.  other  fowloi  ^f  ^^ronT  In^at^relt^^^^^^^ 
and  mix  in  large  flocks  with  the  doves  ol  ^^bTtTL  prodnctlon  or  preser- 
the  air,  except  when  Impelled  by  hunger  °' ^^^Jf '  "'^^^^^^^^^  the  owner, 

vatlon  of  their  yonng.  they  seek  »»> ^^f  «73,7' j^^f^rtlng  on  his  barn 

^nrrimirsiredX^^^^^^ 

r^n^orblrilnsr  t^  ..  ^o^od/and  they  a.  .i^^^^^^^^^^^^^^  o— 

rled'awayfrom  the  enclosure  of  ^^^  ^^^''^^^^^'^^r^^^^^^^  killed, 

this  case  thtre  Is  no  evia.nce  «*»''««'*";"""  *JfJ„'e' or  mingled  with 
whether  on  the  flight,  a  mile  from  »»>«  8^°""^  ?f  *^^°^"''^^^^^^ 
the  doves  of  other  persons,  enjoying  their  natural  •  W"    "^^^         ^^.  i^ 
deuce,  the  act  of  killing  them,  though  for  the  purpose  of  using  them      food, 
not  felonious.    Therefore,  a  new  trial  is  granted. 

§  526.  —  DOBS.-  so  dogs  are  not  the  subject  of  larceny  at  common  law.i 
§  626.  __.. Personal  aood.."- Nor  are  dogs  "personal  goods,"«  >.  thin  a 
statute. 

§  627.  —  Horse-  Fiuy.  -one  who  steals  a  horse  Isnot  Indictable  for  steal- 
inga«'fllly."» 

§628.  —  Oy.ters.-So  larceny  can  not  be  committed  of  oysters  In  the 


-And  so  of  other  kinds  of  flsh  not  confined  or 


Ma.* 

I  629.  Other  Flsh.- 

dead.* 

5  630.  —  Sheep.-One  who  steals  a  lamb  under  a  year  old  Is  notlndlct- 
able  for  8tealln$i;  a  sheep.* 

§  631.  —  Prosecutor  Must  Have  Property  In  Oooda.-The  prosecu- 
tor  aust  have  property  In  the  things  stolen.' 

c  632  —  They  Must  Have  Borne  Value.  -  So  taking  a  letter  ^^ch  h« 
no  InSslc  val^fs  not  larceny.*  One  Indicted  for  stealing  a  bank-note,  must 
be  acquitted  If  the  note  Is  not  proved  to  be  genuine. 

Where  a  debtor  procured  his  creditor  to  sign  a  receipt  for  Ms  deot,  una 

prelnrtJathe  wasgolng  to  P^^ ^". -<> f  ^ i-'l^  ^^..^^^^^^ 
inal  intent  and  without  paying  him  this  was  held  not  larceny,       uie  p  p 
being  an  Instrument  of  any  legal  obUgatlon. 


1  Warrt  v.  State,  48  AlB.  IM  (1878)  ;  8Ut«  ». 
Holder,  81  N.  C.  6«7  (1879) ;  State  v.  Lymui, 
26  Ohio  St.  400 ;  R.  v.  Roberton,  Bell,  C.  C.  84 

(1869).  .      „       -„ 

a  State  v.  Doe,  79  Ind.  9;  41  Am.  Rep.  599 

(1881 )• 
s  LunaJord  v.  SUte,  1  Tex.  ( App.)  U9 (1876).^ 
*  R.  V.  Walford,  Bap.  682  (1808). 


»  State  V.  Krider,  78  N.  0.  «1  (1878). 
.  B. ».  Blrket,  4  0.  *  P.  816  (1880). 
>  B.  f>.  smith,  1  Den.  *P.  44  (18M) ;  McNalr 
».  state,  14  Tex.  (App.)  '8  (1888). 

»  Payne*.  People,  6  Johna.  108  (1810). 
•  state  V.  Dobaon.a  Harr.  678  (1848). 
10  People  V.  Loomia,  4  Denlo,  880  (1847). 
U80.*F.BeS(188S). 


PROPERTY  aroST  HAVE   VALUE. 


573 


»tteii  take  a  flight 
re  free  tenants  of 
iaction  or  preser- 
m  by  the  owner, 
istlng  OQ  his  barn 
e  trespass,  and  if 
or  caaf{bt,  or  car- 
j  larceny.    But  in 
5  In  when  killed, 
',  or  mingled  with 
Without  such  evi- 
g  them  as  food,  is 

y  at  coiuinon  law.^ 
1  goods,""  wXUn  a 

Indictable  for  steal- 

I  of  oysters  in  the 

jh  not  confined  or 

ar  old  is  not  indict- 

da.  — The   prosecu- 


;  a  letter  which  has 
tg  a  bank-note,  must 

t  for  hrts  debt,  under 
•om  him  with  a  crlm- 
ny,io__tbe  paper  not 

,_  Opening  a  letter 
>ject  be  to  prevent  It 
dictment  charged  the 

,78N.O.«10n")' 
3.  A  P.  S16  (ISSO). 
en.*P.**(l««;McNalr 

pp.)  78  (188S). 

e,  6  Johns.  108(1810). 

j.SHarr.  678  (1848). 

iitt,4Ueiiio,880(18i7). 

BBS). 


prisoner  with  having  stolen  six  sheets  of  paper  of  the  value  of  three  pence,  and 
a  paper  parcel  containing  two  letters  of  the  value  of  three  pence  of  the  goods 
and  chattels  of  William  Brlnton. 

It  was  opened  by  W.  J.  Alexander,  for  the  prosecution,  that  Mr.  Brlnton  was 
a  solicitor  at  Kiddermi aster,  and  that  the  prisoner,  Mr.  Godfrey,  was  an 
inn-keeper  and  stage  coach  proprietor  at  that  place;  and  that  on  Saturday,  the 
a!»th  of  July,  1837,  Mr.  Brlntou,  being  at  Brierly  Hill,  engaged  in  the  South 
Staffordshire  election,  he  had  occasion  to  send  two  letters  to  Kidderminster, 
these  letters  being  Inclosed  In  a  parcel  addressed,  "  Mrs.  W.  Brlnton,  Kidder, 
minster.  Immediate."  The  parcel  was  sent  by  a  coach  of  which  the  prisoner 
was  the  proprietor.  However,  on  Mr.  Brlnton's  arriving  at  home  on  the  next 
day,  he  discovered  that  the  parcel  had  not  arrived;  and  on  a  note  being  sent  to 
Mr.  Godfrey  respecting  it,  he  returned  a  written  answer,  stating  that  no  parcel 
had  arrived  directed  to  W.  Brlnton,  Esq.;  and,  in  answer  to  another  note,  he 
replied  that  no  parcel  had  arrived  lor  Mrs.  Brlnton.  It  would,  however,  be 
proved  that  the  parcel  did  arrive,  and  that  Mr.  Godfrey  himself  received  and 
opened  it;  and  finding  It  to  contiln  letters,  he  broke  the  seals  and  read  them, 
and  then  disposed  of  them  in  such  manner  as  he  thought  proper. 

Lord  Abinobr,  C.  B.  The  facts  you  hare  opened  are  rather  a  trespass  than 
a  felony.    Opening  a  letter  from  idle  curiosity  would  not  be  a  felony. 

W.  J.  Alexander.  I  should  submit  that  when  the  act  was  done  with  the  Intent 
to  injure  another,  that  would  be  sufiBcient. 

Lord  Abingkb,  C.  B.  The  term  lucH  causa  Infers  that  it  should  be  to  gain 
some  advantage  to  the  party  committing  the  offense.  A  malicious  injury  to 
the  property  of  another  is  not  enough. 

W.  J.  Alexander.  In  Cabbage's  Case,  it  was  held  that  a  taking  with  intent 
to  destroy  is  a  stealing,  if  it  be  done  to  effect  an  object  of  supposed  advantage 
to  the  party  committing  the  offense,  or  to  a  third  person.  There  a  person  took 
a  horse  and  backed  It  into  a  coal  pit  and  killed  It,  his  object  being  that  the  horse 
might  not  contribute  evidence  against  another  person  who  was  charged  with 
stealing  It,  and  that  was  held  to  be  larceny,  six  judges  against  five,  holding  it 
not  to  be  essential  that  the  taking  should  be  Iwri causa;  but  thinking  that  a 
taking  fraudnlenter,  with  intent  wholly  to  deprive  the  owner  of  the  property 
was  sufficient. 

Lord  Abinobb,  C.  B.  I  can  not  accede  to  that.  If  a  person,  from  Idle, 
impertlDent  curiosity,  either  personal  or  political,  opens  another  person's  letter, 
that  Is  not  felony.  Mr.  Alexander,  has  opened  an  action  for  not  safely  deliver- 
ing a  parcel,  in  which  a  jury  might  give  considerable  damages.  I  can  not  see 
any  excuse  for  the  conduct  of  the  defendant,  if  it  was  as  stated.  Still,  assum- 
ing that  statement  to  be  correct,  it  is  no  fi^lony.  It  was  cvldenUy  done  to 
gratify  some  idle  curiosity,  or  perhaps  to  prevent  the  letters  from  arriving. 

It  is  a  trespass  and  a  breach  of  contract,  but  no  felony. 

His  lordship  directed  an  acquittal. 

Verdict,  not  guilty. 

$  534.  "  Wrttins  Oontalnlnc  Evidence  of  Any  B^stlnff  Debt "  —  Value 

ot  Newspaper  List  of  Bubaortbers.  -  In  State  v.  James,^  it  was  held  that  a  printed 
list  of  subscribers  to  a  newspaper,  with  dates,  in  the  possession  of  the  pro- 
prietor was  not  within  this  phrase.    "The  questions  reserved  were,"  said 

1  88  N.  H.  67  (1877). 


-"iiWlli«ailiy<fcii;ffiiiimWii»lti(ffitfiiiii'»«^^ 


574 


LARCENY. 


BiNonAM.  J.,  "  whether  the  list  ^vas  a  writing  containing  evidence  of  an  existing 
Hphr  Within  section  8- » >yhether  If  It  was  not  such  a  writing,  it  was  a  chattel 
tuhln  a  LctC  a^d  f  such  a  chattel,  whether  evidence  was  admissible  to 
Tr^ve  It  wor  h  to  the  owner  twenty  dollars,  although  to  others  It  was  of  no  vah^. 
Z  smute  of  December  1812.  so  far  as  -terlal  was  the  same  a--tlon  ^^ 
m  Blanchardx.  Fisk,'  U  was  held,  la  construing  the  act  of  1812.  that,  to  maKc 
L  tiklng^a  rS  bills  larceny, It  must  contain  evldenceof  unsatisfied deb^ 
or  srisung  contracts,  covenants  or  promises,  or  of  the  discharge,  paymentor 

""  Wal'ttelr: Vrl^^^^^^^  containing  evidence  of  an  existing  debt,  within  said 
sectors?  It  conums  no  evidence  of  a  contract,  promise  or  covenant  sub- 
Bcr  bed  If  evidence.  It  must  be  as  a  book  of  accounts;  but.  as  a  book  of  ac- 
counttit"  wanting  in  nearly  aU  the  elements  required  by  thejule  to  make  It 

''IfltTvalue  as  astatutory  subject  of  larceny  Is  Its  market  value,  and  evidence 
that  t  Is  worth  twenty  dollars  to  Its  owner,  and  worth  nothing  to  anybody 
etc  does  Tt  show  Its  market  value  to  be  twenty  dollars.  To  be  of  the  market 
value  of  twenty  dollars,  it  must  be  capable  of  being  sold  for  tha  «um  at  a 
Jal  ly  condlted  sale,  at'a  sale  conducted  with  reasonable  care  an^  cmigence  in 
respect  to  time,  place,  and  clrcumsUnces.  for  the  purpose  of  obtaining  the 
highest  prlce.»  „  ^^^  discharged." 


c  536    Lucrl  Causa  Besential.  -  The  taking  must  be  of  some  value  to 

the  Drl8oner.«  in  State  v.  Hawkins,^  It  was  held  that  taking  a  slave  from  his 
master  w"S  the  intention  of  enabling  him  to  obtain  his  freedom  by  send  ng 
Tm  to  r  free  State  would  not  support  an  Indictment  for  the  larceny  of  the 

''"In  i?  V  Smith,<^  it  was  considered  that  a  servant  who  stole  his  master's  corn 
for  °hf  purpose  ^f  feeding  It  to  his  master's  horses  was  not  guilty  of  larceny 

c  536    NO  Larceny  of  One's  Own  Property  -  The  Ooode  Muet  toe  the 

..<io^  Of  Another." -Therefore  where  A.  delivered  his  cart  to  B  to  repair 
anTltook  the  cart  away  without  paying  B.'s  charges,  A.  was  not  guilty  of 

'"Twhere  the  defendant  M.  was  Indicted  for  .arceny  in  converting  to  his  own 
nse  wile  bailee,  a  quit-claim  deed  from  one  A.  to  himself  the  court  said: 
»  Thrdeed  having  been  made  and  executed  as  alleged  In  the  Indlc  ment  by  A. 
to  M.  was  the  property  of  the  latter  and  could  not  be  stolen  by  him. 

R  537.  Tenant  In  Common  or  Joint  Owner.  -  A  tenant  In  common  or 

joint  owner  of  property  can  not  be  guilty  of  Its  larceny  at  commonlaw. 

•  People  V.  Woodward,  31  Hun.  57  (1888). 
»  8  Port.  481 ;  83  Am.  Dec.  294  (1889). 
«1  Cox,  10  (1843). 
«  Com.  V.  Tobin,  2  Brewst.  670  (1868). 

10  People  t».Mackinley,9CBl.280  (1868). 

11  Holcombo  V.  SUte,  69  Ala.  218  (1881); 
MoCttll  V.  State,  69  Ala.  227  (1881) ;  Bell  t>. 
State, 7  Tex.  (App.)26  (1879). 


1  ch.  260,  Gen.  Stata.    ^ 
a  ch.  260,  Gen.  Stata. 

3  2  N.  H.  898,  400. 

4  CumminKB  v.  NlchoU,  13  N.  H.  420; 
Swain  I'.  Cheney,  41  N.  H.  286. 

»  Locke  1'.  State,  82  N.  H.  lOfl;  State  f. 
Ladd /<i.  110;  State  v.  Goodrich,  4(1  N.  II. 
IM;  Cocheco  v.  Strafford,  61  N.  H.  481. 


LAWFUL   POSSESSION  —  BAILEE. 


575 


e  of  an  existing 
t  was  a  ctiattel 
B  admissible  to 
ivas  of  no  value, 
e  as  section  3.' 
!,  that,  to  make 
asatisfled  debts, 
rge,  payment  or 

ebt,  within  said 

r  covenant  sub- 

18  a  booli  of  ac- 

rule  to  make  it 

e ;  and  evidence 
dng  to  anybody 
je  of  the  market 
r  that  sum  at  a 
and  diligence  in 
of  obtaining  the 

se  discharged." 

of  some  value  to 
a  slave  from  his 
iedom  by  sending 
he  larceny  of  the 

his  master's  corn 
guilty  of  larceny 

>od8  MtiBt  be  the 
rt  to  B.  to  repair 
ivas  not  guilty  of 

verting  to  his  own 
[  the  court  said: 
B  indictment  by  A. 
»y  him." 

lant  in  common  or 
namonlaw." 


ird,  31  Hun.  67(1888). 
.  Deo.  394  (18S9). 

trewst.  670(1868). 
ley,9CBl.280  (1868). 
te,  69  Ala.  218  (1881); 
la.  427  (1881) ;  Bell  v. 
i  (1879). 


§  538.  Person  HavioGr  Lawful  Posseselon  of  Property.  —  Where  the 

prisoner  has  the  lawful  possession  of  property  it  is  not  larceny  to  appropriate 
it  to  his  own  use.' 

In  B.  v.  Mattheson  4"  Potts,*  the  prisoners  were  tenants  and  occupiers  of  a 
house  in  which  were  certain  gas  fittings  belonging  to  a  gas  company.  It  be- 
came necessary  that  a  gas  meter  should  be  changed,  and  the  old  one  was  taken 
down  and  left  in  tlie  custody  of  the  prisoners  till  called  for  by  the  company's 
servant.  In  the  meantime  they  converted  it  to  their  own  use  and  tried  to  sell  It. 
It  was  held  they  were  not  guilty  of  larceny.  "  The  possession  of  the  meter," 
said  the  court,  "  was  lawful  on  their  part." 

§  639.  Bailee.  —  Therefore  a  bailee  of  property  appropriating  it  to  hlfl 

own  use  is  not  guilty  of  larceny  at  common  law.'  So  one  is  not  guilty  of  lar- 
ceny as  a  bailee  who  refused  to  deliver  back  a  watch  loaned  to  him.*  Nor  is 
pawning  a  ring  loaned  larceny  at  common  law.^  Where  one  lost  a  carpet  bag 
on  the  highway  and  sent  the  person  to  get  it  for  him,  which  he  did  as  his  bailee, 
but  concealed  it  and  denied  having  found  it,  he  was  not  guilty  of  larceny.* 

In  E.  v.  Sausard,''  it  appeared  that  tlie  prisoner  was  employed  by  the  prosecu- 
tor, who  was  a  tarpauling  manufacturer,  to  make  up  for  him  canvas  bags. 
The  canvas  was  cut  out  by  the  prisoner,  at  the  prosecutor's  shop,  and  taken 
away  by  him ;  and  It  was  his  duty  to  make  It  up  at  his  own  house,  and  bring 
back  the  bags  complete.  A  portion  of  a  large  quantity  of  materia!  received  by 
him  was  worked  up  and  brought  back  to  the  prosecutor;  the  remainder  he 
pawned,  and  appropriated  the  money  to  his  use.  The  Recorder  (after  consulting 
Mr.  Justice  Cressweli.)  .  An  extremely  nice  point  of  law  arises  in  this  case.  If, 
uiuler  ordinary  circumstances,  a  servant  has  possession  of  his  master's  goods, 
the  possession  of  the  servant  is  the  possession  of  master,  and  if  he  makes 
away  with  the  property,  he  Is  guilty  of  larceny.  But  a  very  refined  distinction 
has  been  taken  between  the  case  of  a  servant  having  goods  of  his  master's  upon 
his  master's  premises,  and  having  them  to  work  up  upon  his  own.  He  is,  in  the 
latter  case,  considered  not  in  the  light  of  a  servant,  but  in  that  of  a  bailee.  If  he 
then  makes  away  with  the  property,  he  is  guilty  of  a  fraud,  but  not  of  larceny. 
If  on  the  other  hand  a  servant  so  entrusted  were  to  separate  a  portion  of  the 
goods,  and  dispose  of  them  to  bis  own  use,  then  the  very  act  of  separating 
them  would  determine  the  bailment.  He  would  no  longer  be  in  lawful  posses- 
sion of  those  he  had  so  separated  with  a  fraudulent  Intent,  and  would  there* 
fore  be  guilty  of  larceny  in  converting  them.  Here  it  appears  the  prisoner  had 
separated  and  made  up  a  portion  of  the  materials,  which  would  be  a  lawful  act; 
his  pawning  the  rest,  therefore,  would  not  render  him  guilty  of  larceny.  I 
have  consulted  Mr.  Justice  Cresswell  on  the  subject,  who,  after  some  hesita- 
tion, thinks  that  the  jury  should  be  directed  to  acquit  the  prisoner. 

Verdict,  not  guiltjf. 
In  B.  V.  Rielly,^  the  prisoner  was  indicted  for  stealing  a  sheep,  the  property 
of  George  Guest  and  was  found  guilty  under  the  following  circumstances :  "  Mr. 


1  state  V.  Copeland,  86  N.  0. 691  (1882) ;  Ex 
parte  Kenyon.S  DUl.  389;  B.  v.  Pratt,  Dears. 
360  (1854). 

2  5  Cox,  276  (1860). 

•  R.  V.  Hey,2  C.  ft  K.  982  (1849) ;  State  v. 
Fann,  65  N.  C.  317  (1871) ;  Zschocke  t>.  Peo- 
ple, 62  111.  127  (1871). 


4  Com.  V.  FrantB,  SPhila.  612  (1872). 
B  Com.  V.  Perry,  8  Phila.  616  (1872). 
•  State n. England, 8  Jones  (L.),399  (1861). 
'6  Cox,  296  (1861). 

e  Jebb,  61  (1826)  the  statement  is  from 
the  report  of  tlie  trial  Judge  to  the  Judges. 


mmai»tmmmmm'mmmiTimmmmmmmmmmmmmm>' 


mmmwi 


«76 


LARCENY. 


Guest  who  resided  In  Liverpool,  stated.  In  substance,  that  ho  bought  upon 
SrrHdly  the  30th  of  June  last,  a  lot  ol  thirty  sheep,  in  8™ithfleld  market,  that 
Je  had  the-"  directly  after  the  sa'o  branded  upon  the  back  with  his  own  brand 
ind  arnug™  I  throrgh  persons  of  the  name  of  Wilson  &  ^J'^^'^'^' '^^'^^l 
.houtd  be  d  iven  on  the  same  day  to  the  water's  edge,  for  the  purpose  of  ex- 
w,„n  tnT  ivernool     That  he  set  off  himself  immediately  for  tha.  town,  but 

Ihtrtv  T  at  he  thereupon  returned  to  Dublin,  and  that  on  the  6th  of  July, 
lefnTthTweLsday  next  after  the  purchase,  he  saw  the  missing  sheep  in  a 
fl  IdMar  DuS  Samuel  Fisher,  the  next  witness,  ^^f^^l^;^;:''::: 
that  on  the  same  Thursday  mentioned  by  Mr.  ^^f '  ^^e^  JJwIirearB^u  si 
tl,«  nrlsoner  and  another  man  were  driving  a  lot  of  sheep  down  ureai  r»ru 
wick  Street  (^Sfch  appeared  to  have  been  the  route  to  the  Pigeon  House) ,  that 
Te  was  standing  at  the  time  In  his  timber  yard,  which  opens  upon  the  sreet 
iirthe  two  drivers  solicited  permission  to  leave  one  of  the  sheep,  which  they 

repreBenteTto  1!::^*^^  time  in  »>>«  f'**' ^^''*»'!J:j;:rb";r 

J^k  from  them  a  sheep  (which  was  proved  to  ^e/he  one  identifled  by  Mr 

Guest  upon  his  return  to  Dublin,  as  the  "'««  °8  "^7,^ ' "''' '^J*  *\'ot^^^^^^ 
thereupon  proceeded  forward  In  the  --^^-^  "^e  ty  ,^^^^^^^ 
flusDectlng  a  fraud,  he  took  measures  with  the  police,  oy  ™''»"" 
^Snet  wlo  caned  the  -xt  morning  for  the  sheepwas^a^^^^^^^^^^^^ 
Jeace  officer  who  made  the  arrest  was  ^^'''^^'\^''^l'^^Z^^^^^ 
prisoner,  as  to  the  property  of  the  «2; -f  ^.^^'^^  JlXreed  that  Mr. 
purposes  of  this  case  necessary,  to  detail.    I   shouia  nave 
Guest  did  not  accompany  the  drivers.  j  *^  k„  Mr  ruipst  was 

"Neither  of  the  persons  (Wilson  &  Graham),  alluded  to^^^y^r.  Guest  was 
examined  and  the  case  In  some  respects  came  Imperfectly  before  the  court 
hol«Pr    t  was  to  be  collected  from  all  the  circumstances,  and  such  was  the 

lo  be  purchased  there,  to  such  places  as  the  purchasers  or  ««>««^«""S/°' 
,1,  HirPPt     The  nrlsoner  was  not  defended  and  produced  no  witnesses, 
"^flt  id  not  appei  tome  thatthere  was  any  reasonable  g-und  f  or  presum  ng 

the  books  of  a  carrier  separating  part  of  what  h«  »»  f°^™;*«'*;°       ^^^^  ^^,1,. 

1  Russ.  A  By.  Cr.  C.  M. 


'i— 


LAHCEXY    UY    A    UA1I,EE. 


577 


bought  upon 
1  market;  that 
lis  own  brand, 
ham,  tha*  they 
purpose  ot  ex- 
that  town,  but 
instead  ot  the 
he  6th  ot  July, 
sing  sheep  in  a 
amlned,  swore 
(f  the  purchase, 
n^reat  Bruns- 
in  House) ;  that 
ipon  the  street, 
eep,  which  they 
in  consequence 
dentifled  by  Mr. 
that  the  drivers 
That,  however, 
ins  ot  which  the 
rehended.    The 
declarations  ot 
insider  it  tor  the 
bserved  that  Mr. 

r  Mr.  Guest,  was 
Setore  the  court; 
ind  such  was  the 
re  ot  the  class  of 
hlch  may  happen 
16  acting  tor  them 
iritnesses. 
md  tor  presuming 
ipon  the  delivery 
It,  and  I  did  not, 
jury.    I  thought, 
16  familiar  one  In 
to  carry  from  the 
t  they  were  satls- 
6  driving,  was  the 
upon  the  occasion 
sheep  In  question 
186,  to  find  in  such 

t  my  direction  for 
good  deal,  and  ad- 
Icularly  the  case  of 
ras  erroneous,  and 


t!i;it  I  should  in  the  circumstances  and  event  supposed  In  that  part  of  my  charge, 
I.Mv,.  (llrectPd  an  ucf|ulttal.  I  think  It  rlglit,  however,  to  submit  the  case  to  Uio 
cdiisideriitlon  and  (lecision  of  tlie  judgoH." 

Tlio  judges  wire  unanimously  of  liie  opinion  that  the  conviction  was  wrong; 
tliMt  ilie  prisomr  was  not  a  servant  but  a  spcciiil  biiilee,  and  timt  according  to 
the  adjudged  cases  tlierc  was  not  such  a  severance  of  the  slieep  as  to  put  an  end 
ti)  tlic  huilraent.  They  also  held  that  the  animtta  furandi  should  have  been  left 
to  tlie  jury. 

§  540.  Bailee  Palllnsr  to  Account.  — So  one  is  not  liable  for  larceny  as  a 

tiMilce  who  having  agreed  to  conduct  a  l>usiness,  pay  expenses  and  divide  the 
utt  ijrollt  with  the  prosecutor,  fails  to  account.* 

§  541. Larceny  by  a  Bailee  —  Meaning  of  Bailment.  —  The  bailment  in- 
tended by  the  English  .statute  punishing  iurceny  by  a  "  bailee  "  is  a  deposit  of 
something  to  be  returned  in  specie.  Tliereforc,  one  with  whom  money  lias 
iMcn  deposited  and  who  is  under  an  obligation  to  return  the  amount,  but  not 
the  identical  coin  deposited  is  not  a  "bailee  "  of  the  money  within  the  statute.* 
Ill  Ji.  V.  JficAs(-»,a  the  prisoner  was  indicted  for  the  larceny  of  a  coat  of  which 
he  was  liailee.  From  the  evidence  it  appeared  that  the  prisoner  lodged  with 
the  pro.secutor,  and  on  the  3d  of  January  borrowed  a  coat  from  the  prosecutor 
lor  the  day,  and  returned  it.  On  the  lOth  of  January  he  took  the  coat  without 
the  prosecutor's  permission.  He  was  seen  wearing  It  by  the  prosecutor,  who 
asain  gave  him  permission  to  wear  it  for  the  day.  Some  few  days  afterwards, 
111'  lift  tlie  town  and  was  found  wearing  the  cpat  on  his  back  on  Ijoard  a  ship 
bumid  for  Australia.  Martin,  B.,  stopped  the  case,  stating  that  in  his  opinion, 
there  was  no  evidence  of  a  conversion  sufflcient  to  satisfy  the  statute.  There 
aio  many  Instances  of  conversion  sufHcient  to  maintain  an  action  of  trover, 
wlii(h  would  not  be  sufflcient  to  support  a  conviction  under  this  statute;  the 
determination  of  the  bailment  must  be  something  analogous  to  larceny,  and 
i-omo.  act  must  be  done  inconsistent  with  the  purposes  of  the  bailment.  As,  for 
instance,  in  the  case  of  bailment  of  an  article  of  silver  for  use,  melting  it  would 
he  evidence  of  a  conversion.  So,  when  money  or  a  negotiable  security  Is  balled 
to  a  person  for  safe  keeping,  if  he  spend  the  money  or  convert  the  security,  he 
i^Jiuilty  ot  a  conversion  within  this  statute;  the  prosecution  ought  to  find 
•^oine  definite  time  at  which  the  offense  was  committed ;  the  taking  the  coat  on 
board  ship  was  subsequent  to  prisoner's  going  on  board  himself. 

EiUin,  for  the  prosecution,  contended  that  there  was  evidence  of  a  conversion 
sufncientto  satisfy  the  statute;  that  the  fact  that  the  prisoner  was  taking  the 
coat  with  him  on  a  voyage  to  Australia,  was  Inconsistent  with  the  bailment, 
^vhich  was  a  bailment  to  wear  the  coat  for  a  limited  period. 

Maktix,  B.,  said  that  the  case  did  not  disclose  a  crime  contemplated  by  the 
statute  and  refused  the  application  ot  the  prosecution  to  grant  a  case. 

In  R.  V.  Loose,*  the  prisoner  who  was  a  trustee  ot  a  friendly  society,  was  ap- 
pointed by  a  resolution  of  the  society  to  receive  money  from  the  treasurer  and 
carry  It  to  the  bank.  He  received  the  money  from  the  treasurer's  clerk,  but  in- 
stead ot  taking  it  to  the  bank  he  applied  it  to  his  own  purposes.    He  was  la- 


1  Cora.  ti.  Snpt.  Phlla.  Prison,  9  PhUa.  651 

(1ST2). 

"  R.  V.  HasBall,  L.  &  C.  68  (1861). 

3  Defexcks.  37 


3  9  Cox,  505  (1864). 

*  Bell.  C.  C.  859  (1800), 


578 


LAIUKNY. 


u  .,  «f  th«  n.oufv  of  the  treasurer  an<l  also  for  a 
dieted  for  stealing  as  bailee  l\fl''^2I\^Z  as  that  of  the  treasurer.  The 
conunon-law  larceny,  the  money      '"f;'^;Vl  ji  p^  '"  ^^''^^^'^^ '""'  ^"'"^"^ 

statute  concerning  friendly  «»'='«;^«:;j;Ve    ^Ul  1 ,  their  nan..*.    U  was  lu  .1 
thatlnalllndlctmc.ustheprjrty«^^^^^^  ^  eonnnon-law  larceuy. 

that  he  could  not  be  convicted,  either  as  a 

^      „„n  carrier.-  Therefore  It  Is  not  larceny  for  a  carrier  to  up. 
prl^L^-^rodriTrrpor^^n  umess  l.  breads  the  bulK.^ 

«     A.  f«r  Hire  -  One  employed  to  catry  goods  for 

5  543.  —  °»";«\°' °::tls  o^ruHc  without  breaking  bulk  Is  not  guilty 
hire  who  rti)proprlates  them  to  uis  o^>     ub 

olTrceny,  although  he  Is  not  a  common  carrier.' 

6  5U    _-  Servant.-Andsoapersonhavlngpossesslonofpropertyasaser. 

vant  IS  not  gu.l.y  of  1--"^  ^TcT^Z  fiot'ltl^^^^^  to  pay  wages,  and 
I„  Jl.  V.  muu,;*  a  servant  'f  ^^^^"^^  "^'"^jj'"  ^rles  were  found  charging  the 
in  the  book  m  which  '«"  f '^l^*  j^  fj^  1"  idb  t  there  was  no  proof  that  he 
muster  with  more  money  than  ''^  / "^^  '^^^  "'^^^^^  ,,„«  held  not  larceny.  "  The 
ever  delivered  this  account  to  »>'« '"'f  ^.^'  '  ^,^^  i.^ncr  In  fact  deliver  this 
question  here  Is,"  said  Wioutmxn.  J.,  '  did  the  prls  ^^^^^^^  ^^^^  ^^ 

Iceount  to  his  -I>'"y-«-J:;;,;,^;'^Li':rle8  which  i^^ 

the  prisoner  which  are  Incorrect;  y."'^;'^'^'^'     ^.n.er  them  with  explanations, 

,„temled  to  deliver,  or  «^/-.'>;;^„2\nmrth.  this  case  have  been  an  account- 
But  this  was  not  accounting;  '^»'\'\'^f  ""';„„  „ 

lug,  m  order  to  fix  the  prisoner  ^f  ^^^ J^  ,*^;;j;,„an  and  in  making  a  sale  of 
in  B.  V.  BetU,^  the  prisoner  was  a  '"'""''^^J^  ^^  ,„  ,i,,  books  but  appropri- 
flour  and  giving  a  receipt  rffratte  was  'rgu, ity  of  stealing  the  goo.l. 
ated  the  money.    It  was  held  that  ^.^J^^^^^^J^J  i„Jead  of  being  indicted  for 
..  m  this  case."  said  I'^'^-^^^'f.^^j^Xr  he  goods  delivered  to  a  customer 
embezzling  the  money  received  ^^^  f  ,■".  Tj^' ,,,:„„g  the  goods.    He  neglected 
upon  that  customer's  orders,  7«/"^"7^J;^;';,S  It  was  his  duty  to  make, 
to  make  the  entries  of  the  sale    ""^.^^^''j'^';;^'  proceeds  of  the  sale,  he  eon- 
and,  by  omitting  to  give  !''« --*"  ^f  J*„*;/,t  It  opinion  that  as  the  goods 
cealed  the  sale  from  his  mas  er.    TJ^'"    *  proprlated  the  money  which  ho 
were  actually  sold.   "'0»g»' ^fP'^Xt'forsteuling  the  goods.     Vs  between 
received  for  them,  he  could  not  be  '"f 'f  ^J/^^^^'^t sale f  and  waat  the  pris- 
the  buyer  and  the  prisoner's  ^''^  f^f;;;;'^t,':Sr^  the  goods,  but  appropri- 
oner  did  wldch  was  objectionable  was^^^^^^^^^^^  ^^^^^^^^  ,,  to 

atmg  the  money  Instead  of  making   ^e  proper  ^^^^  ^^^  ^^j^^y  ^^ 


IE.  t.M8dox,  B.  &  B.  92  (1805)  ;R-  «'■ 

2  B.  V.  Fletcher,  4  C.  &  1  •  "^  (1831). 

3  B.  V.  GlasB.2  C.  &  K.   'i'^,  (»847.    See 
R.  V.  Barnes,  10  Cox,  255  (1866)  ;B.  v.  Green, 


Dears.    823  (1864);  B.   «.  Tbompson,  L.  * 

C.233  (18<i2). 

4  2  C.  *  K.  340  (1846). 

6  Bell,  C.  C.  90(1859)  • 

«  iDen.  216(1847). 


s 


LAltCKNY    UY    ♦' SKRVANT 


573 


•  and  also  for  a 
:  trettsin'tT.  The 
iStcesanil  illriiis 
ic8.  It  was  lii.il 
mon-law  larctuy. 

or  a  carrier  to  ai)- 


to  carry  goods  for 
bulk  Is  uot  guilty 


1  property  as  a  scr. 

to  pay  wages,  and 
aumi  charging  the 
IS  no  proof  that  he 
^t  larceny.  "Thu 
n  fact  deliver  this 
liu  entries  made  by 
ii  perhaps  he  never 
I  with  explanations. 
ire  been  an  account- 

In  making  a  sale  of 
books  but  appropri- 
stealing  the  goods. 
)f  being  Indicted  for 
rered  to  a  customer, 
oods.  He  neglected 
8  his  duty  to  make, 
1  of  the  sale,  he  con- 
on  that  as  the  goods 
tie  money  which  ho 

goods.     Vs  betweeu 
>;  andwuatthe  prls- 

goods,  but  appropri- 
d  handing  It  over  to 
5  he  was  not  guilty  oi 
embezzling  the  price. 
ionviction  quashed.^' 
ed  by  the  Postmaster- 
irery  morning,  and  de- 


R.  V.  Tbompson,  L.  *  | 

1846). 
1859). 

W). 


liver  them  at  Great  Chevrll  to  the  parties  to  whom  they  wore  addressed.  There 
was  a  post-olllcf  iit  Chevrll  for  receiving  letters  whicli  the  prisoner  carried  every 
evening  to  Westbury  and  delivered  nt  tiio  poHt-odlco  there,  and  ho  also  on  the 
rotid  from  Great  Chevrll  to  Westbury  received  letters  at  a  village  called  llrat- 
ton,  which  were  In  like  manner  delivered  at  the  post-ollko  at  Westbury.  The 
Great  Clievrll  and  Bratton  letters,  were  at  the  respective  receiving  houses,  put 
In  biif^s  which  were  tleil  up,  but  not  locked  or  sealed,  and  those  bags  he  carried 
In  a  leatlier  pouch  which  was  supplied  by  tlio  Postmaster-General.  (At  Brat- 
lon  It  was  his  duty  to  open  the  Great  Chevrll  l)ag  in  order  that  the  Bratton  post* 
niiisler  might  mark  on  the  time  bill  the  time  of  his  arrival. 

Tlie  postmaster  at  Great  Chevrll  had  no  power  to  Issue  money  orders  and  the 
nearest  post-odlco  at  which  they  could  bo  obtained  was  Westbury.  It  was  no 
l)art  of  the  duty  of  the  postmaster  at  Great  Chevrll  to  procure  money  orders 
from  Westbury,  or  to  forward  Instructions  to  the  postmistress  at  Westbury  re- 
specting them. 

Alark  Sawyer  residing  at  Great  Chevril,  and  wishing  to  remit  £6  to  Henry 
Osnian,  of  Meeksham,  and  the  like  sum  to  James  Rawllngs,  of  Trowbridge,  on 
tlie  14th  September,  directed  an  envelope  to  eacli,  which  he  sent  together  with  two 
i'5  notes  to  the  postmaster  at  Great  Chevrll,  with  a,  written  request  that  ho 
would  send  them  by  Glass,  and  desire  the  po^itmasters  at  Westbury  to  make  out 
two  money  orders  for  £5  eacli,  and  forward  them  in  the  envelopes;whlch  he  had 
sent.  When  the  prisoner  called  ut  the  Great  Chevril  post-ofllce  In  the  afternoon 
for  the  letters,  the  wife  of  the  postmaster  told  him  that  Mr.  Sawyer  had  sent 
two  envelopes  and  two  £5  notes,  and  some  written  Instructions  to  be  taken  to 
Westbury,  and  asked  whether  he  would  put  them  In  his  pocket,  or  have  them 
put  In  the  bag  with  the  letters.  He  requested  her  to  put  them  In  the  bag  which 
she  accordingly  did,  and  tied  the  bag  as  usual.  The  prisoner  put  thp  bag  In  his 
pouch.  On  his  arrival  at  Westbury,  he  pretended  that  he  had  lost  the  Great 
Chevrll  bag;  went  away  as  If  to  look  for  It,  returned,  and  then  produced  the  bag 
untied,  with  all  the  letters  that  had  been  placed  In  It,  and  the  two  envelopes,  but 
not  the  £5  notes.  The  jury  found  the  prisoner  guilty,  but  added  that  he  had 
no  Intention  to  steal  the  notes  when  they  were  given  to  him  by  the  wife  of  the 
postmaster  at  Great  Chevrll.  Entertaining  some  doubt,  whether  the  taking  of 
tlie  notes  by  the  prisoner,  under  the  circumstances  above  mentioned,  amounted 
to  larceny,  the  learned  judge  respited  judgment,  and  requested  the  advice  of 
the  judges  on  the  point. 

On  April  24th,  1847,  Lord  Denman,  Wilde,  C.  J,,  Pollock,  C.  B.,  Parke,  B., 
Patteson,  J.,  RoLFB,  B.,  Cresswell,  J.,  WiGHTMAN,  J.,  Earle,  J.  and  Platt, 
B.,  were  unanimously  of  opinion  that  the  conviction  was  wrong. 

The  driver  of  a  coach  hired  for  the  day  is  not  the  "  servant ' '  of  the  party  hiring 
it.i 

§  645. Steallner  —  "  In  a  Building."  —  It  is  not  enough  to  constitute  '*  lar- 
ceny in  a  building,"  that  the  property  was  In  the  building;  it  must  be  shown 
that  it  was  under  the  protection  of  the  building,  and  not  under  the  eye  or  care 
of  some  one  therein.  Therefore,  where  the  owner  of  goods  in  a  shop  placed  two 
watches  in  the  prisoner's  hands  for  inspection,  who  ran  off  with  them  while  the 
owner's  back  was  momentarily  turned,  this  was  not  "  larceny  in  a  building."  ^ 


1  B.  V.  Hayden,  7  C.  A  P.  449  (1836). 


2  Com.  V.  Lester,  129  Mass.  101  (1880). 


580 


LAKCi;XY. 


§  54i;. stealing  From  a  "  Dwelling-house."  —  To  steal  from  a  "  dwcll- 

iii'^-liouse,"  the  goods  must  bo  deposited  in  the  house;  to  talco  them  from  the 
persou  of  an  inmate,  or  from  outside  it  ia  not  within  the  statute. > 

§  547. "In  a  Dwelling-houae." — Stealing  clothes  from  the  railing  or 

banisters  of  a  piazza,  attatciied  to  a  dwelling-house,  is  not  larceny  "  in  a  dwell- 

iug-liouse."2 

§  548. "Dwelling-house."  —  Abed-room  over  a  stable,  not  undev  the 

:>anni  roof,  nor  connected  with  the  house,  Is  not  a  '•  dwelling-house  "  withJn  the 

'English  statute.' 

'}  54'J. "  Orouncl  Adjoining  a  DwelUng-house." — This  phrase  imports 

acfual  contact;  ant'  therefore  grounds  separated  from  a  house  by  a  narrow  walli 
and  iialiiig  with  a  gate  In  tt  are  not  within  the  words.* 

§  550.  Larceny  from  a  House.  —  Stealing  property  hanging  at  and  outside  a 
door  k  not  "larceny  from  a  house."'    So  of  goods  outside  a  wash-house." 


§551. 


Shop.  —  A  ' '  shop  "  is  a  place  for  the  sale  not  the  deposit  of  goods.' 


§  5)2. "Warehouse  "~  "  Granary."—  A  building  of  twenty-one  feet  by 

flfteou  feet  placed  on  a  market  garden  and  used  for  storing  the  tools  and  agri- 
cultural implem(!nts  used  there,  such  seeds  as  are  sown  and  manure  employed, 
Is  not  a  "  warehouse  "  or  a  "  granary  "  within  the  statute  of  New  Hampshire.s 

§  553.  — — Stealing  from  the  Person — Property  must  be  Completely  Re- 
moved.—  In  ^.  V.  Thompson,*  the  prisoner  was  indicted  for  stealing  from  the 
person  of  John  Hlllraan,  a  pocket-book  and  foiir  promissory  notes  of  £1  each. 

The  evidence  of  the  prosecutor  was  this:  "  I  was  at  a  fair  at  East.  Grlmstead; 
I  felt  a  pressure  of  two  persons,  one  on  each  side  of  me ;  I  haa  secured  my  book 
lu  an  Inside  front  pocket  of  my  coat;  I  felt  a  uand  between  my  coat  and  waist- 
coat ;  I  could  feel  the  motion  of  the  kuuc'^les ;  I  was  satisfied  the  prisoner  was 
attempting  to  get  my  book  out.  The  other  person  had  hold  of  my  right  arm  and 
I  forced  it  from  hlir,  and  "(rust  it  down  to  my  book.  In  doing  which  I  just 
brushed  the  prisoner's  'nnd  ani  arm;  the  book  was  just  lifted  outof  my  pocket; 
it  returned  Into  my  pocket;  it  was  out;  how  far  I  can  not  tell;  I  saw  a  slight 
glance  of  a  man's  hand  down  from  my  breast.  I  secured  the  prisoner  after  a 
severe  struggle,  and  a  desperate  attempt  at  escape,  in  which  he  was  assisted  by 
twenty  or  thirty  persons."  Upon  cross-examination  the  witness  said :  "  My  coat 
was  open,  the  pocket  net  above  a  quarter  of  an  inch  deeper  than  the  book;  I  am 
satlsfl'  d  the  book  was  drawn  from  my  pocket;  it  '.ya»  an  Inch  a'jove  the  top  ot 
the  pecket." 


>  K.  V.  Campbell,  2  Leach,  642  (1792);  U. 
V.  Owen,  2  Leach,  0S2  (1792);  M.Hrtiiiez  v. 
State,  41  Tex.  126;  Middletoa  t>.  Stito,63Ga. 
248. 

2  Henry  v.  State,  39  Ala.  679  (1866. . 

3  It.  V.  Turner.  6  C.  &  P.  407  (1834);  and 
•ee  R.  v.  Flanagan,  H.  &  R.  186  (1810). 


«  R.  V.  Hodges,  M.  A  M.  341  (1829). 
6  Martiiiex  v.  "■  uto,41  Tex.  126. 
<  Mlddleton  v.  .State,  53  Ga.  248. 
'  H.  V.  Stone,  1  Leach,  370  (1784). 
»  State  f.  Wilson,  47  N.  U.  101  (1806). 
»  1  Moody,  78  (1836). 


-^-    ♦' 


POSSESSION    OF   STOLEX   I'lIOPEUTY. 


581 


To  steal  from  a  "  dwcll- 
;  to  take  them  from  the 
e  statute.* 

thes  from  the  railing  or 
not  larceny  "  In  a  dwell- 


a  stable,  not  undev  the 
Blllng-house  "  within  the 


"—This  phrase  Imports 
I  house  by  a  narrow  walk 


hanging  at  and  outside  a 
itside  a  wash-house." 

I  not  the  deposit  of  goods.' 

ling  of  twenty-one  feet  by 
;torlng  the  tools  and  agri- 
wn  and  manure  employed, 
,tute  of  New  Hampshire. 8 

must  be  Completely  Be- 
sted for  stealing  from  the 
3is8ory  notes  of  £1  each, 
t  a  fair  at  East  Grimsteadi 
ne ;  I  haa  secured  my  book 
jtwecn  my  coat  and  waist- 
i  satisfied  the  prisoner  was 
id  hold  of  my  rlglit  arm  and 
lok,  In  doing  which  I  just 
just  lifted  out  of  my  pocket; 
can  not  tell;  I  saw  a  slight 
■ecured  the  prisoner  after  a 
In  which  he  was  assisted  by 
1  the  witness  said :  "  My  coat 
deeper  than  the  book;  I  am 
ras  »n  Inch  a'love  the  top  ^f 


odges,  M.  A  M.  341  (1829). 
sz  1..  =  1110,41  Tex.  126. 
ton  V.  State,  B3  Ga.  248. 
tone,  ILeacli.  376  (1784). 
..  Wilson,  47  N.H.  101  (1806). 

,y,  78  (1836). 


Upon  the  evidence  it  was  insisted  for  the  prisoner  that  this  did  n.t  amount  to 
a  taking  from  the  person. 

Tlic  learned  judge  recommended  it  to  the  jury  if  they  were  satlslled  that  the 
prisoner  removed  the  book  with  intent  to  steal  if,  to  flud  him  guilty.  Tlie 
jury  found  the  prisoner  guilty,  but  tlie  learned  judge  respited  the  esecutiou  of 
the  sentence  until  the  opinion  of  the  judges  could  be  taken  on  the  point. 

In  Hilary  Term,  1825,  the  judges  (Best,  L.  C.  J.,  and  Alexander,  L.  C.  B., 
being  alosent)  met  and  heard  this  case  argued  by  Laio  for  the  prison<;r,  when 
AitBOTT,  L.  C.  J.,  Baylev,  J.,  i'AUK,  J,,  HoLm)Yr),  J.,  BtRuouuii,  J.,  and  Lrr- 
n.EDALE,  J  ,  thought  tliat  the  nrisoner  was  nn  rightly  convicted  of  stealing 
from  tlie  person,  because  from  first  to  last  the  book  remained  about  the  person 
of  tlie  prosecutor.  Graham,  B.,  Garuow,  B.,  Uullock,  B.,anJ  Gasselee,  J., 
were  of  tlie  contrary  opinion ;  but  the  jmlges  were  unanimous  that  the  simple 
larceny  was  complete;  and  sentence  of  transportation  far  life  having  been 
passed,  a  pardon,  ou  condition  of  transportation  for  seven  years,  was  rec- 
ommended.* 

§  554.  Stealing  "Privately  from  the  Person." — To  steal  from  one  who 

lias  rendered  himself  insensible  by  intoxication  is  not  a  "privately  stealing  from 
tlie  person'-  within  the  English  statute." 

In  a.  V.  Scribble,'^  the  priso  was  indicted  for  having  stolen  a  watch  from 
Thomas  Sheridan,  privately  from  lis  person  and  without  his  knowledge. 

The  prosecutor  had  been  drinking  at  a  public  house  witli  tlie  prisoner,  an^ 
being  both  of  them  much  intoxicated,  they  went  together  to  the  pris-oner' 
lodging,  where  the  prosecutor  fell  asleep ;  and  while  he  wa.s  asleep  the  prisoner 
stole  his  watch. 

The  court  ruled  this  not  to  be  such  a  stealing  privately  as  would  oust  the 
offender  from  the  benefit  of  clergy,  within  the  meaning  of  the  legislature;  and 
mentioned  the  following  case  as  having  been  decided  by  the  judges:  a  person 
who  had  become  intoxicated  at  Vauxliall  G.^^rdens  fell  fast  asleep  on  his  way 
home,  in  one  of  the  watch-houses  or  niches  on  Westminster  Bridge.  A  waiter, 
also  from  Vauxhall,  passing  that  way  stole  the  buckles  out  of  his  shoes  without 
waking  him,  and  tlie  judges  were  of  opinion,  that  the  statute  was  intended  to 
protect  the  property  which  persons  by  proper  vigilance  and  caution  should  not 
be  enabled  to  tecure;  but  that  it  did  not  extend  to  persons  who  by  intoxication 
had  exposed  themselves  to  the  dangers  of  depredation,  by  destroying  those  fac- 
ulti(>s  of  the  mind  by  the  exertion  of  which  the  larceny  might  probably  be  pre- 
vented. 

The  jury  found  the  prisoner  guilty  of  stealing,  but  not  privately  fron  e 
person. 

§  555, Beoeivlner  Stolen  Ooods.  —  Receiving  stolen  goods  is  not  larceny.* 

§  556.  Possession  of  Recently  Stolen  Property. —  Convictions  are  some- 
times had  on  the  fact  alone  that  tlie  pri.-ioner  has  in  Ills  posttession  the  stolen 
property;  that  the  possession  Is  recent  and  he  gives  no  reasonable  explanation 
of  tlie  possession.    But  iu  a  number  of  cases  it  is  laid  down  tlmt  •  conviction 


1  Kir/«2E88t'BP.  C.555,  556,  5,'i7. 

2  U.  r.  Kennedy,  2  Leach,  914  (1797);  3. 
I-  Mi)rriB,  14.  915  (1797);  R.  v.  Duff,  Jd.  915 

(HflO). 


■5  1  Leach,  275  (1782). 

*  Pcoijle  f.  Maxwell,  M  C»l.  10  (isu*,. 


582 


LARCENY. 


can  not  rest  on  recent  possession  alone. >    For  the  rules  of  law  and  the  presump. 
iioDS  as  to  this  proof,  see  my  book  on  "Presumptive  Evidence."  « 

I  557.  Possession  of  Recently  Stolen  Property  — Erroneous  Charge.  — 

Tucker  v. State.— In  Tucker  v.  Stale,^  the  defendant  was  indicted  and  con- 
victed of  stealing  a  horse  from  one  Carr ;  the  evidence  being  as  follow^' :  G^rr's 
horse  was  stolen,  in  Erath  County,  about  the  2Gth  of  October,  1882.  About  a 
month  before  the  horse  was  stolen,  appellant  was  seen  in  the  neighborhood. 
The  last  of  October  or  first  of  November,  1882,  appellant  came  to  the  house  of 
S.  B.  Walker,  in  Mason  County,  one  hundred  and  fifty  miles  from  Erath  County, 
and  was  riding  a  horse  In  every  way  filling  the  description  of  Carr's  stolen 
horse,  and  defendant  "  said  he  was  just  back  from  Mexico."  This  was,  in 
brief,  all  the  evidence.  Upon  the  subject  of  recent  possession,  the  court 
charged  the  jury  "  that  the  possession  alone  of  property  shown  to  have  been 
recently  stolen  is  not  in  law  sufficient  to  warrant  t..>  conviction  of  one  charged 
with  theft.  Such  possession,  if  proven,  is  only  a  circumstance  for  the  jury  to 
weigh  and  consider  in  connection  with  other  established  facts  in  determining 
whether  the  accused  is  guilty  of  the  offense  charged  or  not.  If,  therefore,  the 
alleged  horse  was  stolen  as  charged,  and  if  the  said  horse  has  been  traced  to 
the  possession  of  the  defendant,  such  possession,  if  unsupported  by  other  evi- 
dence, will  not  warrant  the  defendant's  conviction;  and  if  such  be  the  case,  you 
will  acquit  the  defendant.  If,  however,  you  find  that  such  possession,  if  shown, 
is  corroborated  by  other  evidence,  than  to  warrant  the  defendant's  conviction 
all  tho  evidence  taken  and  considered  together,  including  the  fact  of  possession, 
if  it  exists,  should  be  sufficient  to  exclude  from  your  minds  every  reasonable 
theory  consistent  with  defendant's  Innocence."    On  appeal    this    was  held 

error, — 

White,  P.  J.,  saying:  This  objection  was  objected  to,  and  is  complained  of 
and  assigned  as  error.  However  comprehensive  the  charge  may  appear  to  the 
'egal  mind,  we  fear  it  was  calculated,  and  did  mislead  the  jury  by  impressing 
them  with  the  idea  that  if  the  mere  fact  of  "possession"  was  "corroborated" 
that  would  be  sufficient  to  establi-sh  guilt.  There  was  no  question  about  "  pos- 
session"  and  "  recent  possesMOU."  The  evidence,  if  it  establlslied  anything, 
established  "recent  possession,"  and  that  fact  needed  no  "corroboration." 
What  the  jury  should  have  been  told  wa<,  in  effect,  though  recent  possession  be 
establlshel,  still  unless  the  other  evidence  iu  llir  case  tended  to  connect  de- 
fendant with  tlie  fraudulent  taking  of  the  animal,  he  would  be  entitled  to  an 
acquiital;  iu  other  words,  that  tiiere  must  be  other  evidence  of  guilt  besides 
the  recent  possession,  and  tliat  those  evidence.,  together  with  the  rjcent  pos- 
session, must  be  sufficient  to  establish  Id  the  minds  of  the  jury  defendant'.s 
guilt  to  a  moral  certainty,  beyond  a  rca»*fei». ..«  doubt.  Because  the  charge  was 
calculated  to,  and  perhaps  did,  misl.  id  the  jury,  and  because  the  evidence  is 
insufficient  to  support  the  >•  rdict  and  judgment,  the  judgment  is  reversed  and 

the  cause  remanded.  „  ,      ,  ,„ , 

Beversed  and  revianded. 


1  state  V.  Graves,  71  N.  C  4K;  State  v. 
Wali-.f.  41  Iowa,  217;  Yates  f.  8tRto,.S7Tex. 
202;  People  t'.  NoroROa,  48  Cal.  12;t:  Gallo- 
way f.  Slate,  41  Tex.  289;  11.  '  — ,  T  C.  &  P. 
45'.'  (1826;  ;  U.  r.  Ariams,  3  0.  «  P.  600  a823) ; 
Slate  V.  Oarler,  72  N.  C.  444 ;  Slate  v.  Graves, 


72  N.  C.  482;  State  v.  Walker,  41  Iowa,  217 
Gablick  ti.  People,  40  Mich.  292. 

■'  LawBon  un  PresumptlTe  BTidame,  Rule 
109. 

s  10  Tex.  (.\pp.)  471  (1884). 


INSUFFICIENT  mOOF — CASAS  V.  STATE. 


583 


the  presump* 


a  Charffc .  — 
,cd  and  con- 
loMfdi  G{irr'8 
82.  About  a 
e'ghborhood. 

the  house  of 
ilrath  County, 
Carr*s  stolen 

This  was,  In 
n,  the  court 

to  have  been 
E  one  charged 
r  the  jury  to 
1  determining 
;herefore,  the 
ecn  traced  to 
by  other  evi- 

the  case,  you 
ion,  if  shown, 
t's  conviction 
)f  possession, 
ry  reasonable 
tils    was  held 

complained  of 
appear  to  the 
by  impressing 
lorroborated  " 
1  about  "pos- 
hed anything, 
trroboratlon." 
I  possession  be 
o  connect  de- 
entitled  to  an 
guilt  besides 
he  rjcent  pos- 
ry  defendaut'.H 
he  charge  was 
he  evidence  is 
s  reversed  and 

,d  remanded. 

er,  41  Iowa,  217 

292. 

)  BTldMwe,  Rule 

). 


§  55g,  <•  Voluntary  Return  "  of  Stolen  Property.  —  In  Texas  the  penalty 

for  theft  is  mitigated  where  the  property  is  voluntarily  returned  within  a  "rea- 
sonable time."  The  evening  of  the  day  on  which  li  was  taken  is  "reasonable 
time."  1  The  return  of  stolen  property  may  be  voluntpy  ivlthln  this  statute, 
although  It  Is  caused  by  fear  of  detection  and  punishment,  as  well  as  by  re- 
pentance.* 

^  550.  Evidence  held  InsuiQcient  on  'wbloh  to  Convict. —In  a  large 

number  of  cases  in  the  appellate  courts  the  evidence  below  has  been  held 
In-iufllcient  on  which  to  convict.'  Tlie  most  important  of  these  cases  )n  the 
Court  of  Appeals  of  Tex^s  are  given  in  full  in  the  succeeding  sections. 

S560.  Evidence  Insvifflclent  to  Convict — Casas  v.  State. — In  Casas  v. 
State,^  the  liuUitment  charged  the  prisoner  and  one  Gomez,  jointly,  with  the 
tlirtt  froii  le  ihop  of  one  Fierling  of  dress  goods  to  the  value  of  $20.  The 
in      iiir  Nvas  convicted. 

Aiulreas  Fierling  was  the  first  witness  Introduced  by  the  State.  He  testified 
that,  at  the  time  of  the  theft,  about  the  first  day  of  June,  1881,  he  was  the 
proprietor  of  a  tailor  shop,  situated  in  front  of  the  steamboat  office  in  the  city 
of  Brownsville,  Tex  i  Evurything  of  value  which  was  stored  in  the  shop  was 
taken  on  the  occasion  raferred  to.  The  articles  mentioned  in  the  Indictment 
being  read  over  to  the  witness  he  identified  the  following:  One  blaclc  cap,  one 
blatli  vest,  two  grey  vests,  one  pair  of  soldier's  pants,  two  pair.of  blacli  pants, 
cue  coat  and  pair  of  pants,  one  casslmere  coat,  one  black  coat,  one  cassimere 
vest  withr  at  a  batk,  trimmings,  and  one  pocket  knife.  He  gave  the  value  of 
each  article,  i ']  testified  that  their  aggregate  value  was  035.  The  witness 
recovered  the  ai tides  named  through  Mr.  Storms,  a  justice  of  the  peace. 
They  were  stolen  in  the  morning  between  three  and  four  o'clock.  The  witness 
had  suffered  with  toothache  up  to  three  o'clock,  and  between     ur  and  five 


1  Inglo  V.  state,  1  Tex.  (App.)  807  (1876). 

2  Allen  V.  State,  12  Tex.  (App.)  190  (1882). 
had  see  Bird  r.  State.  10  Tex.  (App.)  528. 

a  State  t,.  Rice,  83  N.  0.  6«1  (1880) ;  State 
1 .  Wilkerson,  72  N.  C.  378  ('875) ;  State  v. 
De;i;,  04  N.  C.  270  (1870) ;  G;.  ...  v.  State,  12 
Tex.  (App.)  61  (1882) ;  Casas  v.  State,  12  Tex. 
(App.)  59  (1882) ;  Pettigrew  t>.  State,  12  Tex. 
(App.)  225  (1882) ;  Hardomann  v.  State,  12 
Tex.  (App.)  850  (1882) ;  Johnson  v.  State,  12 
Tex.  (App.)  385  (1882) ;  Soymoro  v.  State, 
liTex.  (App.)  391  (1882);  Taylor  v.  State,  12 
Te\.  (App.)  489  (1882);  Shelton  v.  State, 
12  Tex.  (App.)  513  (1882) ;  Santello  v.  State, 
W  Tex.  (App.)  249  (1884);  Harrison  v. 
>>tate,  16  Tex.  (App.)  326  (1884);  Madison 
I.  state,  IB  Tex.  (App.)  435  (18S4) ;  Tucker 
t .  Slate,  10  Tex.  (App.)  471  (1884) ;  Flotcher 

State,  18  Tex.  (Apo.)  635  (1884) ;  Evans  v. 
Maie.l5Tex.(App.)3I  (1883) ;  Willis  v.  State, 
15  Tex.  (App.)  IW  (1883);  Clayton  f.  State, 
15  Tox.  (App.)  221  ( 1884) ;  Taylorf.  State,  15 
Tox.  (App.)  357  11884);  Prator  v.  State,  15 
Tex.  (App.)  363  CW84)  ;  Soliindler  r.  State, 
ij  Tux.  (App.)  394  (1884) ;  Harris  v.  State,  15 


Tex.  (App.)'  411  (1884) ;  Powell  v.  State,  15 
Tex.  (App.)  441  (ISM);  Buntain  v.  State, 
15  Tex.  (App)  490  (1884):  Castellow  v. 
State,  15  Tex.  (App.)  651  (1884);  MoNair 
V.  State,  14  Tex.  (App.)  'i  >  (1883) ;  Cook  v. 
State,  14  Tex.  (App.)  8«  (1883) ;  Mapes  v. 
State,  14  Tex.  (App.)  129  (1883);  Dresch 
V.  State,  14  Tox.  (App.)  175  (188,3) ;  Woll  v. 
State,  14  Tex.  (App.)  210  (1883) :  Hammel  v. 
State,  14  Tex.  (App.)  326  (1883) ;  Knutson 
t'.  State,  14  Tex.  (App.)  670  (1883) ;  Deering 
V.  State,  14  Tex.  (App.)  689  (1833) ;  Hart  ». 
State,  14  Tex.  (App.)  657  (18?3) ;  Hunter 
V.  State,  13  Tex.  (App.)  16  (1882) ;  Voiisht 
V.  State,  13  Tex.  (App.)  21  (1882) ;  Harria  v. 
State,  13  Tex.  (App.)  309  (1882);  Johnson 
V.  State.  13  Tex.  (App.)  379  (188;',);  Irvine 
V.  Slate,  13  Tox.  (App.j  499  (1883; ;  tpndinr. 
Slate,  10  Tex.  (App.)  03  (1881) ;  MoPhall  v. 
State,  10  Tux.  (App.)  128  (1881) ;  Baiter 
V.  State,  11  Tex.  (App.)  2(>2  (1881) ;  Merritt 
V.  State,  a  Tox.  (App.)  177  (1877) ;  Smith  v. 
Slate,  2  Tex.  (App.)  477  (187"') ;  DlXon  v. 
Slate,  15  Tex.  (App.)  480  (1884). 
*  12  Tex.  (App.)  69  (1882). 


584 


LAIICEXV. 


o'clock  ho  heard  a  noise  lu  the  shop;  and,  proceeding  to  Investigate  It,  liu  i»is- 
covered  that  the  establishment  had  been  "cleaned  out."  The  goods  wiic 
taken  la  June  or  July  of  1881,  and  the  taking  was  without  the  consent  of  the 
witness.  The  wltniss  gave  Mr.  Pccina  a  sample  of  the  goods  lost,  and  recov- 
ered goods  corresponding  witli  tlie  samples.  On  his  cross-examination  j^hc  wit- 
ness stated  that  the  man  whom  he  thought  took  the  goods  was  a  man  who 
stayed  about  the  steamboat  ofllce,  until  about  a  month  after  the  iobbery.  The 
witness  did  not  know  the  man's  name,  l)Ut  considered  him  a  very  good  frieuii 
until  he  began  to  miss  articles  every  day,  after  this  man's  visits  to  his  sliop. 
Tlie  witness  missed  articles  invariably  after  this  man's  visits  to  his  sliop,  whicij 
was  the  reason  of  his  suspicion.  The  loss  of  the  knife  and  a  pocket  handker- 
chief, on  two  separate  occasions  following  tlie  visits  of  this  man,  was  larticu- 
larly  spoken  of  by  tlie  witness.  The  man  was  a  Mexican  and  disappeared  soon 
after  the  discovery  of  the  stolen  goods.  Some  of  the  stolen  goods  ^tted  the 
man  exactly,  and  these  the  witness  had  never  recovered.  Tlie  defendant  re- 
sembled the  mm  spoken  of,  but  the  witness  could  not  possibly  Identify  him  as 
the  same.  If  the  defendant  was  not  the  man,  then  defendant  was  never  about 
the  shop  — or  if  so,  the  witness  did  not  know  it.  On  redirect  examination 
the  witness  said  the  man  he  spoke  of  was  al)out  the  height  and  strength  of  the 
defendant,  and  the  clothes  referred  to  yould  fit  the  defendant.  He  proved  the 
venue  and  want  of  consent. 

D.  Buterera  testified,  for  the  State,  that  he  was  a  police  officer  at  the  time  of 
the  robljery,  and  as  such  executed  the  search  warrant  under  which  th"  goods 
were  recovered  at  tlie  house  of  Pedro  Alvarez.    The  articles  there  found  were 
those  described  in  the  indictment.    He  found  at  Pedro  Alvarez's  house,  when 
he  executed  the  search  wrr.'nt,  Pedro,  his  wife,  three  daughters,  and  this  de- 
fendant.   The  latter,  when  found,  was  asleep  in  a  little  room.    None  of  the  ar- 
ticles removed  wore  found  in  the  large  family  room,  but  for  the  most  part  were 
found  in  a  box  under  a  bed,  in  a  small  room  occupied  by  the  defendant.    The 
witness  found  some  of  the  articles  under  a  mattress  in  a  large  room,  and  some 
In  a  trunk  in  the  same  room.    The  witness  had  never  seen  the  defendant  before 
that  day.    Over  the  objection  of  defendant,  the  witness  testified  that  he  found 
other  stolen  property  in  the  house  beside  that  named  in  tlie  indictment.    A  sad- 
dle was  found  in  the  defendant's  room,  which  was  turned  over  to  the  owner, 
Faustino  ViUareal.    A  pair  of  saddle  bags  containing  a  pair  of  sp  srs,  and  ordi- 
nary toilet  articles  were  found  in  defendant's  room,  which  were  claimed  by  and 
turned  over  to  him.    Cross-examined,  the  witness  stated  that  he  did  say  on  the 
trial  of  Alvarez,  the  day  before  this  trial,  that,  when  he  searched  the  house 
under  the  warrant,  he  heard  a  stamping  like  some  one  leaving  the  house.    He 
said  nothing  about  this  on  his  direct  examination  on  this  trial,  because  he  avus 
not  asked  about  It.    Pecino  was  about  the  premises  and  saw  the  shadow  of  some 
one  running  oft.    The  witness  saw  a  bed  just  outside  the  door,  which  had  tlie 
appearance  of  bt  ug  recently  occupied,  but  the  witness  saw  no  shoes  near  or 
under  It.    On  his  return  to  the  house,  the  next  day,  the  witness  was  told  that 
Gomez  fled  on  his  approach  the  day  before.    The  house  is  an  ordinary  grass 
covered  jacal,  divided  very  nearly  In  the  middle;  one  division  being  subdi- 
vided, forming  the  small  room  aud  kitchen.    The  witness  found  Pedro  Alvarez, 
his  wife  and  three  daughters  in  the  largo  room,  and  read  the  warrant  to  tliora, 
about  one  o'clock.    There  was  an  open  space  or  hole  for  a  door  leading  into 
the  room  where  the  defendant  was.    The  defendant  heard  the  warrant  read, 
and  got  up,  but  made  no  effort  to  escape.    The  witness  first  searched  the 


hUw. 


INSUFFICIENT   ntOOF  —  CASAS   V.  STATE. 


5«:i 


istlgatc  It,  hu  ilis- 
The  goods  \\\\v 
le  cousout  of  the 
Is  lost,  and  rccov- 
uninatiouj^c  wit- 
s  was  a  man  who 
the  iobbery.  The 
,  very  good  frieuii 
'Isits  to  Ills  shop, 
;o  his  shop,  which 
I  pocltet  hundlier- 
man,  was  larticu- 
disappeared  soon 
li  goods  'jtted  the 
Tlie  defendant  re- 
)ly  identify  him  as 
b  was  never  about 
ircct  examination 
nd  strength  of  tliu 
t.    He  proved  the 

Jeer  at  the  time  of 
r  which  th"  goods 

there  found  were 
irez's  house,  when 
liters,  and  this  de- 
1.  None  of  the  ar- 
,he  most  part  were 
e  defendant.  The 
i;e  room,  and  some 
le  defendant  before 
ifled  that  he  found 
ndictmcnt.  A  sad- 
over  to  the  owner, 

of  sp  jra  and  ordi- 
cre  claimed  by  and 
it  he  did  say  ou  ti»e 
earched  the  house 
Ing  the  house.  He 
lal,  because  he  avus 
the  shadow  of  some 
oor,  wiilch  had  the 
V  no  slioes  near  or 
tncss  was  told  that 
»  an  ordinary  grass 
ision  being  subdi- 
und  Pedro  Alvarez, 
le  warrant  to  tliera, 
I  door  leading  into 
1  the  warrant  read, 

first  searched  the 


truuks.  In  one  he  found  the  soldier's  pants  i.nd  some  ladles'  wearing  apparel  > 
in  another  a  lot  of  trimming  and  n  gray  waistcoat  in  which  there  was  no  back* 
He  next  fouuvl,  under  the  mattress,  a  black  coat  and  pi.ir  of  pants,  and  next 
went  into  the  small  room,  where  the  defendant  still  was,  and  there  he  examined 
the  saddle-bags  llrst.  lie  then  looked  under  tlie  bed  and  discovered  the  box  in 
which  the  missing  goods  were  fouud.  Tho  house  was  the  property  of  Alvarez. 
Upon  finding  tiie  goods  the  witness  arrested  tlie  defendant  and  Aivarez,  and 
took  them  and  the  goods  found  to  tiie  justice  of  the  peace.  He  siiortly  returned 
with  another  search  warrant,  and  then  arrested  the  wife  of  Alvarez. 

Faustino  ViUareal  recognized  the  saddle  recovered  from  the  Alvarez  house 
as  the  one  stolen  from  him  the  night  before  the  ari.st  of  the  defendant  and 
Alvarez.  It  was  found  in  the  room  in  which  tlie  defendant  was  arrested.  The 
witness  had  never  seen  the  defendant  before  his  arrest. 

Louis  Kowalskl  testiflc?'  for  the  defence,  that  as  a  business  man  and  poli- 
tician he  knew  nearly  every  m^^a  in  Brownsville.  He  was  custom-house  odlcer 
iu  Brownsville.  He  knew  the  defendant.  In  the  beginning  of  the  year  1881 
the  defendant  worked  for  the  witness^  mother.  lie  afterwards  disappeared 
and  the  witness  heard  nothing  more  of  him  until  his  arrest.  The  defendant  has 
two  sisters,  one  living  In  Matamoras,  and  one  living  with  the  witness.  The 
defendant  was  in  Brownsville  during  the  first  part  of  tlie  ye-r  of  1881.  The 
witness  knew  nothing  personally  of  his  goin^  away. 

Elisha  Campbell,  for  hj  defence,  testldcd  that  he  was  acquainted  with 
Pedro  Alvarez,  who  owned  the  house  in  wliich  the  stolen  goods  were  found 
The  witness  was  present  when  the  arrests  were  made.  Alvarez,  wife,  daughters 
and  defendant  were  In  the  house  and  !lef  ugio  Gomez  was  iu  the  kitchen.  Gomez 
heard  the  order  or  search  warrant  read,  and  ran  out  and  attempted  to  mount  the 
witness'  horse.  He  did  not  succeed,  but  ran  on  down  the  street  and  escaped. 
Tills  witness  had  heard  a  conversation  between  Gomez  and  defendant,  in  which 
Gomez,  speaking  of  having  rented  a  small  room,  said  he  had  to  payAlrarez  one 
dollar  for  it.  He  had  several  times  seen  Gomez  at  Alvarez's  house,  previous  to 
the  arrest.  Gomez  left  his  shoes  when  hu  ran  away.  The  defendant  made  no 
effort  to  escape. 

Juana  Casus,  defendant's  sister,  testified  that  for  eight  or  nine  years  past  the 
defendant  had  resided  at  Corpus  Chrlsti,  having  left  the  neigliborhood  of 
Brownsville  and  Matamoras  when  he  was  ten  or  twelve  years  of  age.  He  had 
been  back  but  twice  siuce;  the  last  time  he  returned  was  about  fifteen  days 
before  his  ancst. 

Buterera,  for  the  defence,  testified  that  when  he  arrested  the  defendant  he 
old  hlra  the  reason  of  his  arrest.    The  defendant  immediately    deiUed  any 
knowledge  or  participation  In  the  theft,  and  do^lared  that  he  had  been  iu  - 
Brownsville  but  two  or  three  days,  and  was  from  Corpus  Christ! 

S.ivarlo  Maza  testified,  for  the  defence,  that  he  knew  Gomez  before  arrest  of 
iefendant,  but  did  not  know  where  Gomez  went  to.  When  in  Brownsville 
G(-mtz  stayed  at  Alvarez's  house.  Guadalupe,  tlie  man  referred  to  bv  Fierlln-' 
as;he  man  who  worked  in  the  steamboat  odke,  was  when  the  triaf  was  had" 
on  -.he  Mexican  side  of  the  Rio  Grande,  but  was  In  Brownsville  when  these 
parties  were  arrested,  and  for  six  weeks  after. 

Campbell,  m  rebuttal,  testified  that  he  saw  the  defendant  at  the  Alvarez  house 
on  four  different  days,  before  his  arrest;  the  first  time  as  many  as  seventcea 
days  before  the  arrest. 


586 


LARCENY. 


,  .  J        t  Tnno  1 R81   the  shop  of  one  Andreas  Flerllng 
HURT,  J.    on  the  1st  day  of  June  1881,  th«  «'u,p  ^^^^  ^^  ^ 

was  rifled  of  Its  contents,  consisting  of  goods,  such  a  n.^^^n  of  the 

vina«e  tailor  «'-P;„j^ --t,::7taril  o^r/^a^  seard/d  and  the  go^ods 
town  ^JB--^™;";  *.'i;^^^^^^^^^  and  defendant.  Angel  Casas. 

r;f  ^std.  'pr^riTJItawere  jointly  indicted  and  tried.    Pedro 

men';  in  the  penitentiary  for  the  t^rm  o*  two  >ear^^  ^^  ^  ^^^  ^^ 

The  defendant,  when  the  house  was  ^'^''^^l^' ^^^^^^^^^  being  Informed  of 
a  small  room  of  the  house  of  Alvarez.  "^^^^  f''^'^^^^''  gls  saddle-bags 
the  charge,  he  denied  having  any  knowledge  o^^^^^^  ^^ 

being  examined,  no  fruits  of  the  "  --;;„';,^^^^^^^^^  this  box  It  was  not 

ever,  In  a  box  wasfound  some  of  the  ^^^^^^'^^^'J  ^^  ^^  ,uown  that  de- 

shown  that  defendant  had  any  ^°"":,^"°^i7^'^;^^^^^^^^^^  On  the  other  hand, 

fendant  had  control  of  the  '^^^-j'^J^^Vw^^^^^^^^^  «-  '«««>• -'^« 

nh^rrtrrhr^rnr^^^^^ 

reversed^and  the  cause  remanded,  with  a  new  trial  awa^ded.^^^  ^^^^  ^^^^^^^^^ 

indictme*  chargcid  the  appellant  ^"J  f «  *'^J*  ^y  of  March  1882.    He  was 
John  collier,  in  Dallas  f  ^^^^  °\f  j:;;!  '^fn  the  penlt;ntiary. 
convicted,  and  was  awarded  a  term  «*  f  ^y^^^^f         J^^^^^^  t^^t  he  worked 
John  Collier  was  the  first  witness,  for  the  Stale^  He  test 

his  certain  sorrel  horse  «- ;^l>«i^  "^f^^^j^f,  ^,Vf m^w^ 
1882,  and  at  night  he  turned  the  — ^/'^^.''^^^J^'v^nays  later,  in  Eastland, 
next  morning.  He  next  saw  the  ^°f  *^' "'g^^^^X  had  George  Cook,  John 
Eastland  County,  In  possession  of  *";«;  J^^^^  ^"^^  this  animal.  Each 
Broach  and  Joe  McGee  in  custody  ^^^^J  ^^^^'^^^^  on  Tuesday,  the  day 
of  these  three  parties  denied  all  «'f  ™  '°  ^^^^^"'JJquiry,  that  the  defendant 
aner  tUe  ho.e  -s  lost  t  ^  jrhC  ^o^lldTo  J west.'^onnd  for  Eastlana, 
'and  Joe  McGee  had  left  his  nei^noo  j  ^  eigliteen  mles  west 

and  he  immediately  left  in  pursuit^    At  Ar Uugto"  »  po  .^  ^^^^^^^^^     ^^^^ 

of  his  house,  the  witness  ^^^'^.fJ'J'^^^Z^ovtl  beyond  Arlmgton,  the 
lowing  on  that  road  In  the  «»  'f  ^^^  ?*  ^^^^^  ^ad  lost  a  horse  on  the 

witness  overtook  R'l^y  Pe™*'^^'^"' ,''.  °'^|L'^rn  tTiewUness  heard  of  his  and 
same  night  that  the  -f -«  ^^^^J^;  Jf^eprterto  be  In  the  possession 

1  UTex.  CApp.jW    1883). 


I 


INSUFFICIENT  PROOF  —  COOK  V.   STATE. 


587 


Ireas  FierUng 
irily  kept  In  a 
ilceman  ol  the 
md  the  goods 
Angel  Casas, 
tried.    Pedro 

;he  same  theft, 
laptured.  Ap- 
lent  at  confine- 

eep  on  a  bed  In 
ig  Informed  of 
lis  saddle-bags 
•  the  bed,  how- 
,  box  It  was  not 
shown  that  dc- 
the  other  hand, 
the  room, —  he 
business  ol  the 
tiat  some  ol  the 
i  case,  we  are  ol 

'he  judgment  Is 

and  remanded. 

>ok  V.  State,^  the 
,  the  property  of 
,  1882.  He  was 
entlary. 

i  that  he  worked 
onday  In  March, 
h  he  was  missing 
Iter,  In  Eastland, 
jorge  Cook,  John 
lis  animal.    Each 
Tuesday,  the  day 
hat  the  defendant 
uud  for  Eastland; 
shteen  mles  west 
p1  trave'^ers.    Fol- 
,nd  Arlington,  the 
t  a  hcffse  on  the 
heard  ol  hts  and 
In  the  possession 
tness  and  Pembcr- 
)oint  beyond  Fort 
IS  aad  Pemberton 


traced  the  track  of  a  wagon  drawn  by  a  yoke  ol  bulls,  and  within  a  day  or  two 
came  upon  a  camp  near  a  small  creek,  which  camp  had  been  occupied  by  lour 
men,  having  in  their  possession  horses  answering  the  description  of  those 
stolen,  and  a  wagon  drawn  l)y  a  yoke  ol  bulls.  Reaching  a  point  eight  miles 
distant  from  Eastland  the  roads  forked,  and  the  witness  took  and  followed  one 
and  Pemberton  the  other.  When  the  witness  reached  Eastland,  he  found  Pem- 
berton already  arrived.  The  witness'  horse  was  tlwre  in  possession  of  the 
sheriff.  George  Cook,  John  Broach  and  Joe  McGee  were  there  in  the  custody 
of  the  .sheriff.  The  defeudaut  was  not  there,  but,  knowing  that  he  had  a 
brother-in-law  living  a  lew  miles  out  Irom  Eastland,  witness,  with  a~party, 
went  tlicre,  lound  and  arrested  him.  George  Cook,  a  brother  ol  the  delendant, 
escaped  Irom  the  officers  at  Eastland,  and  has  not  since  been  seen.  Joe  McGee 
lived  in  the  witness'  neighborhood,  and  owned  the  yoke  ol  oxen,  and  was  seen 
in  company  with  the  delendant  a  lew  days  belore  the  theft  of  the  animals.  He 
lias  been  sent  to  the  penitentiary  for  the  theft  of  these  animals.  John  Broach 
is  under  indictment  for  this  theft,  and  is  out  on  bond.  Witness  could  not  say 
tbat  these  parties  were  familiar  with  the  stock  ol  tlie  country,  but  knows  that 
they  had  seen  his  horse  olten  enough  to  know  it.  Witness  never  saw  the 
defendant  in  possession  ol  his  horse  which  was  stolen  on  the  night  ol  March 
27, 1882,  and  which  was  taken  without  the  consent  ol  the  witness.  An  Indict- 
ment lor  horse  thelt  is  now  pending  against  tlie  witness  in  the  District  Court 
of  Dallas  County,  but  witness  asks  no  more  than  a  trial  as  lair  as  he  thinks 
defendant  will  get  in  this  case. 

Riley  Pemberton  Avas  the  next  witness  lor  the  State.  He  testified  that  he 
lost  a  horse  Irom  his  place  near  Collier's  place,  in  Dallas  County,  on  the  same 
nis;ht  that  Collier  lost  his.  He  saw  the  delendant  and  Joe  McGee  together 
near  his  larm  on  the  Sunday  belore,  and  on  the  lollowlng  Tuesday  learned  that 
they  had  gone  west  with  a  horse  owned  by  delendant,  and  a  yoke  ol  bulls, 
which  were  worked  as  steers,  owned  by  McGee.  Witness  started  in  pursultj 
find  near  Arlington,  in  Tarrant  County,  met  up  with  John  Collier,  on  the  same 
pursuit,  and  the  two  traveled  on  together.  At  Arlington  they  heard  of  their 
liorses  for  the  first  time,  but  could  get  no  description  of  the  parties  who  had 
...:>'  in  possession,  nor  of  the  exact  time  they  passed  through  Arlington. 
Be.  ond  Fort  Worth  witness  and  Collier  got  on  the  trail  ol  the  bulls,  wagon 
and  two  pc^rsons.  A  day  or  two  thereafter,  and  some  distance  beyond  Fort 
Wort  1,  they  again  heard  ol  the  horses,  bulls  and  wagon,  in  possession  of  lour 
pcrso  IS  who  had  camped  one  night  on  a  small  creek.  Collier  and  witness  sep- 
arater)  at  the  forks  ol  the  road,  eight  or  nine  miles  Irom  Eastland,  each  taking 
one  of  the  lorks.  Alter  riding  along  his  route  a  short  distance,  the  witness 
saw  ))artles  ahead,  and  leaving  the  road  and  riding  around  them,  the  witness 
reached  a  point  near  the  road  ahead  ol  them,  and  secreted  himsell  so  that  he 
could  see  them  as  they  passed.  As  they  passed  witness  recognized  the  delend- 
ant and  Joe  McGee  in  the  wagon  driving  Collier's  horse  and  another  horse 
which  the  witness  did  not  know.  George  Cook  and  John  Broacb  came  on 
behind  the  wagon  and  were  driving  the  bulls.  They  were  riding  horses  which 
the  witness  did  not  know.  The  witness'  horse  was  not  In  their  possession. 
When  the  party  had  passed  the  witness,  he  again  took  to  the  brush,  passed 
them,  rode  rapidly  into  Eastland  and  notified  the  oflicer?. 

George  Cook  soon  came  into  Eastland,  and  was  arrested.  Witness  and  the 
officertj  then  went  in  quest  of  the  other  parties  and  the  wagon  and  stock. 


1 


588 


LAUCKNY. 


H  ■ ' 
i; 

Hi. 


They  found  Joe  McGee  and  John  Broach  with  the  wagon,  camped  a  hundred  or 
two  yards  off  the  road,  and  arrested  the  two  men.  Collior's  horse,  another 
one,  the  wa-on  and  the  b.tUs  were  In  tlieir  possession.  Neither  McGce  nor 
Broach  claimed  the  Collier  horse.  Witness  and  the  olllcers  returned  tjCl.ust. 
land  with  MrOec  and  Broach,  and  found  Collier,  who  had  then  reached  town. 
Geor-e  Cook  escaped  from  the  officers  In  Eastland  and  has  not  been  seen  sluce. 
John^Broach  was  released  by  the  offlcers,  over  tl>e  protest  of  the  witness,  l>iit 
has  since  been  indicted  In  Dallas  County  and  is  now  under  bond.  Collier  and 
the  officers  went  out  and  arrested  the  defendant  somewhere  in  the  country. 
McGee  and  the  defendant  were  broufjht  to  Dallas,  and  were  indicted  for  this 
theft.    McGee  has  been  convicted  and  is  now  In  the  penitentiary. 

Dave  McQeo  testified,  for  the  State,  that  he  was  a  brother  of  Joe  McGee, 
heretofore  convicted  and  now  serving  a  term  in  the  penitentiary  for  this  offense. 
At  the  time  of  this  offense  Joe  McGeo  lived  with  his  mother,  in  the  neighbor- 
hood of  the  witnesses  Collier  and  Pemberton.  Ou  the  Saturday  before  this 
theft,  the  defendant  came  to  the  McGee  house,  and  said  that  he  had  come  f..r 
Joe  to  go  west  with  him  to  Eastland  County.  Tkey  left  for  Eastland  that 
morning,  Joe  talking  with  him,  at  defendant's  request,  a  yoke  of  bulls  heowuecl. 
Defendant  had  a  gray  horse  with  hlin.whcn  lie  came  to  the  house.  When  the 
two  left,  they  took  with  them  Joe's  bulls  and  the  defendant's  horse.  Defendant 
said  at  the  time  that  he  had  sent  his  brother,  George  Cook,  to  get  a  wagon  in 
whlc^  "le  intended  to  work  the  bulls.  Joe  McGee  owned  a  horse  at  that  time, 
but  it  was  lost.    Witness  saw  no  more  of  them  until  after  tiieir  arrest  and  re- 

turn  to  Dallas  County.  ,»  ^  ..    ^ 

J  W  Vincent  was  the  first  witness  for  the  defence.    He  testified  that  some 

time  In  March,  on  Tuesday,  he  saw  the  defendant  and  a  young  man  whom,  from 

description,  he  supposes  to  have  been  John  Broach,  in  camp  on  Sycamore 

Creek     They  had  a  yoke  of  cattle  standing  near  a  wagon.    Defendant  said  tuey 

had  no  horses,  but  that  his  partners  behind,  who  were  going  with  him  to  a  ho;,' 

ranch  in  Eastland  County,  would  bring  along  two  or  three.    The  witness  saw 

the  same  parties  that  night  at  a  dance  at  the  house  of  Mrs.  Dietz,  who  lives  m 

the  suburbs  of  Fort  Worth.  ^    u     t 

Mrs  E  Deltz  testified  for  the  defendant  that  she  lived  in  the  suburbs  of 

Fort  Worth;  that  on  Tuesday,  March  28th,  she  saw  the  defendant  and  John 

Broach  at  her  house ;  that  they  returned  tb  xt  night  as  attendants  upon  a  dauce 

which  occurred  there  at  that  time.    Witness  had  kaown  defendant  seven  or 

*'^Car^rirSaraueIs,  who  attended  the  dance  at  Mrs.  Dietz's  corroborated  that 

witness. 

Motion  for  new  trial  assailed  the  sufficiency  of  the  evidence,  and  was  over- 

WiiiTE  P  J.  (after  ruling  on  an  instruction  as  to  principal  and  accessory). 
In  the  case  before  us,  whilst  in  a  legal  point  of  view  the  charge  of  the  court, 
as  we  haveshown,  was  a  correct  enunciation  of  the  law  upon  this  point,  we  are 
of  opinion  that  the  evidence  was  not  sufflcient  to  support  the  verdict  and  judg- 
ment upon  the  ground  of  defendant's  guilty  complicity  as  a  principal  offender. 
The  evidence  before  us  lacks  that  probative  force  which  carries  with  it  the  con- 
viction that  it  is  incapable  of  explanation  upon  any  hypothesis  other  than  that 
of  the  defendant's  guilt. 

Agiln,  tae  evidence,  so  far  as  defendant's  guilt  is  sought  to  be  established, 
is  wholly  circumstantial.    Such  being  the  case,  under  repeated  decisions  it  ha» 


INSUFFICIENT   PKOOF CUOCKKTT   V.  STATE. 


589 


icd  a  hundred  or 
i  horse,  another 
ther  McGce  nor 
turned  tjCl'^ast- 
i  reached  town. 
beea  seen  slucu, 
the  witness,  but 
ind.  Collier  and 
in  the  country. 
indicted  for  this 

r  of  Joe  McGee, 
'  for  this  o£ten!*e. 
,  in  the  neighbor- 
iirday  before  this 
he  had  come  for 
)r  Eastland  that 
if  bulls  he  owueil. 
louse.  When  the 
orse.  Defendiint 
to  get  a  wagon  in 
orse  at  that  time, 
leir  arrest  and  re- 

2stlfled  that  some 
man  whom,  from 
mp  on  Sycamore 
jfendant  said  tlu;y 
with  him  to  a  iio;,' 
The  witness  saw 
)ietz,  who  lives  in 

in  the  suburbs  of 
fendant  and  John 
ants  upon  a  dauce 
Icfeudant  seven  or 

1  corroborated  that 

nee,  and  was  over- 

)al  and  accessory). 
large  of  the  court, 
1  this  point,  we  are 
3  verdict  and  judg- 
principal  offender, 
ries  with  it  the  cod- 
jsis  other  than  tliat 

to  be  established, 
led  decisions  it  has 


been  held  error  for  the  court  to  refuse,  fall  or  omit  to  Instruct  tlic  jury  as  to  the 
law  with  reference  to  that  character  of  the  testimony. 

BLcauso  the  evidence  was  Insutnclent,  and  because  the  charge  of  the  court 
(lid  not  submit  tlie  law  essential  to  the  evidence,  the  judgment  is  reversed  and 
tlie  euuse  remanded 

Iteversed  and  remanded. 

oilL'.  Evidence  held  Insufficient  —  Crockett  v.  State.  — In  Croekett  v. 
Stact,'  tlie  Indictment  cliarged  the  appellant  with  tlie  theft  of  a  boar  hog  of  tlie 
vahie  of  twenty-flvc  dollars,  the  property  of  George  Brown.  The  theft  was 
iilleiied  to  have  been  committed  on  the  seventeenth  day  of  January,  1883.  The 
piniishmont  assessed  against  the  appellant,  by  a  verdict  of  conviction,  was  a 
term  of  two  years  In  the  penitentiary. 

George  Brown  testidud,  for  the  Slate,  that  the  defendant  lived  about  three- 
(juarters  of  a  mile  distant  from  his  house,  and  about  tliree  hundred  yards  from 
Tate's.  Ill  January,  1883,  the  witness  had  a  very  line  black  and  white  spotted 
buar  hog,  which  he  valued  at  twenty-five  dollars.  Wlicn  turned  out,  the  hog 
ffouul  customarily  remain  away  from  the  house  three  or  four  days,  and  then 
return.  The  hog  had  been  missing  longer  than  his  usual  timo  when,  on  Janu- 
ary  17,  witness  went  to  look  for  him.  In  that  search  he  got  Information  from 
Tate  which  caused  him  to  give  up  the  search.  The  hog  was  marked  and  the  left 
car  was  scarred  by  dogs  or  worms.  Witness  gave  no  one  his  consent  to  take 
the  hog.  Witness  has  not  seen  his  hog  since  he  missed  him  on  the  occasion 
uanu'd. 

Henry  Tate  testified,  for  the  State,  that  on  the  morning  of  January  17,  he 
and  his  wife  passed  the  defendant's  house,  and  saw  a  large  fine  black  and 
spotted  boar  hog  lying  at  the  defendant's  hog  pen.  On  their  return  that  night, 
they  learned  that  the  defendant  had  killed  a  hog  that  evening,  and  as  the  wit- 
ness  had  recently  missed  a  hog,  he  went  over  to  see  the  defendant  next  morn- 
ing. Witness  found  blood  about  the  hog  pen,  and  called  the  defendant  out  and 
asked  him  if  he  had  not  killed  witness'  hog,  which  the  defendant  denied. 
Witness  then  went  off  and  got  Jim  Battle,  and  returned  and  asked  the  same 
question  of  defendant.  Defendant  replied  that  witness  should  know  he  had  not 
IJilled  witness'  hog;  that  the  hog  he  killed  was  much  larger  than  that  of  witness, 
lie  showed  the  witness  the  head  of  a  large  hog;  off  which  the  hair  had  been 
scraped  and  the  ears  cut  close.  He  then  asked  witness  if  he  had  ever  noticed  a 
large  black  and  spotted  boar  hog  running  about  the  neighborhood.  Witness  re- 
plied that  he  had,  and  defendant  said  that  that  was  the  hog  he  had  killed. 
That  hog,  according  to  the  witness,  was  worth  twenty-live  dollars. 

Jim  Battle,  for  the  State,  corroborated  the  witness  Tate.  He  stated, 
further,  that  he  identified  the  head  shown  by  defendant  by  the  scarred  appear- 
anee  of  the  left  ear.  It  was  the  head  of  a  large  black  and  spotted  boar  hog 
whieh  had  been  running  In  the  neighborhood  for  some  days. 

Flora  Crockett,  wife  of  the  defendant,  testified  that  she  was  at  home  on  the 
January  evening  when  her  husband,  the  defendant,  killed  a  large  black  and 
spotted  boar  hog.  That  hog  was  one  of  four  the  defendant  bought  from  Hay- 
*n  Smith,  about  two  weeks  before,  for  thirty  dollars.  When  Tate  and  Battle 
came  to  the  house  next  morning,  witness  was  in  the  house  singeing  the  ears  of 
tue  slaughtered  hog. 

1  14  Tex.  (App.)  220(1883). 


V-.»X'AJ3t'..i3Sj*i*feSl^ 


I 

i 


590 


LAKCENY. 


..,  „o.ara  te..e..  lev  U.  ...no.  U..  -  -  J^^^^   ^ t^ 
when  heklllca  a  hog  on  January   ^ ' '    ^^'^^  j';'J  ..^^  boiling  the  cars  fur 
Crockett  did.  except  that  she  ^vas  J°f  ^^^  J*  J',, '".^^hUo  Tate  ami  battle 
breakfast  on  the  morning  after  ^^»« J^^^f  J  jfj^i; J ,"  «  castrated, 
were  at  the  house.    She  also  tes  .lied  J^a   ">«  m  -j  ^^ 

Fanule  Smith  testUled   for  ^f^^^^'^J^;:  'Zn  on 'summer's  ph.. 
bought  some  hogs  about  t»'«  ""\"' J""i''b^;,7  These  hogs,  four  In  number, 

four  hogs  for  twenty-eight  dollars.    «"«  »^^      ^,  ^^^,,3  witness  bought 

«pottod^oar.  Which  witness    a^^ra-cifrm^^  T   ^^^^  ^^,^^,^  ,,„„ 

::f ^! rhrsorthe  dTudirwas  a  smaU  hog.  and  on  this  point  Brow.  . 

grounds.  It  ^va.  -PP0>^^<=;;^^7^;  :  .^'^^bV: Ly  '^B  h^  saw  a  large  black  and 
Reed  set  up.  In  substance,  that  ^f^  about  two  and  a  half  miles  from  George 
spotted  boar  hog  on  Bennet  s  P/^/^' '^5°;' 'J^t^^  'hat  at  the  time  of  this  trial, 
Brown's  place.    The  affidav.t  of  John  Shaw  se  tup  th        ^^^^^^^  ^^^^^^^  ^  ^^^^^^ 

or  a  few  days  before,  there  ^^««  ^  "  "  ^^"^InN.^^  large  black  and  white  spotted 

left  ear  appeared  ^^'^''^^^^'If '™*'tt„„(,ant  Is  not  Identified  positively  as  the 
WHITE,  P.  J.    The  hog  killed  by  (^elendant  IS  ease  of  clrcumstan- 

hog  of  the  P---«"t:rrs£;y  ofrstatf^s  wltnLes.  and,  11  nodouU 
tlal  evidence  Is  made  by  the  t«'^"™°Ynuestlonably  have  been  sufficient  to  sup- 
bad  been  thrown  upon  It,  ^'J^^^J^^^^^^f  ^^e  Lt  tl-  defendant's  .vltnesscs 
port  the  verdict  and  judgment.  1^^^  J  fj  *'  ^^^  concede,  as  stated,  that  the 
contradicted  each  other  In  ''l''''\^^'}''^X',^Za  a  positive  Identification  of 
case  made  by  the  State  ^Vrir^s  mot  on  for  a  new  trial  defendant  pro- 
the  hog  to  make  it  <=°;^  "^'j;- J/  ,eTt"?a  ts  which  if  true  were,  in  couuec- 
dnced  the  aflidavlts  of  three  witnesses  to  la  ^^  ^^^  ^^^^  ,„^j^, 

Uon  with  defendant's  ^^^'^^^^'^'^^^I'^^T^^^^^      killed  by  defendant  at  all, 
by  the  State,  to  prove  that  f  ™^"^«^°;  j'^";'  f,,,  ^ues  of  Brown's  home  some 

:rr ^:i:rt rdtrg  r ^.ch  he  was  tned,  and  up  to  with. .  | 

''V:lTlt  :pi*^:rthe  court,  under  the  circumstances  of  the  case.  shouU  I 
have  granted  the  new  trial.  Beveraed  and  remanded. 

§  663.  evidence  Heldlnsufflclent-Deerlng  ^;  ^^^^i"^! ''e1'gt"e"eVhead  of 
the  indictment  charged  the  ^^^-^^Coa  use  was  alleged  to  have  be » 
^Zr^Z^^^^^^  fi^fteenth  day  Of  November,...    .e) 

1  U  Tex.  (App.)  599  (1883). 


rj^JiMKSSMilBfW"*"'*'*^'' 


PKOOF   INSUFFICIKNT UEEItlXO   V.  STATE. 


591 


with  defendant 
jxactly  art  yimu 
ling  the  ears  fur 
Tate  ttUfl^Battlo 
teU. 

I,  Haytlcn  Smith, 
I  Summer's  pUicu, 
I,  four  In  numbir, 
eea  dollars,    lltr 

[le  sold  defendaut 
re  black  and  white 
„.rs  witness  bought 
;old  George  Brown 
lis  point  Brown,  in 

ence  among  other 
ies.  That  of  Tom 
w  a  large  black  and 
miles  from  George 
le  time  of  this  trial, 
;nnett  place,  a  Utile 
k  and  white  spotted 
ver  Jackson's  afllda- 
ded  that  the  hog  re- 
the  right  ear.    The 

fled  positively  f  s  the 
case  of  clrcumstan- 
ises,  and,  If  no  doubt 
eu  sufllclent  to  sup- 
efendaut's  witnesses 
;le,  as  stated,  that  the 
Itlve  identification  of 
'  trial  defendant  pro- 
true  were,  in  cornice- 
ong  as  the  case  made 
kI  by  defendant  at  all, 
Brown's  home  some  | 
id,  and  up  to  within  a 

;s  of  the  case,  shouW  | 

versed  and  remanded. 

_  In  Deerinfif  v.  (S;o<e,'l 
of  eighteen  head  of  I 
8  alleged  to  have  been 
November,  1881.    Be 


trial  was  had  at  the  July  term,  1883,  of  the  District  Court,  and  resulted  In 
the  conviction  of  the  appellant.  His  penalty  was  alllxed  at  contlncment  In  the 
penitentiary  for  a  term  of  two  years. 

Bart.  Burkett  was  the  first  witness  for  the  State.  lie  testified  that  he  Ihod 
In  Gonzales  County,  Texas.  He  knew  and  Identified  HIH  Peering  as  the  prls- 
oner  at  the  bar.  During  the  spring  of  1881,  the  witness  from  time  to  time  lost 
sheep  from  his  pens,  aggregating  perhaps  a  hundred  head.  About  the  time 
mentioned,  the  witness  found  eighteen  head  of  his  s-heep  In  a  drove  in  DeWltt 
County,  about  one  mile  from  the  Gonzales  County  line.  They  were  then  about 
three  miles  distant  from  the  witness'  house,  and  about  seven  miles  distant  from 
the  defendant's  house.  The  drove  was  then  under  the  charge  of  John  O.  Hester 
and  the  defendant's  brother,  Tobo  Dcering.  The  defendant  was  not  present. 
The  sheep  were  being  driven  along  the  public  road  In  the  direction  of  Hobeim. 
Hester  told  the  witness  that  he  had  purchased  the  sheep  from  the  defendant. 
The  witness  stopped  the  sheep,  which  were  driven  into  his  pen,  and  Hester 
sent  for  the  defendant.  When  the  defendant  arrived,  Hester  claimed,  in 
the  presence  of  witness,  defendant  and  others,  that  he  had  bought  the  sheep 
from  the  defendant,  and  the  defendant  said  he  had  sold  them  to  Hester.  The 
sheep  were  wrath  three  dollars  per  head.  No  one  had  the  witness'  consent  t* 
take  the  sheep. 

The  witness'  brand  was  X  on  the  side  of  the  face,  one  prong  of  the  cross  ex- 
tending from  the  left  corner  of  the  eye  to  the  corner  of  the  mouth,  and  the 
other  extending  across  tlie  bridge  of  the  nose.  This  brand  was  on  these  sheep, 
with  the  addition  of  a  small  mark  across  one  bar  of  the  cross.  This  mark  had 
been  added  and  "  haired  over."  The  sheep  were  still  In  the  witness'  murk. 
When  the  defendant  first  came  up  to  where  the  witness  Hester  and  Tobe  Deer- 
inghadthe  sheep,  he  said  they  were  his  sheep.  Afterwards,  and  during  the 
same  conversation,  he  said  they  were  honest  sheep  which  he  had  sold  for  his 
little  brothers.  He  said  they  had  raised  some  and  bought  some  of  them.  The 
witness  took  his  sheep  from  the  bunch,  one  by  one  and  examined  them  carefully. 
There  were  present  at  this  time  the  witness,  J.  L.  Crawford,  Rufus  Hale,  Willis 
Arrington,  John  Hester  and  the  defendant.  Subsequently,  and  in  the  presence 
of  the  parties  named,  the  defendant  and  the  witness  entered  into  the  following 
agreement:  The  witness  was)  to  allow  Hester  to  go  on  with  the  sheep,  and  the 
defendant  was  to  bring  a  suit  against  the  witness  for  the  sheep,  and  Willis 
Arrlugton  was  to  become  surety  for  the  forthcoming  of  the  sheep.  Hester  was 
to  hold  the  sheep  as  the  property  of  the  witness  until  their  status  was  decided 
by  law.    The  defendant  never  brought  the  suit  agreed  upon. 

Some  time  after  the  agreement  was  entered  into,  the  witness  found  his  sheep 
In  the  flock  of  Lee  Floyd,  on  the  west  side  of  Guadalupe  River.  He  and  Floyd 
tested  ownership  by  arbitration,  and  the  sheep  were  awarded  to  the  witness, 
whereupon  Floyd  paid  the  witness  for  them.  This  arbitration  was  had  in  Gon- 
zales County,  in  March,  1882.  The  witness  had  never  seen  his  brand  on  other 
sheep  than  he  owned,  except  those  he  sold,  which  were  put  in  the  mark  of  the 
purchasers.  When  the  witness  found  these  sheep  in  the  flock  in  the  possession 
of  Tobe  Deering  and  John  G.  Hester,  the  letter  V  had  been  (since  they  were 
tal{en)  branded  on  the  side  of  the  face  opposite  the  witness'  brand. 

Rnfe  Hale  was  the  next  witness  for  the  State.  Ho  testified  that  some  time  In 
1881,  at  the  request  of  Burkett,  he  went  to  Burkett's  house  to  look  at  eighteen 
head  of  sheep  which  were  said  to  have  been  stolen  from  Burkett.  When  the 
witness  saw  them,  -he  sheep  were  near  Burkett's  house,  in  Burkett's  posses- 


692 


LARCENY. 


Blon,  an.)  ha.l  Burketfs  mark  and  brand  on  them.    A  slight  addition  had  been 

nade  to  Burkctt's  brand.    These  clf-'hteen   head  of  .heep  were   In  a^b^a,.a 

;;i!.;.;.t  f.o,n  that  o,.  the  other  sheep  of  the  floek.    When  the  '''''e-^-   -^- 

UP  to  the  party,  ho  said  that  he  had  sold  those  sheep  to  John  G.  Hester.    lie 

c  Umed  tl  at  ihe  .heep  ha.l  been  raised  by  his  (andly.     Respecting  the  conver- 

«at  Urn  between  Burkett  and  the  defendant,  the  ^vltnesstestUled  substantially  as 

B.ukett  did.    He  corroborated  Bu.kctt  as  to  the  arrangement  for  the  proposed 

lltiiiatlon  over  the  ownership  of  the  animals.  „     i    .»    „„ 

J   L.  Crawford  testified,  lor  the  Statr    '.!,at  he  was  present  when  Burkett    ep- 

arafd  eighteen  head  of  sheep  from  a  flock  of  sixty  or  seventy,  and  saw  Burke 

examine  them  one  by  one.    Seventeen  ol  them  had  Burkett's  brand,  with  a  sll,!^ 

•   addition,  on  them.    They  were  also  branded  with  a  V  on  the  opposite  jaw.    Tl^s  V 

and  the  addition  to  Burkett's  brand  were  fresher  than  the  original  brand.    Tuo 

of  the  sheep  Burkett  recognl/.ed  f  n.m  the  outside  ol  the  pen,  and  independetit 

ol  the  marks  and  brands  -one  by  a  peculiarly  broken  horn,  and  the  other  by  a 

distinct  and  d.flerent  brand.    The  delendant  said  that  these  ^' Sl";«"/'-«P 

were   or  had  been,  his  and  his  little  brother's,  but  that  he  had  sold  them  to 

John  Hester     Burkett  .eturned  the  sheep  to  Hester  upon  the  agreement  of  the 

£  ulTloZ  lor  them;  and  Arrlugton  became  surety  to  Burkett   or  tl. 

sheen     The  witness  altcrward  saw  some  of  the  sheep  In  Floyd's  flock,  in  Gon- 

zales  County.    He  had  never  seen  any  of  them  In  the  possession  ol  the  de- 

*' J 'r^Floyd  testified,  lor  the  State,  that  Bart.  Burkett  came  to  his  house  early 
in  the  spring  of  1882,  and  examined  his,  witness',  flock  ol  sheep,  from  which  he 
pict^^l  out  eighteen  head  which  he  claimed  as  his  own.  The  question  of  owner- 
ship  was  arbitrated  by  tl^o  witness  and  Burkett,  and,  the  award  being  in  Bur- 
k  t  's  favor,  the  witness  paid  him  for  them.  C.  J.  O'Neil.  the  witness'  partner, 
b  ouglU  the  sheep  to  the  witness'  place,  and  had  a  bill  ol  sale  lor  hem  Irom 
John  G.  Hester.  This  was  the  first  time  tl>e  witness  ever  saw  them  Th 
brands  and  marks  showed  then  that  they  were  original  marks  and  brand 
changed  The  brand  showed  that  it  had  recently  been  changed  Irom  the  bi and 
clalm'ed  bv  Burkett.  The  letter  V  was  also  branded  on  the  cheek  opposite  the 
cha^-ed  brands,  and  was  Ire.-her  than  the  lormer.  One  ol  the  eighteen 
headUlentitted  by  Burkett  had  a  broken  horn,  and  another  the  letter  B  branded 

°Va  Drering,  lor  the  defence,  testified  that  the  delendant  was  his  son,  atid  | 
thai  if"  the  defendant  ever  owned  any  sheep,  he.  the  witness,  did  not  knovvit^i 
The  witness' family  ha.'  owned  a  small  flock  of  sheep  since  1875,  wh.ch  wa. 
started  Irom  a  pet  lamb  presented  to  some  one  ol  them  by  Captain  Gas.  Jonc8 
Two  or  three  other  sheep  were  alterwards  obtained  Irom  Sam  Moore,  and  a 
many  Irom  Dave  Williamson.    In  1880,  the  witness'  family  exchanged  a  buck 
Tnd  some  mutton  with  George  Johnson  for  six  ewes,  and  In  the  laU  ol  the  sam 
^ear  got  five  or  six  more  from  George  Johnson.    The  witness'  children  sold 
flock  of  about  sixty  l>ead  of  sheep  to  John  Hester,  and  he  Hester  and  Tob 
Deerin-  drove  them  ofi.    The  defendant  had  no  interest  in  those  sheep      There 
were  several  marks  among  tl^e  sheep,  but  they  were  all  in  the  same  b™°J.  ;;•';  [M 
was  the  letter  H  and  the  figure  four  connected.    That  was  ol  record.    The  wlM 
ness  hud  nothing  to  do  with  the  sheep,  an''.  V  r  -v  but  little  about  them 

On  his  cross  examination  the  witness  desc.      d  the  marks  and  brands  on  th 
sheep  belonging  to  his  family,  but  none  ol  them  corresponded  with  t^e  Burkett 
mark  and  brand.    These  sheep,  when  driven  Irom  the  house,  were  started  lu| 


:^^^{:^»tr-}if9^'>^''-^^-'^  ■^' 


.0^.  \^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


1.0 


145 


MM    |2.5 

150     ■^~       ■■■ 

1.1    l.-^KS 


Itil 


|,.25 

1 '  ^  1 '  ^ 

-• 

6"     

► 

V 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STRLiT 

WEBSTIR.N.Y.  M5S0 

(716)  S72-4S03 


'<^ 


'V- 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  MIcroreproductions  /  Instltut  Canadian  de  microreproductlons  historiques 


PROOF   INSUFFICIENT DEEUINO   V.  STATE. 


Gonzales  County,  about  eight  miles  from  where  they  were  stopped  by  Bv.rkett. 
Except  five  or  six  of  the  flock,  which  belonged  to  one  Spaulding  and  were  un- 
bnmded,  they  were  branded  in  the  H4  connected  brand. 

The  defendant's  brothei-in-Iaw,  J.  L.  Johnson,  testified  that  in  1879,  1880  and 
1881,  he  lived  with  the  defendant's  father.  The  Deering  family  owned  a  small 
flock  of  sheep,  in  which  the  defendant  neither  had  nor  claimed  an  interest.     In 

1878  the  witness  got  four  or  five  motherless  lambs  from  Sam.  Moore,  and  in 

1879  five  or  six  more  from  Will  Jones,  which  he  gave  to  old  Mrs.  Deering.  In 
1881  the  Deering  family  traded  a  buck  to  George  Johnson  for  five  or  six  head 
"  His  "  (Johnson's?)  brand  was  the  letter  H  with  the  cross-bar  elongated,  and 
when  the  Deerlngs  got  these  last  sheep  they  put  all  the  rest  in  that  brand.  The 
mark  was  a  smooth  crop  off  each  ear.  The  witness  h^re  corrected  himself,  and 
said  that  it  was  in  1882  they  got  the  sheep  from  Johnson.  The  Deerlngs  im- 
pn  ssert  the  letter  V  on  the  jaw  of  the  sheep.  Old  man  Deering  made  the  trade 
with  Hester,  in  the  presence  of  all  his  family  except  the  defendant. 

S.  S.  Gary  testified,  for  the  defence,  that  five  years  ago  the  Deerlngs  owned 
a  small  flock  of  sheep.  The  witness  understood  them  to  belong  to  Mrs.  Deering 
aiul  the  little  children,  and  that  the  defendant  had  no  interest  in  them. 

Leon  Kendall  testified,  for  the  defence,  that  he  had  seen  a  few  sheep  running 
around  the  Deering  place,  which  he  understood  to  belong  to  the  old  lady  and 
the  boys. 

A.  H.  Jonea  testified  that  the  young  Deering  children  claimed  some  sheep, 
but  he  had  never  known  the  defendant  to  claim  any.  They  got  a  few  lambs 
from  the  witness'  father  in  1874,  and  traded  a  buck  to  George  Johnson  for  five 
or  six  ewes. 

The  motion  for  new  trial,  which  included  the  questions  involv'cd  In  the  opin- 
ion, was  overruled. 

Hurt,  J.  Bart.  Burkett  lived  in  Gonzales  County;  and  in  the  spring  of  1881 
lost  about  one  hundred  head  of  sheep.  On  or  about  the  fifteenth  day  of  Novem- 
1)1  r,  same  year,  John  J.  Hester  and  Tobe  Deering  were  found  in  the  posse^slop 
of  eighteen  head  of  Burkett's  sheep,  Hester  stating  that  he  l.ad  purchased  them 
from  defendant.  Hill  Deering,  who  was  not  present.  Burkett  stopped  the 
sIm  ep,  putting  them  in  his  pen,  and  Hester  sent  for  defendant.  When  the  de- 
foiulant  arrived  he  stated  that  he  had  sold  the  sheep  to  Hester.  When  the  de- 
fciulant  first  arrived  he  said  the  sheep  were  his,  but  afterwards  said  in  same 
conversation  that  they  were  honest  property,  and  that  he  had  sold  them  for  his 
Utile  brothers.  An  agreement  was  made,  the  terms  of  which  were  that  Burkett 
was  to  "  let  Hester  go  on  with  the  sheep,  and  defendant  was  to  bring  suit 
apiiiist  Burkett  for  them,  Willis  Arrington  standing  security  to  Burkett  for  the 
same."  Defendant  did  not  sue  Burkett.  Hester  sold  the  sheep  to  Lee  Floyd, 
ami  Floyd  and  Burkett  arbitrated  the  matter,  Burkett  gaining  the  sheep,  and 
Fioyd  paid  him  for  them. 

Viewing  this  evidence  in  its  strongest  light  against  defendant,  what  docs  it 
prove?  First.  That  defendant  sold  the  sheep  to  Hester,  as  his  own  property, 
or  as  the  property  of  his  little  brother.  Second.  That  he  agreed  to  bring  suit 
a;?iiinst  Burkett  for  the  sheep,  but  failed  to  do  so.  A  most  thorough  scrutiny  of 
all  the  evidence  in  the  record  will  not  show  at  anytime  defendant  in  possession 
of  these  sheep.  On  the  other  hand,  when  we  take  in  consideration  the  testi- 
mony for  the  defence,  without  conflict  on  material  points,  the  confession  of  de- 
f<  :i(lant  "  that  he  sold  the  sheep  to  Hester  "  will  be  reconciled  with  his  perfect 
liuiocence. 

3  Dkfences.  88 


«• 


594 


LARCENY. 


by  defendant  must  be  proved  by  the  ^  ate  «uUi  UK,  g  ^^^^^  ^^ 

a  principal.    Does  tbe  lact  that  he  sold  the  f  ^^P'J™"  "'^     .,         ^  by  the 

'^'■^^''*"  .   «f  ti,p  phftree  is  we  think,  justly  complained  of  by 

The  seventh  paragraph  of  the  charge  is,  7^;"'     '  ^       '        .  .,  i,  the  jury 

Bheep,  then  and  in  that  event  .vha    ^l'°»\'»  "^J^^^^^^^^^  ^j„^,  „,'  t^e  jurors  from 
palpable  error  in  this  charge  con  Ists  in  l*"^^^'  -  ^  ™;°^j^i  defendant  fraudu- 
L  issue  ,nade  and  tendered  by  the  'f''^^ll';^^^%Sst,^^     u..e,  and 
lently  take  the  sheep  from  the  possession  of  B"'-\;";  ^^  f^^^  ,1,,  indictment, 
the  only  i.sue  which  could  bo  determined  ^^^  "'«  ^"f  "ion  of  this  main 
Other  inferior  issues  may  be  determined  in  order  to  J  d;<=^«^°^;;^    ^^^.,^, 
issue,  but  for  no  otlxer  purpose.    From  t»i^«  «»>"f  *^^  the  sheep  of  Burkett  to 
in  concluding  that  it  was  the  offense  of  theft  ^^fJ^lh^Lhe  legnl  right 
Hester,  unless  iu  good  faith  the  defendant  believed  '^l^l' ^;:^^X^^^^ 
to  do  so;  and  defendant's  honesty  in  ^i«  belief  in  regard  to  his  leg        g       ^^ 
Hell  18  made  the  issue  by  this  part  «* /^e  charge     Th,s  as  we  n  ^^^ 

error-the  issue  being  that  deftndai^t  fraudu  ently  took  the^^^^^^^^^ 
afnrmed  by  the  State  and  denied  by  tl^edeendant     This  must  be^^^^^^^^ 
State  to  sustain  a  conviction  on  this  ^-^^^'^^^'J.^'J^^  be  w'u  -tUy  a  con. 
or  fraudulent  connection  with  the  sheep,  whatevei  '*  "^y  '^«' ^'^'^^  unexplained, 
vlction  for  theft.    Possession  of  property  --tly  after  ^^  t^^^*;  ^^^  ^,  ,,,' 
19  used  for  the  purpose  of  proving  that  the  p.irty  ««  >    ^  ,      ^^^      j,, 

fraudulent  taker.    A  party  being  so  in  ^^^'''''Z'ZJl^ZL  the  party 

possession,  butfrom  «"«  Po--^^-  ^^^^  ^^aJ"^^^^^^^^^^  "^ 

who  fraudulently  took  the  property.    We  are  °«*  P^'-l^'^f  J"    ^^^  ^^^^y,  ^  can 
given  to  recent  possession  of  stolen  property,  for  the  purpose 

'•^  F:fthe  error  In  the  charge,  and  because  the  verdict  Is  not  supported  by  the 
evidence,  the  judgment  ,s  reversed  and  the  cause  -man^^^d^^^^  ^^  ^^^^^^^^ 

1  UTex.  (App.)  175(1883). 


PROOy   IN'SUFFICIEXT  —  DRKSCH   V.  STATE. 


595 


.    The  taking 
onstitute  him 
ths  alter  they 
!  urged  by  the 
,    What  i3  it? 
brands?    Did 
heory,  but,  on 
point,  or  facts 
The  Reporter 
;8  to  have  been 
It?    We  thinii 
n  precisely  the 
)t  support  the 

nplaincd  of  by 
:  «'lf  tlie  jury 
d  in  good  laitli, 
ester,    ♦    ♦    • 
dm."    Butsup- 
nt  did  not  hon- 
}  dispose  of  the 
of  course.    The 
the  jurors  from 
'fendant  fraudu- 
18  the  issue,  and 
the  indictment. 
Ion  of  this  main 
)uld  be  justified 
3p  of  Burkett  to 
d  the  legnl  right 
his  legal  right  to 
we  have  said,  is 
sheep.    This  was 
be  proved  by  the 
sequent  felonious 
will  justify  a  con- 
ie(t,  unexplained, 
sseasion  was  the 
shed  for  being  iu 
t  he  was  the  party 
a  the  weight  to  be 
I  for  which  it  can 

;  supported  by  the 

id  and  remanded. 

1  Dresch  v.  State,^ 
goats,  of  the  value 


of  one  dollar  per  head,  the  property  of  Frank  Gaines,  In  Maverick  County, 
Texas,  on  the  twenty-flfth  day  of  September,  1881.  The  punishment  assessed 
aijiiinst  him  by  a  verdict  of  guilty  was  a  fine  of  twenty-flve  dollars  and  couflne- 
iiient  in  the  county  jail  for  one  day. 

The  substance  of  the  testimony  of  Frank  Gaines,  the  first  witness  for  the 
State,  was  that  on  or  about  the  twenty-flfth  day  of  Septemijer,  1881,  he  lost' 
.seven  head  of  goats  from  his  herd.  He  found  his  animals  in  a  herd  of  goats 
reputed  to  be  the  property  of  the  mother  of  the  defendant,  and  which  at  that 
time  was  under  the  charge  of  the  defendant.  These  animals,  which  the  witness 
lost  and  afterwards  found  in  Mrs.  Drcsch's  flock,  included  six  "  nannies  "  and 
one  "billy,"  worth  In  the  aggregate  at  least  seven  dollars.  He  recognized 
tliem  by  their  flesh  mark,  and  the  '♦  billy  "  as  well  by  his  ear  mark,  notwith- 
standing It  had  been  clianged.  He  demanded  his  property,  and  tlie  defendant 
said  that  he  would  first  speak  to  his  mother  and  then  deliver  the  goats  to  the 
witness.  These  and  other  goats  of  the  witness  were  under  the  cliarge  of  the 
witucfss' son  as  herder.  Witness  did  not  give  his  consent  to  any  one  to  take 
those  goats,  nor  did  he  authorize  his  sou  to  consent  to  such  taking.  He  recov- 
ered these  goats  next  day  under  a  writ  of  sequestration. 

Cross-examined,  the  witness  stated  that  the  six  "nannies  "  taken  under  the 
writ  of  sequestration  were  his.  They  were  all  white.  There  were  a  great 
many  white  goats  of  the  size  and  age  of  these  six  In  Mrs.  Drench's  herd  when 
these  were  taken,  but  nevertheless  the  witness  knew  that  these  six  were  his. 
He  knew  the  «'  billy  "  goat  was  his,  and  he  was  mad  because  his  mark  had  been 
changed.  All  of  Mrs.  Dresch's  goats  had  been  freshly  marked.  Witness  did 
not  see  the  defendant  mark  them.  The  goats  were  returned  to  the  defendant 
8iil)sequent  to  their  seizure  under  the  writ  of  sequestration.  The  writ  of  se- 
questration was  issued  in  a  suit  instituted  by  the  witness  against  the  defendant. 
Witness  was  mad,  and  did  not  wait  to  hear  what  Mrs.  Drescli  had  to  say  about 
his  demand  for  the  goats.  The  written  testimony  of  the  witness  on  the  exam- 
ining trial  was  read,  and  dlclo.sed  a  conflict  with  his  present  testimony  as  to  the 
time  he  lost  his  goats,  and  as  to  the  total  number  lost. 

J.  W.  Yates,  deputy  sheriff,  testified  that  in  September,  1881,  he  seized 
seven  goats  from  the  herd  of  the  defendant  under  a  writ  of  sequestration  is- 
sued by  Judge  Terry,  a  justice  of  the  peace.  In  a  suit  instituted  by  Frank 
Gaines  against  the  defendant.  These  goats  were  pointed  out  to  the  witness  by 
Gaines.  Witness  kept  them  a  long  time  under  the  writ  of  sequestration,  and 
finally  returned  them  to  the  defendant  under  an  order  of  court. 

Miguel  Leal  testified,  for  th  State,  that  he  sold  Frank  Gaines  a  "  billy  "  goat 
a  long  time  before  this  trial.  The  goat  was  then  In  the  witness'  mark.  Wlt- 
ners  subsequently  saw  the  same  goat  In  possession  of  the  sheriff.  He  was  then 
in  a  different  mark.  The  witness  did  not  know  the  mark  of  either  Gaines  or 
Mrs.  Dresch,  and  knew  nothing  of  this  alleged  theft. 

The  substance  of  the  testimony  of  Mrs.  Gaines  was  that  seven  head  of  goats 
belonging  to  herself  and  Frank  Gaines  were  lost  about  the  time  alleged,  and 
were  subsequently  found  In  the  defendant's  herd.  She  identified  those  lost  and 
tliose  found,  as  described,  as  the  same  identical  goats. 

Mrs.  V.  Dresch  was  the  first  witness  for  the  defence.  She  testified  that  the 
defendant  was  her  son.  She  owned  a  herd  of  goats  in  September,  1881.  Vic- 
tvtriano  41eman  had  cared  for  them  on  tlie  shares  for  three  years  previously,  and 
had  returned  them  to  her  about  the  last  of  August,  1881.  For  two  days  there- 
after they  were  In  charge  of  the  defendant  as  agent  for  the  wtnees,  and  subse- 


596 


LARCKNY. 


quent  to  that  time  they  were  in  cliarge  of  oue  Antonio  as  herder.  In  Septem- 
ber, 1881.  Mr.  Dell  came  to  the  witness  and  told  her  that  her  goats  and  his  had 
got  mixed,  and  tiiat,  because  or  the  slinilurity  of  marlis,  he  found  great  difll- 
culty  iu  separating  tiieni,  and  he  a>^kod  tlie  witness  to  have  the  marks  on  her 
goats  changed.  The  witness  directud  tiiL«  defendant  to  change  the  mariis,  auci  he 
accordinj^ly  did  so.  Late  in  the  same  month  Franlc  Gaines  told  the  witness  that  he 
had  lost  some  goats  and  believed  that  they  were  in  witness'  herd.  He  described 
them  at  tlie  request  of  the  witness,  and  the  witness  said  to  him:  "  Frank,  you 
have  lost  some  goats,  and  as  you  can  not  find  them,  you  want  to  make  your 
number  good  out  of  my  herd."    Gaines  laughed,  saiti  "yes,"  and  went  off. 

On  the  next  morning  Gaines  came  with  tlie  slieriff  to  the  witness'  lierd  and 
took  seven  of  her  goats.  These  included  six  small  nannie  goats,  the  offspring 
of  mother  goats  wliich  belonged  to  tlie  witness.  These  mother  goats  cried  for 
the  "  nannies  "  long  after  tliey  were  taken,  and  tried  to  follow  them.  The 
"  nannies  "  taken  by  tlie  sheriff  belonged  to  the  witness,  as  did  the  whole  herd. 
Frank  Gaines  owned  no  interest  In  the  goats  taken— they  were  wholly  and  ab- 
solutely the  property  of  the  witness. 

F.  C.  Dell  testilled,  for  the  defence,  that  he  knew  Mrs.  Dresch's  herd  of  goats 
well.  They  became  mixed  with  bis  herd  on  tliree  separate  occasions  which  the 
witness  mentioned,  and  their  separation  involved  a  great  deal  of  trouble  on  ac- 
count of  the  similarity  of  marks.  The  defendant  did  not  know  his  mother's  goats 
from  those  of  the  witness  when  they  were  mixed,  and  the  latter  had  to  point 
out  to  him  the  ones  to  take.  Witness  demanded  that  the  efendant  change  thf 
marks  on  his  mother's  goats.  One  day  Frank  Gaines'  g^  i  got  mixed  with  the 
witness'  herd,  and  they  had  a  great  deal  of  trouble  separating  them,  as  both 
herds  were  large.  About  the  time  that  he  and  Gaines  got  their  herds  separ- 
rated,  Mrs.  Dresch's  herd  ran  Into  the  witness'  herd,  and  were  again  separated 
with  great  trouble.  This  was  the  third  and  last  mixture.  Witness  got  mad  and 
sent  Mrs.  Drescli  word  that  he  insisted  on  her  having  the  marks  changed  so 
that  their  respective  marks  could  be  readily  distinguished.  The  witness  knew 
nothing  of  the  defendant  marking  any  of  Gaines'  goats. 

Edwardo  Jiniinez  testified,  for  the  defence,  that  he  was  present  when  the 
sheriff  took  the  six  small  ♦<  nanny  "  goats  from  Dresch's  herd,  and  lie  knew  that 
the  mothers  of  the  "  nannies  "  were  left  in  the  herd.  They  cried  for  the  young 
"  nannies  "  when  they  were  taken,  and  tried  to  follow,  and  were  still  crying  for 
them  two  days  later,  when  witness  and  others  drove  the  herd  across  the  river. 
Witness  helped  defendant  to  mark  part  of  his  mother's  goats  one  afternoon. 
He  knew  nothing  of  Gaines'  "  billy"  goat  being  in  Mrs.  Dresch's  herd  at  that 
time. 

WiLi-soN,  J.  *  •  •  There  are  other  errors  apparent  from  the  record 
which,  In  our  opinion,  would  demand  a  reversal  of  the  judgment.  It  appears 
from  the  evidence  that  the  goats  which  were  alleged  to  have  been  stolen  by  tlie 
defendant  were,  at  the  time  of  the  taking  thereof,  in  the  possession  and  under 
the  care,  management  and  control  of  the  alleged  owner's  son,  and  yet  there  is 
no  evidence  that  the  goats  were  taken  without  this  son's  consent.  Such  evi- 
dence we  think  was  necessary.'  We  think,  furthermore,  that  the  evidence  is 
Insufficient  to  support  this  conviction.  It  fails  to  show  with  any  degree  of  cer- 
tainty a  fraudulent  intent  In  taking  the  goats,  conceding  that  defendant  did  take 
tbeui.    But  one  of  the  goats,  the  old  "billy,"  was  certainly  identified  as  the 

1  WUion  r.  Stat4, 13  Tex.  (App.;  481. 


"  '- 


1 


PnoOF   INSUFFICIENT  —  OKKKN    V.  STATE. 


597 


In  Septem- 
aud  Ills  had 
i  great  difll- 
larka  ou  her 
arks,  aiKi  lie 
tiieaM  that  he 
le  described 
<  Frauk,  jou 
>  make  your 
i^ent  oS. 
33'  lierd  and 
.he  ollMpring 
Its  cried  for 
them.  The 
whole  herd, 
lolly  and  ab- 

icrd  of  goats 
us  which  the 
ouble  on  ac- 
Dther's  goats 
bad  to  point 
t  change  thp 
xed  with  the 
em,  as  both 
herds  separ- 
lin  separated 
got  mad  and 
I  changed  so 
vitness  knew 

nt  when  the 
he  knew  that 
or  the  young 
ill  crying  for 
ss  the  river, 
le  afternoon, 
herd  at  that 

the  record 
It  appears 
stolen  by  tlie 
m  and  under 
I  yet  there  is 
t.  Such  evl- 
(  evidence  is 
legree  of  cer- 
dant  did  take 
itlfled  as  the 


property  of  Frank  Gaines,  the  alleged  owner,  except  by  the  testimony  of  Frank 
Gaines  and  his  wife,  who,  it  is  true,  stated  that  the  "  nanny  "  goats  belonged  to 
them,  but  failed  to  identify  them  by  any  particular  marks.  Under  the  circum- 
stances of  this  case  this  evidence  of  ownership,  to  say  the  best  of  it,  should  be 
considered  cau'iously,  and  not  received  with  Implicit  confidence.  While,  how- 
ever, it  may  be  admitted  that  the  goats  were  the  property  of  Frank  Gaines,  as 
charged,  still  we  think  there  is  a  total  want  of  evidence  proving  or  even  tending 
to  prove  that  the  defendant  look  tliera  with  the  fraudulent  Intent  to  deprive  the 
owner  of  tlie  value  thereof,  and  to  appropriate  the  same  to  his  own  use.  We 
tliiiik  the  evidence  reasonably  shows  tlie  contrary,  that  the  goats  in  question  got 
into  the  flock  which  defendant  had  charge  of,  without  his  knowledge  or  consent, 
aiul  that  whatever  ownership  he  exercised  over  them  was  under  the  bona  fide  be- 
lief that  they  belonged  to  the  flock  of  goats  of  which  he  at  the  time  had  charge, 
Tiie  judgment  is  reversed  and  the  caused  is  remanded. 

Reversed  and  remanded. 

§  SfiS.  Bvldence  InauSlclent  to  Convict  —  Green  v.  State.  —  In  Green  v. 
Stutp,i  tlie  Indictment  charged  the  appellant  with  theft  of  a  saddle,  bridle,  and 
lialter,  worth  $20,  the  property  of  T.  J.  Fields.  By  the  verdict  of  conviction  the 
punishment  was  assessed  at  a  term  of  two  years  in  the  penitentiary. 

T.J.  Fields,  for  the  State,  testified  that  about  the  1st  of  Au^just,  1881,  at 
night,  he  went  to  a  church  at  Blooming  Grove,  in  Navarro  County,  on  horse- 
hack,  and  was  riding  a  full-rigged,  red  leather,  oil-tanned  saddle,  worth  $22  or 
823.  He  hitched  his  horse  to  a  fence,  about  two  hundred  yards  from  the 
church.  Defendant  was  at  the  church  that  night,  and  for  a  while  was  sitting  In 
a  waijon  In  front  of  the  church,  along  n'lth  witness  and  others.  Witness  went 
dowu  to  his  horse,  ana  while  there  saw  the  defendant  approaching.  Defendant, 
as  soon  as  he  saw  the  witness,  stopped,  and  witness  went  up  to  him,  and  they 
rcturued  together  to  the  church  door  where  witness  stopped.  The  last  he  saw 
of  the  defendant  that  night,  the  lattei  left  the  church  door  and  went  out  in 
front,  in  the  direction  of  witness's  h->rse.  When  witness  started  home,  his 
horse  and  accoutrements  were  gone.  Witness  had  tied  him  securely,  and  did 
not  think  he  got  loose.  He  recovered  the  horse  the  next  day,  but  did  not  find 
his  saddle  until  some  three  weeks  afterwards,  when  he  found  it  in  the  posses- 
sJMi  of  a  young  man  named  Brown,  in  Limestone  County,  about  two  miles  no.  th 
of  Groesbeck.  It  did  not  have  the  stirrups  to  it.  Part  of  witness'  bridle  and 
halter  were  also  in  Brown's  possession.  The  stirrups  and  the  rest  of  the  bridle 
witness  found  at  Simmons'  livery  stable  in  Mexla,  and  the  rest  of  the  halter  In 
possession  of  another  person  near  Mexia.  The  defendant  knew  or  miglit  have 
known  witness'  horse  and  saddle.  On  cross-examination  the  witness  said  he 
had  known  the  defendant  seven  years,  and  lived  four  or  five  miles  from  him. 
Witness  saw  other  persons  besides  the  defendant  walking  around  among  the 
horses  near  the  church.  So  far  as  witness  could  say,  the  defendant  knew  no 
more  about  the  horse  and  saddle  than  any  other  young  men  in  the  neighbor- 
hood. There  were  other  saddles  of  the  same  sort  in  the  vicinity.  Witness  did 
not  know  whether  the  defendant  had  left  the  church  when  witness  missed  his 
horse  and  saddle.  The  fence  was  tlie  only  hitching  place  near  the  church,  and 
there  were  many  horses  hitched  to  It  and  between  witness'  horse  and  the 


1  18  T«x.  (App.)  51  (1832). 


598 


LAKCENV. 


church.    If  defendant  had  a  horse  there,  he  must  have  hltcuod  it  beyond  wit- 
ness' from  tlie  church. 

Willie  Brown,  for  the  State,  testified  that  in  August,  18S1,  the  defendant 
came  to  the  bouse  of  witness'  father,  two  miles  north  of  Oroesbeck,  on  the 
road  to  Mv.\ia.  lie  came  a)>ouc  half  past  eleven  in  the  forenoon  and  aslced  for 
dinner  and  to  have  his  horse  fed.  His  horse  was  fed,  l)ut  he  did  »iotget  dinner, 
there  being  sickness  In  the  family.  He  said  he  was  going  to  flill  County.  He 
was  riding  a  sorrel  mare,  and  proposed  to  trade  saddles  with  witness.  They 
swapped  saddles,  and  witness  also  traded  part  of  his  bridle  and  halter  for  par- 
of  defendant's.  When  the  defendant  left  he  inquired,  and  witness  told  him  tiie 
way  to  Mr.  Winston's,  and  he  started  in  that  direction,  which  was  also  the 
direction  of  Mexia.  The  saddle  witness  got  from  the  defendant,  was  a  fuil- 
rlgged,  red  leatlier,  oil-tanned  saddle,  worth  twenty  dollars,  and  the  bridle  and 
halter  were  worth  two  dollars.  The  saddle  the  defendant  got  from  witness  was 
worth  fourteen  or  fifteen  dollars. 

On  cross-examination,  the  witness  stated  that  defendant  said  he  wanted  to 
swap  saddles,  because  his  mare's  back  was  sore,  and  he  wanted  a  lighter  sad- 
dle. The  mare's  back  was  sore,  and  defendant's  saddle  was  a  heavier  one 
than  the  saddle  witness  traded  him.  Mr.  Winston  lives  in  the  neihgborhood, 
and  is  a  well  known  man. 

W.  Jordon,  for  the  State,  testified  that  he  lived  about  two  miles  south  of 
Groesbeck.  A  short  time  before  the  defendant  was  arrested,  he  came  by  wit- 
ness' house,  and,  ns  witness  thought,  stayed  all  night.  Pie  said  he  lived  in  Hill 
County,  and  was  on  his  way  to  Austin  to  see  his  sister.  To  come  by  witness' 
house  In  traveling  from  Hill  County  to  Austin,  would  be  a  long  distance  out  of  the 
way.  (To  this  evidence  the  defence  objected  on  the  ground  of  Irrelevancy,  but 
the  objection  was  overruled,  and  the  defence  excepted.)  Defendant  said  his 
saddle  cost  him  tweuty-flve  dollars.  When  he  left  witness'  house  he  started 
towards  Groesbeck,  which  was  not  the  way  to  Austin.  This  was  some  time  in 
August,  1881. 

Tom  Whatley,  for  the  State,  testified  that  he  lived  about  a  mile  south  oi 
Groesbeck,  and  thought  he  had  met  the  defendant  between  home  and  Groesbeck 
after  the  latter  had  left  the  public  road  and  taken  a  wood-road.  Witness  told 
the  defendant  he  could  not  get  through  that  way,  and  defendant  replied  that  lie 
thought  he  would  save  distance  by  taking  that  route.  To  this  evldfence  the  de- 
fence objectt '  that  it  was  irrelevant  and  calculated  to  mislead  the  jury,  and 
the  objections  being  overruled,  the  defence  reserved  exceptions. 

J.  W.  Simmons  for  the  State,  testified  that  he  kept  a  livery  stable  in  Mexia. 
Some  tlTie  in  August,  1881,  the  defendant  came  to  the  stable,  riding  a  black 
EWilm-tree  saddle,  which  had  stirrups  that  did  not  correspond  with  the  saddle. 
Defendant  told  witness  he  had  traded  saddles  the  preceding  day.  The  stirrups 
had  red  leather  housings.  Afterwards  a  young  man  named  A.  J.  Fields,  came 
with  a  saddle  which  corresponded  with  the  stirrups  on  the  Swalm-tree  saddle 
ridden  by  the  defendant.  The  saddle  ridden  by  Fields  was  a  red  leather,  oil- 
tanned  saddle,  worth  about  twenty-five  dollars.  Fields  also  brought  with  him 
a  part  of  a  bridle  which  corresponded  with  portions  of  a  bridle  left  at  the  stable 
by  the  defendant.  The  defendant  said  he  had  made  a  crop  about  twelve  miles 
southwest  of  Mexia. 

For  tiie  defence  the  first  witness  introduced,  was  Jesse  Green,  a  brother  of 
the  defendant,  vvlio  stated  that  he  remembered  when  Mr.  Fields  is  said  to  have 
lost  his  saddle,  and  was  at  the  church  the  night  it  was  reported  to  have  been  lost. 


PROOF   INSUFFICIENT GREEN   V.  STATE. 


599 


iod  It  beyond  wlt- 

)81,  the  defendant 
Oroesbeck,  on  the 
loon  and  asked  for 
did  »)otget  dinner, 
)  Hill  County.  He 
1th  witness.  Tliey 
and  halter  for  par- 
itness  told  him  tlie 
liich  was  also  the 
endant,  was  a  fuU- 
and  the  bridle  and 
t  from  witness  was 

:  said  he  wanted  to 
tnted  a  lighter  f>a(l- 
iras  a  heavier  one 
the  nelhgborhood, 

wo  miles  south  of 
sd,  he  cume  by  wit- 
said  he  lived  In  Hill 
'o  come  by  witness' 
:  distance  out  of  the 
of  Irrelevancy,  but 
Defendant  said  his 
s'  house  he  started 
8  was  some  time  in 

ut  a  mile  south  of 
ome  and  GroesbecR 
'oad.  Witness  told 
lant  replied  that  he 
tils  evldfence  the  de- 
islead  the  jury,  and 
ons. 

ery  stable  in  Mexia. 
ihle,  riding  a  black 
>nd  with  the  saddle. 

day.  The  stirrups 
d  A.  J.  Fields,  came 
i  Swaim-tree  saddle 
is  a  red  leather,  oil- 
lo  brought  with  him 
die  left  at  the  stable 

about  twelve  miles 

Green,  a  brother  of 
ields  Is  said  to  have 
ed  to  have  been  lost. 


Dave  Peveyhouue,  Frank  Simpson,  the  defendant  and  the  witness  went  to  the 
ihiircii  together  on  horseback.  Before  they  started  to  church,  their  horses 
wore  liitclied  to  trees  in  the  yard,  and  a  little  before  sunset  a  man  rode  up  to 
the  gate  on  a  sorrel  mare  and  leading  u  gray  horse.  He  Inquired  where  he 
could  get  water  for  his  animals,  and  was  directed  by  the  defendant  to  an  old 
will  about  three  hundred  yards  distant.  The  man  Inquired  If  any  of  those 
lirLsout  liad  any  trading  stock,  and  said  his  mare's  back  was  sore,  and  lie 
wanted  to  trade  her  off;  to  which  the  defendant  replied  that  he  had  a  horse  he 
would  trade.  The  man  said  hu  would  camp  at  the  well,  and  told  the  defendant 
to  l)riiig  his  horse  there  the  next  morning.  Witness  and  the  defendant,  with 
tlieir  companions,  then  went  to  the  church.  Mr.  Fields  was  there,  and  witness 
saw  him  at  one  time  In  a  wagon  with  others,  and  afterwards  saw  him  at  the 
door  of  the  c'.mrch.  Defendant  and  his  party  remained  until  the  services  were 
over,  and  then  returned  home  together.  Before  leaving  the  ground,  but  after 
the  services  had  closed,  the  witness  heard  some  one  say  that  Mr.  Field's  horse 
had  gjt  loose  with  the  saddle  on  him.  About  sunrise  the  next  morning,  the 
(lefondant  took  his  bay  horse,  and  accompanied  by  witness  and  Frank  Simpson, 
went  down  to  the  well  and  traded  his  horse  to  the  man  for  the  sorrel  mare,  the 
bridle,  halter,  l)lanket  and  saddle,  giving  thirty  dollars  in  money  to  boot.  The 
saddle  was  a  full-rigged,  red-leather,  oU-tanned  saddle.  The  mare's  back  was 
a  little  ^ore.  The  man  gave  his  name  as  Southerlaui;  he  was  about  five  feet 
ten  inches  high,  dark  complexion,  had  a  mustache,  and,  witness  thought,  a  lit- 
tle chin  whiskers.  For  some  time  previous,  the  defendant  had  been  talking 
about  leaving  home  and  he  had  fixed  to  start  on  the  day  he  traded  with  Souther- 
laud.  Defendant  sometimes  sports,  and  was  going  off  to  cee  if  he  could  find  a 
fiame  of  cards.  Ho  had  taken  such  trips  once  or  twice  before.  After  breakfast 
on  the  day  he  made  the  trade,  he  left  on  the  mare  and  saddle  he  got  from 
Southerland,  and  said  he  was  going  to  Waco  and  probably  to  Mexia.  On  cross- 
examination,  the  witness  said  he  saw  Southerland  when  he  first  rode  up,  had 
never  seen  him  before,  did  not  know  where  he  lived,  nor  hear  him  say  where  he 
was  going.  Witness  did  not  know  Mr.  Field's  saddle,  and  thought  his  brother, 
the  defendant  did  not. 

Frank  Simpson,  for  the  defence,  testified  that  he  knew  Mr.  Fields,  and 
remembered  tlie  night,  about  August  1,  1881,  on  which  the  latter's  horse  and 
saddle  were  said  to  have  been  taken  from  the  church.  In  the  evening  of  that 
day  the  witness,  who  lived  near  Blooming  Grove,  was  at  the  house  of  the 
defendant's  mother.  About  half  an  hour  before  sunset  a  man  rode  up  to  the 
p[ate  and  inquired  for  stock  water.  Some  of  the  boys  directed  him  to  go  to  an 
old  well  two  or  three  hundred  yards  off.  Witness  and  the  other  young  men 
were  ready  to  go  to  church,  and  had  their  horses  hitched  to  trees  In  the  yard. 
The  man  who  came  up  to  the  gate  was  riding  a  sorrel  marc  and  leading  a  gray 
hiirse.  He  said  his  mare's  back  was  sore,  and  inquired  if  any  of  those  present 
had  a  horse  to  trade.  The  defendant  told  him  he  had  a  horse  he  would  trade, 
and  the  man  told  him  to  bring  the  horse  down  the  next  morning.  Shortly 
afterward,  the  wlness,  with  Dave  Peveyhouse,  Jesse  Green  and  the  defendant 
went  to  the  church,  hitched  their  horses  to  the  fence,  remained  until  the  services 
were  over,  and  then  returned  together  to  the  house  of  defendant's  mother,  and 
witness  stayed  there  ail  night.  The  next  morning  witness  and  the  others  went 
down  to  the  well  where  the  man  was  camped.  The  defendant  took  with  him  a 
bay  horse-pony  he  had.    The  man  was  of  a  dark  complexion,  above  medium 


600 


LARCENY. 


height,  had  a  black  mustache,  and  said  his  name  was  SouthiTland.  Defendunt 
traded  his  buy  pony  to  the  man  for  the  sorrel  niare,  the  bridle,  halter,  blaiikut, 
and  a  red  leather,  oll-tanncd,  fuU-rlgged  saddle,  paying  the  man  thirty  dollars 
in  money  to  boot.  After  breakfast,  the  defendant  left,  riding  the  mure  and 
saddle  he  had  traded  for;  he  said  he  was  going  to  Waco, and  probably  to  Mexia, 
Cross-examined,  the  witness  stateu  that  he  was  sitting  on  the  porch  at  defi  nd- 
ant's  motl'.cr's  when  the  man  rode  up  to  the  gate,  which  was  twenty  or  thirty 
steps  distant  from  the  porch.  He  could  see  the  man  plainly,  but  did  not  notice 
how  many  saddles  he  had.  The  county  attorney  asked  the  witness  if  he  and 
defendant's  brother  Jesse  bad  not  made  up  this  story  fur  the  purpose  of  acquit- 
ting the  defendant ;  to  which  the  witness  replied  that  they  had  done  no  such 
thing. 

The  defence  proposed  to  prove  that  several  neighbors  of  Frank  Simpson  and 
and  Jesse  Green  were  present  in  court,  and  tJ:;it  two  of  them  had  been  broufiht 
there  by  the  prosecution,  —  the  object  being  to  show  that  the  State  had  the 
means  of  assailing  the  reputation  of  Simpson  and  Jesse  Green  in  the  regular 
way.  Tlie  court,  on  objection  of  the  State's  counsel,  excluded  the  proof,  and 
the  defence  excepted,  but  reserved  no  separate  bill  of  exceptions.  The  defence 
also  proposed,  but  was  not  allowed,  to  prove  that  the  defendant  was  an  expert 
at  card.>4;  and  excepted  in  like  manner. 

C.  B.  Poarre,  Esq.,  was  introduced  by  the  defence,  and  stated  that  he  lived 
at  Waco,  and  had  heard  the  description  given  of  the  man  Southerlund  by  the 
witnesses  Simpson  and  Jesse  Green.  Witness  had  known  a  man  named  South- 
erland  in  McLennan  County,  who  was  above  medium  height,  had  a  dark  com- 
pU'xion,  a  black  mustache,  and  some  chin  whi.skers.  Southerlund  had  left 
McLennan  for  Navarro  County  over  a  year  before  the  trial.  On  cross-examina- 
tion the  witness  stated  that  he  heard  Simpson  and  Jesse  Green  state  the  name 
and  description  of  the  man  Southcrland,  before  he,  the  witness,  made  known 
that  he  knew  such  a  man,    Southerland  had  a  wife  and  children. 

White,  P.  J.  Because  of  the  Insufficiency  of  the  evidence,  the  judgment  is 
reversed  and  the  cause  remanded. 

§  66G.  Evidence  InsufSolent  to  OonTict  —  Hammellv.  State.  —  In  Hammell 
T.  State,^  the  indictment  charged  the  appellant  with  the  theft  of  thirty-four 
dollars  from  the  person  of  W.  W.  Glover,  in  the  county  of  Falls,  on  the  eighth 
day  of  March,  1883.  The  penalty  Imposed  by  a  verdict  of  guilty  was  a  term 
of  two  years  in  the  penitentiary. 

Jay  Gammel,  city  marshal  of  Marlin,  was  the  first  witness  for  the  State.  He 
testified  that  he  saw  the  defendant  on  the  streets  of  Marlin,  Texas,  two  or 
three  times  prior  to  the  eighth  day  of  March,  1883.  Witness  knew  W.  W. 
Glover  at  that  time.  Glover  Is  now  dead.  On  the  Monday  morning  of  the 
week  of  Glover's  death,  the  witness  arrested  him,  Glover,  for  drunkenness. 
Before  confining  him  in  the  calaboose  the  witness  took  from  his  person  one 
much-worn  and  somewhat  mutilated  ten-dollar  United  States  currency  bill,  one 
new  twenty-dollar  United  States  silver  certificate  bill,  four  silver  dollars,  and 
forty  cents  in  small  silver  change.  One  corner  of  the  ten  dollar  bill  was  some- 
what torn.  Glover  was  then  very  drunk.  When  he  sobered  up  that  evening 
between  three  and  four  o'clock,  the  witness  took  him  before  the  mayor  for  trial. 


1  U  Tex.  (App.)  326  (1883). 


PROOF   INSUFFICIENT  —  HAMMELI,   V.  STATK. 


«01 


ind.  Defendant 
,  halter,  ))lui)kL'i, 
an  thirty  dollars 
g  the  mure  uiul 
■obubly  tu  Mexiu. 
porch  at  defuul- 
tweiity  or  thirty 
ut  did  not  notice 
witness  if  he  and 
urpose  of  acquit- 
lad  done  no  such 

ank  Simpson  and 
lad  been  broufiht 
;he  State  harl  the 
en  in  the  regular 
ad  the  proof,  and 
ns.  The  defence 
int  was  an  expert 

ted  that  he  lived 
tutherland  by  the 
an  named  South- 
had  a  darlc  coni- 
berland  had  left 
)n  cross-examina- 
:n  state  the  name 
ess,  made  l<nown 
n. 
the  judgment  is 


te.  —  In  Hammell 
ft  of  thirty-four 
lis,  on  the  eighth 
lilty  was  a  term 

or  the  State.  He 
n,  Texas,  two  or 
ess  knew  W.  W. 
y  morning  of  the 
for  drunkenness, 
n  his  person  one 
currency  bill,  one 
liver  dollars,  and 
lar  bill  was  some- 
1  up  that  even-inK 
le  mayor  for  trial. 


The  trial  was  postponed,  and  Olover  gave  bon.l  for  his  appearance  and  «a«. 
relrased,  wh.reupon  the  witness,  in  the  prepuce  of  Rli.yor  Slalton,  rei.inied 
till'  Ml.  iK'y  tle.scrlbed,  which  Glover  put  in  a  hmall  tobacco  suck.  The  witness 
next  saw  Glover  very  drunk  in  Lew.  Stewart's  saloon.  This  was  about  ei-ht 
or  nine  o'clock  that  night.  He  claimed  then  to  have  lost  his  money  and 
r.-<,uL.8ted  the  witness  to  nu,ke  search  for  it.  This  part  of  the  testimony  of  .he 
witness  was  admitted  over  the  defendant's  objection.  The  witness  next  saw 
iiiin  about  midnight  lying  in  the  street  very  drunk,  arrested  iTlm  agiln  and  put 
hin.  in  the  calaboose.  The  next  day  Mr.  Glover  was  fined  for  drunkenness, 
iiMil,  ns  he  had  no  money  with  which  to  pay  the  flue,  the  witness  went  with 
Inni  10  borrow  the  amount.  On  the  day  after  Glover  claimed  to  have  lost  his 
money,  the  witness  arrested  the  defendant  and  found  on  his  person  four  or  Hve 
doliais  In  silver. 

Mayor  Shelton  testifled,  for  the  State,  that  the  alleged  injured  person,  W. 
VV  (.lover,  died  in  Marlln  Falls  County,  Texas,  on  or  about  the  eighth  day  of 
March,  1883.  A  few  days  prior  to  his  death  the  deceased,  W.  W.  Glover  was  in 
tile  town  of  Marlln,  drinking,  and  was  brought  before  the  witness'  court,  and 
released  on  bond  to  answer  a  charge  of  drunkenness.  Marshal  Gammcl,  who 
had  taken  the  money  described  in  the  indictment  from  Glover,  before  putting 
him  in  the  calaboose,  returned  to  him.  Glover,  the  money  described,  and  Glo- 
ver placed  that  money  in  a  small  cloth  tobacco  sack.  This  took  place  In  the 
presence  of  the  witness,  and  the  witness  gave  the  same  description  of  the 
money  as  that  given  by  Gammel.  The  next  day  G.-  er  was  before  the  witness' 
conrt  again  on  a  charge  of  drunkenness.  He  pleaded  guilty,  but  said  that  he  had 
lost  his  money,  and  thought  that  perhpps  some  of  his  friends  had  taken  it  He 
was  permitted  to  go  to  see  his  friends,  but  shortly  returned  and  said  that  he 
could  not  find  his  money.  He  thought,  however,  that  he  could  borrow  the 
amount,  and  left  the  court  room  in  charge  of  the  officer  for  that  purpose  He 
shortly  returned,  paid  his  line,  and  was  discharged.  This  was  on  the  day  after 
Cunn.el  had  returned  him  his  money.  The  witness  next  saw  Glover  on  the  day 
following  in  Rinkelraan's  saloon,  dead.  Witness  had  his  body  searched,  and 
found  about  a  dollar  and  a  half  on  his  person. 

Lew  Stewart  testifled,  for  the  State,  that  he  knew  the  deceased  Glover  well 
in  his  lifetime,  and  also  knew  Anderson,  who  died  a  few  days  after  Glover  did 
au,l  for  a  few  days  prior  to  Glover's  death  had  seen  the  defendant  about  the 
streets  of  Marlln.  On  Tuesday  evening  before  Glover's  death,  at  about  seven 
0  clock.  Glover,  Anderson,  and  the  defendant  stopped  int..  the  witness'  sa- 
loon, and  the  defendant  called  for  drinks.  Glover  and  Anderson  were  very 
drunk,  but  the  defendant,  who  was  by  far  the  most  sober  of  the  three,  knew 
very  well  what  he  was  doing.  The  defendant  had  that  day  •<  beaten  "  the  wit- 
ness  out  of  a  drink,  claiming  that  he  had  no  money,  and  the  witness  said  he 
must  know  who  proposed  to  pay  for  the  drinks  before  he  served  them  The 
defendant  thereupon  asked  Glover  if  he  would  not  pay,  and  Glover  replying  that 
he  would,  the  witness  served  them.  After  drinking,  Glover  poured  some  silver 
money  out  of  a  small  cloth  tobacco  sack  on  the  counter,  and  the  defendant 
pushed  a  half  dollar  piece  to  the  witness.  Witness  gave  the  change,  and  sug- 
gested to  Mr.  Glover,  who  was  helplessly  drunk,  that  he  had  better  go  and  sit 
flown.  The  three,  Glover,  Anderson,  and  the  defendant,  then  went  back  to  the 
stove,  and  sat  down,  Mr.  Glover  having  Anderson  and  defendant  on  either  side 
Mr.  Glover  becoming  still  more  helplessly  drunk  during  the  next  half  hour,  Tom 


609 


LAHCKNY. 


FlshuTT  the  Witness'  colored  porter,  removed  him  to  the  rear  of  the  billiard 

r    'rWHu::l  ^heu  went  to  supp.r  and  --t""-'' '^^.'^''-Vfli' Uu ^r^  '        '" 
Mr  Glover  came  up  to  the  bar  and  asked  of  hhn  the  loan  o'  Ave  dollurs 

FlvTiil  parish  testltted,  for  the  State,  that  he  saw  the  defeu.lant  about  Mar- 
lln  io   aday  o   two  prior  to  the  death  of  Mr.  W.  W.  Glover.    About  dark   o„ 
T^sdvy  ete.Un«  of  the  week  of  Glover's  death,  the  witness  stepped  Into  Lew 
I SS  slifand  saw  the  defendant.  Glover,  and  a  man  ^^^^^ 
since  dead,  sitting  "««'  the  stove.    Anderson  and  Glover  ^"°  J*=;yJ\"f  ^ 
The  defendant  was  somewhat  In  liquor,  but  not  <1;""'^-    «'";"  ^."^ j,"^; 
drunken  stupor,  leanlnR  over  In  the  chair.    As  he  -""'^^  «;-/«;;■•„  ;;',;;;■;; 
the  defendant  would  push  him  and  say:    '<  I     s     n.e  »«  take  another  cmnK. 
The  witness  watched  them  awhile,  and  then  left  the  saloon     Other  intake 
Illt  the  saloon  at  the  time,  but  no  one  was  near  the  part-es^    The  win 
Lv  Mr.  Glover  next  morning  under  arrest  for  falling  to  pay  a  fl»«-    "^^  J 
thenVrylng  to  borrow  money  for  that  purpose,  and  did.  In  the  presence  of  tl^ 
Witness  obtain  from  Mr.  Ulnkelaian  ten  dollars  to  be  applied  to  the  payment  of 

* Vares  E.  King  testified,  for  the  State,  that  he  f^-^:'^:^Tm'S:Z 
a  striu-er  In  Marlln.  On  the  night  of  Tuesday  before  the  death  of  Mr.  Oioycr 
i'out^n  o'clock,  the  defendant  and  a  tailor  named  Wilson  entered  the  wltn  ss 
jlToon  "nd  the  defendant  called  for  a  pint  of  whisky.  The  wl  ness  gave  I  to 
hCana  the  defendant  handed  him.  In  payment  a  worn,  m.^late^  ten  dol  a 
TTni  ofl  States  currency  bill,  one  corner  of  which  was  torn  ofl.    The  witness 

somewhat  In  liquor.    Ur.  Marlowe  was  in  the  saloon  at  the  time. 

jlmesV  Marlowe,  for  the  State,  corroborated  the  witness  James  E.  King 
ieTry  I'  Barber  testlBed  that  he  saw  the  defendant  with  live  or  six  dollars 

.     in  silver  ou  the  morning  of  his  arrest.  ,,,  ^  „„  .^^  Mondav  of  the 

Captain  G.  A.  King  testlfled,  for  the  defence,  that  on  the  Monday  ol  tne 
^eek  of  GloveJsdeafh  the  defendant  registered  at  his  hotel  and  P^ld  forh  « 
breakfast  and  lodging.  He  exhibited  then  four  Ave  dollars  in  silver.  The  wit- 
ness  did  not  see  him  with  any  kind  of  paper  money.  ^  «v„  ,.,i 

The  motion  for  new  trial  complained  of  the  charge  of  the  court  and  the  rul- 
ingTuprthe^viden^^  and  the  sufficiency  of  the  evidence  to  support  the  con- 

^^  WHITE  J   (after  rulings  on  other  questions).    We  are  further  of  opinion 
that  rsme's^Slerroneous  ruling  of  the  court,  the  other  evm^^^^^^^^^ 
the  Statement  of  facts.  Is  not  sufficient  to  support  the  conviction,  and  the  judg 
ment  is  reversed  and  the  cause  remanded.  ^^^^^^^  ^^^  ^^^^^^^ 

fi  Kfi7  uvideaee  insulBclent  to  Convict— He rdeman  v.  State.  -In  mrde- 
Jn  V  «al^  Uhe  ind  c«  charged  the  appellant  with  the  theft  of  an  estray 
rorse?wt  e  owne  was  unknown.'  His  trial  resulted  i-"-;^"-' ^J  J;^7, 
adSudged  a  term  of  five  years  in  the  penitentiary.    Ira  Harris  testified  for  the 

1  12  Tex.  (App.)  350  (1382.) 


^H 


I'ROOP   INSUFFICIENT — HAKDKMAN    V.  fsTATE. 


(103 


of  the  billiard 
,  o'clock,  when 
tlolliirs. 

lilt  aljout  Mar- 
About  dark,  on 
ppcd  into  Lew 
iiied  AuUersoii, 
ro  very  drunk, 
over  was  lu  a 
rer  In  the  chair, 
mother  drink." 
Dther  men  were 
1.  The  witncHS 
a  fine.  He  was 
presence  o(  the 
the  payment  of 

ndant,  who  was 
1  of  Mr.  Glover, 
•red  the  witness' 
itness  gave  It  to 
Hated  ten  doUai 
H.  The  witness 
vltness  to  return 
■silver  certificate 
ivlth  this  request, 
,nd  Wilson  were 
le. 

fames  E.  King. 
Ive  or  six  dollars 

e  Monday  of  the 
and  paid  for  his 
Bllver.    The  wit- 

sourt  and  the  rul- 
I  support  the  con- 

irther  of  opinion 
lence,  as  shown  n 
ion,  and  the  judg- 

d  and  remanded. 

Jtate.  —  In  Htirde- 

theft  of  anestray 

irlctlon,  and  he  was 

rls  testified  for  the 


State  that  he  knew  the  horse  alleged  to  ii;ivc  been  stolen  l)y  the  defendant.  lie 
\\!i:i  !i  dun  horse  and  ranged  about  al)oiit  the  (^handler  wiiter-iiole  lu  Willliun- 
»on  County.  He  had  been  known  for  several  years  as  an  estray.  In  the  spring 
of  187S  tlio  witness  penned  the  animal  and  cut  a  small  piece  off  one  ear. 

Mr.  Hodges,  for  the  State,  tesilliod  that  ho  knew  tlie  animal,  and  had  known 
It  us  an  estray  for  six  or  seven  years.  Ho  had  no  mark  whentho  witness  tirst 
s:uv  him,  l)ut  afterward.s  had  a  small  piece  cut  from  one  ear.  Mr.  Dick  Tlsdale 
estrayed  the  horse  in  1877.    The  animal  was  then  very  wild  and  unbroken. 

Ed.  Lewis  testified  for  the  State  that  ho  had  known  the  horse  for  several 
years  as  an  estray.  He  last  saw  the  horse  iu  the  spring  of  1880.  Lewis  Owens 
was  then  riding  him.  The  witness  had  a  conversation  with  the  defendant 
while  working  on  the  road  iu  March  or  April,  1880,  about  a  week  before  ho  saw 
Owens  riding  the  horse.  Tliey  talked  about  estray  hor.ses,  and  the  witness 
spoke  of  the  estray  dun  horse  with  the  cropped  ear.  The  detcndant  said  the 
liorse  was  "Old  Magrudcr,"  a  horse  that  got  away  from  him  some  time  before, 
and  that  he  belonged  to  his  cousin.  Sain  Hardeman.  The  witness  spoke  of  the 
horse  as  an  estray  and  described  hlra  before  the  defendant  inquired  abo  ,;,  or 
claimed  him. 

Lewis  Owens  testified  for  the  State  that  the  defendant  hired  him  to  ride  a 
dun  horse  with  a  cropped  ear  in  the  spring  of  1880.  The  defendar'^  told  the 
witness  that  he  got  the  horse  off  the  range,  and  tliat  he  had  lost  hln.  .)me  time 
before. 

John  Faruell  tep.lCn  .1  for  the  defence  that  In  the  spring  of  1876  Mat  Cain  was 
living  on  the  witness'  place  In  Travis  County.  During  that  spring  the  flcfend- 
aiit  stayed  /  .7o  or  three  weeks  with  Cain,  and  with  Cain  was  engaged  in  a.ssist- 
ing  drovers  to  put  their  herds  across  the  river,  and  in  gathering  stock  droppod 
on  the  trail.  He  and  Cain  each  had  a  dun  horse  which  they  said  wore  owned 
by  some  parties  who  had  gone  on  the  trail.  He  and  Cain  left  the  witness'  house 
togetlier,  saying  they  were  going  to  take  the  horses  to  tlieir  owncs.  The  wit- 
ness did  not  notice  that  either  of  the  dun  horses  had  a  cropped  ear. 

John  Hughes  testified  for  the  defense,  that  in  the  spring  of  1880  he  and 
George  Clark  were  on  the  range  looking  for  horses.  They  met  the  defendant, 
who  told  the  witness  that  he  was  looking  for  a  dun  horse,  and  described  him. 
They  separated,  the  witness  agreeing  to  drive  up  the  horse  if  he  saw  hlin,  and 
tlie  defendant  agreed  to  drive  up  that  of  the  witness,  should  he  find  him.  The 
witness  found  the  crop-eared  dun  horse,  drove  hlra  up  and  delivered  him  to  the 
defendant.  The  defendant  claimed  the  horse  openly,  and  said  that  he  bought 
him,  and  had  lost  him  on  the  trail  aei'eral  years  before. 

Further  testimony  for  the  defence  was  to  the  effect  that  the  defendant 
cluiraed  the  horse  openly  and  publicly. 

White,  P.  J.  The  facts  proven  upon  the  trial  do  not,  in  our  opinion,  tend  to 
establish  defendant's  guilt  of  the  theft  charged  with  that  degree  of  conclusive- 
ne.ss  or  certainty  as  that  we  are  willing  to  Jet  the  conviction  stand  as  a  prece- 
dent for  adjudications  in  criminal  cases.  Defendant  may  be  guilty,  but  his  guilt 
should  be  established  beyond  mere  suspicion  or  even  strong  probability.  In 
the  view  we  take  of  the  statement  of  fact  there  appears  to  be  no  other  evidence 
which.  If  accessible,  may  on  another  trial  tend  to  throw  more  light  upon  the 
question  of  guilt  or  innocence.  As  presented  In  this  record,  because  the  evi- 
dence is  insufllclent  to  support  the  verdict,  the  judgment  Is  reversed  and  the 
cause  remanded  for  a  new  trial. 

Beversed  and  remanded. 


604 


LAKCENV. 


§  5G8.  Evidence  Insufficient  to  Convict — Harrison  v.  State.  —  In  ILxn-ison 
V.  State,'^  tlio  convici'Dii  was  for  the  tlicit  of  seventy  dollars  iu  moucy,  the  prop- 
erty of  J.  W.  Tabor,  in  Brazos  County,  Texas,  on  the  tenth  clay  of  Aufjust, 
1881.    A  term  of  three  years  in  the  penitentiary  was  the  punishment  iroposid. 

The  first  witness  for  the  State  was  J.  v»'.  Tabor.  He  testilled,  in  substance, 
that  onfi  Dla;ht,  abc'Ut  the  time  mentioned  in  tne  indictment,  he  went  to  bud  on 
his  gallery,  hanginz  his  pants,  which  contained  his  pocket-book  and  money,  at 
tlie  head  of  his  bed.  The  defendant  lived  in  a  house  about  two  hundred  yards 
to  the  side,  and  a  little  in  the  rear  of  witness'  house.  The  defendant  custom- 
arily left  his  house  early  la  the  morning,  but  did  not  do  so  on  the  morning  after 
the  night  spoken  of,  as  the  witness,  when  he  first  got  up,  and  before  he  misseil 
his  money,  saw  him  standing  on  the  gallery  of  his  house.  Some  time  after  he 
dressed,  the  witness  missed  his  pocket-book  and  money,  the  money  being  fives, 
tens  and  twenty  dollar  United  States  currency  bills,  aggregating  seventy  dol- 
lars,  but  whether  treasury  or  bank  bills  the  witness  did  not  know.  Upon  ex- 
amination he  found  foot  prints  on  the  ground  near  the  head  of  the  bed,  and  iu 
his  yard,  and  followed  them  to  his  yard  fence.  The  track  indicated  that  the 
upper  leather  of  a  shoe  had  been  torn  from  the  sole,  and  that,  when  the  wenrer 
walked,  the  upper  part  would  lap  over  the  sole  and  make  an  impression  on  tlie 
ground  on  both  sides  of  the  foot.  The  witness  and  the  defendant  started  to 
town  from  their  homes  on  that  morning  at  the  same  time,  and  met  in  the  road. 
Witness  then  noticed  that  the  uppers  of  a  shoe  worn  by  defendant  were  loose 
from  the  sole,  and  that  they  made  a  track  similar  in  every  respect  to  the  tracks 
discovered  in  his,  witness',  yard.  Afterward,  on  the  same  morning,  witness 
saw  the  defendant  on  the  streets  of  Bryan,  and  had  him  make  a  track  in  the 
sand.  That  and  the  track  in  the  witness'  yard  were  in  every  particular  similar. 
In  having  him  make  the  track  in  the  sand,  the  witness  used  no  more  compulsory 
force  than  a  peremptory  order.  The  defendant  hesitated,  and  made  the  traclj 
unwillingly.  Previous  to  that  witness  had  tlie  defendant  to  make  a  track  at  his, 
witness',  store,  but  did  not  rememijer  who  was  present.  The  witness  had 
never  consented  to  the  taking  .of  his  money  by  any  one.  Cross-examined,  the 
witness  stated  the  defendant  was  a  negro.  Neither  he  nor  his  wife  had  ever 
been  in  his,  witness',  employ,  and  neither  had  ever  been  on  his  premises  that  he 
.  was  aware  of.  Witness  did  not  remember  whether  or  not  he  had  any  negro 
employed  at  his  stable  at  that  time.  He  did  not  know  the  number  of  the  slioe 
worn  by  the  defendant  at  the  time,  nor  the  number  of  shoe  that  made  the  tracks 
in  the  yard.  Defendant  has  a  good-sized  foot.  The  uppers  of  the  shoe  making 
the  tracks  described  did  not  extend  over  the  end  of  the  foot  and  make  Impres- 
sions on  the  ground,  but  did  on  the  sides.  Upf^rs  cut  loose  from  the  soles  of  a 
shoe  will  always  make  marks  on  impressionable  ground.  The  person  who 
made  the  tracks  in  the  yard  walked  tip-toed  until  the  fence  was  crossed.  The 
track  from  the  fence  went  in  the  direction  of  the  defendant's  house. 

George  R.  Tabor,  son  of  the  prosecuting  witness,  testified,  in  substance, 
that  he  reached  his  father's  house  from  his  sleeping  room  in  town  about  seven 
o'clock  on  the  morning  of  the  theft  of  the  money,  and  then  first  heard  of  it.  He 
examined  the  tracks  in  the  yard,  and  described  their  peculiarity  as  the  first 
witness  did,  except  that  he  stated  the  loose  upper  made  an  impression  only  on 
one  side  of  the  foot,  and  the  sole  left  an  impression  of  pegs.    He  followed  this 

116Tex(App.}  326  (1884). 


^^M 


state.  —  In  ILtri'ison 
9  iu  inout'j',  the  pi'op- 
euth  clay  of  Aujrust, 
puuisliinent  iroposid. 
istillfd,  la  subsiancf, 
lit,  he  went  to  bud  on 
t-book  and  money,  at 
It  two  hundred  yards 
le  defendant  custom- 
on  the  morning  after 
and  before  bu  missed 
Some  time  after  lie 
he  money  being  fives, 
regaling  seventy  dol- 
not  know.  Upon  ex- 
ad  of  the  bed,  and  iu 
ak  indicated  that  the 
,hat,  when  the  wenrer 
an  impression  on  tlie 
defendant  started  to 
and  met  in  the  road, 
defendant  were  loose 
■  respect  to  the  tracks 
me  morning,  witness 
I  make  a  track  in  the 
jry  particular  similar. 
1  no  more  compulsory 
,  and  made  the  track 
to  make  a  track  at  his, 
it.  The  witness  hail 
Cross-examined,  the 
or  his  wife  had  ever 
n  his  premises  that  he 
not  he  had  any  negro 
e  number  of  the  shoe 
!  that  made  the  tracks 
rs  of  the  shoe  makin;; 
oot  and  make  Impres- 
ise  from  the  soles  of  a 
id.  The  person  who 
ice  was  crossed.  The 
nt's  house, 
stifled,  in  substance, 
In  town  about  seven 
1  first  heard  of  it.  He 
eculiarlty  as  the  first 
an  impression  only  on 
gs.    He  followed  this 


PROOF   INSUFFICIKNT  — HARRISON   V.  STATE.  (305 

tr^ok  to  the  defendant's  gate,  where  the  defendant  met  him  and  asked  him  if  he 
KM  lost  any  monoy,  to  which  witness  answered  no,  that  he  was  hunting  a  place 
to  dii;  a  u-cl  .  \\  hen  defendant  came  out  to  meet  witness  he  seemed  to  put  his 
who  e  foot  down  ,n  walking.  Witness  did  not  notice  his  foot,  but  noticed  the 
.ruck  he  made,  which  was  similar  in  appearance  to  those  discovered  in  'labor's 

'o  i ;.  Udidl'f  '■'  'T  ''■"""''  '"'''  ''''''  '''  riefcndant's  gate,  as  though  to 
-on,  it  did  not  pass  the  gate  or  go  away.    Witness  did  not  go  into  the  dc'fend- 

;'  utf/lnl  r-,  «'^«^'-''-«^  on  a  public  road.  The  cross-examination 
r.M.it  d  m  no  material  change  of  this  witness'  testimony.  Freedmantowu  was 
some  three  or  four  hundred  yards  distant  from  Tabor's  house.  One  of  tile  on  y 
tvvo  roads  leading  from  the  oil  mills  to  Freedmantown  passed  directly  in  front 
of  defendant's  gate.  This,  however,  was  not  the  usual  route  traveled.  Many 
neu^iocs  ived  back  of  Tabor's  house  toward  the  oil  mills,  and  could  have  access 

f  .nsiiL'T?,"''    I  ^°'"^  'i'"""'*  "'^  "''"'•    """'y  '''''  P«°"'«  ^^«™  '»  the  habit 

f  uss.ng  Tabor's  house.    The  oil  mill  and  lower  Freedmantown  route,  leading 

by  Tabor's  house,  was  the  nearest,  but  not  the  only  route.  ^ 

o'circr;\?'n  *""!f  *'''  '"  '"'''■^  °'  ''''  '°^«  ^'  '^'  money  about  nine 
0  c  lock  a  m.    He  went  horseback  to  defendant's  house,  but  did  not  find  hlra  at 
ho.ne     I  e  went  to  defendant's  brother's  house,  about  a  mile  from  town  Id 
omul  defendant     He  first  refused  to  come  out.  but  being  called  a  second  time 
he  came  out  with  a  hatchet  in  his  hand,  and  finally  went  to  town  with  witnel 

'own.^^Th^Strte  ciosc.d'  '"^  "'""  '''  ''''''  ""^'^  ''  ^^^''^^"^  °"  ^'^  -^  ^° 

Sallie  Archie,  the  first  witness  for  the  defence,  testified  that  she  was  living 

h  the  defendant  at  the  time  of  the  alleged  theft;  was  at  home  all  that  n.g  "! 

;ui  a  light  all  night,  nursing  a  sick  child.    She  knew  that  the  defendant  was  In 

.s  room  the  whole  of  that  night,  and  did  not  get  up.  or  go  out,  at  any    me 

un„g     e  night.    Pin  Adams'  son  Clement  came  to  the  house  about  twelve 

us  ^llo  ;   "'''/""  ''^""'  ''^  '^'^"'"•^  ''^  S*-'^  ^  «"»•  but  the  defendant  rl! 

use  rt  to  get  up.    A  great  many  people  were  in  the  habit  of  passing  alon-  tha 

e  Which  ran  in  front  of  defendant's  gate.    Witness  was  ?he  wife  of  John 

ci      v'lonl  tn       ""\'^"«J:°  ^l^^^"*  Adams  very  long  at  that  time,  but  suffl. 
cunt  y  ong  to  recognize  his  voice  when  he  called  for  the  gun.    Clement  wis 
now  living  in  Galveston.    Witness  was  morally  certain  that  defendan    d  d  no 
ave  he  house  that  night.    She  did  not  see  him  with  any  money,  and  go   none 
from  h:m  subsequent  to  that  night.  ""  eoi  none 

mwWaT''"""''*^''"'""'""*^"  °^'"^°"  were  presented  by  the  motion  for  a 

Wn.i.soN.  J.  (after  passing  on  other  points).    As  to  the  Inculpatory  facts 

roveu  .gainst  the  defendant,  they  are  very  few  and  of  a  very  uncertain  Indu- 

T"T'  "■'''"■•,    '^''''^  ''"""^^  '«  ""''  ""''^  discovered  at  the  place 

vlic  e  the  money  was  lost,  and  these  tracks  were  followed  to  his  gate.    These 

acks  in  connection  with  the  witness  Tabor's  srspicions  and  conclusions,  con- 

r  V  1  ZZVl  iff'-  """  '''''''  "'"•^'  '''''^'  "«  *«  the  tracks,  were 
"nul  by  the  State,  which  are  entitled  to  be  regarded  as  inculpatorv,  and  the 
.e  pioof  as  to  the  Identity  of  the  tracks  found  with  those  made  by  ti.;  defend! 

.  ed  Witt  Tr"'."'"'"^  u"  ''"  ''P'"*""'  *''"  "^'"'''"'="^'  «^«°  ^'"^»  «"PPle- 
xchw,  the  Witness  Tabor's  suspicious  and  opinions.  Is  Insufficient  to 

exclude  every  other  reasonable  hypothesis  than  that  of  defendant's  guilt 


606 


LAUCESY. 


A  ,„  not  irrantlne  the  defendant  a  new  trial,  and  for 
We  think  the  conrt  erred  in  not  g™""°8  remanded, 

this  error  the  judgment  is  reversed  and  the  cause        ^^^^^^^^  ^^^  remanded. 

§  5G9.  evidence  in-vunclent  to  Oon^^^^^^^^^^^ 
State,^  the  i.ulictment  charged  J^^  Jf  ;^\^^' '^         The  trial  resulted  in  convic- 
erty  of  some  person  «^f«-°;°flj"iry  assessed  as  punishment, 
tion,  ^vith  a  five  years'  term  »°;f  P^"'  ™k„ew  the  defendant  and  the  mare 

T.  R.  Jackson  testified  for  the  State  ti'»t  ««  «  ^     ^^a^  old,  and 

mentioned  in  the  indictment.    She  >vas  a  b^^^cl.  mare^bo^t  ^^^.^^  ^^^^  ^^^^  ^^ 

had  no  brands  on  her  ^'-^  ^^«^ -"^/^^jf  ^n^  tthe\vitness'  place  in  Coleman 

July  or  the  first  of  August,  18 . . ,  the  n^'"^^'^'"  ^^.,^,  ^^t  branded  at  that 

county,  Texas,  being  at  the  *"- ^  y^-^'^^J^^  ."^  Z  witness'  place,  with  his 

tlm.     She  continued  to  range  and  s^"/ "*;"'^  ^     j     ^he  witness  regarded 

stock,  from  that  time  until  the  ^^ll'ZTJto^^-^ea  in  i^o  .cl^l^^^^r. 

this  animal  as  an  estray,  a-  «»-  -     ^^^^^  7,;!,,  ,„  Aoes  he  yet  know  who 

hood  where  she  ranged.    Tl  e  ^»»^^!^  °  ^^^  ^,,.„  ^tock  the  witness  made 

was  the  owner  of  the  animal.    I"/""^'"^.^'' "  5,,^  to  Oud  out  who  owned  her. 

inquiry  of  stock  men  concerning  tin  mare  b       a.icd^  ^^^^^^  ^^^^  ^^^^^  ^^^^ 

The  defendant,  in  November,  18«0,  Uvea  aoo  ^^^^  ^^^  ^^^^ 

dence  of  tae  witness.  In  "f  ^'"^"f .  f^^^^^^^^^^^  fifty  yards  from  the  defend- 
of  a  field,  some  two  hundred  or  two  hjclredan^^^^  yjj^^^^^  ^^^  ^^  ^^^^^^^^^^ 

ant's  house.  The  witness  wen  *'«"' ^-^j^f^^  „„f  ^^  Spalding's  he  passed  near 
of  a  Mr.  savage,  to  get  a  7"^^^';";  °;;;'  ^'d  ^t  behL  the  field.  She  then 
the  defendant's  house,  and  ^^^^  \^; /^J  ^^  ^^^^  ^,  the  same  black  mare  which 
hart  a  colt.    The  witness  ^^^^ogn  zecl  tins  —  ^^^^  ^^^^^^^^  ^^^  ^^^^ 

^.ul  been  running  with  his  stock   «  /^  ^^^^^^^^^  told  him  that  he  had  seen 

to  Spalding's  mill  he  found  the  ,f  ^J.^^'^^^V'^^^^^^^^  if  he  knew  who  took 

the  mare  tied  out  behind  the  field.    »f  ^f  *; '  "';;'^.,^,     The  witness  then  told 
the  mare  up,  and  the  defendant  answered  t  a    j     e.  ,U  ^^^  ^^^^^^  ^^^  ^^^. 

him  that  the  mare  was  an  estray  and  had  been  ™    =  from  Sam  Harrell. 

eral  years.  The  defendant  replied  that  he  ad  P-^  ^f  J,,  ,„  ,,,,  defendant 
The  witness  did  not  remember  ^^^^f^^.^J^^^f^.^^'Jbe  Jre.  Subsequently  the 
in  that  conversation  about  the  colt  that  ^^^  ^  ^  J'  "  ^^,  This  all  occurrcl 
defendant  asked  the  witness  if  ^'X^'^^TltTl^^^  the  county.  On 
in  Coleman  County,  Texas,  ''"^' ^^J  J^  teimd  never  seen  the  detendant  in 
cross-examination  the  witness  «^''*/**  "'**,.  "Jo  witness  that  he  had  purchased 
possession  of  the  animal.    The  defendant  told  thwitnes^^^^^       The  colt  that  vas 

?he  mare  from  Sam  llarrell,  and  ^'^^^^'^j"  ^V^'^elincl  the  field  was  about  a 
with  the  mare  when  the  ^-'^"^^  ^-^^^^^^^  *fonce  or  twice  since,  and  once  at 
year  old.  He  had  seen  the  mare  -^^^  ^f «  °'^\,,  „ot  seen  the  colt  since  it 
the  lick-log  near  his  house,  with  his  horses. 

was  at  his  house  with  the  mare.  ^^^  ^^^^  ^nhout 

Moses  Jackson  testified,  for  the  Stat*'' ;;^^*^^;,^;'J,,,  m  Coleman  County, 
brands,  which  at  one  time  7.  ^'^''g^  was  recognised  la  the  neighborhood  as 
He  did  not  k.-.ow  who  '^^^^^'^^^^.'-^^'f^^'Jue  range  some  time  during  the  year 
tr'S.h:d:rh:r:nhrtr:-"--^^  He  had  never  se.! 

the  mare  in  the  possession  of  the  defendant. 

1  12  Tex.  (App.)  385  (1882). 


^^ 


PKOOF   INSUFFICIENT  — JOHNSON   V.  STATE. 


607 


V  trial,  and  for 

[ltd  remanded. 

— In  Jofti»«onT. 
mare,  the  prop- 
uiua  In  convic- 
ishment. 
mtand  the  mare 
e  years  old,  tind 
30ut  the  last  ol 
place  In  Coleman 

branded  at  that 

place,  with  his 
(vitness  regarded 
,  in  the  neighbor- 
tie  yet  know  who 
the  witness  made 
t  who  owned  lier. 
les  from  the  resi- 
ire  tied  out  back 
from  the  defend- 
!  mill  to  the  house 
;'s  he  passed  near 
e  field.    She  then 
black  mare  which 

witness  got  back 
n  that  he  had  seen 
;  he  knew  who  took 
witness  then  told 
his  horses  for  sev 
•  from  Sam  Harrell. 
Qg  to  the  defendant 

Subsequently  the 
This  all  occurrcl 
)m  the  county.  On 
n  the  detendant  In 
atlie  had  purchased 
The  colt  that  was 
le  field  was  about  a 
;  since,  and  once  at 
en  the  colt  since  it 

black  mare  without 
iu  Coleman  County, 
he  neighborhood  as 
time  during  the  year 
He  had  never  seen 


Taylor  Smith  testified  that  he  saw  the  defendant  with  a  black  mare  in  bis 
possession  several  times  during  the  fall  and  winter  preceding  this  trial  Sh  ■ 
was  not  then  branded,  so  far  as  the  witness  could  see.  He  saw  the  mare  fre- 
quently  about  the  defendant's  place  in  Coleman  County,  Texas,  and  the  witness 
thought  that  ho  had  seen  the  defendant  working  her.  The  defendant  had  but  one 
black  mare  during  the  period  mentioned,  that  the  witness  knew  anything  about 
On  cross-examination  the  witness  stated  that  he  did  not,  of  his  own  knowledge' 
know  that  the  mare  for  the  theft  of  which  the  defendant  was  being  prosecuted' 
was  the  same  animal  which  lie  saw  in  the.defendant's  possession  during  the  last 
winter,  but,  after  he  had  seen  the  mare  in  his  possession,  defendant's  brother 
James  Johnson,  told  the  witness  that  she  was  the  animal  about  which  the  'uss 
was  being  made.  James  Johnson  was  riding  the  mare  when  this  conver- 
siit.ou  occurred.  The  witness  was  tolerably  well  acquainted  with  the  range 
about  J.  R.  Jackson's,  and  had  been  through  It  several  times.  He  did  not  re- 
member  that  he  had  ever  seen  this  mare  upon  that  range.  He  may  or  may  not 
have  seen  her. 

Will  Faris  testified  that  about  four  years  before  this  trial  he  saw  an  un- 
branded  black  yearling  colt  with  his  horses  on  the  range  in  Coleman  County 
This  was  the  first  time  he  saw  her.  The  next  time  the  witness  saw  her,  as  well 
as  he  could  remember,  she  was  running  with  J.  R.  Jackson's  horses,  and  was 
still  unuranded.  She  then  had  a  colt  about  four  months  old.  The  witness  did 
not  remember  having  seen  the  mare  but  twice.  He  did  not  know  to  whom  she 
belonged.  He  regarded  her  as  an  astray.  Cross-examined,  the  witness  stated 
that  he  had  never  seen  the  animal  in  the  possession  of  the  defendant  He  did 
not  remember  when  it  was  that  he  last  saw|the  animal,  but  It  was  some  time 
during  the  year  1880. 

Frank  Rucker  testified  that,  in  the  spring  of  1880,  he  saw  a  black  mare  and 
colt  with  Mr.  Faris'  horses  on  the  range  in  Coleman  County,  Texas.  The  mare 
was  nnbranded.  The  witness  did  not  know  to  whom  she  belonged.  He  re- 
ganle.l  her  as  an  estray,  but  did  not  know  that  she  was.  During  the  faU  of  1880 
the  witness  saw  an  unbranded  black  mare  in  the  defendant's  pasture.  He  saw 
no  colt  with  her  at  that  time.  The  witness  did  not  know  that  the  black  mare  he 
saw  m  the  defendant's  possession  was  the  same  animal  he  saw  with  the  colt  on 
the  range  during  the  preceding  spring. 

The  State  next  introduced  tlie  defendant's  application  for  a  continuance 

The  application  was  based  upon  the  absence  of  J.  B.  Hooten,  of  Coleman 

'  County,  by  whom  the  defendant  proposed,  if  he  was  granted  a  continuance  or 

postponement,  to  prove  the  handwriting  of  Sam  Harrell  to  an  unacknowledged 

I  bill  of  sale  conveying  to  hlra  the  mare  In  question. 

J.  U.  Ruling  was  the  first  witness  Introduced  by  the  defendant.    During  the 

the  month  of  November,  1880,  the  witness  was  at  the  molasses  mill  of  R  L 

Spalding,  in  Coleman  County,  Texas,  and  while  there  he  heard  J.  R.  Jackson 

ask  the  defendant  al)out  a  black  mare  which  was  then  staked  out  between  the 

mill  and  the  house  of  a  Mr.  Savage.    The  defendant  told  Mr.  Jackson  that  he 

tiart  taken  the  mare  up,  that  he  had  purchased  her  from  Sam   Harrell,  and 

rthat  he  had  Harrell's  bill  of  sale  conveying  the  mare  to  him.    The  witness  was 

joi  opinion  that  Mr.  Jackson,  In  that  conversation,  said  something  about  the 

Inmre  havihg  a  colt.    The  witness  had  never,  to  his  recollection,  seen  the  mare 

jin  question.    This  witness  stated  on  his  cross-examination  that  Jackson  told 

Ithe  defendant  where  he  had  seen  the  mare  staked  out,  back  of  the  field;  where- 


608 


LARCENY. 


uDoa  the  defendant  told  Jackson  that  he  had  taken  her  up.  that  he  had  pur- 
rrefherton^  Sam  Harrell  and  that  he  had  Ilarrell's  bill  of  sale  convey  „g 
the  animal  to  him.  Thi.  was  some  time  after  Harrell  had  moved  out  of  tho 
settlement.  The  recollection  of  the  witness  was  that  in  this  conversation  With 
the  defendant,  Jackson  told  him  that  the  colt  was  with  ^^^^^^^^- 

R  L.  Spalding  testified,  for  the  defence,  that  In  November,  1880,  he-and  the 
defendant  lived  about  one-half  a  mile  apart  In  Coleman  County,  Texas.  The 
ro  d  1  ad  ng  from  the  witness'  house  to  the  house  of  Mr.  Savage  runs  with.,. 
Ibmi  two  hundred  yards  of  the  defendant's  house.  The  witness  heard  noth.ng 
o  thco^vation 'between  J.  R  Jackson  and  the  defendant  about  the  mare, 
wldch  is  said  to  have  occurred  at  the  molasses  mill  on  the  witness'  place,  In 

^"b  T^Rortestlfled,  for  the  defence,  that  some  time  during  th«  spring  of 
188lhesaw  an.l  examined  a  black  mare  In  the  defendant's  possession  She 
was  a  young  anlmai,  and  In  the  opinion  of  the  witness  had  never  given  birth  to 
Holt  lie  did  not  remember  whether  or  not  the  animal  was  then  branded, 
Lr  does  he  know  that  she  was  the  same  animal  for  the  theft  of  J^hich  the  de- 
fendant was  now  on  trial.  The  witness  would  not  ^''^\^'/f:^''''^'l''' 
mare  he  saw  in  the  pos'.ession  of  the  defendant  had  never  had  a  colt.  It  was 
his  opinion  that  she  had  not,  but  he  might  have  been  m.staken. 

HruT,  J.  The  appellant  was  convicted  of  the  theft  of  a  mare  He  moved 
for  a  continuance  of  the  case ;  which  motion  was  overruled.  In  his  mot lop  for 
a  new  trial  this  ruling  of  the  court  was  made  a  ground  for  a  new  trial.  We 
are  of  the  opinion  that  a  new  trial  should  have  been  granted. 

The  only  criminative  fact  against  defendant  was  recent  possession  of  the 
rnare,  an  estray.  This  was  explained  by  defendant,  he  stating  that  he  had  pur- 
d.ased  the  mare  from  one  S«m  Harrell.  The  State  proved  that  there  was  such 
a  man  us  Sam  Harrell,  and  that  he  had  lived  in  that  county,  but  had  moved  ofl 
•  That  tlds  explanation  was  reasonable  can  not  be  questioned  Tils  be  ng  the 
case,  to  convict,  the  State  (relying  upon  recent  possession  alone)  must  prove 
this  explanation  false ;  to  do  this  there  was  no  attempt  made  whatever.^  ht 
Terdict  of  the  jury  was  not  supported  by  the  evidence  and  upon  this  ground 
aNo  a  new  trial  should  have  been  granteil.  The  judgment  is  reversed  and  the 
cause  pumanded. 

S  570.  Evidence  Held  Insuffldent  -  Johnson  v.  State. -In  Johnson  v. 
sL'^nho  indicfuent  charged  that  the  appellant  on  the  twenty-flrst  day  of 
August,  187(5,  <lld  not  steal  a  certain  gelding,  the  property  o  one  Amanda 
Brown.  The  trtal  was  had  at  the  March  term,  1884,  of  the  District  Court,  wl.en 
the  appellant  was  convicted,  and  his  punishment  was  assessed  at  a  term  of  five 
Tears  in  the  penitentiary.  .„    .  ^,    . 

Mr..  Amanda  Walker  was  the  first  w.tness  for  the  State.  She  test.fled  that 
her  name  in  August,  187G,  was  Amanda  Brown.  She  was  well  acquainted  w.th 
the  defendant,  and  pointed  him  out  In  the  court.  The  witness  first  saw  the 
defendant  In  the  early  part  of  the  year  1870,  when  he  came  to  w.tness  hou.e, 
and  co,.tracted  with  her  then  husband,  Mr.  Brown,  to  make  a  crop  on  tl.e 
place     The  defendant  remained  at  the  house  of  the  witness  and  Brown  until 


1  Perry  ».  State, «  Tex.  483;  Thompson 
«.  State,  43  Tex.  860;  McCoy  »  State,  44  Tex. 


616;  Hannah  v.  State,  1  Tex.   (App.)  578; 
Garcm  ».  State,  26  Tex.  209. 
•  16 Tex.  (App.)  102  (18S4). 


"   ■■- 


PKOOr  INSUFTICIENT  —  JOHNSON  V.  STATE. 


609 


he  had  pur- 
e  conveying 
(l  out  of  thu 
rsation  wilh 

),  he-and  the 
Texas.  The 
runa  within 
eard  nothing 
ut  the  mare, 
eas'  place,  in 

ho  apring  of 
lesaiou.  She 
Iven  birth  to 
ien  branded, 
vhich  the  de- 
vely  that  the 
colt.    It  was 

!.  He  moved 
tia  motloD  for 
!W  trial.    We 

Bsaion  of  the 
It  he  had  pur- 
lere  was  auch 
ad  moved  off. 
'his  being  the 
;)  must  p'ove 
latever.i  ''he 
n  this  ?;ronnd 
rersed  and  the 


n  Johnson  v. 
ty-flrst  day  of 
one  Amanda 
ct  Court,  wlien 
1  a  term  of  five 

e  testified  that 
cquainted  witli 
iS  first  saw  the 
vitness'  houi^e, 
a  crop  on  tlie 
id  Brown  until 

Tex.  (App.)  tnt; 


some  time  In  July,  1876,  when  he  left  and  went  t.o  Mrs.  Bruce's  to  live,  having 
previously  sold  his  crop.  Since  some  time  in  1876,  until  his  trial,  the  witness 
ims  not  seen  the  defendant.  The  defendant  was  fleshier  at  the  time  of  his 
trial  than  he  was  in  1877,  and  wears  a  somewhat  heavier  beard.  In  1876,  the 
defendant  passed  under  the  name  of  Jim  Johnson. 

On  the  night  of  the  twenty-first  day  of  August,  1870,  the  witness  lost  a  cream 
colored  horse,  in  Houston  County,  Texas.    The  defendant  was  at  the  house  of 
the  witness  and  Brown  on  that  night  about  nine  o'cloclv.    He  passed  though 
the  room  in  which  the  witness  was  sitting  at  the  time,  but  said  nothing  to  the 
witness.    Tne  witness'  horse  at  that  time  was  staked  out  in  the  field     .She  saw 
the  horse  in  question  late  on  that  evening,  and  missed  him  about  sunrise,  or  a 
little  later,  the  next  morning.    The  witness'  former  husband,  Mr.  Brown, 
died  In  July,  1876,  and  the  horse  was  the  property  of  his  estate,  aud  was  not 
the  separate  property  of  the  witness.    The  witness  administered  on  the  estate 
of  her  deceased  husband,  but  did  not  now  remember  when  she  qualified  as  ad- 
mmlstratrlx- whether  before  or  after  the  theft  of  the  horse.    She  had  the  ab- 
solute control  and  possession  of  the  horse,  and  he  was  taken  from  that  control 
aud  possession  without  the  knowledge  or  consent  of  the  witness.    Mrs  Bruce, 
the  lady  previously  spoken  of,  lived  a  short  distance  from  the  house  of  the 
witness,  and  the  defendant  lived  at  Mrs.  Bruce's  from  the  time  he  loft  the  wit- 
ness' house  in  July,  1876,  until  the  horse  was  missed.    At  the  same  time  that 
the  horse  disappeared  the  defendant  disappeared.    His  saddle  and  his  saddle 
ba?s  disappeared  at  Ithe  sauie  time.     He  had  no  horse.    The  defendant  was 
married  to  Mrs.  Bruce's  dau-hter,  and  lived  at  Mrs.  Bruce's  house  after  his 
mairla?e  until  he  disappeared.    On  cross-examination  by  the  defence,  the  wit- 
ness stated  that  she  did  not  see  the  defendant  take  her  horse,  and  never  saw 
him  in  possession  of  the  horse  after  the  animal  disappeared.    On  the  same 
n,-ht  that  the  defendant  stole  witness'  horse,  a  man  named  Parker  stole  the 
defendant's  wife. 

Robert  H  Ue  was  the  second  witness  Introduced  and  aworn  by  the  State 
he  testified  that  he  lived  in  Houston  County,  Texas,  near  the  residence  of  Mrs' 
A.nanda  Walker,  formerly   Mrs.  Amanda  Brown.     He  knew  the  defendant  and 
he  knew  the  horse  that  the  defendant  Is  charged  to  have  stolen  from  Mrs 
Brown.    At  this  point  the  witness  was  directed  by  counsel  for  the  State  to  point 
the  defendant  out  in  court.    He  pointed  out  a  man  who  sat  some  three  or 
four  feet  from  the    defendant.     He  was  again  directed  to   point  out  the 
defendant,  and  he  again  pointed  out  the   man  who  sat  some  three  or  fou- 
feet  distant  from  the  defendant.    The  counsel  for  the  State  then  pointed  to  the 
defendant  and  asked  the   witness  if  he  was  not  the  man  Johnson,  and  the 
witness  answered  that  he  was.    Mrs.  Walker,  then  Mrs.  Brown,  he  stated,  lost 
a  clay  bank  horse  some  time  during  the  month  of  August,  1876.    The  next  day 
after  the  horse  was  taken  the  witness  went  to  where,  on  the  night  before    he 
was  staked  in  the  field,  and  tracked  him  outafthe  back  of  the  field,  up  to  Mrs 
Bruce's  house,  and  thence  to  the  town  of  Palestine,  in  Anderson  County  where 
the  witness  lost  the  track.    A  part  of  one  of  the  hoofs  of  the  horse  was  so  broken 
oft  tliat  his  foot  made  a  very  peculiar  and  a  very  easily  followed  track.    The 
witness  was  of  opinion  that  the  defendant  owned  no  horse  at  the  time  of  the 
theft  of  Mrs.  Brown's  horse.    He  had,  a  short  time  befere  this,  contracted  with 
3  party  to  do  some  clearing,  for  which  he  had  been  given  a  horse,  but  he  failed 
to  perform  his  part  of  the  contract,  and  the  party  with  whom  ho  contracted 
took  the  animal  back.    The  witness  first  saw  the  defendant  in  1876,  when  he 
8  Defekcks.  39 


610 


LAKCENY. 


engaged  to  make  a  crop  ou  Mrs.  Brown's  place.  After  that  the  w  tness  saw  he 
defendant  occasionally  until  he  disappeared  la  the  same  year,  since  when  the 
witness  had  not  seen  him  until  on  this  trial.  The  woman  that  Parker  Is  sup- 
posed and  said  ta  have  taken  off  lived  at  Mrs.  Brucc's.  Cross-examined  by  the 
defence  the  witness  said  that  he  never  saw  the  defendant  in  the  possession  of 
the  missing  horse,  and  did  not  know  that  the  defendant  took  that  horso. 

Wyatt  Lane  was  the  nest  witness  sworn  for  the  State.    He  testlQed  that  he 
lived  In   Houston  County,  Texas,  In  1876,  about  three  miles  from  the  ho..se  of 
the  prosecutiu!!  witness,  Mrs.  Walker,  Ihen  Mrs.  Brown.     One  night  in  the 
month  of  August  of  that  year,  1876,  while  the  witness  and  his  wife  were  occu- 
nvin-  a  bed  on  the  gallery  of  their  house,  some  one  on  hor.-eback  passed  the 
house     Tlie  witness  recognized  the  horse  as  Brown's  old  saddle  horse,  and 
remarked  to  liis  wife:  "  Frank  Brown  Is  worse,  and  yonder  is  some  one  going 
lor  the  doctor."    Witness  said  nothing  to  the  party  riding  the  horse.    No  one 
was  with  the  man  on  the  horse.    Witness  did  not  recognize  the  man.    The  wit- 
ness could  not  say  what  time  of  night  It  was.  though  guessing  it  was  about 
twelve  o'clock.    Ho  had  been  asleep  and  was  awakened  by  the  barking  of  his 
dog     The  road  was  about  fifteen  steps  from  the  gallery  where  the  witness  and 
his  wife  were  lying.    The  defendant  is  the  man  who  worked  at  Mrs.  Brown  s  la 
1876     The  witness  only  knew  him  by  sight,  and  saw  him  only  occasionally. 
Cross-examined  by  the  defence,  the  witness  stated  that  he  never  saw  the  de- 
fendant in  possession  of  the  horse,  and  did  not  know  of  his  own  knowledge 

who  took  the  animal.  ,_    „    ^         t    * 

F  B  Bayne  was  the  next  witness  Introduced  on  behalf  of  the  State.      Ic  tes- 
tlfled  that  he  was  the  slieriff  of  Houston  County,  Texas.    The  State's    ounsel 
asked  the  witness  If  he  had  ever  had  a  capias  for  the  arrest  of  the  defendant, 
and  whether  or  not  he  had  ever  made  search  for  the  defendant  and  failed  ta 
find  him,  and  directed  the  witness  to  state  when  and  where  and  under  what 
circumstances  the  defendant  was  arrested.    To  these  questions  the  counse' 
lor  defence  Interpo.sed  strenuous  objections,  whlchbelngoverruled,  the  witness 
Stated  in  reply  that  capias  for  the  arrest  of  the  defendant  was  placed  in  his 
hands,  and  as  sheriff  he  made  diligent  search  for  the  defendant  and  failed  to 
find  him  in  Houston  County.    He  then  transmitted  the  capias  to  the  sheriff  of 
Freestone  County,  who  arrested  the  defendant  and  lodged  him  in  the  Houston 
County  iail.    The  defendant  was  afterwards  released  ou  bail,  and  in  November, 
1883    was  re-arrested  by  the  sheriff  of  Freestone  County  and  relodged  In  the 
Houston  County  jail.    The  witness  did  not  know  that  the  defendant  was  avoid- 

*°M*r"chllds  was  the  next  witness  introduced  and  examined  by  the  State.  He 
testified  that  he  was  sheriff  of  Freestone  County,  Texas.  He  knew  the  defend- 
ant The  defendant  was  first  arrested  in  Navarro  County.  He  was  arrested 
the 'last  time  in  Montague  County.  The  defendant's  father  resided  in  Frf  esto-e 
County,  and  offered  a  reward  of  one  hundred  dollars  for  the  re-arreui  o. 
fendact  after  he  was  released  on  bond  on  his  first  arrest.  Defendant  v  . 
married  man  and  had  two  children.  Over  the  objection  of  the  defeu.-e 
witness  was  permitted  to  testify  that  he  received  a  capias  for  the  arrest  ( 
defendant  from  Houston  County,  but  failed,  after  search,  to  find  him  in  Free- 

stone  County.  •  „     ..     i,      ,  oaa 

The  State  then  introduced  In  evidence  the  judgment  nisi  of  September,  188d, 
forfeiting  the  defendant's  appearance  bond.    The  State  closed. 


'  •- 


PROOF   INSUFFICIENT JOHNSON   V.  STATE. 


611 


less  saw  the 
3e  when  the 
rker  Is  sup- 
lined  by  the 
}88essiou  of 
orsp. 

iQcd  that  he 
the  hoi-se  ot 
light   in  the 
3  were  occu- 
{  passed  the 
ie  horse,  and 
ae  one  going 
rsc.    No  one 
n.    The  wit- 
it  was  about 
arlcing  of  his 
i  witness  and 
8.  Brown's  in 
occasionally, 
r  saw  the  ile- 
rn  linowledge 

tate.      Ie  tes- 
tate's   junsel 
he  defendant, 
b  and  failed  to 
id  under  what 
iS  the  counse' 
id,  the  witness 
,8  placed  in  his 
t  and  failed  to 
I  the  sheriff  of 
n  the  Houston 
I  in  November, 
elodged  in  the 
ant  was  avoid- 

the  State.  He 
ew  the  defend- 
e  was  arrested 
3d  in  Frf  e<*tci'e 
•e-arreiJt  o' 
efendP.nt  r-  ■...■ 
he  defeooe  • 
he  arrest { 
ad  him  in  Free- 

eptember,  1883 


Colonel  John  B.  Paine  was  the  first  witness  for  the  defence.  He  testified 
that  he  resided  in  Navarro  County,  Texas,  in  18-(i.  He  knew  the  .lefendant's 
father,  who  lived  some  eight  or  nino  miles  dl.stant  from  the  witness'  house 
He  also  knew  the  defendant,  and  had  known  him  for  muny  years.  It  had  long 
been  the  custom  of  the  witness  to  hire  the  hands  he  worked  about  the  last  of 
January  or  the  first  of  February  of  each  year,  and  to  en.ploy  them  for  five  or 
SIX  months.  The  witness  was  afflicted  with  a  bad  and  uncertain  mcMuory,  and 
could  not  say  positively,  but  believed  that  it  was  in  tlie  vear  187-1,  and  that  he 
had  had  the  defendant  employed.  He  employed  him  in  January  or  February 
an.l  lie  stayed  with  witness  uutll  the  following  July.  The  defendant's  reputal 
tion  for  honesty  was  good  in  the  community  in  which  he  was  reared. 

A.  M.  Carter  was  the  next  witness  introduced  and  sworn  for  the  defence     He 
testified  that  he  lived  in  Freestone  County,  and  lived  there  in  187'i      He  knew 
the  defendant's  father,  from  whom  he  lived  about  eight  miles  distant      He  had 
known  the  defendant  pretty  much  all  his  life,  say  about  twenty-five  years 
About  the  last  of  July  or  the  1st  of  Au-ust,  either  in  1875  or  187(5  (the  latter 
year,  the  witness  believed;,  he  hired  tlie  defendant  to  help  liim  run  a  thresher 
and  from  that  time  until  tlie  last  of  August  the  defendant  worked  at  the  thresher 
for  him.    The  witness  ran  a  thresher  but  one  season,  and  that  was  the  same 
year  tliat  J.  A.  Bounds  purchased  a  thresher  and  commenced  operating  It,  and 
tliat  year  was  either  the  year  1875  or  the  year  1876,  which  the  witness  could 
not  now  be  certain,  but  he  was  of  impression  that  it  was  the  latter  year     At  all 
events  be  had  run  a  thresher  but  one  year  since  the  war,  and  tliat  was  the  year 
that  Bounds  purchased  his,  and  the  same  year  that  defendant  worke.l  for  him 
AVitness  met  tlie  defendant  iu  the  town  of  Worthara,  Freestone  County   Texas' 
in  tile  month  of  July  before  the  August  iu  which  the  defendant  entered  his  ser- 
vice.    The  defendant's  character  for  honesty  up  to  the  time  this  charge  was  pre- 
ferred  against  him  was  perfectly  good.    Witness  had   never  heard  Ids  honestv 
impeached  before.  ' 

J.  A.  Bounds  was  the  defendant's  next  witness.  He  testified  that  he  lived  in 
Freestone  County,  and  lived  in  tliat  county  during  the  year  187G  Witness 
puiciiased  a  threslier  in  1870,  and  ran  it  that  year  and  for  several  succeeding 
years.  The  witness  at  that  time  lived  about  thirteen  miles  distant  from  the 
house  of  the  previous  witness  Carter.  Carter  operated  a  thresher  the  same 
year  that  witness  purchased  and  commenced  the  operation  of  his,  which  was 
the  year  187(5.  Witness  remembers  this,  because  he  started  to  make  a  drive  in 
Csrter  s  neighborhood,  when  he  found  that  Carter  had  purchased  and  was 
operating  a  thresher.  He  then  turned  his  thresher  into  another  course  The 
witness  did  not  know  that  Carter  ever  run  his  thresher  before  this  year,  but  was 
of  impression,  that  he.  Carter,  run  it  after  1876.  Such  at  least,  was  the  under- 
standing  of  the  witness.  The  witness  had  known  the  defendant  for  some  fifteen 
or  sixteen  years.  Until  the  defendant  was  charged  with  the  theft  of  the  horse  in 
';his  case,  his  reputation  for  honesty  was  as  good  as  that  of  any  person  known 
to  the  wltm  ss. 

Mrs.  Joiinsou,  the  mother  of  the  defendant,  testified,  in  his  behalf,  that  she 
•"till  lived  in  Freestone  County,  on  tlie  same  place  she  lived  in  1876.  The  wit- 
ness did  not  know  of  her  own  knowledge  where  the  defendant  worked  or  stayed 
all  of  the  time  during  the  year  1876,  but  was  under  the  Impression  that  he 
woiKed  for  Col.  John  B.  Payne.  He  and  Colonel  Payne's  son  frequently  came 
to  the  witness'  house  together  during  the  summer  of  1876.    Some  time  during 


612 


LAI.'JENT. 


fccllJ-Bool^    T,   ,1.70  the  wlt,,»8  mot  tl,.drfei>d.«t  in  N«varro  County, 

Te  rintrr  s  .».:=<>.-•»  ••*-•'  '—• «»'"'  °°'  "-■ 

\r  rpTi;rX:"°otr,  "^ott.) .    on  the  ,n«c,.nc,  o.  the  e„. 

WuiTB,  "^  J-  '",'?.*:'•.,  ,^,,  ac!encl«nt  raHod  »  serious  iino.tion  as  to 

J.nc.,  1»  "f  ''^™    ^  *  ^"J   tolppou  «lo„  Ui.  nl,httb«  nor..»a.  .to..., 

his  personal  Identity,  it  is  inaac  i"  "I'l'  ,  ^  defendant  was 

on.  "  Mr  P.*.  •-;«,tS:tdl  'di:  P^^^^^^^^^^^^  t.,at  nl.Ut,  and  „>. 

supposed  to  be.    And  whilst  dtienaaui  ff  j  ^^^  altogether 

r^r;;; -^  ^--r: ::  mJ  ?:r;  h^t  ^""„.gestions 

we  wonld  not  do  1"*-,;--^.^  "'^^^^^^^^^  saddle  hags  on  the 

are  thro,  a  out  because  tdsappe.^^^^^^^^  Inculpatory  facts  iu 

night  the  horse  and  woman  ^  ^J ^w W  ^  ''[^^^;  ^^  ^e  pertinent  and  strong  clr- 

the  recrd  ''f;|-^,  J^^  ,^*;ra;u  ,^^^^^^  -ery 

:^r:Z:!J:^Z^Xt^  of  -«  guUt.  as  we  have  endeavored  to 

'^The  judgment  Is  reversed  aed  the  cause  remanded.  ^^^^^^^^  ^„^  ,,,„„,,,. 
,  .       ^_i»«4-      TTnutaon  V    State.  —  In  Knutson  v. 

S  vt^;t  of'gX  -e"sed  his  punishment  at  coullnement  in  the  penitentiary 
'"w  ir  M^I-t^^Vrtt  first  Witness  introduced  by  the  State     He  testified  that 

h:^;^-^o^  the  ^^ij;>i:::::\^:-L^:^::z^j^^ 

f  t  hroulThis  Hvtn  'refused  to  do,  and  the  defendant  then  said  that 
bail  him  out.    This  "'«  ™  ^  ^j^  ^^  ^^,^  ease  then  pending  against 

infe  ^iZ  ^teraud  iL  detndant  gave  him  a  clay  ban.  horse  as  his 
?  J  111  lot  the  horse  and  kept  him  a  while,  during  which  ti.ne  he  was 
lee.    Witness  got  «»; J^^J^^/";      ^  ^^  ^^^^  ^hen  turned  on  the  range  four  or 

r  miles  :Zt"Z^:^  rslLcf.    shortly  after  the  defendant  employed 

1  14  Tex.  (App.)  670  (1883). 


^A 


PROOF   INSUFFICIENT  —  KNUT80N    V.  STATE. 


613 


About  the 
ho  witness' 
a  defendant 
le  and  July, 
1877.  The 
ton  County, 

testified  on 
c  years,  anil 
ge,  was  per- 
3t  of  August 
irro  County, 
g  out  West. 

r  of  the  evl- 
lestion  as  to 
e  was  stolen, 
efendant  was 
Ight,  and  his 
i)t  altogether 
orse  to  carry 
It's  domestic 
rights  In  the 
to  advantage 
fc. 

e  suizgestions 
e  bags  on  the 
atory  facts  in 
nd  strong  clr- 
exclude  every 
endeavored  to 


!cf  remanded. 

[n  Knutson  v. 
)rsc,  the  prop- 
iptember,  1882. 
le  penitentiary 

le  testified  that 
ir  of  1881,  the 
)ted  witness  to 
i  then  said  that 
lending  against 
nlc  horse  as  his 
Eh  ti.ne  he  was 
B  range  four  or 
idaut  employed 


the  witness,  he  secured  ball  and  was  released  from  jail.  The  witness  after- 
wards saw  the  horse  in  the  possession  of  the  defendant.  He  told  the  defendant 
tliiit  he  must  quit  riding  that  horse,  and  the  dcfeudnnt  proml.sed  thiit  he  would. 
The  witness  at  no  time  cousented  to  the  taking  or  using  of  this  horse  by  tho 
defendant  or  other  person.  lie  represented  and  acquitted  the  defendant  In  the 
case  for  which  as  a  fee  this  horse  was  given  him. 

\V.  W.  Robertson  testified,  for  the  State,  that  In  the  summer  of  1882  he  saw 
the  horse  once  owned  by  the  defendant,  and  which  was  said  to  have  been  trans- 
ferred by  him  to  tho  witness  Martin.  The  horse  at  that  time  was  necked  to 
another,  and  was  turned  Into  the  witness'  pasture  by  the  defendant  and  one 
Chancey.  lie  remained  in  the  pasture  for  several  days.  This  pasture  was 
«cvin  or  eight  miles  from  Martin's.  The  defendant  and  Chancey  left  the  wit- 
ness' house  with  the  horses  still  necked.  They  were  driving  a  small  herd  of 
cattle  at  the  time.  The  witness  did  not  know  where  they  went,  but  Chancey 
usually  drove  his  cattle  to  Corslcana.  Cross-examined,  the  witness  stated  tha 
he  had  heard  'cut  did  not  know  of  his  own  knowledge  that  the  defendant  had 
ever  transferred  the  horse  to  Martin.  The  defendant  was  in  the  employ  of 
f'hancey,  who  was  a  cattle  buyer.  Chancey  had  bought  a  great  many  cattle  In 
the  witness'  neigliborhood  during  the  preceding  three  or  four  years,^and  was  In 
the  habit  of  penning  them  in  the  witness'  pa«ture.  This  pasture  Is  about  three 
<iimrti!rs  of  a  mile  from  the  little  to'  n  of  Mallkoff.  The  witness  had  never  seen 
the  defendant  using  the  horse  in  question.  The  horse  was  in  the  witness'  pi-.B- 
tiire  for  three  or  four  days,  during  the  most  of  which  time  the  defendant  and 
Cliancey  were  out  after  cattle.  This  pasture  was  in  or  near  the  horse's  range, 
and  about  two  miles  from  the  house  of  Martin.  They  left  the  witness'  house 
In  the  day  time,  going  in  the  direction  of  Mallkoff,  which  is  on  the  road  from 
the  witness'  house  to  Corslcana,  to  which  town  Chancey  generally  drove  hia 
cattle.  The  witness  did  not  know  to  whom  the  horse  belonged  which  was 
necked  to  the  horse  in  question.  Ha  did  not  hear  Chancey  or  the  defendant 
claim  either  of  the  horses.    He  had  never  seen  the  clay  bank  horse  since. 

A.  S.  Tanner  testified  that  he  lived  In  the  town  of  Mallkoff,  which  is  near  the 
Navarro  County  line.  He  had  known  the  defendant  for  three  or  four  years,  and 
knew  the  horse  he  was  said  to  have  transferred  to  Martin.  During  the  summer 
of  1882  the  defendant  passed  through  Mallkoff  with  Mr.  Chancey,  going  towards 
Corslcana.  They  were  driving  a  herd  of  cattle,  and  also  this  horse  necked  to 
anotlier.  Cross-examined,  he  stated  that  Chancey  was  a  cattle  buyer,  who  lived 
in  Corslcana.  He  had  bought  a  great  many  cattle  In  the  Mallkoff  neighborhood, 
and  usually  penned  them  at  Robertson's.  The  witness  supposed  that  this  herd 
was  his.  The  defendant,  who  lived  in  that  neighborhood,  was  in  the  employ  of 
Chancey.  The  horse  ranged  in  that  neighborhood.  These  parties  pf^ssed 
through  Mallkoff  in  the  morning  about  nine  o'clock. 

The  defence  first  introduced  W.  H.  Martin,  and  asked  him  in  substance  If  he 
(lid  not,  shortly  after  the  defendant's  release  from  jail,  meet  John  Clay  in  the 
public  road,  at  a  certain  place,  and  ask  the  said  Clay  how  his  (Martin's)  '•  clay- 
bank  horse  "  was  getting  along;  how  he  liked  the  range,  and  if  he  was  not  a 
"wild,  fool  kind  of  a  horse;  "  and  did  not  Clay  answer  that  he  was  such  a 
horse;  and  did  not  he  (Martin)  there  and  then  say  to  John  Clay:  "You,  Tom 
Knutson  and  the  other  boys  may  take  up  that  horse  and  use  him  until  I  call  for 
him."  To  these  questions  the  witness  answered?  "No,  I  don't  think  I  ever 
had  such  a  conversation.  If  so,  I  have  no  recollection  of  it.  I  never  gave  any- 
body my  consent  to  ride  my  horse." 


(514 


LARCENY. 


John  Clay  whs  the  second  witness  Introduced  by  the  defence     He  test  fled 
tha    1^  knL  the  horse  the  defendant  let  Martin  have.    When  the  defendant 
,r^c     ond  and  was  released  from  jull.  about  January  1.  1882.  which  was  after 
te  ia     enu-loyed  Martin,  the  witness  took  the  defendant  this  san.e  horse,  and 
he  defendint  rode  hl.n  home.    The  witness  had  seen  him  rldo  th  s  horse    ev- 
e    1  ,ln.es  since  then,  and  had  seen  him  ride  the  hor.e  since  the  jH'^P-'"-  o 
,he  case  against  him,  for  services  In  which  he  gave  Martin  the  horse.     8om 
time  u.  the  spring  of  1882,  ami  after  the  deposition  of  that  c.^e,  the  witness  1, 
Ts  1  g  Mart'lnN  house  saw  that  gentlcnu.n.    Martin  on  '^at  occasion  asked 
he  witness  about  the  horse.     He  asked  if  he  was  "^^  «*  ^^ '''•"<;' '^'"i°,; 
horse     The  witness  told  him  that  he  was,  and  that  he  would  pitch      Maria 
then  said     "Von,  and  Tom  Knutson  and  the  other  boys  can  ride  and  use  hhn 
u  til  I  call  for  him  "    Cros>-examlned,  the  witness  said  that  he  did  not   el  the 
dnlunab;      Martin's  saying  that  he  could  use  the  hor.se  until  the  defend- 
ant  Lme  to  him  and  asked  hl.n  abont  it  after  his  arrest.    The  wi  ness  did  not 
Jclemrer  to  whom  he  told  this.    The  defendant  must  have  derived  his  Informa- 
UoT  rom  «on.e  of  the  neighbors.    The  witness,  when  he  was  asked  by  defend- 
aM  tourhlm  what  Martin  said,  and  he  thereupon  had  the  witness  subpoenaed. 
T  ;  V  t.  esH^who  live.1  In  the  same  neighborhood  in  which    he  defendant  lived, 
^d  in     1  ich  the  horse  ran,  often  saw  the  defendant  riding  .he  horse  during  the 
tplng  of  1882.    After  he  ^as  Indicted,  the  defendant  told  the  witness  that  he 
took  the  horse  to  Corsicuna  and  left  him  at  Chanccy's.  .     „    ., 

Tom  Clmncey  was  the  next  witness  for  the  defence.    He  testified  that  l.e  ll^ed 
in  C    sicana,  and  for  several  years  had  been  engaged  In  buying  cattle  In  Hen- 
derson and  adjoining  counties,  and  of  using  the  pasture  of  W.  W  Roblnso..  to 
pen  them.    He  had  bought  at  least  four  hundred  head  o    cattle  In  Henderson 
County.    The  witness  had  known  the  defendant  since  December,  1881.  about 
Sch  time  he  employed  him  to  assist  in  driving  cattle.    He  understood  then 
«,at  there  was  a  case  pending  against  the  defendant  in  the  District  Court,  an. 
hat  he  was  out  on  bond.    The  defendant  was  using  a  ye  low  horse  at  tha 
time,  which  he  always  said  was  the  property  of  W.  ";  M-"'"-    ««  -*  ^^^^ 
pretended  that  he  had  a  claim  to  him,  but  repeatedly  refused  to  trade  him 
because  he  was  the  property  of  W.  H.  Martin.    In  May,  1882,  the  witness  nmde 
other  purchases  of  cattle  in   Henderson  and  Anderson  Counties,  and  agah. 
employ"  d  the  defendant.    The  cuse  against  the  defendant  had  then  been  d.s- 
nosed  of     The  defendant  again  took  up  the  same  yellow  horse,  asserting  that 
the  horse  belonge.l  to  W.  H.  Martin,  and  denying  any  claim  himself     En  route 
to  Corslcana  with  fifty  or  sixty  head  of  cattle,  after  having  remained  at  Robin- 
son's pasture  four  or  live  days,  the  witness  and  the  defendant  passed  through 
the  town  of  Malikoff.  and  he  thinks  that  he  saw  A.  S.  Tanner  on  that  occas.on. 
The  defendant  W.-18  riding  the  yellow  horse  when  they  passed  through  MallkoB. 
He  remained  with  the  witness  a  few  days  at  his  house  in  Corslcana.  when  the 
witness  purchased  his  saddle,  bridle  and  blanket.    He  then  left  on  the  train, 
Having  that  he  was  going  to  Madison  County.    He  requested  the  witness  to 
take  the  yello-v  horse  back  to  Martin  when  he  returned  to  Malikoff.    This  the 
witness  promised  him  that  he  would  do.    The  horse  remained  In  the  witness 
pasture  about  two  weeks,  when  he  and  a  black  mare  broke  out  and  ran  away. 
The  witness  found  them  after  a  search  of  six  or  eight  days,  and  returned  them 
to  the  pasture.    Two  weeks  thereafter  the  witness  and  Charley  Pickle  rode  the 
vellow  horse  and  black  mare  around  the  neighborhood,  and  Anally  turned  them 
out  on  the  prairie  near  the  witness'  house.    Since  that  time  the  witness  has 


PROOF   INSUFFICIENT  —  KNUT80N   V.  STATE. 


(515 


He  testified 
he  defendant 
Ich  was  after 
lie  horse,  und 
Ills  horne  sev- 
rtlsposltion  of 
liorne.     Some 
I  he  wltnesw  in 
xasion  asked 
fool  kind  of  a 
iltch.    Martin 
e  and  use  hiui 
lid  not  tell  the 
til  the  defend- 
fltness  clld  not 
3d  his  Infornia- 
:ed  by  defend- 
98  subpuinaed, 
ifendant  lived, 
trse  durlna  the 
Itness  that  be 

d  that  he  lived 
;  cattle  in  Ilen- 
V.  Robinson  to 
)  lu  Henderson 
ter,  1881,  about 
nderstood  then 
rlct  Court,  and 
r  horse  at  that 
He  at  no  time 
d  to  trade  him 
le  witness  made 
ties,  and  again 
I  then  been  dis- 
'.,  asserting  that 
nself.    En  route 
lalned  at  Robin- 
passed  through 
m  that  occasion' 
irough  Mallkofl. 
alcana,  when  the 
eft  CD  the  train, 
d  the  witness  to 
illkoff .    This  the 
1  In  the  witness' 
t  and  ran  away, 
id  returned  them 
y  Pickle  rode  the 
lally  turned  them 
i  the  witness  has 


seen  neither  of  them,  though  he  hunted  several  days  for  them.  This  was 
about  July,  1882.  The  defendant  lelt  for  Ma<llson  County  about  the  llrst  of 
.luiie,  and  returned  ul)out  the  flrst  of  Anj^ust,  wliich  was  about  four  weeks  after 
the  two  horses  ran  away.  The  witness  again  employed  him.  Cross-examined, 
the  witness  stated  that  a  short  time  after  the  defendant  left  for  Madison 
Cciimfy,  and  while  the  horse  wiis  in  his  pasture,  ho  made  a  trip  to  Henderson 
County  to  purchase  cattle,  and  while  there  sent  W.  II.  Miirlin  word  that  his 
hiirse  was  in  his,  witness',  pasture.  He  could  not  say  that  Martin  ever  received 
the  word.  The  witness  made  one  or  two  trips  to  Henderson  County  while  the 
Imise  was  in  his  pasture.  Ho  felt  quite  certain  that  the  defendant  was  riding 
tlic  yellow  horse  wlien  ho  and  the  witness  passed  thro'igli  Mallkoff  en  route  to 
(oisicana,  because  the  horse  would  not  drive.  Two  daj  <  were  consumed  in 
Uding  from  Robinson's  pasture  to  Corsicana.  It  was  the  j-ractice  of  the  wit- 
ni  ss  to  take  several  horses  with  him  on  these  trips  a*  r  !lefs.  He  did  not 
rcmeniljcr  liovv  many  ho  had  on  this  trip.  Hl.s  contract  wit  i  the  defendant  was 
to  furnish  him  rldlug  stock.  The  backs  of  all  his  horses  were  tiien  sore;  so 
\v:is  that  of  the  yellow  horse,  but  it  was  not  in  as  bad  a  condition  as  tlie  wit- 
ness' horses.  Tiie  witness  felt  quite  certain  that  the  defendant  rode  the  Martin 
hrrie  through  the  town  of  Malikoff  on  that  trip,  because,  as  stated,  ho  would 
lidt  drive.    The  witness  repeated  and  emphasized  this  statement. 

The  following  entry  appears  in  tlio  statement  of  facts :  "  Tho  State's  attor- 
Mi  V,  after  many  other  questions,  asked  Chancey:  '  Do  you  know  who  got  that 
iinise?'  The  witness  gave  no  positive  answer,  but  said:  '  I  suppose  tlie  horse 
ran  away.'  Tho  same  question  was  propounded  again  and  again,  when  the 
witness  turned  his  head  and  declined  to  answer.  The  defendant's  counsel 
rocailed  this  witness  the  next  morning,  and  asked  him  if  he  knew  who  got  the 
horse.    He  replied  that  he  did  not." 

The  next  witness  for  tho  defence  was  Charley  Pickle.  He  testified  that  he 
was  employed  by  Chancey  to  help  him  drive  some  cattle  from  Anderson  County 
niiout  December,  1881.  Tlie  defendant  was  with  Chancey  about  that  time,  and 
was  riding  a  yellow  horse.  The  witness  proposed  to  trade  for  him.  The 
(Ufeudant  refused,  saying  that  the  horse  belonged  to  Mr.  W.  H.  Martin,  and 
that  he  could  not  trade  him.  Some  time  in  June,  1882,  the  witness  saw  th« 
same  horse  at  Chancey's,  in  Navarro  County.  Chancey  rode  that  horse  about 
the  neighborhood  with  the  witness.  That  night  he  turned  the  horse  out  on  the 
prairie,  and  the  witness  had  not  seen  him  since. 

Cross-examined,  the  witness  stated  that  he  saw  four  or  five  horses  at 
Chancey's  on  the  occasion  last  referred  to.  All  save  a  sorrel  had  sore  backs. 
Tlie  yellow  Martin  horse's  back  was  sore  as  any  of  them.  Witness  knew  noth- 
'n;;  about  the  present  whereabouts  of  the  horse. 

The  motion  for  a  new  trial  assailed  the  sufficiency  of  the  evidence  to  sus- 
tain the  verdict. 

WiLLSON,  J.  To  constitute  theft.the  taking  of  the  property  must  be  fraudu- 
lent, with  the  intent  on  the  part  of  the  taker  to  deprive  the  owner  of  the  value 
thereof,  and  to  appropriate  the  same  to  the  use  or  benefit  of  the  taker.^  It 
devolves  upon  tlie  prosecution  to  prove  beyond  a  reasonable  doubt,  that  the 
property  was  taken  with  the  Intent  above  stated,  and  that  such  intent  existed  at 
the  time  of  the  taking.^ 


'  Penal  Code,  art.  724;  Camplln  r.  State, 
ITex.  (App.)  108;  Dnuham  v.  State,  3  Tex. 
(App.)  466. 


a  Reed  v.  State,  8  Tex.  (App.)  40. 


616 


LARCENY. 


In  thU  case,  wo  regard  the  evldonco  as  wholly  InBuffldcnt  to  eitabllsli  a 

Iraudiilent  Intent  ou  tho  part  of  the  tlufendunt  In  taklujj  the  horHO.    On  the 

contrary,  we  think  the  evidence  shows,  at  most,  a  Piere  trespass;  a  taking  of 

tho  horse  lor  temporary  use  only,  with  no  Intention  to  deprive  the  owner  of  tlio 

value  thereof,  or  to  ai)proprlute  the  same  absolutely  to  his  own  use  or  benellt. 

In  our  opinion  the  conviction  Is  without  sufficient  evidence  to  support  It,  and  the 

iudument  Is  reversed  and  cause  remanded. 

^     *»  Reversed  andremandtd. 

§  fl72.  Bvldenoe  Inaufflolent  to  Oonvlot  —  Madison  v.  State.— In  Madi- 
son  V.  State,^  the  conviction  was  for  the  theft  o"  twenty  ho;,'s,  the  property  of 
R  H.  Cabiuess,  of  tho  aggregate  value  of  forty  dollars.  In  Walker  County,  ou 
the  tenth  day  of  March,  1883.  A  term  of  two  years  In  tho  penitentiary  was  the 
punishment  awarded. 

P.  II.  Cablness  was  the  first  witness  for  the  State.  He  testified  that,  early 
In  March,  1883,  he  left  his  homo  to  look  after  his  stock.  The  creek  running  near 
his  house  was  so  swollen  that  he  left  his  horse  and  crossed  over  on  a  foot  log, 
and  went  Into  the  field  In  which  tho  residence  of  Mr.  Grooms  was  situated. 
He  found  Mr.  Grooms  penning  some  hogs  In  a  close  pen  that  he  had  recently 
made.  Witness  asked  Grooms  about  tho  hogs  that  he  was  then  penning,  and 
ascertained  from  him  that  he  had  purchased  them  from  the  defendant.  Wit- 
ness Informed  Grooms  that  those  hogs  were  his.  Tho  bunch  Included  seven- 
teen shoats  and  three  sows.  Grooms  had  butchered  one  of  the  sows,  and  was  on 
the  eve  of  marking  the  shoats,  which  at  that  time  were  unmarked.  The  animals 
described  were  perfectly  gentle,  and  would  readily  answer  to  call.  Witness 
had  the  defendant  sent  for,  and  he  came  to  Grooms'  place.  Witness  asked  the 
defendant  why  he  had  traded  his  hogs  to  Grooms.  Tho  defendant  replied  that 
they  looked  like  his  hogs  — a  bunch  that  he  had  purchased  from  Mr.  Roberts, 
and  that  he  took  them  to  be  that  same  bunch.  Some  one  asked  the  defendant 
what  ho  proposed  to  do  about  tho  hog  Grooms  had  killed  — If  he  was  going  to 
pay  for  it.  He  answered  that  that  was  Mr.  G.ooms'  business,  or  that  Grooms 
would  attend  to  that,  as  it  was  Grooms  that  killed  the  animal.  The  witness 
remarked,  in  reply,  that  he  did  not  want  pay  for  the  hog,  as  he  Intended  tc 
prosecute  the  defendant  for  taking  the  animals. 

Cross-examined,  the  witness  stated  that  his  mark  was  a  swallowfork  in  one 
ear  and  a  split  in  the  other.  He  found  his  hogs  as  stated,  and  sent  for  the  de- 
fendant on  or  about  the  tenth  day  of  March,  1883.  He  took  his  hogs  home  on 
the  same  day,  and  ou  the  same  evening  went  to  HuntsvUle  and  lodged  com- 
plaint against  the  defendant,  charging  him  with  the  theft  of  the  hogs,  twenty  la 
number.  He  made  this  complaint  before  a  justice  of  the  peace.  The  complaint, 
bearing  date  March  10,  1883,  was  here  exhibited.  On  the  Monday  following  the 
Saturday  on  which  the  hogs  were  recovered  and  the  complaint  filed,  the  defend- 
ant came  to  tho  witness'  house,  having  a  hog  In  his  wagon  which  he  offered  the 
witness  In  the  place  of  tho  one  Grooms  had  killed.  Tho  witness  hesitated 
about  accepting  the  hog,  but  finally  told  tho  defendant  that  ho  would  accept  the 
hog  in  payment  for  the  one  killed  by  Grooms.  He  directed  the  defendant  to  put 
the  hog  In  his,  witness'  lot,  which  he  did.  Witness  thereupon  turned  the  hog 
over  to  a  colored  man.  He  did  not,  on  that  occasion,  tell  the  defendant  that  he 
bad  been  to  HuntsviUe  and  filed  a  complaint  against  him  for  stealing  the  hogs. 

1  16  Tex.  (App.)  435  (188*). 


A^a 


PROOF   INSUFFICIENT  —  MADISON    V.  HTATE. 


G17 


)  establisli  a 
fHO.  On  iho 
;  utukliiij;  of 
owner  of  the 
se  or  bent'llt. 
rt  It,  aud  the 

I  remanded. 

—  In  Madi- 
B  property  of 
r  County,  ou 
tiary  was  the 

id  that,  early 
running  ni-ar 
)n  a  foot  log, 
was  situated. 

had  recently 
penning,  uiid 
sndant.  Wlt- 
cluded  seven- 
rs,  and  was  on 

The  animals 
lull.  Witness 
ess  titikeil  tlie 
it  replied  that 

Mr.  Roberts, 
ho  defendant 
was  going  to 
■  that  Grooms 

The  witness 
le  Intended  tc 

owfork  in  one 
nt  for  the  de- 
hogs  home  ou 
1  lodged  com- 
ogs,  twenty  in 
fhe  complaint, 
'  following  the 
id,  the  defend- 
be  offered  the 
less  hesitated 
tuld  accept  the 
fendant  to  put 
lUrned  the  bog 
endant  that  he 
ling  the  bogs. 


The  defendant  did  not,  at  the  time  that  hu  made  restitution  for  tlie  hog  Icilled 
by  (irooniH,  know  that  the  complaint  for  theft  luul  been  tiled,  Witness  was  of 
till'  Impression  that  the  defendant  knew  his,  witness'  mark,  us  two  years  before 
lie,  the  defendant,  had  attended  to  and  milked  Home  of  witness'  cows  in  that 
murk.  When  the  'U>fcndant  milked  the  cows  spoken  of  lie  I'ved  about  nine 
iiillcs  from  the  place  where  he  lived  wlu'U  he  sold  tlie  ho^sto  (irooms.  Witness 
owned  three  sows  in  thu  lot  the  defendant  sold  to  Grooms,  otie  a  black  sow, 
one  II  brown  or  f  andy  sow  with  spots  al)out  on  her  body,  and  the  other  a  spotted 
sow.  Grooms'  plaeo  was  about  two  and  a  half  miles  from  witness'  residence. 
The  witness  identltled  the  defendant,  and  stated  that  the  hogs  were  owned  by 
tiiiii,  witness,  and  were  taken  without  bis  consent,  In  Walker  County,  Texas,  oq 
ur  aliout  March  10,  IHSa. 

The  witness  Grooms  testified,  for  tlic  State,  that  he  traded  for  a  bunch  of 
lio^.'M  with  the  defendant;  that  at  the  time  he  made  the  trade  tlie  hogs  were  run- 
iiiiig  in  Ills,  witness',  field ;  that  he  informed  the  defendant  tliat  the  hogs  were  in 
the  tiekl,  and  the  defendant  said  that  he  thought  they  were  his,  the  defendant's, 
hd^'.s,  us  he  had  hogs  miming  in  the  same  range  with  the  Ciihlness'  hogs.  Wit> 
Dt'ss  made  the  trade  with  the  defendant  for  the  hogs  on  Thursday.  On  Satur- 
day following,  while  he,  witness,  was  putting  the  hogs  in  a  small  pen  for  the 
purpose  of  marking  the  shoats,  Cablncss  came  up  and  claimed  the  hogs  as  his. 
The  defendant  was  then  sent  for,  and  came  to  the  hog-pen.  Cabinets  told  the 
defendant  that  the  hogs  belonged  tu  him,  Cabincss.  Defendant  replied  that 
the  hogs  looked  like  his,  and  he  tliought  that  they  \';ere  his  when  he  traded  them 
to  the  witness.  The  bogs,  except  one  open  sow,  which  the  witness  hud  killed, 
were  taken  away  by  Cabiness.  Cros.s-exumined,  the  witness  stated  that  the  dc- 
feiulaut  owned  a  bunch  of  hogs  that  ran  on  the  same  range  with  the  Cabiness' 
bogs,  About  eight  days  after  the  hogs  traded  for  were  identified  aa  Cabiness' 
hof!H,  the  defendant  found  his  hogs,  and  turned  them  over  to  the  witness  for  the 
game  consideration  that  hud  been  paid  on  the  trade  for  the  Cabiness*  hogs. 
The  defendant  had  a  Une  lot  of  bogs,  numbering  about  thirty  iieud  of  shoats, 
ami  four  or  five  sows.  Of  the  Cabincss  hogs  described,  the  witness  bought  of 
defeiulunt  eleven  shoats  and  three  sows.  One  of  the  sows  was  black  In  color, 
another  was  a  sandy  animal  with  some  white  spots  about  the  body,  and  the 
other  was  spotted.  The  sows  witness  last  l)ought  of  the  defendant  were  marked 
with  u  crop  and  split  In  one  ear,  and  a  crop  and  upper  hull-crop  and  undcrbltin 
tlie  other.  The  defendant  hud  a  very  poor  faculty  for  distinguishing  ear-marks, 
and  could  not  now.  If  required  to  do  so,  go  out  into  the  court  house  yard,  ex- 
amine the  mark  of  a  hog  and  return  aud  describe  it  correctly.  Before  he  traded 
for  the  hogs  that  proved  to  belong  to  Cabiness,  the  witness  knew  that  the  de- 
fendant owned  bogs  running  on  the  same  range  with  the  Cabiness'  hogs,  not 
far  from  where  be,  witness  lived.  He  knew  that  the  defendant  had  not  seen  his 
hogs  oftener  than  twice  since  Christmas,  1882.  There  were  two  different  ear- 
nrnrks  in  the  second  lot  of  hogs  tiiat  the  witness  got  from  the  defendant,  one  of 
which  was  the  defendant's  mark  and  the  other  the  Roberts'  mark.  Neither  of 
these  marks  resembled  the  Cabiness'  mark.  When  the  witness  bought  the 
Cabincss  hogs  from  the  defendant,  be  and  the  defendant  called  the  hogs  right 
up  to  them.  They  were  quite  gentle.  Witness  went  to  defendant's  house  after 
Cabincss  claimed  the  hogs,  when,  it  is  the  impression  of  the  witness,  the  de- 
feiidant,  upon  being  asked  about  the  mark,  said:  "That  Is  the  old  Cabiness 
mark."  The  Cabiness  and.  Roberts'  mark,  excepc  that  both  hud  a  split  in  one 
ear,  were  totally  unlike.    Tbe  State  ciosed. 


fllJwfW^'  "  -" 


618 


LAllCENY. 


Jimmie  Smith  was  the  first  witness  for  the  defence.  He  testified  that  he  was 
present  at  the  Grooms'  house  on  the  Saturday  that  Cablness  sent  for  the  (k- 
fendant  to  go  to  Grooms'  house.  When  Cablness  told  the  defendant  that  the 
ho!|3  lie  had  sold  to  Grooms  were  his,  Cablness',  hogs,  the  defendant  said  that 
they  loolced  like  his  own  hogs,  and  that  at  the  time  he  traded  them  to  virooms 
lie  thought  they  were  his.  The  witness  knew  that  the  defendant  owned  hogs 
running^'ln  the  same  range  with  the  Cablness'  hogs  when  he  made  tlie  trade  with 
(;rooms.  He  owned  a  "likely"  or  good  bunch,  numbering  four  or  five  sows 
and  some  thirty  pigs,  or  shoats.  The  witness  owned  these  hogs  originally,  but 
sold  them  to  Roberts,  who  subsequently  sold  them  to  the  defendant.  Witness 
heard  of  this  latter  sale  through  both  Itoberts  and  the  defendant.  These  ho^'s 
had  been  somewhat  dogged,  and  were,  therefore,  Inclined  to  be  skittish.  Tte 
Cablness  hogs  were  gentle.  Witness  knew  that  the  defendant  had  a  very  poor 
faculty  for  distlnguishiug  the  ear  marks  of  animals.  It  Is  possible  that  the  de- 
fendant might  be  able  to  distinguish  his  own  hog  mark  from  that  of  another  per- 
son,  but  the  witness  doubted  such  fact. 

J.  W.  Robinett  testified,  for  the  defence,  that  he  knew  that  the  defendant 
owned  hogs  running  in  the  same  range  with  the  Cablness  hogs.  They  were  a 
fine  lot,  numbering  some  "^ .  e  or  six  sows,  and  some  twenty  or  thirty  pigs  or 
shoats.  Witness  had  mad<'  an  ineffectual  effort  to  trade  with  the  defendant  for 
his  bunch  of  hogs.  Witness  knew  the  defendant  well.  His,  defendant's, 
faculty  for  distinguishing  ear  marks  of  animals  was  exceedingly  poor.  He  had 
no  ability  to  identify  ear  marks  at  all.  Among  the  hogs  owned  by  the  de- 
fendant there  was  a  black,  a  black  and  white  spotted,  and  a  sandy  colored  sow. 
This  latter  had  some  spots  on  her  body.  There  was  some  resemblance  between 
these  three  and  some  sows  owned  by  Cablness. 

The  proof  in  tills  case  further  showed  that  the  complaint  was  made  before  a 
justice  of  the  peace  on  March  10,  1883,  and  that  the  defendant  had  no  notice  of 
isuch  complaint  until  he  was  arrested  on  the  thirteenth  day  of  the  follov/lng 
April. 

That  the  verdict  was  against  the  evidence,  that  the  court  erred  in  its  general 
charge,  and  in  the  refusal  to  give  certain  requested  charges,  were  the  grounds 
urged  in  the  motion  for  new  trial. 

White,  V.  J.  The  appellant  was  convicted  of  the  theft  of  certain  hogs,  the 
property  of  one  Cablness.  Without  discussing  the  many  errors  assigned,  we 
propose  to  discuss  but  two  questions,  to  w  t:  (1)  As  to  the  sufficiency  of  the 
facts  to  establish  theft  as  defined  in  our  code;  and  (2)  the  sufficiency  of  the 
evidence  to  establish  the  guilt  of  the  defendant. 

A  fraudulent  "  taking  "  is  the  essential  element  of  theft  as  that  offense  is  de- 
fined in  our  code.*  At  common  law,  a  carrying  away  or  asportation  was  neces- 
sary In  connection  with  a  fraudulent  taking,  but  under  our  code,'"  to  constitute 
theft,  it  is  not  necessary  that  the  property  be  removed  any  distance  from 
the  place  of  taking;  it  is  sufllcient  tbvt  it  has  been  in  the  possession  of  the 
thief,  though  it  may  not  be  moved  out  of  the  presence  of  the  person  deprived 
of  it;  nor  is  it  necessary  that  any  definite  length  of  time  shall  elapse  between 
the  taking  and  the  discovery  thereof;  if  but  a  moment  elapse,  the  offense  is 
complete.'"" 

What  is  a  taking  under  our  law?  Must  actual,  manual  possession,  or  the  ex- 
ercise of  actual  custody  and  control,  be  established  to  couotitute  a  taking? 


1  P.  C,  art.  724. 


8  P.  C,  art.  726. 


^ 


PROOF   INSUFriCIENT MADISON    V.  STATE. 


619 


[c  testified  that  he  was 
lincHS  sent  for  the  de- 
the  defentlant  that  the 
tie  defendant  said  that 
raded  them  to  viroonis 
iefendant  owned  hojjs 
he  made  tlie  trade  with 
ring  four  or  five  sows 
ISC  liogs  originally,  )>ut 
e  defendant.  Witness 
efendant.  These  ho^is 
d  to  be  skittish.  The 
mdant  had  a  very  poor 
s  possible  that  the  de- 
om  that  of  another  per- 

jw  that  the  defendant 
s8  hogs.  They  were  a 
rteuty  or  thirty  pigs  or 
with  the  defendant  for 
ill.  His,  defendant's, 
edingly  poor.  He  had 
>g3  owned  by  the  de- 
d  a  sandy  colored  sow. 
ic  resemblance  between 

Int  was  made  before  a 
ndant  had  no  notice  of 
I  day  of  the  following 

urt  erred  in  its  general 
rges,  were  the  grounds 

eft  of  certain  hogs,  the 
ay  errors  assigned,  we 

0  the  sufficiency  of  the 
)  the  sufficiency  of  the 

if  t  as  that  offense  Is  de- 
asportation  was  neces- 
urcode,'"  to  constitute 
ved  any  distance  from 

1  the  possession  of  the 
of  the  person  deprived 
e  8ha!I  elapse  between 
t  elap»e,  the  offense  is 

al  possession,  or  the  ex- 
to  couotitute  a  taking? 


These  questions  are  suggested,  and  necessary  to  be  determined  from  the  facts 
ill  this  case.  It  Is  shown  by  the  evidence,  beyond  controversy,  that  the  appel- 
lant sold  the  hogs  to  Grooms,  and  that  the  hogs  belonged  to  Cablness.  The  hogs 
wore  running  in  Groom's  flelil,  who,  believing  them  to  belong  to  defendant,  in- 
formed the  latter  that  they  were  in  his  fleUl.  "  Defendant  said  he  thought  they 
were  his  hogs;  that  he  had  hogs  running  in  the  same  ra.ige."  Witness 
(Grooms)  and  defendant "  culled  tlie  hogs  right  at  (up  to?)  them."  Defendant 
sold  the  hogs  to  G-"  lis,  and  Grooms,  the  next  day,  put  them  into  his  pen, 
where  they  were  afterwards  foniid,  and  claimed  by  Cabiness. 

W.'is  this  such  a  "tak'ng"  by  defendant  as  constitutes  theft  under  our  stat- 
ute? At  common  law  tliire  was  required  to  be  not  only  a  taking,  but  asporta- 
tion also.  And  Mr.  Kusstll  says:  "There  must  be  an  actual  taking  or 
severance  of  the  poods  from  the  possession  of  the  owner,  on  the  ground  that  iar- 
(fiiiy  iiic  udes  a  trespass.  If,  therefore,  there  was  no  trespass  in  taking  goods, 
there  cui.  be  no  felony  in  carrying  them  away.  But  the  taking  need  not  be  by 
the  very  hand  of  the  party  accused;  so  that  if  the  thief  fraudulently  procure  a 
person  innocent  of  any  felonious  Intent  to  take  the  goods  for  him  (as  if  he 
should  procure  an  infant  within  the  age  of  discretion  to  steal  the  goods),  his 
offense  will  be  the  sami;  as  If  he  had  taken  the  goods  himself,  and  it  should  be 
sotharged.  It  appears  to  be  well  settled  that  the  felony  lies  in  the  very  first  act 
of  removing  the  property;  and,  therefore,  that  the  least  removing  of  the  thing 
t;ikeii  from  the  place  where  it  was  before,  with  an  intent  to  steal  it,  is  sufficient 
asportation,  though  it  be  not  quite  carried  away."  ' 

111  the  case  before  us,  the  hogs  were  in  their  accustomed  range,  and  Grooms, 
after  his  purchase,  did  not  drive  o»-  pen  them  for  a  day  or  so.  Did  the  single 
act  of  defendant  in  selling  him  tne  hogs,  under  the  circumstances,  amount  to 
theft?  At  tlie  request  of  the  district  attoniey,  the  court  charged  the  jury  "  that 
the  selling  of  property  belonging  to  another  by  one  who  knows  the  same  is  not 
his  own  is  sufficient  In  law  to  constitute  a  taking  as  meant  in  the  definition  of 
theft;  and  if  all  the  o*,her  ingredients  of  theft,  as  given  you  in  the  general 
charge,  are  proven,  and  a  taking  is  shown  by  a  sale  of  the  property,  then  such 
sale  is  a  taking  under  the  law." 
This  charge  simply  affirms  that  a  sale  is  equivalent  to  a  taking, 
lu  Hardeman  v.  6'(a«c,2  Hardeman  gold  a  steer  running  on  the  range,  the  prop- 
erty of  one  May,  to  one  Wenr,  and  this  court  said :  "  The  evidence  falls  to  show 
that  the  steer  was  ever  In  possession  of  the  defendant.  To  constitute  theft, 
there  must  be  a  fraudulent  taking  by  some  person.  In  this  case,  the  defendant 
dill  not  take  the  animal,  nor  did  Calvin  W.  ,  to  whom  defendant  sold  the 
animal;  and.  If  Wear  had  taken  the  property,  his  taking  would  not  have  been 
fraudulent,  but  honest,  he  having  bought  and  paid  for  It,  and  received  the  bill 
of  sale  for  the  steer.  This  steer,  running  on  the  range  all  the  time,  was  not 
talseu  fraudulently  or  otherwise  by  any  person,  hence  there  was  no  tneft." 
This  decision  fully  refutes  the  proposition  announced  n  the  charge  given  — 
that  a  sale  alone  constitutes  a  taking.  Under  the  Hardeman  decision,  it  would 
appear  that  a  defendant  must  have  some  sort  of  possession  of  the  stolen  prop- 
erty, else  a  sale  of  such  property  by  him  would  not  amount  to  theft;  and  we  are 
of  opinion  tiiat  this  proposition  la  well  sustained  by  authority  and  reason. 
There  must  be  an  actual  taking  or  conversion  of  the  stolen  property  to  support 


•26. 


'  2  Kuaa.  on  Cr.  (9tti  ed.)  Hi. 


a  ]"  Tex.  (App.)  207 


620 


LARCENY. 


a  verdict  of  guilty  of  theft.  In  White  v.  State,^  the  Supreme  Court  say  that  in- 
tention and  conversion  were  both  "  necessary  elements  to  make  out  a  charge  of 
theft.  In  all  criminal  cases  nothing  is  presumed  against  the  accused.  The 
proof  must  show  that  there  was  a  conversion,  which  under  the  code  is  the 
synonym  of  talcing."  *  In  Martin's  Case,  the  proof  was  that  tlie  owner  -f  the 
alleged  stolen  hog,  while  in  his  field,  heard  the  report  of  a  gnu;  advancing  be 
saw,  just  over  a  hill,  the  defendant  loading  his  gun,  and  on  approaching  the  de- 
fendant he  saw,  about  fifteen  feet  from  where  defendant  was  standing,  one  of 
hig  hogs  freshly  shot.  He  said  to  the  defendant,  "  that  is  my  hog."  Defendant 
replied,  "  I  did  not  shoot  it."  It  was  held  tiiat  actual  conversion  or  possession 
was  not  shown,  and  that  the  intent  and  act  constituting  the  offense  must  both 
exist  to  make  out  the  oftense. 

In  State  v.  Wilkerson: '  "  When  A.  was  indicted  for  stealing  a  hog,  and  on 
the  trial  it  was  shown  that  a  hog  belonging  to  the  prosecutor  bad  been  killed 
and  concealed  in  the  corner  of  the  fence,  covered  with  leaves,  and  that  A.  was 
Been  at  night  to  go  to  the  place,  and  look  carefully  around  and  stoop  over,  as  if 
to  take  the  hog,  and  upon  being  hailed  fled,  field,  that  these  facts  alone  would 
sot  justify  a  verdict  of  guilty." 

The  case  we  are  considering  is  not,  it  will  be  noticed,  precisely  similar  to 
any  of  the  other  cases  we  have  cited.  In  this  case,  though  the  hogs  were  in 
their  accustomed  range,  yet  they  wore  gentle  and  were  called  up  by  defendant 
or  Grooms,  and  were  riglit  up  at  them,  in  their  presence,  and  could  have  been 
immediately  driven  oft  by  either  or  both  when  defendant  made  his  sale  and 
constructive  delivery  of  tliem  to  Grooms.  Under  these  circumstances,  liad  not 
th'j  hogs  been  taken,  in  legal  contemplation,  by  defendant  before  the  sale?  He 
called  them  up;  this  was  exercising  control  over  them  certainly,  and  after 
they  came  up,  and  whilst  they  were  thus  in  his  control  if  he,  knowing  tliim 
not  to  be  his  property,  sold  and  constructively  delivered  them  to  Grooms,  who 
afterwards  took  them  into  actual  possession,  under  the  purchase.  It  would,  in 
our  opinion,  bring  the  case  fully  within  the  rule  quoted  above  from  llussell, 
viz:  that  "If  the  thief  fraudulently  procure  a  person  innocent  of  any  felonious 
intent  to  take  tlie  goods  for  him,  his  offense  will  be  the  same  as  if  he  had 
taken  the  goods  himself."  The  appropriation,  so  far  as  defendant  is  concerned, 
was  obvious,  and  the  taking  did  not  rest  solely  upon  the  subsequent  exercise 
of  ownership  and  possession  by  Grooms. 

But,  as  stated  above,  the  charge  given  at  the  request  of  the  district  attorney 
was  erroneous. 

In  addition  to  this  eiTor,  we  are  not  satisfied  that  such  fraudulent  intent  is 
established  by  the  evidence  as  warrants  the  conviction. 

Appellant  had  hogs  which  he  had  bought  of  Roberts,  running  In  the  same 
range.  Grooms  believed  these  to  be  defendant's  hogs.  Defendant  said  that  he 
also  believed  them  to  be  his.  The  marks.  It  is  true,  were  somewhat  different, 
but  defendant  is  shown  to  be  little  acquainted  with  the  difference  in  marks, 
There  was  no  concealment  or  attempt  at  concealment  with  regard  to  any  part 
of  the  transaction  by  defendant.  His  actions  are  not  inconsistent  with  honest 
and  fair  dealing,  under  an  honest  but  mistaken  claim  of  right  to  the  hogs.  He 
certainly  promptly,  and  fully  righted  tiie  wrong,  if  any  had  been  done  as  far  as 


1 11  Tex.  771. 

»  Martin  v.  State,  44  Tex.  172. 


8  72  N.  C.  376. 


PROOF   INSUFFICIENT  —  MARTINEZ   V.  STATE. 


621 


irt  say  that  in- 
Dut  a  charge  of 
accused.  The 
be  code  Is  the 
e  owner  uf  the 
;  advancing  be 
Daching  the  de- 
landing,  one  of 
;."  Defendant 
a  or  possession 
ense  must  both 

a  hog,  and  on 
bad  been  klUed 
nd  that  A.  was 
toop  over,  as  if 
ts  alone  would 

sely  similar  to 
s  hogs  were  in 
p  by  defendant 
ould  have  been 
le  his  sale  and 
tances,  liad  not 
e  the  sale?  He 
nly,  and  after 
knowing  them 
)  Grooms,  who 
ie,  it  would,  in 
from  Russell, 
>f  any  felonious 
le  as  if  he  had 
nt  is  concerned, 
squeut  exercise 

istrict  attorney 

lulent  intent  Is 

ing  In  the  same 
ant  said  that  he 
jwhat  different, 
rcncc  in  marks. 
;ard  to  any  part 
ent  with  honest 
3  the  hogs.  He 
1  done  as  far  as 


could  be  by  satisfying  Cablness  and  Grooms  in  so  far  as  they  were  likely  to  he 
injured  by  a  loss  of  the  hogs  alleged  to  have  been  stolen. 

In  our  opinion,  the  evidence  docs  not  support  the  verdict  and  judgment,  and 
in  connection   with  our  conclusions  upon  this  point,  we  cite  the  following 
ciises:  Mullins  v.  State,^  McIIenry  v.  State,^  Clark  v.  Statv,^  Landin  v.  State, 
fihellon  V.  State,''  Taylor  v.  State,*  Mapes  v.  State,''  Breach  v.  State.'^ 

The  judgment  Is  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 

§573.  Evidence  InsufBcient  to  Convict  —  Martinez  v.  State. — In  Mar- 
tinez V  State,*  the  iiidlctnient  charged  the  appellant  with  theft  of  a  saddle, 
bridle  and  saddle  blanket,  of  the  aggregate  of  thirty  dollars,  the  property  of 
Juan  Montex,  in  Bjxar  County,  Texas,  on  the  eighth  day  of  December,  1883. 
A  verdict  of  guilty  was  returned  against  the  appellant,  and  his  punishment  was 
assessed  at  a  term  of  two  years  in  the  penitentiary. 

Juan  Montez  was  the  first  witness  introduced  by  the  State.  He  testified  that 
on  the  eighth  day  of  December,  1883,  his  son,  Jose  Montez,  left  his,  witness', 
lioHse  near  the  mission,  nine  miles  below  San  Antonio,  to  go  to  the  city. 
Wlii'ii  Jose  reached  the  suburbs  of  the  city,  he  was  thrown  from  the  horse,  and 
the  horse,  with  saddle,  bridle  and  sadd'<^  blanket,  made  its  escape  from  Jose. 
As  soon  as  the  witness  was  apprised  of  .  'is  fact,  he  started  out  to  hunt  for  the 
horse,  saddle,  bridle  and  blanket.  When  he  reached  the  Goliad  road,  he  saw 
two  gentlemen  traveling  that  road,  going  in  the  direction  of  San  Antonio. 
From  them  he  learned  that  they  had  met  a  man  riding  a  paint  horse,  and  leading 
a  horse  answering  tlie  description  of  witness'  horse.  The  man  they  said,  was 
going  eastward  from  San  Antonio.  Witness  continued  his  search,  and  after  a 
time  found  his  horse  on  the  range,  but  the  bridle,  saddle  and  blanket 
were  gone.  Witness  subsequently  learned  that  there  was  a  paint  horse  on  the 
ranch  of  Alejos  Perez,  which  answered  the  description  of  the  horse  given  him 
by  tlie  two  gentleman  ho  met  on  the  Goliad  road.  Witness  went  to  the  ranch 
of  Mr.  Perez,  and  there  learned  that  the  defendant  had  taken  up  a  horse  with  a 
new  saddle  and  bridle  on,  and  had  taken  them  to  San  Antonio.  Witne.ss  had 
the  parties  at  the  ranch  to  describe  the  horse  and  saddle,  and  became  satisfied 
that  the  saddle  was  the  one  he  was  searching  for.  At  Perez's  ranch,  witness 
tallied  to  Trinidad  Cortlnez,  and  from  him  learned  of  the  defendant's  having 
bad  the  horse,  saddle  and  bridle.  >VItness  received  this  Information  from  Cor- 
tlnez on  the  evening  of  December  !0,  1883.  Next  day  witness  went  to  San 
Antonio,  distant  from  Perez's  ranch  fifteen  miles,  and  began  a  search  for  the 
.'addle  In  the  city.  Preliminary  to  his  search,  he  secured  the  professional  ser- 
vices of  Police  ofllcer  Pancho  Galan.  They  finally  learned  that  a  party  had 
taken  a  saddle  to  pawn  to  the  pawn  shop  of  Don  Carlos  Guergnin,  on  the  night 
of  December  9,  1883.  The  saddle  so  pawned  to  Guergnin,  was  a  full-rigged 
new  saddle,  and  answered  the  description  of  the  one  the  witness  had  taken 
from  him.  On  the  night  of  December  9,  1883,  the  witness  and  Galan  went  to 
the  house  of  Creccncto  Bueno,  across  the  San  Pedro  Creek,  and  there  found  the 
saddle.    This  saddle  was  the  property  of  the  witness  and  was  taken  without  his 


1  .37  Tex.  837. 

'  4fl  Tex.  46. 

3  7  Tex.  67. 

*  in  Tex.  (App.)  63. 

'•  n  Tex,  (App.)  BX3. 


•  /d.,480. 

I  14  Tex.  (App.)  129. 

«  Id.  178. 

»  16 Tex.  (App.)  122  (1880). 


622 


LARCENY. 


knowledge  or  consent.  Witness  did  not  know  the  actual  value  of  the  saddle.  It 
was  quite  new,  having  been  used  but  two  or  three  times  in  riding  from  witness' 
ranch  to  San  Antonio  and  back,  a  distance  of  nine  miles.  The  saddle  tree  was 
a  present  to  the  witness,  and  was  worth  at  least  four  or  five  dollars.  Tlie  wit- 
ness had  paid  twenty  dollars  to  have  it  rigged.  The  saddle  exhibited  on  thi.t 
trial  was  the  one  lost  by  witness  and  recovered  from  Crecencio  Bueno.  This 
all  occurred  in  Bexar  County,  Texas.  Cross-examined,  the  witness  stated  that 
the  saddle  was  his  property,  but  was  lost  by  his  son  Jose,  It  was  worth  twenty- 
live  dollars.  Witness  did  not  know  who  got  it.  He  did  not  know  the  defendiim. 
He  learned  in  following  up  the  saddle,  that  a  man  named  Garcia,  took  the  sad- 
die  to  Guerguin's  pawn  shop,  to  pawn  it.  Pancho  Gnlan  was  with  the  wilnos 
when  the  saddle  was  recovered  at  the  house  of  Crecencio  Bueno.  The  witui'.«s 
did  not  know  from  wliom  Crecencio  Bueno  got  the  saddle,  except  from  his  state- 
ment. Witness  did  not  know,  except  from  hearsay,  that  the  defendant  ever  hmi 
the  saddle  in  his  possession  at  all.  So  far  as  the  witness  knew,  the  defendant 
may  have  sold  the  saddle  for  Quireno  Garcia.  Witness  would  not  swear  that 
the  defendant  stole  his  saddle;  he  did  not  know  whether  he  did  or  not. 

J.  S.  Ramsey,  testified  for  the  State,  that  he  was  the  proprietor  of  a  saddle 
and  harness  establishment  on  Main  plaza.  In  the  city  of  San  Antonio.  He  had 
been  engaged  in  th.at  business  for  the  past  fifteen  years,  and  was  a  judge  of  the 
quality  and  value  of  saddles.  He  had  examined  the  saddle  involved  in  this 
proceeding.  That  saddle  has  been  used  a  little,  but  not  enouglt  to  greatly  de- 
preciate its  value.  In  the  ooinlon  of  the  witness,  that  saddle  Is  worth  at  lea^t 
twcnty-flve  dollars.  Cross-examined,  the  witness  testified  that  he  did  not  deal 
in  second-hand  saddles,  and  would  not  keep  them  In  stock.  This  saddle 
showed  to  have  been  used  somewhat,  and  witness  would  not  buy  it.  It  is  a 
second-hand  saddle,  but  well  worth  twenty  dollars,  though  the  witness  would 
not  give  that  price  for  it  to  put  In  stock.  If,  however,  he  wauted  to  buy  a  sad- 
dle for  his  individual  use,  witness  would  pay  twenty  dollars  for  It,  and  esteem 
the  price  cheap.  On  redirect  examination,  witness  said  that  the  saddle  In  the 
hands  of  the  original  purchaser,  after  being  ridden  back  and  forth  over  a  dis- 
tance of  nine  or  ten  miles,  a^  often  as  three  or  four  times,  would,  In  the  condi- 
tion of  this  saddle,  be  worth  to  the  original  owner  as  much  as  twenty-five  dol 
lars.    It  would  deteriorate  Intrinsically  by  such  use,  but  little,  if  at  all. 

Francisco  Galan  (spoken  of  as  Pancho  Galan  by  the  prosecuting  witness), 
was  next  called  to  the  stand  by  the  State.  He  testified  that  he  was,  and  for  fll. 
teen  years  past  had  been,  on  the  police  force  of  the  city  of  San  Antonio.  He 
knew  Juan  Montez.  On  or  about  December  11,  1883,  Montez  applied  to  him  for 
assistance  in  searching  for  a  saddle,  bridle,  and  blanket  he  had  lost.  Witness 
went  with  Montez,  and  on  that  night  they  found  and  recovered  the  saddle  from 
the  house  of  Crecencio  Bueno,  west  of  the  San  Pedro  Creek.  The  saddle  exhib- 
ited on  this  trial  was  the  saddle  found  by  Montez  and  witness  at  Bueno's  house 
and  claimed  by  Montez  as  his.  Cross-examined,  witness  stated  that  he  at  no 
time  saw  the  defendant  in  possession  of  that  saddle.  The  witness  did  not  know 
the  value  of  the  saddle,  but  would  think  it  worth  from  twelve  to  fourteen  dol- 
lars. It  was  prol)ably  worth  a  little  more  before  It  was  used.  Redirect,  the 
witness  stated  that  he  was  a  policeman,  and  not  a  dealer  In  saddles,  and  was  not 
posted  as  to  the  value  of  saddles.  He  named  the  value  stated  merely  as  matter 
of  Individual  opinion,  and  not  from  a  knowledge  of  values.  In  his  opinion  the 
saddle  was  worth,  when  new,  ftfteen  or  sixteen  dolars,  and  was  now  worth 
twelve  or  fourteen. 


-  ■*- 


PROOF    INSUFFICIENT MAUTINEZ    V.  STATE. 


62a 


)f  the  saddle.  It 
II,  from  witness' 
saddle  tree  was 
liars.    The  wit- 
Khibited  on  thi.t 
lo  Bueno.    This 
iiesb  stated  that 
IS  worth  twenty- 
vthe  defendam. 
[a,  took  the  sud- 
ivith  the  wilne>s 
o.    The  witnt'ss 
t  from  his  statt- 
!endant  ever  hud 
V,  the  defendant 
\  not  swear  that 
I  or  not. 
etor  of  a  saddle 
atonio.    He  had 
,s  a  judge  of  the 
Involved  In  this 
»!>  to  greatly  de- 
ls worth  at  least 
b  he  did  not  deal 
;k.    This  saddle 
;  buy  it.    It  is  a 
e  witness  would 
ted  to  buy  a  sad- 
)r  It,  and  esteem 
the  saddle  in  the 
forth  over  a  dis- 
lid,  in  the  condl- 
s  twenty-flve  dol 

if  at  all. 

icuting  witness), 
:  was,  and  for  flf. 
an  Antonio.  He 
pplied  to  him  for 
id  lost.  Witness 
I  the  saddle  from 
rhe  saddle  exhib- 
lit  Bueno's  house 
;ed  that  he  at  no 
tss  did  not  know 
!  to  fourteen  dol- 
d.  Redirect,  the 
dies,  and  was  not 
merely  aa  matter 
n  his  opinion  the 

was  now  worth 


Crecencio  Bueno  was  the  next  witness  for  the  State.  He  testified  that  he 
recognized  the  saddle  exhibited  on  this  trial  as  the  one  he  purchased  from  the 
defendant,  and  which  was  afterwards  reclaimed  from  him  by  Montezand  Ualan. 
Defeudunt  brought  that  saddle  to  the  witness'  house,  and  sold  it  to  him  on  the 
ni^ht  of  December  ID,  1883.  On  cross-examinutioii,  the  witness  stated  that  he 
pai<!  the  defendant  ten  dollars  for  the  saddle,  which  was  all  that  he  thought  he 
coiiM  afford  to  pay  for  it.  Defendant  did  not  tell  where  he  got  the  saddle,  nor 
did  the  witness  know. 

Trinidad  Cortlnez  was  the  last  witness  introduced  by  the  State.  He  testified 
that  lu  December,  1883,  he  lived  on  the  ranch  of  Alejos  Perez.  He  saw  Juan 
Montez  at  that  ranch  during  that  month.  Montcz  was  looking  for  a  horse  that 
had  escaped  from  his  son,  with  saddle,  bridle,  and  blanket.  Montez  described 
the  horse  and  saddle,  and  witness  told  him  that  the  defendant  had  brought  such 
a  horse  and  saddle  to  the  ranch,  and  had  taken  them  to  San  Antonio,  as  he  said, 
to  hunt  an  owner  for  them.  Witness  could  not  recall  the  day  of  the  month  on 
which  this  happened,  but  It  was  sometime  near  the  first.  Witness  did  not 
know  that  he  could  identify  the  saddle,  as  he  looked  at  it  from  some  little  dis- 
tance. He  knew,  however,  that  it  was  a  new-looking  full  rigged  saddle. 
Moutez,  on  getting  this  Informat!'^"!  ,;roni  witness,  started  off  toward  San  An- 
tonio to  look  forthe  saddle.  This  was  tw  »or  three  days  after  defendant  started 
to  San  Antonio  with  the  horse  and  saddle.  Perez's  ranch  is  on  the  Goliad  road, 
some  twelve  or  fifteen  miles  from  San  Antonio.  On  cross-examination,  the 
witness  declined  to  swear  positively  that  the  so'Mle  shown  him  was  the  same 
that  was  brought  to  Perez's  ranch  by  the  defendant.  He  could  say,  however, 
tliat  it  'Doked  very  much  like  it.  When  defendant  left  Perez's  ranch  he  said  lie 
was  going  to  hunt  the  owner  of  the  horse  and  saddle  and  deliver  up  the  prop- 
erty. Witness  did  not  know  what  he  eventually  did  with  the  horse  and 
saddle. 

William  Roach  testified,  for  the  defence,  that  he  was  a  saddler  and  a  judge  of 
the  value  of  saddles.  The  saddle  shown  the  witness  was  worth,  now  in  tha 
shop,  twenty-flve  or  twenty-six  dollars.  In  its  present  condition,  the  saddK  , 
having  been  used  to  some  extent,  was  not  worth  so  much  by  six  or  eight  dollars. 
It  could  not  now  be  sold,  as  a  second-hand  saddle,  for  more  than  eighteen  or 
twenty  dollars.  Cross-examined,  the  witness  testified  that  the  saddle,  because 
of  such  use  as  it  has  had,  is  not  Intrinsically  depreciated  in  value  to  the  original 
owner.  To  him,  it  would  be  worth  quite  as  much  as  when  he  got  it  new.  Arti- 
cles, when  once  used  by  one  person,  are  less  desirable  for  sale  or  market,  and, 
because  of  such  use,  they  lose  much  more  in  market  than  in  intrinsic  value. 
Intrinsically,  this  saddle  is  worth  quite  as  much  as  ever  it  was.  It  is  not  worth 
so  much  in  the  market. 

Carlos  Ouerguin  was  the  defendant's  next  witness.  He  testified  that  he  had 
seen  the  saddle  in  evidence  before.  A  man  who  gave  his  name  as  Quirenu 
Garcia  brought  it  to  witness'  pawn  shop  one  night,  and  wanted  to  pawn  it. 
Garcia  said  that  he  brought  the  saddle  from  Kans'is.  Garcia  was  not  the  de- 
fendant. Witness  would  willingly  pay  sixteen  dollars  for  the  saddle,  b'.c  no 
more.  Witness  stated,  on  his  cross-examination,  that,  were  he  to  buy  the 
saddle,  ho  would  buy  it  on  speculation.  Witness,  in  nienticming  the  price  he 
would  pay  for  the  saddle,  mentioned  the  speculation  price.  The  saddle,  in  the 
opinion  of  the  witness,  was  really  worth  more  than  sixteen  dollars.  It  was 
Worth  twenty  or  twenty-flve  dollars.    In  buying  articles,  the  witness,  in  his 


624 


LARCENY. 


business,  would  pay  but  two-thirds  of  ttic  actual  value,  and  this  was  the  rule 
applied  by  the  witness  in  estimating  the  value  of  the  saddle  in  his  examination 
in  chief.  It  was  on  the  night  of  the  ninth  or  tenth  of  December,  1883,  that 
Quireno  Garcia  brought  the  saddle  to  the  witness  to  pawn.  Witness  examined 
the  saddle  closely,  for  one  reason,  because  it  was  a  much  better  article  than 
was  usually  brought  by  the  class  of  men  to  whom  Garcia  apparently  belonged; 
and,  for  another  reason,  because  it  bore  the  stamp  of  a  San  Antonio  manufac> 
turcr,  whereas  Garcia  said  that  it  was  made  in  Kansas. 

WiLLsoN,  J.  (after  other  rulings).  4.  There  is  another  question  in  this  case 
of  more  importance  than  those  we  have  discussed.  Conceding  that  the  defend- 
ant took  the  saddle,  did  such  taking,  under  the  facts  of  this  case,  constitute 
theft?  and  did  the  court  charge  all  the  law  applicable  to  the  issues  raised  by  the 
evidence?  That  the  owner  of  the  saddle  had  lost  it  was  proved  beyond  a  ques- 
tion. It  was,  then,  lost  property,  but  was,  nevertheless,  the  subject  of  theft 
To  constitute  theft,  however,  the  fraudulent  Intent,  which  is  the  gist  of  this 
offense,  must  exist  in  the  mind  of  the  taker  at  the  very  time  of  the  taking;  and, 
in  the  case  of  lost  property,  the  time  of  the  taking  is  the  time  of  the  finding  of 
the  property.  If  the  fraudulent  intent  did  not  exist  at  the  time  of  the  taking, 
no  subsequent  fraudulent  intent  in  relation  to  the  property  will  constitute 
theft.i 

In  this  case  it  was  proved  that  on  the  day  the  saddle  was  lost,  the  defendant 
was  seen  in  pos^session  of  such  a  saddle,  and  said  that  he  was  going  to  the  city 
of  San  Antonio  to  search  for  the  owner  of  it  in  order  to  deliver  it  to  the  owner. 
He  did  not  then  pretend  that  the  saddle  belonged  to  him,  but  admitted  that  he 
had  found  it,  and  intended  to  search  for  the  owner  of  it.  There  is  no  evidence 
which  shows  that,  even  if  the  defendant  took  the  saddle,  he  at  the  time  intended 
to  deprive  the  owner  of  the  value  of  it,  and  to  appropriate  it  to  his  own  use  or 
benefit.  On  the  contrary,  his  own  statements,  above  alluded  to,  which  were 
proved  by  the  State,  sliow  that  after  he  had  taken  the  property,  his  intention 
with  regard  to  it  was  an  honest  one;  he  intended  to  restore  it  to  the  owner,  if 
such  owner  could  be  found.  Upon  this  state  of  facts  we  think  it  was  the  duty 
of  the  trial  court  to  instruct  the  jury  clearly  and  specifically  upon  the  issues  as 
to  the  Intent  of  the  defendant  at  the  time  he  took  the  property,  if  he  did  take  it. 

The  charge  of  the  court  did  not  explain  this  issue  to  the  jury  any  farther 
than  to  give  the  general  definition  of  theft.  Defendant  requested  the  following 
special  instruction,  wldch  the  court  refused  to  givs,  viz. :  "  If  the  property 
came  into  the  possession  of  the  defendant  by  lawful  means,  the  subsequent 
appropriation  of  it  is  not  theft,  and  you  will  acquit  tlie  defendant,  unless  it 
was  obtained  by  false  pretext,  or  with  intent  to  deprive  the  owner  of  the  value 
thereof  and  appropriate  the  property  to  the  use  and  benefit  of  the  person 
taking."  This  charge  would  have  been  more  directly  applicable  to  the  evidence 
if  it  had  read:  "  If  you  believe  from  the  evidence  that  the  property  was  lost, 
and  that  the  defendant  found  it,  he  can  not  be  convicted  of  the  theft  of  it  unless 
you  believe  from  the  evidence  that  at  the  time  he  found  it  he  fraudulently  took 
it  with  the  intent  at  that  time  to  deprive  the  owner  of  the  value  of  it,  and  to 
appropriate  it  to  his  own  use  or  Ijeneflt.  No  fraudulent  intent  in  the  mind  of 
the  defendant  iu  relation  to  the  property,  which  was  formed  after  he  had  taken 
the  property,  will  authorize  his  conviction  of  the  theft  of  such  property." 

We  thiuk  a  charge  iu  substance  such  as  we  have  suggested  was  demanded  by 

1  Robinson  v.  State,  11  Tex.  (App.)  403. 


ik. 


PROOF   INSUFFICIENT  —  PETTIOREW   V.  STATE. 


625 


this  was  the  rale 
1  his  examination 
smber,  1883,  ttiat 
ritness  examined 
itter  article  than 
reutly  belonged; 
intouio  manufac* 

Btion  in  this  case 
;  that  the  defend- 
I  case,  constitute 
ues  raised  by  the 
d  beyond  a  ques- 
subject  of  theft. 

the  gist  of  this 
the  taking ;  and, 
of  the  finding  of 
ne  of  the  taking, 

will  constitute 

it,  the  defendant 
going  to  the  city 
•  it  to  the  owner, 
admitted  that  he 
re  is  no  evidence 
the  time  Intended 
;o  his  own  use  or 
to,  which  were 
rty,  his  intention 
I  to  the  owner,  if 
k  it  was  the  dutj 
pon  th(!  issiiefl  as 
if  ho  did  take  it. 
jury  any  farther 
ted  the  following 
If  the  property 
,  the  subsequent 
endaut,  unless  it 
rner  of  the  value 
t  of  the  pcrsob 
e  to  the  evidence 
rope  rty  was  lost, 
theft  of  it  unless 
rauduleutiy  took 
lue  of  it,  and  to 
;  iu  the  mind  of 
iter  he  had  taken 
property," 
ras  demanded  by 


the  evidence  in  this  case,  and  that  the  court  erred  in  omitting  to  give  such  an 
one.  The  charge  of  the  court  was  excepted  to  by  the  defendant,  because  it 
failed  to  give  the  jury  all  the  law  of  the  case,  and  for  other  reasons.  We  think 
the  court  erred  in  not  instructing  the  jury  upon  the  question  of  intent  as  above 
indicated. 
The  judgment  is  reversed  and  the  cause  remanded. 

Beversed  and  remanded, 

§574.  Evidence  InstifBolent  to  Convict  —  Pettlerrew  v.  State. —  In  Petti' 
yrew  v.  State,^  Willson,  J.,  delivered  the  foUowlug  opinion.  The  defendant  was 
inilicted  fur  the  theft  of  a  mare,  nnd  was  convicted,  and  his  punishmcntassessed 
at  confinement  in  the  penitentiary  for  five  years.  The  evidence  to  support  the 
tharfie  is  substantially  as  follows :  The  mare  v  as  the  property  of  J.  N.  Bape.  She 
was  stolen  from  him  in  Hill  County,  on  the  4tli  day  of  September,  1881.  A  few 
(lays  after  the  mare  was  stolen  in  Hill  County,  t'^o  detbudant  had  the  mare  at  his 
father's  house  iu  Bell  County.  The  defendant  had  been  absent  from  his  father's 
about  two  years,  but  it  does  not  appear  where  he  had  been  during  this  two 
ye;irs.  No  other  facts  were  proved  connecting  the  defendant  with  the 
th(  ft  of  the  mare.  The  fact  of  possession  stands  alone  to  support  the  con- 
vi(:ion.  On  the  part  of  the  defendant  it  was  proved  that  he  was  about  twenty- 
one  years  of  age;  that  he  was  very  weak-minded,  had  scarcely  any  mind  at  all 
in  some  things,  and  was  particularly  deficient  in  memory  and  reason;  that  he 
could  not  count  one  hundred  and  could  not  learn  to  count,  and  could  never  learn 
anything  at  school,  Several  witnesscv^  who  had  known  him  from  childhood  tes- 
tli'd  that  in  their  opinion  he  did  not  have  as  much  intellect  or  mind  as  a  child 
ten  or  twelve  years  old,  and  not  enough  to  know  right  from  wrong;  that  he  has 
always  been  regarded  in  the  community  in  wiiich  he  lived  as  a  fool,  and  not  re- 
sponsible for  his  acts,  on  account  of  his  want  of  mind.  We  think  the  evidence 
insufflclent  to  support  the  verdict,  and  that  the  court  below  should  have  set  it 
asiile  and  granted  the  defendant  a  new  trial.  We  are  also  of  opinion  that  the 
evidence  establishes  such  a  deficiency  of  intellect  as  renders  the  defendant 
irresponsible  for  crime.*    The  judgment  is  reversed  and  the  cause  remanded. 

§  575.  Evidence  InsulBclent  to  Convict  —  SaltlUo  v.  State.  — In  Saltillo  v. 
SUite,^  the  prisoner  was  charged  with  the  theft  of  a  horse  the  property  of  W.  M. 
Reyuolds,  and  was  convicted  of  driving  it  from  its  accustomed  range  with  intent 
to  defraud  the  owner.  The  punishment  awarded  by  the  jury  was  a  term  of  two 
yeiirs  in  the  penitentiary. 

W.  M.  Reynolds  was  the  first  witness  for  the  State.  He  testified  that  he 
knew  and  had  known  the  defendant  for  a  short  time.  Defendant  lived  in  that 
part  of  the  town  of  Uvalde  known  as  Mexico.  Some  time  in  the  month  of  Jan- 
uary, 1884,  the  witness  hoppled  and  turned  a  certain  mare  out  on  his  range, 
which  extended  from  the  town  of  Uvalde  to  Salt  Creek,  a  distance  of  about  seven 
miles.  On  the  rooming  following  the  evening  on  which  the  mare  was  turned 
out,  the  witness'  son  Lonnie,  as  usual  went  out  to  drive  her  up.  Failing  to  find 
her  after  a  search  which  was  kept  up  until  the  morning  of  the  third  day  after 
her  disappearance,  Lonnie  returned  home. 


'  13  Tex.  (App.)  826  (1882). 
'  Thomag  V.  State,  40  Tex. 

3  Dbfencbs. 


State,  6  Tex  (App.)  6S6;  Williams  v.  State, 
Webb  ».      7  Tex.  (App.)  168. 

s  16  Tex.  (App.)  249  (1884).  • 

40 


626 


LARCENY. 


Acting  on  certain  Information  he  had  received,  the  witness  went  to,  and  found 
his  mare  at  the  defendant's  house.  He  asked  defendant  what  he  was  dolug 
with  the  inure.  Defendant  replied  that  two  or  three  evenlngs.before,  he  had 
hobbled  his  two  horses  out  ou  the  range  near  Knox's  ranch,  seven  miles  aouih- 
east  from  Uvalde;  that  when  he  went  to  hunt  them  next  day,  ho  found  bin 
one  of  his  horses,  and  the  witness'  mare  with  hlmj  that  ho  concludtd  some  one 
had  taken  his  horse  and  left  the  mare;  tt.at  he  wanted  to  take  the  mare  to 
Uvalde  and  And  and  deliver  her  to  her  owner  If  he  could.  He  did  not  claim  the 
mare,  but  delivered  her  to  the  witness  on  demand.  The  mare  had  been  hard 
ridden,  and  was  considerably  used  up.  Defendant  had  no  consent  from  tiic 
witness  to  take  the  mare.    The  mare  was  under  witness'  control. 

Lonnle  Reynolds  testified,  for  the  defence,  that  he  was  the  son  of  W.  M. 
Reynolds,  the  State's  witness.  He  owned  the  mare  In  question.  He  turned  her 
out  ou  the  rans^o  one  evening,  between  Uvalde  and  Salt  Creek,  and  failed  to  And 
her  as  usual  next  day,  but,  within  two  or  three  days,  found  her  at  defendant's 
house.  In  that  part  of  Uvalde  known  as  Mexico.  Defendant  made  to  witness 
the  same  statement  concerning  his  possession  of  the  mare,  and  his  intention 
with  regard  to  her,  as  he  subsequently  made  to  W.  M.  Reynolds,  as  set  forth 
in  the  latter's  testimony.  Defendant  refused  to  deliver  the  mare  to  witness, 
who  then  went  for  his  father,  W.  M.  Reynolds,  to  whom  defendant  delivered 

her. 

Lanatho  Calsado  testified,  for  the  defence,  that  the  defendant  worked  on 
Knox's  ranch.  In  Uvalde  County,  but  that  his  family  lived  in  the  town  of  Uvalde. 
At  the  time  that  he  was  employed  on  the  Knox  ranch,  the  defendant  owned 
two  horses,  one  a  bay  with  white  face,  and  one  a  sorrel.  One  evening  in  Janu- 
ary, 1884,  In  the  presence  of  the  witness,  the  defendant  hoppled  his  two  horses 
out  near  Knox's  ranch.  On  the  next  morning,  the  defendant  went  out  to  hunt 
his  two  horses,  and  returned  with  but  one  of  them  and  a  black  mare.  At  this 
point,  the  testimony  referred  to  in  the  first  head-note  of  this  report  was  offered, 
and  excluded.  The  defendant  had  never  recovered  one  of  the  horses  he  hop- 
pled out  at  Knox's  ranch.  At  least,  the  witness  had  never  Iseen  that  horse 
since  he  was  turned  out. 

Wm.  Reynolds  testified,  for  the  State,  on  being  recalled,  that  he  was  the 
father  and  "natural  guardian  of  Lonnle  Reynolds,  who  was  but  fifteen  years  old. 
He  had  control  of  both  Lonnle  Reynolds  and  the  mare.  The  mare  was  both 
belled  and  hoppled  when  she  was  turned  out.  She  had  on  neither  bell  nor  hop- 
pies  when  recovered. 
WiiiTK,  P.  J.,  (after  passing  upon  other  points) :  — 

We  are  of  opinion  that  the  evidence  Is  insufficient  to  support  a  conviction 
for  either  theft  or  driving  the  animal  from  its  accustomed  range  with  intent  to 
defraud  the  owner;  of  which  latter  offense  defendant  was  convicted.  There 
is  no  proof  that  defendant  ever  drove  the  animal  from  its  accustomed  range. 
When  found  by  Lonnle  Reynolds,  the  owner,  in  possession  of  the  mare,  it  was 
in  the  town  of  Uvalde,  in  or  near  her  range,  where  the  owner  had  hobbled  her 
out;  and  defendant  stated  to  said  witness  that  ««he  had  brought  the  mare  t» 
Uvalde  to  find  an  owner  for  her,  and  in  case  he  found  an  owner  for  said  mare 
he  would  give  her  up."  In  view  of  the  insufficiency  of  the  evidence,  the  court 
also  erred  In  overruling  defendant's  motion  for  new  trial. 
The  judgment  is  reversed  and  the  cause  remanded. 

Beveraed  and  remanded. 


ik 


■i.MiHi&Vit,i^tttKi--' 


^-■^ 


PROOF  INSUFFICIENT  —  8EVMORE   V.  STATE. 


697 


It  to,  and  fcnnd 
It  ho  was  (loiug 
i.before,  he  had 
en  miles  juuth- 
',  ho  fouiul  but 
ludkd  some  one 
iko  the  mare  to 
id  not  clutm  the 
3  had  been  hard 
lUMOUt  from  tbe 
ol. 

I  son  of  W.  M. 
He  turned  her 
,nd  failed  to  find 
r  at  defendant's 
made  to  witness 
id  his  intentiuD 
Ids,  as  set  forth 
aarc  to  witness, 
ndaut  delivered 

idant  worked  on 
town  of  Uvalde. 
ufendant  owned 
evening  in  Jauu- 
d  bis  two  horses 
iveut  out  to  hunt 
k  mare.  At  this 
port  was  offered, 
le  liorses  he  hop- 
jseen  that  horse 

that  he  was  the 
fifteen  years  old. 
le  mare  was  both 
ther  bell  nor  bop- 


3ort  a  conviction 
ige  with  intent  to 
!onvicted.  There 
ccustomed  range. 
I  the  mare,  it  was 
'  had  hobbled  her 
ught  the  mare  to 
ner  for  said  mare 
tridence,  the  court 


d  and  remanded. 


§  87fi.  Bvldsnce  Instifflolent  to  Convict  —  Seymore  v.  State.  —  In  Seymore 
y.Stale,i  Hunt,  J.,  delivered  the  following  opinion:  Seymore,  the  appellant, 
was  convicted  of  the  theft  of  a  trough  of  the  value  of  three  dollars.  The  evi- 
dence is  as  follows:  — 

J.  W.  Stewart,  a  witness  for  the  State,  being  sworn  says:  «'I  reside  In 
Robertson  County,  Texas.  I  know  the  defendant  W.  P.  8e>more.  He  is  In 
court  (identmes  him).  I  rented  for  the  year  1881,  the  Duranl  and  Edrlngton 
farms.  I  am  living  on  the  Durant  farm.  When  I  took  charge  of  the  Edrlngton 
farm,  on  the  first  day  of  January,  1881,  there  was  upon  the  place  the  wooden 
•rough  now  in  controversy.  \V.  P.  Seymore,  defendant,  hud  the  farms  rented 
or  the  year  1880,  and  by  order  of  Edrlngton  the  farm  implements  and  fixtures 
were  turned  over  to  me  by  Seymore.  I  moved  the  trough  from  the  Edrlngton 
farm  to  the  Durant  farm,  where  I  am  now  living,  and  pi  iced  the  trough  in  my 
lot  and  had  the  same  in  use.  The  cedar  trough  wis  worth  three  dollars.  I 
rented  both  places  or  farms  from  E.  C.  Edrlngton.  W.  P.  Seymore  has  nothing 
to  do  with  the  same.  I  pay  my  rent  to  Edrlngton  and  settle  with  him  for  the 
farms.  On  the  13th  day  of  July  I  was  away  from  my  home.  On  my  return  I 
found  that  the  troujjh  had  been  taken  away;  I  never  gave  my  consent  to  any 
one  to  take  the  trough.  Edrlngton  never  gave  his  consent  to  any  one  for  them 
to  take  the  trough.  There  was  no  one  at  my  house  but  my  wife  and  children  and 
servant.  The  defendant  Seymore  never  notified  me  that  he  had  taken  the  trough, 
nor  informed  me  that  he  had  done  so.  Cross-examined.  "  Seymore  lives  in 
two  hundred  yards  of  my  house,  keeps  a  store,  and  leases  one  acre  of  land  from 
Edrlngton.  There  was  a  plank  trough  on  the  Edrlngton  farm,  belonging  to 
Seymore.  When  1  took  possession  of  the  place  I  moved  the  plank  trough 
together  with  the  cedar  trough  now  in  controversy  from  the  lower  end  of  the 
Edrlngton  farm  to  the  Durant  farm,  and  put  them  in  my  lot.  Some  time  in 
April  last  Mr.  Seymore  wrote  me  a  note  stating  that  the  troughs,  that  is  the 
plank  trough  and  cedar  trough,  were  his,  and  to  either  send  them  home  or  pay 
for  them.  I  replied  that  the  plank  trough  was  his,  and  he  could  either  come 
and  get  it  or  that  I  would  pay  him  one  dollar  for  same;  aNo  that  the  cedar 
trough  was  not  his  property,  that  belonged  to  the  Edrington  farm,  and  I  would 
not  give  It  up.  Mr.  Seymore  claimed  the  property  openly  in  April.  In  1879 
Seymore  was  agent  for  Edrington,  and  in  1880  he  had  the  place  leased;  he  has 
nothing  to  do  with  the  place  this  year,  except  the  one  acre  upon  which  his  place 
is  situated.  I  afterwards  saw  the  trough  in  Seymore's  lot  at  bis  well.  He 
claimed  to  own  the  trough  In  April  last," 

Cttsar  Grant,  a  witness  for  the  State,  being  sworn,  says:  "In  1878  Billy 
Redden  and  myself  dug  the  cedar  trough.  We  were  tenants  on  the  Edrlngton 
farm.  It  was  dug  from  a  tree  grown  on  the  Kdrington  farm,  and  was  dug  by 
permission  of  Fulks,  the  agent.  We  used  the  trough  to  water  our  hogs.  When 
we  left  the  farm  we  left  the  trou^^h  there,  and  I  left  the  same  on  the  farm,  con- 
sidering that  It  became  the  property  of  the  Edrlngton  farm.  Mr.  Seymore  col- 
lected some  of  the  rents  In  the  year  1878;  In  1879  he  was  agent,  and  in  1880  he 
worked  or  leased  the  place." 

Bob  Lee,  a  witness  for  the  State,  being  sworn,  says:  "  I  am  living  with  Mr. 
Stewart  on  the  Durant  farm.  On  the  13th  of  July  last  Mr.  Seymore  came  to 
Mr.  Stewart's  house  in  the  absence  of  Mr.  Stewart,  opened  Mr.  Stewart's  lot 
gate,  and  Wash  Lockett  drove  the  wagon  in  the  lot,  and  Mr.  Seymore  and  Wash 


1  12  Tex.  (App.)  391  (ISffl). 


628 


LARCENY . 


Stewart  wtts  at  home."  ,„„H«nt  hAino  sworn  8aT« :  ••  On  or  about  the 

Wu8h  Loekett,  a  wltnea»  lor  defendant,  being  sworn,  says       " 
v\  1811  i.otK     ,  ge  more  told  me  to  drive  my  wagon  up  to  Mr.  Stew- 

from  Mr.  Stewart's  house.    Mr.  S'^y"'°;;^J'^;;;Jj  ,  .ro^^hs  In  the  wajjon.  the 
and  opene.l  the  gate,  and      dro  •     J    »-  ^^".^  ^J-  ,,",,,  ,,,e  and  put  the 

cedar  and  plank  trough,  and  I  dro^e  »'"-  wago"  gtewart  was  Hitting 

up  at  his  well."  „,i„„f  ♦„  ho  o  rnffue     We  can  not  and 

..  .ppc.r  .,,  tt  ,  rec,,ra         ,  '^  VI  iTlovi  U,/.,  Indo.d,  b«.1r.,„s  o.  t.«l 
crime  of  theft  upon  sucu  lvuicuv-  ,io«prve  to  fill  our  prisons  as 

«:"v.."  .r".p^"  tt  v^rdic.'   The  i«d.o,e«.  1=  reversed  ..d  thee.... 
remaudcd.  Beoersed  and  remanded. 

S677    evidence  insufflclent    to  Oor^vlct-Sbelton  v.  8tate.-In   5Ae!(on 

t..  »«  1  HiTuT    T     delivered  the  following  opinion:  — 
"  nlr,  f  Thelppernt  was  convicted  of  the  theft  of  a  certain  steer,  upon 
the  following  evidence :  -  County,  Texas.    I 

„«rk  and  br...d,  ...d  the  ..me  1.  '"»""'»  "'*'\''~°i  .nd  h.d  •>,« 
,„  .„.  r..g.  m  «''7,^7'?  "n;7»,:r.prAf  .'80°  ae  rSr  J.  B.  B.«l.. 

I  Intended  to  make  a  work-ox  ot  tne  siet-r.    i  uv 
defendant's  possession." 

1  12  Tex.  (App.)  BIS  (1882). 


^^ 


PROOF    INSUFFICIENT  —  8HELTON    V.  STATE. 


(529 


thout  saying 
ir  as  I  kuuw, 
y  door.  The 
rnlng.    Vrs. 

I  or  about  the 
to  Mr.  Stew- 
no;  said  that 
irt's  house  Is 
u  wagon,  Mr. 
t  thirty  yards 
rd  ol  Stewart 
tie  wnjjon,  the 
•e  and  put  the 
,rt  was  Hitting 
iig  the  troughs 
Lnd  as  I  drove 
daughter  was 
lot  nee  or  hear 
MilH  was  about 
',  Mr.  Seymort 
B  cedar  trough 

re  can  not  and 
port  such  facts 
(  the  nefarious 
ndreds  of  (lood 

our  prisons  as 
Ing  them;  they 

and  the  cause 

md  remanded. 

a.  — In   Shtlton 

aln  steer,  upon 

lunty,  Texas.  I 
,  Texas ;  have  a 
■.  I  have  stock 
8,  and  had  some 
Mr.  J.  B.  Rawls. 
fork  in  the  right 
I,  four  years  old, 
mark  and  brand, 
the  defendant  or 
It.  I  have  never 
the  steer  in  the 


J.  B.  Rawls,  State's  witness  says:  "I  live  In  Mllain  County,  Texas,  about 
four  miles  from  Milano  Junction.  I  know  the  defendant.  In  the  full  of  1879, 
till-  defendant  came  to  my  house.  He  liad  two  young  men  with  him,  neither  of 
wliom  I  knew.  They  drove  up  to  my  house  and  penned  with  my  cattle  some 
cattle  tliat  I  liad  sold,  niid  one  white  steer  with  a  red  head,  branded  k,  marked 
Willi  a  short  crop  off  of  the  left  car,  and  a  swallow  fork  in  the  right.  This 
Ulcer  laiiie  to  my  place  and  took  up  with  my  cattle  when  It  was  two  years  old, 
MMil  remained  tliere,  and  slept  at  my  pen  most  of  tlio  time  until  ho  Wtts<lrlven 
away  l)y  defendant  at  four  years  old.  At  tiie  time  the  defendant  drove  up  the 
stirr,  I  asked  him  if  he  knew  the  owner  of  this  l)eef.  I  had  always  tliought  it 
»ii  (Stray,  lie  said  it  belonged  to  Tom  Kirk,  and  said  that  some  time  before  he 
Imd  hoiight  a  steer  from  Tom  Kirk;  tiiat  it  had  got  away  from  him,  and  said 
thill  }ou  will  just  take  this  one  in  the  place  of  the  one  he  had  lost.  Tills  was  a 
white  steer  with  a  red  head.  Defend  uit  penned  the  bunch  of  cattle,  cut  out 
those  I  had  sold  to  another  man  some  time  before,  and  turned  out  this  white 
beef  with  a  red  head  marked  as  above  stated,  and  drove  him  away.  I  Imve 
111  v.r  seen  the  steer  in  tiiat  range  since.  His  accustomed  ransie  was  within  two 
mill's  of  my  house.  Tlio  defendant  came  to  my  house  twice  and  gatliered  and 
drove  away  cattle.  The  first  time  was  about  one  month  beforo  the  time 
he  drove  away  this  beef.  He  came  in  the  morning  and  penned  ul)out  ten  or 
elevi  ti  o'clock,  and  left  after  noon.  The  first  time  he  penned  in  the  ev<  ning, 
and  drove  off  next  morning.  Defendant  told  me  he  was  engaged  in  the  butcher 
liusiiitss,  and  was  clanghterlng  one  beef  a  day.  I  helped  the  defendant  cut 
the  cattle  out  of  my  pen,  and  among  the  rest,  the  white  steer  with  a  red  head, 
branded  k,  and  h  ft  my  cattle  in  the  pen. 

J.  S.  Martin,  for  the  State  testilied  as  follows:  "I  live  in  Milam  County, 
Texas,  three-ffiarters  of  a  mile  from  the  residence  of  Mr.  J.  B.  Rtiwls.  I  know 
tlie  defendant.  I  know  the  steer  charged  to  have  been  stolen.  I  ':now 
him  well;  he  was  a  white  steer  with  a  red  head  and  had  some  red  spots  back  on 
his  slionlders.  He  ranged  about  my  place  with  Mr.  J.  B.  Rawls' cattle,  and 
sleeidiig  at  Mr.  Uawls'  pen  from  the  time  it  was  about  two  years  old  until  it . 
wus  about  four  years  old.  The  steer  was  marked  a  short  crop  off  of  the  left 
car,  and  a  swallow  fork  in  the  right  car  and  branded  k.  The  last  time  I  saw 
the  beef  II  was  In  the  possession  of  the  defendant.  In  the  fail  of  1879,  the  de- 
fendiiut  drove  a  small  buncii  of  cattle  past  my  place,  and  had  the  steer  charged 
to  liave  been  stolen  with  the  bunch.  I  have  never  seen  it  since.  I  am  well  ac- 
(|ii.iiiited  witii  tiie  range,  andhave  been  hunting  stock  in  the  range.  Have  never 
»i'eii  tiie  steer  In  the  range.  The  defendant  drove  it  past  my  house  in  the  di- 
rection of  Milano." 

Tom  Shelton,  for  the  defendant,  testified:  "I  know  the  defendant.  He  Is 
my  brother.  I  was  with  hiin  wiien  he  went  to  get  the  Rawls'  cattle.  Bob 
Stevens  was  also  witL  us.  We  drove  up  the  cattle  with  all  the  cattle  be- 
luiising  to  Mr.  Rawls.  Among  them  was  a  staggish  looking  steer  of  a  red 
and  white  color,  branded  k  and  marked  crop  off  of  left,  and  swallow  fork 
in  tiie  right  ear.  The  cattle  all  remained  in  the  pen  at  Rawls'  until  the 
next  day,  when  he  drove  them  away.  When  the  cattle  were  turned  out  of 
the  pen  to  drive,  this  steer  came  out  with  them.  We  drove  them  altogether 
about  three-quarters  of  a  mile,  and  past  Martin's  house.  As  we  crossed 
a  gullcy  about  two  hundred  yards  from  Martin's  house,  the  cattle  separated  a 
little,  and  defendant  Instructed  us  to  cut  the  k  steer  out,  which  we  did,  and  ran 
him  back  through  the  woods  towards  Rawls'   house.    I  never  saw  the  steer 


630 


LARCENY. 


afterwards,  and  don't  think  the  defendant  ever  did.    Defendant  left  Milam 

CoMUy        tJc  lutter  part  of  December,  187«J.  to  work  on  the  railroad.    He  wh« 

^S  o"t  ties  ,n  Bu'rU-Hon  County  on  the  »"-' ;|- «""•  ^;;\"-f"  '^^ 

So  llttllnrnd      He  did  not  return  to  the  county  until  the  fall  of  1881.    ^\cdroNe 

the  r.    h  of  cattle  frou.  UawLs'  to  U.  K.  SteveuH'.  where  we  got  Bome  rnoro, 

u^  fro.    th  re  drove  then,  to  my  father's  house,  where  we  ,.enned    counter- 

ran  led  a.     turn,.d  them  upon  the  ran«e.     I  never  mm  the  k  steer  after  we  cu 

t  out      "ar  Martin',  house.    There  wa.  no  four  year  old  steer  »"     « J;^-'^" 

...  A  I  1,,.^™  Hu.rn  was  none  there  branded  k.    Dclenauni  nau 

b^LS  :    ;r^^^^^  ^Vhlte.  Who  was  making  up  aherd 

armir.  but  when  he  Kot  these  cattle  there  While  had  gone  or  moved  hi    1  erd 

wes    a  d  fo  t  at  reason  defendant  countcr-branded  the  f  «-"'»"'»•"-<»  "'7 
west,  ami  lor  ^^^^^  ^^^^^  ^^^^^  ^,,„p .  ,,„  ^„g 

on  the  range.    He  did  "'^^'^nTa     He  staved  at  my  father's  until  he  went  to 
nf^t  In  «lii!  rittle  bus  ui'ss  after  that.     He  siajtu  ui  mj' i"""  »,     ,  , 

TurU^o'co  .nVto  work  on  the  railroad.    We  drove  these  cattle  from  Rawls 

K    ?     .  10  L  dfiv  of  ()ctober.  1S79.  From  that  time  until  he  went  on  the  rallroa.l 

he  1    of' t'^^^^™  all  the  tln.e.    He  was  not  on  the  range  after  that 

pen  was  moTred  than  white.    He  had  some  white  on  the  sides,  and  some  red 

?::;ew^j:"^s::  ^r  ::ir^::;  tiiLto  be  his  b...  u  ^ 
ri'^rirKik'^rtn^-^rrrrr^s 

te  r  a  Mr  KlV  'c  b  t he  brlnd.  The  steer  went  along  with  the  bunch  of  cat- 
«o  un  »  we  pled  Mr.  Martin's  about  two  hundred  yards,  and,  as  we  crossed 
Ign  W  de  e  dant  lnstrnct.C  us  to  cut  the  k  steer  out,  and  we  ^ll^o-u.^^ 
Jim  back  toward  Itawls'  house  throu-h  the  wood..  1  never  saw  the  steerafter- 
wardT  We  drove  the  bunch  of  cattle  to  my  brother  K.  «• /tevens'  house,  a. 
:;r  put  m  some  Of  my  ^^-^^^J^^^t:::^^^^;,  tth^^ 

rss;r f!r  "c^^jr"^"^ '^rib;:^  -d  turned  the. 

^n  the  a"e  a.  ain  Defendant  '.ft  the  canty  about  two  and  a  half  months 
Ze  thlt  and  vvent  to  Burleson  Couuty  fo  work  on  the  railroad.  He  did  no 
f^e  ba  k  o  Milam  County  any  nuu.  -  ntll  last  fall.  The  time  we  Urove  tN 
B^  r  from  Rawls'  we  penned  the  steer  with  other  cattle  at  Rawls',  and  the  ca. 
L  r,.mained  there  all  night,  and  next  morning  we  drove  them  away. 

R  iT  Stevet.  for  clefe'ndant,  testifled:  '« I  know  the  defendant  Matt.  Shelton. 
wfioU  MUam  County  to  g.)  to  Burleson  County  on  the  railroad  in  December, 
f8%     I  mmLxX  time  when  he  drove  the  Rawls  cattle.    Tom  Sheltou  an 
18.9.    I  rtnu  '"'^^'^ J^  V'    „,     ^hev  drove  the  cattle  to  my  honse  and  there  put 
T'  7JlLl    old  dfendant.!  helped  to  drive  them  from  my  house  to 

rhTu:erth?dlrdltfrh:;.    IknoUomKirk'sbr.nd.andhaveknown 


A^M 


PROOF   INSUFFICIENT  —  8HELTON   V.  8TATB. 


631 


;  left  Milam 
ad.     He  whu 
]o  and  Siiiitu 
.     We  drove 
,  Honie  mori', 
uil,  counter- 
after  we  cut 
the  bunch  of 
efundunt  had 
lug  up  a  herd 
jved  his  herd 
I  turned  them 
time;  he  wa» 
til  he  went  to 
J  from  Rawls' 
>n  the  railroad 
nge  after  that 
[arm,  and  was 
set  I  that  I  was) 
ve  knowu  It." 
e  from  Rawls' 
and  Home  red 

,nt  Matt.  Shel- 
e  Rawls  cattle 
vhen  we  drove 
k  ran  out  with 
;er,  branded  k. 
[t  was  the  only 
c;  don't  know 

Identified  the 
3  bunch  of  cal- 
,  as  we  crossed 
aid  80,  and  run 

the  steer  after- 
ens'  house,  aud 
dant,  and  then 
3ra  to  the  house 
nd  turned  them 
:1  ft  half  months 
id.  He  did  not 
fie  wo  ilrove  the 
is',  and  the  cat' 
way." 

It  Matt.  Shelton. 
id  in  December, 
:om  Shelton  and 
se  and  there  put 
rom  my  house  to 
,  and  have  known 


It  for  years.  It  Is  k,  but  I  can't  say  that  I  know  his  marV  I  don't  pay  much 
attention  to  marks,  but  always  pay  close  attention  to  brands.  There  wos  no  k 
stcir  or  animal  of  any  sort  In  the  bunch  that  defendant  drove  to  my  house.  I 
iKitlced  the  brand  of  all  tho  cuttle  In  the  bunch  and  know  there  was  no  such 
(inlmiil  there  us  tho  one  charged  to  have  been  stolen.  I  know  the  description 
of  the  animal  described  by  tho  State's  witness  as  the  one  charged  to  bo  stolen. 
I  s:iw  a  steer  In  tho  range  near  Rawls'  hoiiso  In  tho  spring  of  1880,  I  think  In 
.March  or  April,  that  suited  tho  description  of  the  Kirk  steer.  He  was  branded 
k.  I  never  heard  that  Kirk  had  but  two  hea<l  of  cattle  In  that  range,  and  one  of 
them  was  a  two  year  old  heifer  and  tho  other  a  four  yeor  old  steer.  This  steer, 
I  would  say  from  the  description.  Is  the  one  I  saw  In  the  spring  of  1880.  The 
(iit.nihint,  after  driving  tho  cattle  to  his  father's,  counter-branded  and  turned 
them  asaln  on  tlio  range."  Ou  cross-examlnallou :  «I  do  not  remember  the 
murk  or  brand  of  any  other  animal  that  was  put  In  ray  |)en  by  tho  defendant  at 
the  time  ho  penned  at  my  house.  The  one  I  saw  on  the  range  In  the  spring  of 
1«80  was  a  red  aud  white  pidod  steer." 

Milton  Shelton,  for  tho  defendant,  testified:  '«I  know  tho  defendant.  He  la 
my  lirother-  He  quit  the  cattle  business  In  October,  1879.  From  that  time  till 
the  latter  part  of  December,  1879,  he  lived  at  my  father's  In  Mllara  County, 
Texas.  I  lived  two  or  three  miles  distant.  I  saw  defendant  often,  and  know 
that  during  tlmt  time  defendant  was  not  on  the  range,  because  he  was  working 
on  my  father's  farm  near  where  I  lived.  In  the  latter  part  of  Dc.ember,  1879, 
defendant  went  to  Burleson  County  to  work  on  tho  railroad.  He  did  not  come 
hack  to  Milam  County,  or  make  It  his  homo,  until  tiie  fall  of  1881,  after  ho  got 
through  his  contract  ou  the  Santa  Fo  Railroad,  In  Burleson  County.  Ho  went 
to  Denton  County  on  tiie  Dallas  aud  Wichita  Railroad,  and  remained  In  Northern 
Te.\as  up  o  tlie  time  ho  returned  to  Mllara  County.  I  was  with  defendant  most 
of  tiie  time,  and  know  that  he  was  not  In  tho  cattle  business  after  October,  1879. 
When  defendant  wont  to  Burleson  County  he  took  no  cattle  with  him." 

A.  S.  Russell,  for  defendant,  testified :  "  I  live  In  Milam  County,  Texas,  and 
know  tho  defendant.  He  Is  my  son-lu-law.  He  left  Milam  County,  In  Decem- 
ber, 187!),  In  company  with  me,  to  work  on  the  Santa  Fe  Railroad  In  BurU  jon 
County.  Ho  took  no  cattle  with  him.  From  Burleson  County  he  went  to 
Northern  Texas,  to  take  contracts  on  railroads  building  there.  He  did  not 
riturn  to  Milam  County  until  the  fall  of  1881.  He  was  not  on  the  range  lu 
Milam  County  after  he  left  here  In  December,  1879.  If  he  had  been  I  am  satis. 
fled  I  would  have  known  It." 

J.  U.  Itawls,  recalled  by  defendant,  stated:  "The  defendant  was  at  my  house 
twice  in  the  fall  of  1879  after  cattle,  and  on  one  occasion  he  penned  cattle  at 
my  house,  and  the  cattle  remained  there  all  night.  He  drove  them  off  next 
iiioruing.  This  was  not  the  time  he  drove  the  steer  In  controversy  off.  At  this 
time  one  of  the  boys,  Tom  Shelton  or  Bob  Stevens,  was  with  him.  Don't  know 
wiiether  tlie  other  was  or  not.  It  was  about  a  mouth  after  this  that  he  drove 
off  tho  red-lieaded  steer,  and  at  this  time  he  penned;jthe  cattle  in  the  day,  and 
drove  them  off  the  same  day." 

We  are  not  satisfied  to  a  reasonable  certainty  that  the  defendant  stole  the 
steer.  The  evidence,  whether  positive  or  circumstantial,  should  lead  the  mind 
to  the  conclusion  of  guilt,  to  a  moral  certainty.  This  conclusion  should  be 
reached  easily,  naturally  and  conclusively,  and  with  that  degree  of  certainty 
winch  places  the  mind  at  rest  on  the  question.    We  do  not  think  that  the  evi- 


632 


LARCENY. 


dence  in  this  case  is  of  such  ciiardcter  as  would  make  it  safe  for  aco.-viction  to 
to  be  sanctionod,  tliereby  malting  it  a  precedent. 

Tiie  facts  relied  upon  for  a  conviction  are  not  in  conflict  witli  the  fact  that 
defendant  turned  tlie  steer  out  of  his  buuch  wltliin  three-quarters  of  a  mile  of 
the  place  of  the  supposed  fraudulent  taking.  That  defendant  did  have  this 
steer  cut  out  from  his  bunch  is  not  only  sworn  to  by  two  of  his  relatives,  but 
two  other  witnesses  (oue  being  the  owner)  swore  they  saw  the  steer  on  that 
ran;^e  subsequent  to  the  time  of  the  supposed  taking. 

We  do  not  believe  the  evidence  to  be  of  that  conclusive  nature  which  should 
be  held  sufficient  Vi  support  a  conviction.  The  motion  for  new  trial  should 
have  been  granted.    The  judgment  is  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 

§  578.  Bvldence   Inaufflclent   to  Convict  — Taylor  v.  State. —  In    Taylor 
V.  /State,!  WiLLSON,  J.,  delivered  the  following  opinion:  The  defendant  was  con- 
victed of  tlie  theft  of  horses  and  his  punishment  was  assessed  at  flvu  years  con- 
flncment  In  the  penitentiary.    The  Indictment  is  a  good  one,  and  the  charge  of 
the  court  is  full,  and  very  clearly  instructed  the  jury  as  to  the  law,  as  applic. 
able  to  the  evidence.    The  only  question  which  presents  to  our  minds  any 
difficulty  is  as  to  the  sufficiency  of  the  evidence  to  support  the  verdict  of  the  jury. 
The  horses  in  controirersy  were  in  the  brand  of  W.  H.  Burrows,  the  alleged 
owner.    This  was  also  the  defendant's  brand,  which  he  had  used  for  fourteen  jr 
fifteen  years.    The  defendant  had  stock,  both  horses  and  cattle,  branded  with 
this  braud,  and  running  in  the  range  where  these  horses  were  running.    He  took 
the  horses  openly,  claiming  that  they  belonged  to  him.    Bright,  who  had  the 
horses  in  charge  at  the  time  of  the  taking,  told  the  defendant  that  the  belonged 
to  Burrows,  and  that  he  had  better  not  take  them,  and  must  not  take  them,  with- 
out giving  to  him.  Bright,  a  writing  showing  that  he  had  taken  tiiem.    Defendant 
said  the  horses  were  his  property,  and  he  would  take  them,  and  would  give  Bright 
the  writing  demanded,  and  did  give  it,  aud  also  told  Bright  that  if  any  one  Inquired 
for  the  horses  to  tell  them  that  he,  defendant,  had  them,  and  told  Bright  his  name, 
and  that  he  lived  in  the  town  of  Pieasanton.    Defendant  took  the  horses  to  his 
home  in  Pieasanton,  and  kept  them  there  until  they  were  demanded  by  ihe 
owner.    When  the  owner  called  for  them  the  defendant  still  claimed  them  as  his 
property,  but  did  not  refuse  to  surrender  them,  and  did|surrender  them.    These 
are  the  facts  of  the  case  substantially  ns  disclosed  by  the  record.    It  also  ap- 
pears  from  the  record  that  the  defendant  made  application  for  a  continuance, 
and  the  court  overruled  his  application,  but  no  exceptions  were  taken  to  the 
overruling  of  the  application,  and  without  a  bill  of  exceptions  thereto  we  would 
not  revise  the  a^-tlon  of  the  court  below  upon  that  subject;  but  we  are  of  the 
opinion  that  the  application  showed  that  there  was  testimony  very  material  to 
defendant  which  was  absent,  and  that  hu  had  used  due  diligence  to  obtain  this 
testimony.    We  are  not  satisfied  from  the  record  in  this  cnse  that  tlie  defendant 
has  been  properly  convicted.    We  think  the  evidence  is  insufficient  to  establish 
a  fraudulent  lijtent  on  his  part,  in  taking  the  horses,  and  that  the  court  below 
jhould  have  granted  him  a  new  trial. 

Reversed  and  remanded. 

I  679.  BvldencoHold  Ineiifflolent  —  Wolf  v.  State.  — In  Wolf  v.  ,S«ote,nhe 
information  charged  the  theft  of  sixteen  bushels  of  corn  of  the  value  of  twelve 


1  12  Tex.  (App.)  489  (188S). 


2  U  Tex.  (App.)  210  (188a). 


■iiwwiwroiwuM  Ml 


^^ 


PROOF   INSUrnCIENT — WOLF   V.  STATE. 


633 


safe  for  a  co -vlction  to 

Qflict  with  the  fact  that 
se-quarters  of  a  mile  of 
ifendaut  did  have  this 
NO  of  hla  relatives,  but 
y  saw  the  steer  on  that 

i^e  nature  which  should 
a  for  new  trial  should 
luse  remanded. 
versed  and  remanded. 

V.  State. —  In  Taylor 
?he  defendant  was  con- 
sssed  at  Ave  years  cou- 
one,  and  tlie  charge  of 

to  the  law,  as  applic. 
Its  to  our  minds  any 
the  verdict  of  the  jury. 

Burrows,  the  alleged 
id  used  for  fourteen  jr 
1  cattle,  branded  with 
ere  running.    He  took 

Bright,  who  had  the 
laut  tiiat  the  belonged 
St  not  take  them,  with- 
ken  tiiem.  Defendant 
and  would  give  Bright 
that  If  any  one  Inquired 
[1  told  Bright  his  name, 
took  the  horses  to  his 
ere  demanded  by  ihe 
ill  claimed  them  as  his 
rrender  them.  These 
e  record.  It  also  ap- 
ion  for  a  continuance, 
ns  were  taken  to  the 
ions  thereto  we  would 
ct;  but  we  are  of  the 
mony  very  material  to 
iligence  to  obtain  this 
ise  that  the  defendant 
sufficient  to  establish 
that  the  court  below 

ersed  and  remanded. 

In  Wolf  v.  State,^  the 
if  the  value  of  twelve 

210  (188ii). 


dollars,  the  property  of  H.  C.  Martin,  on  the  sixth  day  of  December,  1882.  The 
penalty  imposed  by  the  judgment  of  conviction  was  a  fine  of  ten  dollars 
and  confinement  in  the  county  jail  for  one  hour.  The  motion  for  new  trial 
assailed  the  judgment  as  against  the  law  and  the  evidence.  The  evidence 
showed  that  Martin  owed  tlie  defcnda.:t  about  eight  dollars,  and  that  in  Mar- 
tin's absence  the  defendunt  went  to  Martin's  place,  and,  with  the  assistance  of 
an  employe  of  Martin,  measured  and  took  off  sixteen  busiiels  of  Martin's  corn. 
White,  J.  This  case  was  tried  by  the  court  without  tlie;  intervention  of  the 
jury.  A  statement  as  to  tiie  conclusions  formed  by  him  is  made  by  the  county 
judge  as  follows,  viz. :  — 

"  This  cause  was  sub.nitted  to  the  court,  and  from  the  evidence  the  court 
found  the  defendant  guilty,  concluding  that  defendant  took  the  corn  In  question 
to  pay  himself  for  what  he  considered  the  prosecuting  witness  owed  him,  with- 
out his  consent  aud  In  his  absence."  If  this  finding  of  the  court  is  correct  — 
and  we  concur  in  its  correctness  as  shown  by  tiic  facts  between  us  —  then  the 
defendant,  however  liable  he  might  be  in  trespass,  is  not  guilty  of  theft.  A 
fraudulent  intent  Is  the  essential  Ingredient  of  theft,  and  this  intent  must  ex- 
ist at  the  time  of  the  taking.  "The  taking  must  be  an  actual  aud  Intended 
fraud  upon  the  rights  of  another;  the  taking  must  Include  the  purpose  and  in- 
tent to  defraud;  it  must  be  an  .itentlonal  taking  without  the  consent  of  the 
owner,  an  intentional  fraud,  and  an  intentional  appropriation."  i  All  the  cir- 
cumstances attending  the  taking,  as  developed  in  the  statement  of  facts,  indi- 
cate to  our  minds  a  total  want  of  those  criminal  elements  which  cocstltute 
theft.    The  Judgment  is  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 

§  580.  Evidence  Insufflclent  to  Convict  —  Womack  v.  State.  —  In  Womack 
V.  StaCe,^  the  prisoner  was  jointly  indicted  with  one  K.  M.  Fuller,  for  the  theft 
of  six  hogs  of  the  aggregate  value  of  twenty-seven  dollars,  the  property  of 
John  B.  Henderson,  in  the  county  of  Erath,  Texas,  on  thirtieth  day  of  Septem- 
ber, 1881.  The  appellant,  being  alone  upon  trial,  was  convicted,  and  his  pun- 
ishment was  affixed  at  a  term  of  one  month  In  the  county  jail  and  a  fine  of  one 
hundred  dollars. 

W.  H.  Trent  was  the  first  witness  for  the  State.  He  testified  that  he  knew 
the  defendant,  and  also  E.  M.  Fuller,  who  was  Indicted  with  him  In  this  case. 
He  identified  the  defendant  on  trial  as  J.  D.  Womack.  In  the  summer  of  1881 
witness  contracted  with  E.  M.  Fuller  for  the  purchase  of  four  hundred  hogs. 
In  accordance  with  this  contract.  Fuller,  on  the  fourth  day  of  October,  1881,  de- 
livered to  the  witness  a  (;ar  load  of  hogs  numbering  one  hundred  and  forty-one 
head.  These  hogs  the  witness  sold  and  delivered  to  A.  Wheeler,  of  Waco, 
Texas.  These  were  the  only  hogs  witness  ever  sold  to  Wheeler.  They  were 
delivered  to  Wheeler  at  Waco.  Witness  did  not  make  the  contract  with  the  de- 
fendant. The  witness  did  not  know,  and  had  never  seen  the  defendant  until 
after  the  hogs  were  delivered. 

The  next  witness  for  the  State  was  A.  Wheeler.  He  testified  that  he  knew 
the  witness  Trent,  who  had  just  testified.  He  made  a  contract  with  Trent  in 
the  summer  of  1S81,  for  the  purchase  of  hogs.    In  pursuance  of  that  contract, 


1  Mallini  V.  State,  37  Tex.  3.^7;  Johason  v. 
8tat«,  1  Tex.  (App.)  118. 


>  16  Tex.  (App.)  179  (1885). 


634 


LAUCENV. 


Trent  delivered  to  the  witness  a  car  load  of  one  hundred  and  forty-one  hogs,  In 
Waco,  Texas,  on  the  fifth  day  of  October,  1881.    These  were  the  only  hogs  ever 
delivered  to  the  witness  by  Trent.    Witness  turned  these  hogs  Into  a  pen  witli 
about  four  hundred  other  hogs  which  he  had  purchased  from  several  different 
parties.    Witness  knew  J.  B.  and  J,  P.  Henderson,  the  gentlemen  who  wer« 
present  as  witnesses  In  this  case.    Some  two  or  three  weeks  after  Trent  deliv- 
ered these  hogs  to  witness,  J.  B.  Henderson  came  to  the  pens  of  the  witness  in 
Waco,  looking  for  hogs  which  he  said  had  been  stolen  from  him.    He  found  four 
head  in   the  witness'  pen  which  he  claimed.    One  was  a  white  and  blaclc 
spotted  sow,  two  were  slioats,  and  the  fourth  was  a  black  barrow  with  white 
feet.    The  hogs  claimed  by  J.  B.  Henderson  were  marked  with  a  swallow- 
fork  and  underbit  in  each  ear,  and  were  a  portion  of  the  number  delivered  to 
witness  by  Trent.    The  two  shoats  would.  In  the  judgment  of  witness,  have 
weighed  about  eighty  pounds  each,  the  sow  would  have  weighed  about  one  hun. 
dred  and  twenty,  and  the  black  barrow  about  one  hundred  and  ten  pounds. 
The  barrow's  ears  looked  as  though  they  had  been  dog  bitten  and  afterwards 
Infested  by  worms,  but  the  mark  described  was  plainly  discernible.    In  addi- 
tion to  this  pen,  the  witness  had  what  he  termed  his  "  invalid  pen."    Hender- 
son did  not  go  through  the  Invalid  pen,  as  witness  told  him  he  had  put  none  of 
the  hogs  purchased  of  Trent  in  that  pen.    Some  of  the  hogs  purchased  by  wit- 
ness from  Trent  died  before  the  arrival  of  Henderson.    Within  a  week  after  the 
visit  of  .T,  B.  Henderson  to  the  witness'  pens,  J.  P.  Henderson,  a  son  of  J.  B. 
Henderson  came  to  the  pens,  examined  tlie  hogs,  identified  and  claimed  the 
same  hogs  that  were  claimed  by  J.  B.  Henderson.    J.  P.  Henderson  found  also 
in  the  Invalid  pen  another  sow  iu  the  same  mark  as  the  four  described,  which 
he  claimed  for  his  fathsr.    The  two  Hendersons  claimed  to  know  each  of  their 
hogs  by  their  flesh  marks.    Witness  paid  Henderson  fifteen  dollars  for  the 
hogs,  which,  In  the  opinion  of  the  witness,  was  their  full  value.    None  of  the 
hogs  were  caught  and  examined  at  the  time  of  young  Henderson's  visit  in  the 
presence  of  the  witness.    The  hogs  were  mast  fed  or  range  raised  hogs,  some- 
times called  "  razor-backs." 

J.  B.  Henderson  was  the  next  witness  for  the  State.  He  testified  that  be 
knew  the  defendant  Womack,  the  man  Fuller,  and  the  witness  Wheeler.  In 
September,  1881,  the  witness  owned  a  buncli  of  forty  head  of  hogs,  running  at 
what  is  known  as  McDow's  hollow,  iu  Erath  County,  Texas,  from  which  the 
witness  lived  three  miles  distant.  The  witness  last  saw  the  hogs  which  the  de- 
fendant is  accused  of  stealing,  about  the  last  of  August  or  the  first  of  Septem- 
ber of  the  year  1881,  On  his  return  home  from  court  about  the  tenth  of 
October,  1881,  the  witness  missed  eight  head  ;of  hogs  from  his  bunch.  Two  of 
the  missing  animals  were  shoats,  and  six  were  large  hogs.  They  were  all 
marked  with  a  swallowfork  and  underbit  In  each  car.  They  were  mast  fed  or 
range  raised  animals.  One  of  them  was  a  black  barrow  with  white  feet.  The 
witness  made  careful  and  unsuccessful  search  for  the  missing  hogs  through  the 
range,  and  then,  taking  Mr.  Norton  with  him,  went  to  see  the  defendant  about 
them.  At  that  time  the  witness  had  no  ac<iuaintauce  with  the  defendant,  and 
had  no  recollection  of  having  seen  him  before.  When  witness  and  Norton 
rode  up  to  defendant's  house,  the  defendant  met  them  at  the  fence.  Witness 
told  him  where  a  bunch  of  his  and  Fuller's  hogs  were.  Defendant  replied  that 
he  was  grateful  for  the  information.  Witness  then  asked  him  If  he  and  Fuller 
were  partners,  and  he  said  that  they  were.    Witness  asked  him  if  he  knew  his, 


PROOF    INSUFFICIENT  —  WOMACK   V,  STATE. 


635 


forty-one  hogs,  la 
the  only  hogs  ever 
)gs  Into  a  pen  witli 
m  several  different 
ntlemcn  who  wer« 
B  after  Trent  deliv- 
is  of  the  witness  in 
im.    He  found  four 
a,  white  and  black 
barrow  with  white 
id  with  a  swallow- 
umber  delivered  to 
Dt  of  witness,  have 
lied  about  one  hun. 
d  and  ten  pounds, 
ten  and  afterwards 
scernible.    In  addl- 
lid  pen."    Hender- 
he  had  put  none  of 
s  purchased  by  wlt- 
lin  a  weeli  after  tlie 
rson,  a  son  of  J.  B. 
ed  and  claimed  the 
inderson  found  also 
ur  described,  which 
I  knovr  each  of  their 
sen  dollars  for  the 
iralue.    None  of  the 
derson's  visit  in  the 
i  raised  hogs,  some- 
He  testified  that  be 
itness  Wheeler.    In 
of  hogs,  running  at 
sas,  from  which  the 
e  hogs  which  the  do- 
■  the  first  of  Septcm- 

about  the  tenth  of 
I  his  bunch.  Two  of 
Bgs.  They  were  all 
ley  were  mast  fed  or 
Pith  white  feet.  The 
ing  hogs  through  the 

the  defendant  about 
1  the  defendant,  hud 
witness  and  Norton 

the  fence.  Witness 
efendant  replied  that 
him  If  he  and  Fuller 
I  him  if  he  knew  his, 


witness',  hogs.    He  replied  that  he  Itncw  the  bunch  of  hogs  on  McDow's  lioUow, 
rt'iiuted  to  be  witness'  property.    Witness  then  asl<od  him  If  he  knew  his,  wit- 
ness', mark.    He  said  that  he  knew  the  mark  that  was  said  to  be  that  of  tiie 
wituess,  which  was  a  swallowfork  and  underblt  in  each  cur.     Witness  then 
;iske(l  him  if  he  and  Fuller  owned  or  claimed  any  hogs  in  that  mark.    He  replied 
that  they  did  not;  that  they  had  owned  some  in  that  mark,  but  that  they  had 
run  off  the  preceding  spring,  and  gone  back  to  Eastland  County,  whence  they 
citmc;  that  they  had  heard  of  one  of  them  on  Armstrong  Creek,  but  of  none  of 
the  others.    Witness  then  asked  him  if  lie  and  Fuller,  or  cither  of  them,  had 
used  or  shipped  auy  of  his  hogs.    Defendant  replied  in  the  negative.    Witness 
then  asked  If  they  had  shipped  or  used  any  hogs  marked  with  a  swallowfork  and 
imderbit  in  each  ear,  and  he  replied  that  they  had  not.    A  few  days  after  this 
conversation  with  the  defendant,  the  witness  went  to  Waco  and  examined  the 
iiogs  in  A.  Wheeler's  pens.    He  found  four  of  his  hogs  in  Wlieeler's  pens.    He 
knew  the  four  animals  both  by  their  ear  and  flesh  marks.    One  was  a  spotted 
sow,  two  were  shoats,  and  the  remaining  one  was  a  black  barrow  with  white 
leet.    The  Ijarrow's  ears  were  injured  —  had  been  evidently  bitten  by  dogs,  and 
afterward  infested  by  worms.    The  sow  and  shoats,  when  found  by  witness, 
were  together  in  a  part  of  the  pen  remote  from  that  part  of  the  pen  where  the 
liarrow  was  found.    The  witness  had  been  in  the  habit  of  seeing  his  hogs  on  the 
range,  sometimes  once,  and  sometimes  three  times  a  week,  and,  again,  he  would 
not  see  them  for  two  or  three  weeks.    Witness  claimed  the  hogs  when  he  found 
them  in  Wheeler's  pens,  and  Wheeler  gave  him  a  written  instrument,  agreeing 
to  hold  the  hogs  subject  to  such  judicial  proceedings  as  witness  might  institute 
for  their  recovery.    Wheeler  had  a  second  pen  on  his  premises,  which  he  called 
his  "invalid  pen."    The  witness  did  not  examine  the  hogs  in  that  pen.    Wit- 
ness, a  few  days  after  his  return  home,  sent  his  son,  J.  P.  Henderson,  to  look  at 
the  liogs  in  Wheeler's  pen.    The  witness  again  went  to  see  the  defendant,  and 
found  him  in  Dublin.    He  told  the  defendant  that  he  wanted  to  have  a  talk  with 
liim,  and  suggested  that  each  should  select  a  friend  to  hear  the  conversatioo. 
To  tills  proposition  the  defendant  agreed,  and  selected  a  Mr.  Carlysle.    Witness 
si'lected  Mr.  Cah  ;a  Martin.    The  four  parties  stepped  off  from  the  public  thor- 
oii;!hfure  and  sat  down.    Witness  then  said  to  defendant:  "  Mr.  Woraack,  I  am 
not  satisfied  about  my  hogs,  and  I  want  some  further  talk  with  you  about  them." 
The  defendant  replied:  "All  right."    Witness  then  said:  "  I  want  you  to  tell 
tliesc  gentlemen  what  you  told  Mr.  Norton  and  me."    The  defendant  replied 
that  he  had  forgotten  what  he  told  Norton  and  tue  witness.    "  Then,"  said  the 
witness,  "  let  me  tell  it  over,  and  you  say  whether  or  not  I  tell  it  correctly." 
To  iliis  proposition  the  defendant  agreed,  and  witness  asked:  "  Didn't  you  tell 
me  tliiit  you  knew  my  hogs  that  run  on  McDow's  hollow?  "    Defendant  replied 
iliat  he  did,  and  witness  asked:  "Didn't  you  tell  me  that  you  knew  my  hog 
mark,  and  that  it  was  a  swallowfork  and  underblt  in  each  ear?  "    Defendant 
admitted  that  he  did,  and  witness  asked :  "  Didn't  you  teil  me  that  you  and 
Fuller  did  not  claim  auy  hogs  in  that  mark;  that  you  had  had  some,  but  that 
tluy  ran  away  from  you,  and  went  back  to  Eastland  County,  and  that  you  had 
only  lieard  of  one  old  sow  since,  and  that  she  was  on  Armstrong  Cret;k?  "     De- 
fendant replied  that  he  did,  and  witness  asked  him:  "  Didn't  you  tell  me  that 
you  and  Fuller  had  not  shipped  any  of  my  hogs,  or  any  hogs  in  my  mark?  " 
The  defendant  replied  that  he  did,  and  witness  said :  "  Weil,  Mr.  Womack,  I 
have  been  to  Waco  and  found  my  hogs.    That  won't  do.    Now,  your  neighbors 


636 


LARCENY. 


tell  me  that  you  have  stood  well  until  you  got  into  this  thing  with  Fuller,  and  I 
believe  you  have  been  led  into  it.  I  have  been  to  town  and  seen  the  district 
attorney,  and  he  tells  me  that  if  you  will  come  out  and  tell  the  thing  just  as  it 
occurred,  and  be  a  witness  for  the  State  against  Fuller,  he  will  not  prosecute 
you,  and  will  dismiss  the  case  against  you,  if  you  should  be  ludictrJ."  Tlie 
defendant  studied  awhile,  and  replied:  "I  will  do  it."  Proceeding  to  repeat 
the  defendant's  confession,  the  witness  said:  "  Womuck  then  sa.d  to  me:  'We 
got  six  of  your  hogs,  and  shipped  them  to  Waco.  I  had  been  over  to  meet  the 
pay  train  on  Sunday  morning,  and  when  I  returned  Fuller  hud  six  of  your  liogs 
in  the  peiP  I  told  him  he  had  better  be  careful  about  handling  his  neighbors' 
hogs,  and  he  replied  that  the  hogs  belonged  to  him,  and  that  he  would  do  as  ).e 
pleased  with  them.  We  took  the  hogs  from  the  pen  and  put  them  in  my  field. 
The  next  morning  we  drove  them  up  to  Mount  Airy  and  shipped  them. '  " 

The  witness  promised  the  defendant  not  to  prosecute  him  if  he  wonld  testify 
lor  the  State  against  Fuller.  After  the  indictment  in  this  case  was  presented, 
the  witness  and  the  district  attorney  wont  to  the  defendant  and  asked  him  to 
state  what  his  testimony  would  be.  The  defendant  denied  then  that  he  hud 
made  any  statement  to  the  witness  concerning  th.i  theft  of  the  hogs;  said  that 
he  remembered  nothing  he  had  said  to  witness  about  the  matter,  and  refused 
absolutely  to  testify  for  the  State  aitalnst  Fuller.  The  defence  ol)jected  and  ex- 
cepted  to  the  admission  of  the  evidence  of  this  witness  about  the  confession. 

The  stolen  animals  belonged  to  the  witness,  and  were  taken  in  September, 
1881,  without  the  knowledge  or  consent  of  the  witness.  The  two  shoats  were 
worth  three  dollars  each,  and  the  six  larj^er  hoas  were  worth  six  dollars  each. 
Before  the  witnes-s'  conversation  with  the  defendant  In  Dublin,  in  which  he, 
defendant,  agreed  to  turn  State's  evidence,  the  witness  hud  seen  the  district 
attorney  and  obtained  his  consent  to  the  propositions  to  defendant  to  turn 
State's  evidence.  In  making  the  propositions,  the  witness  acted  under  the 
directions  and  advice  of  the  district  attorney.  Witness  proposed,  on  his  own 
responsibility,  not  to  Include  the  defendant  in  the  complaint  he  Intended  mak- 
ing, if  he  would  turn  State's  evidence.  He,  however,  told  the  defendant  that 
the'grand  jury  would  most  probably  include  him  in  the  indictment,  but,  in  that 
event,  the  district  attorney  would  dismiss  the  case  as  to  him.  If  he  would 
testify  fully  for  the  State  against  Fuller.  After  this  conversation,  witness  went 
to  Stepliensville  and  flled  a  complaint  against  Fuller,  but  not  against  the  de- 

*  J  P.  Henderson  was  the  next  witness  for  the  State .  He  testified  that  he  was 
the  son  of  the  witness  J.  B.  Henderson.  He  remembered  his  father's  loss  of 
some  hogs  late  in  September,  1881.  His  father  went  to  Waco  in  October,  aud 
a  few  days  after  his  return  the  witness  went  to  that  city  to  examine  some  hogs 
m  Wheeler's  pens.  In  one  pen  he  found  one  sow,  two  shoats,  and  a  black 
barrow  with  white  feet,  which  he  knew  by  the  flesh  and  ear  marks  to  belong  to 
his  father.  He  found  another  of  his  father's  sows  In  another  pen,  which 
Wheeler  called  his  invalid  pen.  All  of  the  live  hogs  bore  the  swallowfork  aud 
undeibit  mark  in  each  ear,  which  was  the  hog  mark  of  J.  B.  Henderson.  Wit- 
ness had  often  seen  the  hogs  on  the  range.  When  the  witness  saw  the  black 
barrow  in  Wheeler's  pen,  one  of  his  ears  had  been  injured,  and  had  been 
attacked  by  worms;  so  much  so  that  the  witness  could  not  Identify  the  mark 
until  lie  caught  the  hog  and  examined  it.  He  did  not  positively  know  whether 
or  not  Wheeler  was  present  when  he  caught  the  hog,  but  thought  he  was.  At 
aU  events  one  of  his  hands  was  present  and  helped  witness  catch  the  hog. 


^^m 


PROOF   INSUFFICIENT  —  WOMACK  V.  STATE. 


637 


with  Fuller,  and  I 
id  seen  the  district 
ihe  thing  just  as  it 
will  not  prosecute 
)e  iudlctcJ."  Tlif 
oceeding  to  repiat 
11  said  to  me:  'We 
11  over  to  meet  the 
id  six  of  your  liofrs 
ling  his  neighbors' 
t  he  would  do  as  lie 
it  them  in  my  field. 
ped  them. ' " 
\  if  he  wonld  testify 
;ase  was  preseited, 
and  asked  him  to 

then  that  he  hiul 
the  hogs ;  said  tliat 
natter,  and  refused 
ice  ol)jectcd  and  ex- 
it the  confession, 
ken  in  September, 
lie  two  shouts  were 
■th  six  dollars  eacti. 
)ubliu,  in  which  lie, 
(1   seen  the  district 
►  defendant  to  turn 
!8S  acted  under  the 
roposed,  on  his  own 
ut  he  intended  raak- 
1  the  defendant  that 
ictment,  but,  in  that 
,o  him,  if  he  would 
sation,  witness  went 

not  against  the  de> 

testified  that  he  was 
his  father's  loss  of 
/^aco  in  October,  aud 
examine  some  hogs 
shoats,  and  a  black 
,r  marks  to  belong  to 
another  pen,  which 
the  swallowfork  aud 
B.  Henderson.  Wit- 
tritness  saw  the  black 
|ured,  and  had  been 
not  Identify  the  mark 
Itively  know  whether 
thought  he  was.  At 
I  catch  the  hog. 


S.  L.  Norton  was  the  next  witness  for  the  State.  He  testified  that  some 
time  in'October,  1881,  Colonel  Henderson  asked  him  to  go  with  him  to  see  the 
dt  fendant,  and  he  did  so.  When  they  reached  the  fence  Colonel  Henderson 
called  the  defendant,  who  came  out  to  tlio  fence.  Colonel  Henderson  intro- 
duced himself,  and  the  defendint  replied  to  Henderson  that  he  knew  him.  The 
witness  then  gave  substantially  the  .same  account  of  what  transpired,  and  what 
wassiiid  by  Henderson  and  defendant  at  the  fence,  as  was  given  by  Henderson, 
exc('i)t  that  he  did  not  reiiiciiiber  hcarlnjj  defendant  say  that  he  and  Fuller  were 
partners.  The  witness  had  discussed  the  matter  with  Colonel  Henderson  as 
latcas  tlie  day  before  this  trial.  Henderson  reminded  him  of  some  parts  of  the 
conversation  whicli  he  hatl  forgotten,  but  which,  his  mind  being  refreshed,  he 
remembered  distinctly. 

Calvin  Martin  was  the  next  witness  for  the  State.  He  testified  that  he  and  a 
Mr.  Caiiysle  were  present  at  a  conversation  between  the  defendant  and  J.  B. 
Henderson,  in  tlie  town  of  Dublin,  some  time  in  October,  1881 .  This  witness 
repeated  the  conversation  in  detail  substantially  as  it  was  related  by  the  wit- 
ness J.  B.  Henderson.  Tlie  witness  stated  in  conclusion  that  he  had  not  talked 
over  his  testimony  with  Henderson.    At  this  point  the  State  closed. 

Mr.  Carlysle,  the  first  witness  for  the  defence,  gave  a  different  version  of  the 
conversation  between  Henderson  and  defendant  in  the  presence  of  himself,  the 
witness,  and  Martin.  Henderson  said  to  defendant:  '<  I  have  been  at  Waco, 
and  found  four  or  five  of  my  hogs  that  you  and  Fuller  drove.  Now,  if  you  will 
come  out  and  tell  the  truth,  and  help  prosecute  Fuller,  you  shall  not  be  hurt. 
I  liave  talked  with  Bell,  the  district-attorney,  and  he  says  that  if  you 
will  come  out  with  the  truth  and  help  prosecute  Fuller  you  shall  not  be  hurt. 
Now,  Woniack,  do  you  know  my  mark?"  The  defendant  replied:  "Yes,  I 
Iciiow  a  mark  said  to  be  yours."  Henderson  then  a.sked :  ••  Did  you  and  Fuller 
drive  any  hogs  in  that  mark?  "  Defendant  replied  that  he  and  Fuller  drove  five 
or  six  head  in  that  mark.  Henderson  asked,  "  Where  did  you  get  them?  " 
Defendant  replied,  "The  first  I  saw  of  them  they  were  in  the  pen  at  old  uncle 
Dauicl  Fuller's.  I  had  to  go  to  the  wood  yard  to  meet  the  pay  train,  and  when 
I  pot  back  to  old  man  Fuller's  the  hogs  were  in  the  pen,"  Henderson  asked, 
"  Who  penned  them?  "  Defendant  replied,  "  Uncle  Daniel  and  E.  M.  Fuller." 
Henderson  then  asked  him,  "  Did  you  not  tell  me  the  other  day  that  you  did  not 
drive  any  hogs  marked  with  a  swallowfork  and  underbit  in  each  ear?  "  De- 
fendant replied,  "  I  said  that  I  did  not  remember  driving  any  in  that  mark ;  that 
Idid  not  have  the  list  of  marks  with  me.  I  told  Fuller  (hat  he  ought  to  be 
careful  about  driving  hogs  in  marks  given  in  the  county ;  that  he  might  get  his 
foot  into  it;  and  that  Fuller  said  that  they  were  his  hogs,  that  he  had  the  marks 
recorded  and  would  do  with  them  as  he  pleased."  Henderson  then  said,  "  Yes, 
he  has  my  mark,  and  five  or  six  others  given  in  the  county,  recorded.  Is  that 
all  you  know  about  it?"  Defendant  said,  "Yes."  Henderson  replied, 
"  Well,  Womack,  I  will  pledge  you  my  word  as  a  man,  a  neighbor  and  a  Mason, 
that  you  shall  not  be  hurt.  I  will  go  right  to  town  and  have  Fuller  arrested." 
Henderson  then  left,  thanking  witness,  and  Martin.  Witness  heard  every  word 
of  that  conversation.  Defendant  did  not  tell  Henderson  that  he  and  Fuller 
were  partners.  He  said  nothing  about  a  dog  catching  the  barrow  and  injuring 
his  ears  as  he  was  driven  Into  the  pen. 

Mrs.  £.  M.  Fuller,  the  wife  of  the  party  jointly  indicted  with  the  defendant, 
testified  that,  in  Januafy,  1881,  £.  M.  Fuller  brought  home  a  small  bunch  ot 


638 


LARCENY. 


hogs  that  included  a  spotted  sow,  a  black  barrow,  and  four  small  shoats.  Wit. 
ness  knew  nothing  about  their  a^es.  She  knew  nothing  about  their  marks,  but 
knew  that  these  animals  were  said  to  be  marked  with  a  swallowlork  and 
underbit  In  each  ear.  The  black  barrow  had  some  white  leet;  witness  did  not 
know  how  many.  One  of  his  ears  was  a  little  crimped,  by  a  dog  catching  him. 
These  hogs  were  quite  gentle,  and  ran  at  and  about  Fuller's  ploce  from  January 
until  he  drove  them  off  in  September,  1881.  Witness  had  not  seen  them  since. 
She  frequently  fed  them  a  little  corn  to  keep  them  gentle,  before  they  were 
driven  off.  E.  M.  Fuller  and  his  father,  Daniel  Fuller,  drove  these  hogs  to 
Daniel  Fuller's  house  about  the  first  of  October,  since  when  witness  hasj  not 

seen  them.  ^    %,   -r.  n    , 

Wash.  Hammett  testified,  for  the  defence,  that  he  lived  on  E.  M.  Fuller  s 
place  In  the  year  1881,  and  was  at  his  house  in  January  of  that  year.  Fuller,  at 
that  time,  asked  witness  to  look  at  some  hogs  he  had  just  brought  home. 
Among  them  was  a  two  year  old  spotted  sow,  a  black  barrow  with  some  wliite 
feet,  about  eighteen  months  or  two  years  old,  and  four  spotted  shoats  about  six 
months  old.  These  six  hogs  were  all  marked  with  a  swallowfork  and  underbit 
in  e  '  '  ^  Witness  saw  these  hogs  almost  every  day  after  that,  until  they 
%T.  r'^  -  >**  by  Fuller,  about  the  first  of  October,  1881.    Some  time  in  July, 

or  ^  >•»  caught  the  black  barrow,  and  so  injured  his  ear  that  it  crimped 

considerable,  but  not  enough  to  disfigure  the  mark.  All  of  the  hogs  described 
wer.  o-entle.  Witness  had  frequently  seen  Fuller  and  his  wife  feed  them. 
Fullor^claf  od  th. '  ^d  said  that  he  bought  them  from  William  Payne,  of  East- 
land i^ounty.  Wim.^^'j  hiid  not  seen  those  hogs  since  Fuller  drove  them  off  m 
October,  1881.  He  had  heard  Fuller  say  that  he  had  the  defendant  hired. 
George  Johnson's  testimony,  for  the  defence,  was,  in  substance,  the  same  as 
that  of  the  witness  Hammett. 

Mat  Tucker  testified,  for  the  defence,  that  Fuller  penned  some  hogs  at  Ws, 
witness',  house  in  September,  1881.  The  defendant  was  then  with  him,  and 
seemed  to  receive  his  directions  from  Fuller,  and  obey  them.  Fuller  told  the 
witness  that  defendant  was  hired  to  him. 

M  E.  McLaren  testified  that  about  the  first  of  October,  1881,  he  went  with 
Holcomb  to  the  hog  pens  of  A.  Wheeler,  near  Waco.  Holcomb  had  a  list  of 
marks  on  a  piece  of  paper.  They  found  four  hogs  in  the  pen  which  Holcomb 
said  belonged  to  J.  P.  Henderson.  Three  were  spotted  hogs  and  one  was  » 
black  barrow.    They  were  small,  Inferior  hogs,  in  reasonably  good  order. 

Holcomb  testified,  for  the  defence,  that  he  found  none  of  the  other  hogs  for 
which  he  was  hunting  In  Wheeler's  pens,  except  the  four  that  belonged  to  Hen- 

derson.  .  ,      , 

Moses  Hurley,  Mat.  Tucker,  Carlysle,  County  Surveyor  Lowe,  Land  Agent 
Hymen,  Sheriff  Slaughter  and  State's  witness  Calvin  Martin  qualified  them- 
selves, and  testified  that  the  defendant's  reputation  for  honesty  was  good. 

White,  P.  J.  (after  passing  on  questions  of  law).  In  addition  to  this  error 
committed  by  the  court  In  the  admission  of  the  confession  of  defendant,  we  are 
of  the  opinion,  even  taking  the  confession  to  have  been  properly  admitted,  and 
as  part  of  the  evidence,  that  the  testimony  is  not  suflJcient  to  establish  the 
guilty  complicity  of  defendant  In  the  taking  or  theft  of  the  hogs,  however  much 
it  may  show  his  conduct  and  subsequent  connection  with  the  stolen  property  to 
be  reprehensible  In  morals  and  law. 
The  iudgment  la  reversed  and  the  cause  remanded.* 

Btvened  and  remanded. 


HHMa 


tmii. 


^^m 


WILSON  I'.  STATE. 


G39 


r  siTiall  shoats.  Wit. 
.out  their  marks,  but 
a  swallowfork  and 
[eet ;  witness  did  not 
a  dog  cutchin^  him. 
'8  place  from  January 
not  seen  them  since. 
;le,  before  they  were 
drove  these  hogs  to 
(vhen  witness  ham  no^ 

jd  on  E.  M.  Fuller's 
that  year.  Fuller,  at 
1  just  brought  home. 
TOW  with  some  white 
otted  shoats  about  six 
lowfork  and  underbit 

after  that,  until  they 
.  Some  time  in  July, 
his  ear  that  it  crimped 
of  the  hogs  described 

his  wife  feed  them, 
'illlam  Payne,  of  East- 
Her  drove  them  off  Iq 

the  defendant  hired, 
ubstance,  the  same  as 

nned  some  hogs  at  his, 
IS  then  with  him,  and 
them.    Fuller  told  the 

ler,  1881,  he  went  witli 
Holcomb  had  a  list  of 
he  pen  which  Holcomb 
1  hogs  and  one  was  a 
lably  good  order. 
B  of  the  other  hogs  for 
•  that  belonged  to  Hen- 

(yor  Lowe,  Land  Agent 
Martin  qualified  them- 
lonesty  was  good. 
Q  addition  to  this  error 
jn  of  defendant,  we  are 
properly  admitted,  and 
fQcient  to  establish  the 
he  hogs,  however  much 
h  the  stolen  property  to 


leveraed  and  remanded. 


Part  IV. 
RECEIVING  STOLEN  PROPERTY. 


receiving  stolen  property  —  elements  of  the  crime. 
Wilson  v.  State. 

[12  Tex.  (App.)  48.] 
In  the  Court  of  Appeals  of  Texas,  1882. 

1.  The  Want  of  the  Owner's  consent  to  the  taking  of  the  property  must,  in  a  triu\  for 

theft,  be  proToU  like  any  other  element  of  tlie  offense,  and  can  not  bo  presumed  or 
inferred.    It  may,  however,  be  proved  by  circumstantial  evidence. 

2.  Where  one  Owns  the  Property  and  Another  has  the  Possession,  management, 

control  or  care  of  It,  the  want  of  the  consent  of  both  to  the  taking  must  be  proved.  And 
this  proof  should  be  made  by  the  persons  themselves  if  attainable,  and  If  they  are  not, 
their  absence  should  be  accounted  (or  betore  the  State  can  be  allowed  to  resort  to  cir- 
cumstantial evidence. 

3.  Beceivini;  Stolen  Property.  —  Betore  a  defendant  can  bo  convicted  of  receiving  stolen 

property,  it  must  satisfactorily  appear  beyond  a  reasonable  doubt :  (1.)  That  the  property 
was  acquired  by  theft,  and  (2)  that,  knowing  It  to  have  been  so  acquired,  be  concealed 
the  same. 

Appeal  from  the  District  Court  of  Wise.  Tried  below  before  the 
Hon.  C.  C.  PoTTEU. 

The  penalty  imposed  was  a  two  years'  term  in  the  penitentiary.  The 
opinion  discloses  the  nature  of  the  case,  and  also  the  evidence  so  far  as 
it  relates  to  the  want  of  consent  to  the  taking  of  the  animal. 

With  reference  to  the  other  questions  involved,  Gordon  testified  that 
he,  Railey,  Ray,  Piper,  and  McDaniel  made  two  trips  to  Black  Creek  in 
search  of  this  and  two  yearlings  of  Railey's  that  had  been  stolen, 
That  on  their  second  trip,  having  divided  into  two  pailies  and  traversed 
considerable  territory,  they  finally  discovered  defendant  and  one  Tate 
driving  three  yearlings  at  a  distance  of  three  hundred  yards.  They 
were  driving  the  yearlings  very  fast,  going  towards  Black  Creek  bot- 
tom. As  the  witness  and  his  party  approached  the  bottom,  into  which 
the  men  and  yearlings  had  disappeared,  one  of  the  other  pursuing  party 
exclaimed:  "Come  on,  here  are  our  cattle,  and  here  are  our  men." 
The  men,  whom  the  witness  recognized  as  the  defendant  and  Tate, 
wheeled  their  horses  and  ran  in  an  opposite  direction  from  that  they 
were  going  with  the  yearlings.  The  witness,  Railey  and  Ray  followed 
them  as  fast  as  their  horses  could  carry  them  but  failed  to  get  sight  of 
them  after  they  crossed  a  neighboring  ridge.    The  yearlings  when  lost 


■■^H«»."«i"»^'*"  • 


g^Q  llECEIVINO   STOLEN    rUOPEKTV. 

^"''''''""     w  ,v   w   Mc-Danielstestifled  that  he  was  at  Friers  the 

but  now  lives  in  tbo  "  N«Uon-  te.tille.l  tliat  »  lc«  weeliB  l>e- 

Tl,e  drfcndanf,  brother  f°''"  ^y''  ''"■ ''*"f;  ,    "     ,„„  tlie  0^ 

.„t  .„  work  for  l.m  w,  .  c.  Ue.     t^»l  w^  t   1_^  Y  _^^  ^.^^^,^  ^__  ^„^  ^,^ 

dollars  |.er  month,  "■"' ^7~-     '°°  „„,,  ,.,  vtiA  cnt  three  yearling. 

defendant  was  seen  »ith  the  ".f'f- °"'' ~"         ,  „„„k  Tate  to  dri 
f,„ni  a  Imneh,  and  heardhim  tell  the  defendant  and  BUCK. 

::dow„to\heeree.,tnrnthemlooseandletthe™go^h-^^^^^^^^ 

=r  ;t:ro;":h::frthr -:.» -'-'^ 

of  January,  or  at  any  other  time. 

jr ri:r.;:rrwrrtrradr ^^^^^  .« - ». 
Sotwi^^n^^ixv^x^:^-^^^^^^ — »' 

"'rcCSrthtr;^ant   (on„ttin.   .r,n„ent  on  other 
a  finding  of  want  of  consent,  etc     I"  the  case  ^^^^^ 

:rntreor;'o.'3r-t.:?:^^^^^^^^^^^^ 

point. 


1  ITex.  (App.)4l»- 


s  7  Tex.  (App.)  868. 


!,smm^amt)immmmimm  ^ 


WILSON   V.  STATE. 


041 


rhat  the  witness 
no  more  of  the 
i!U  arresteil. 
10  testivaony  of 

ivasatFriersthe 
itrs,  and  assisted 
ricl's  mark.  He 
the  county  since, 

t  a  few  weeks  be- 
nploy  the  defeml- 
defendant  fifteen 
Frier 9  on  the  day 
lit  three  yearlings 
lack  Tate  to  drive 
rotoh-n.    They 
nore  of  defendant 
nploy.     On  cross- 
,nd  Marion  Wilson 
uige  about  the  Ist 

records  of  Denton 
ied  for  the  theft  of 

about  the  last  of 
n,  Mack  Tate  and 
the  description  of 

irguraent  on  other 

The  court  charged 
upon  which  to  base 
Erskine  v.  State,^  it 
It  of  the  true  owner 
roved,  and  that  this 
en  direct  testimony 
as  held  that  wf.it  of 
3  absence  accounted 
le    evidence  on  this 


There  is  another  view  in  which  the  testimony  is  insulHcient  to  support 
the  verdict.  Gordon  liad  no  such  special  property  in  the  animal  as 
would  sustain  the  allegation  that  the  property  was  his.  Gordon  says: 
"The  yearling  iu'longed  to  Wilkinson,"  etc.  "  He  had  left  this  one  in 
my  fliargc,  tliat  is,  ho  sent  rao  word  to  look  after  it  for  him."  I  insist 
that  tills  fails  to  show  that  Gordon  had  such  special  property  in  the  ani- 
mal as  would  have  made  him  responsible  to  the  true  owner  for  its  loss. 
ill'  cniild  not  have  sued  for  it.  lie  had  no  interest  in  it  whatever,  but 
was  nierelj'  acting  as  a  servant  for  Wilkinson. '  There  can  bo  no 
theft  without  a  trespass.  I  think  this  case  is  not  as  strong  as  the  case 
iif  Blackburn  above  cited,  where  it  was  held  that  the  proof  was  not  suf- 
ticifiit.  If  it  was  not  Gordon's  property  that  was  stolen,  then  can  a 
c.nviction  for  "concealing  stolen  property"  bo  sustained?  The  in- 
ilictment  chargiid  him  with  theft  of  Gordon's  property,  under  which  a 
convietion  could  be  had  for  concealing  only  Gordon's  property.'' 
//.  M.  Ilolnu's.  for  the  .'^^tate. 

WiLLSO!*,  J.  A  motion  to  dismiss  this  appeal  is  made  by  the  Attor- 
ney-General. The  ground  of  the  motion  is  that  the  defendant  has 
taken  his  appeal  from  an  interlocutory  order,  overruling  his  motion  for 
anew  trial,  and  not  from  the  final  judgment.  Defendant's  notice  of 
appeal  was  given  upon  the  overruling  of  his  motion  for  a  new  trial. 
The  judgment  had  been  previously  entered  against  him,  and  when  his 
motion  for  a  new  trial  was  overruled,  the  judgment  was  then  a  final  one 
vjfar  as  the  court  could  make  it  final,  "and  then  was  the  proper  time  for 
the  defendant  to  give  notice  of  appeal  to  this  court.  The  motion  to 
lisniiss  the  appeal  is  therefore  overruled.  The  case  having  been  sub- 
mitted finally,  as  well  as  upon  the  motion  to  dismiss,  we  will  proceed  to 
consider  and  determine  the  questions  presented  by  the  record,  in  so  far 
as  we  may  deem  it  necessary  to  so  do. 

The  defendant  was  indicted  for  theft  of  one  head  of  cattle,  alleged 
to  be  the  property  of  G.  C.  Gordon.  The  verdict  of  the  jury  as  we  find 
it  in  the  record  is  as  follows :  "  We,  the  jury,  find  the  defendant  guilty 
of  concealing  stolen  property,  and  assess  his  punishment  in  the  State 
luison  for  two  years." 

The  evidence  as  to  the  ownership  of  the  animal  alleged  to  have  been 
stolen,  is,  substantially,  that  it  belonged  to  one  Wilkerson,  who  resided 
at  JIcKinney  in  Collin  county,  Texas ;  that  Wilkerson  had  some  cattle 
running  near  G.  C.  Gordon's,  and  moved  them  away  from  there,  leav- 
ing still  in  that  range  this  particular  animal;  that  W^ilkerson 
left  this  animal  in  charge  of  said  Gordon,  "That  is,"  says  the 
witness  Gordon,   "he    sent    me   word  to  look  after  it  for  him.     I 


\pp.)  868. 


1  4i  Tex.  460. 
a  Defences. 


•  Penal  Code.  art.  743. 


41 


fiMMtaflir  -ijIWOiaiiW 


64S 


RECKIVIN(J    STLLKN    PROl'EHTY. 


waa  looking  ftftcr  it  for    him.     I  lm(!  the  yearling  nnd    its    raotlior 

in  my  pasture  awhile,  but  when  it  was  talten  It  was  nmnini,'  on  tlic 

range."     Tliis    was  all   the  evidence  showing  ownersliip  of  the  ani- 

mal  to  be  in  G.  C.  Gordon,  as  alleged  in  the  indictment.     Defendant's 

counsel  insist  that  there  is  no  snfflcient  proof  of  ownership  as  allog.Ml. 

Article  426,'  provides  that,  «' Where  one  person  owns  property,  and 

another  person  has  the  possession,  cliarge  or  control  of  the  same,  the 

ownerwership  thereof  may  be  alleged  to  be  in  either."     Article  728  of 

the  Penal  Code  provides:  "  It  is  not  necessary,  in  order  to  constitute 

theft,  that  the  possession  and  ownership  of  the  property  be  in  the  same 

person  at  the  time  of  taking;"  and  article  729  reads :  "  Possession  of 

the  person  so  unlawfully  deprived  of  the  property  is  constituted  by  the 

exercise  of  natural  control,  care  or    management  of  the    property, 

whether  the  same  be  lawful  or  not."    Proof  of  either  a  general  or  spe- 

f.lal  property  in  the  alleged  owner  will  bo  sufficient.* 

We  think  the  proof  of  ownership  in  this  case  met  the  requirements  of 
the  law.  It  showed  that  G.  C.  Gordon  had  the  animal  in  charge,  anc 
was  actually  taking  care  of  it,  by  watching  after  it  in  its  accustomec. 
range.  The  case  of  Blackburn  v.  State,^  cited  by  counsel  for  defendant 
upon  this  point,  differs  materially  from  the  case  at  bar.  In  that  case 
the  ownership  of  the  animal  was  alleged  to  be  in  one  Esparza,  and  the 
proof  showed  that  it  was  an  estray,  and  that  at  the  time  it  was  taken  he 
had  neither  a  general  nor  a  special  property  in  the  animal. 

But  we  think  there  is  an  insufficiency  of  evidence  in  this  case  to  sho^ 
a  want  of  consent  on  the  part  of  Wilkinson,  the  owner  of  the  animal  to 
the  alleged'taking.     The  want  of  the  owner's  consent  must  be  proved 
like  any  other  element  of  the  offense.     It  can  not  be  presumed  or  in- 
ferred    It  may  be  proved  by  the  circumstantial  evidence,  but  still  it 
must  be  proved."    Where  one  person  owns  the  property,  and  another 
person  has  the  management,  control  or  care  of  it,  the  want  of  the 
consent  of  each  of  these  persons  must  be  proved;    and  this  proof 
should  be  made  by  the  persons  themselves  if  they  are    attamable 
and  if  they  are  not  to  be  had,  their  absence  should  be  accounted 
for  before  the  St*t«   can    be  allowed    to  resort    to    circumstantial 
evidence.5    Iq  the  case  before  us  there  is  no  evidence  proving  or 
teftding  to  prove  a  want  of   consent   to  the  taking  of    the  alleged 
stolen  animal,  on  the  part  of  Wilkinson,  the  owner.    The  only  circum. 
stance  pointing  in  that  direction  is  the  one  that  he  resided  in  a  distant 


1  Code  Cr.  pr. 

»  Dlgnowitty  p.  State,  17  Tex.  681. 

3  U  Tex.  475. 

4  Garcia  t>.  State,  26  Tex.  209;  Wilson  v. 
State,  15  Tex.  76;  McMalion  v.  State,  1  Tex. 


(App.)  102:  Welsh  V.  State.  8  Tex,  (App) 
422;  Foster  ».  State,  4  Tex.  (App.)  246;TraI' 
ton  ».  Slate,  6  Tex.  (App.)  480. 

6  Erskine  v.  State,  1    Tex.  (App.)  405; 
Jackson  II.  State,  7  Tex.  (App.)  363. 


^^ 


K.   V.  WILKY. 


(543 


niul  its  motlipr 
4  nmniiii;  on  tlio 
rship  of  the  ani- 
■nt.  DcfenilftiU's 
ership  as  alleged, 
'na  property,  inul 
I  of  the  same,  the 
"  Article  728  of 
)rder  to  conslitute 
rty  be  in  the  same 
i:  "  Possession  of 
constituted  by  the 

of  the    property, 
r  a  general  or  spe- 

he  requirements  of 
mal  in  charge,  and 
in  its  accustonieil 
insel  for  defendant 
bar.  In  that  case 
e  Esparza,  and  the 
ime  it  was  taken  he 
dimal. 

In  this  case  to  show 
er  of  the  animal  to 
int  must  be  proved 
be  presumed  or  in- 
vidence,  but  still  it 
)perty,  and  another 
t,  the  want  of  the 
d;    and  this  proof 
ley  are    attainable, 
aould  be  accounted 
;   to    circumstantial 
jvidence  proving  or 
;ing  of   the  alleged 
.    The  only  circum- 
I  resided  in  a  distant 


h  V.  State,  8  Tex,  (App.) 
te,4Tex.  (App.)  246;Traf- 
X.  (App.)  480. 
itBte,  1    Tox.  (App.)  405; 
7  Tex.  (App.)  363. 


county  at  the  time  of  the  taking.  His  absence  from  tlie  trial  was  not 
iucoiintcd  for;  while  the  cvidonco  showed  tiitit  he  resided  within  the 
uiisdiction  of  the  court,  and  could  have  been  reaehed  by  its  process. 

Before  the  defendant  can  be  proparly  convicted  of  coneeaiiii<j  stolen 
property,  it  must  be  made  to  appear  sutisfactoriiy,  and  beyond  a  rea- 
Minaldo  doiiht:  1.  That  the  property  was  acquired  by  the  theft.  2. 
Tliiit,  knowing  it  to  have  been  so  acquired,  ho  conce.nled  tlio  same, 
ibe  evidence  in  tills  case  tending  to  prove  a  guilty  knowledge  on  the 
part  of  the  defendant  is,  to  say  the  best  of  it,  meagre,  and  to  our 
miiiils  insudicieut  to  support  tlie  verdict. 

Under  the  authority  of   T<ti/lorv.   :/«fe,' the  verdict  is  insufficient. 
It  does  not  find  the  defendant  guilty  of  any  offense. 

We  think  the  court  erred  in  overruling  the  defendant's  motion  for  a 
now  trial. 

Reversed  and  remanded. 


RECEIVING   STOLEN   GOODS  -PRISONERS  MUST  HAVE  POSSESSION 

OF  THE  PUOPEBTY. 

R.  V.  WiLKV. 

[1  Den.  &  P.,  43.] 

In  the  English  Court  for  Crown  Cases  Reserved,  1850. 

A.  and  B.,  two  Thieves,  were  seen  to  come  at  midnight  ont  of  a  hoase  belonging  tu  O.'s 
(iithcr,  under  the  (olluwing  circumstances:  A.  carried  n  suck  ronnining  the  stolen 
goods;  B.  accompanied  him;  C.  preceded  them,  carrying  a  lighted  candle.  All  three 
go  into  an  adjoining  (table  belonging  to  C,  and  llien  shut  the  door.  Policemen  enter 
the  stable  and  And  the  sack  lying  on  the  ll^ior  tied  at  the  mouth,  and  the  three  men 
standing  round  it  as  if  they  were  bargaining;  but  no  particular  words  were  heard.  Held, 
by  eight  judges  to  four,  that  on  this  evidence  C.  could  not  be  convicted  of  receiving 
stolen  goods;  inasmuch  as  although  there  was  evidence  of  a  criminal  intent  to  receive, 
anil  of  a  knowledge  that  the  goods  were  stolen,  yet  the  exclusive  possession  of  them 
still  remained  in  the  thieves,  and  therefore  C.  bad  no  possession,  either  actual  or  con- 
structive. 

At  the  General  Quarter  Sessions  for  the  County  of  Northumberland, 
liolden  at  Newcastle-upon-Tyne,  on  the  26th  day  of  February,  A.D. 
1880,  Bryan  Straughan,  George  Williamson  and  John  Wiley,  were 
jointly  indicted  under  statute  7  and  8  George  IV., ^  for  stealing  and  re- 
ceiving five  hens  and  two  cocks,  the  property  of  Thomas  Davidson.  It 
was  proved  that,  on  the  morning  of  the  28th  of  January  in  the  same 
year,  about  half  past  four,  Straughan  and  Williamson  were  seen  to  go 


>  5  Tex.  (App.)  569. 


9  ch.  29,  sec.  64. 


■'rwnummwiWWI 


644 


REfEIVINO   STOLEN   rUOl'KUTY. 


.,     ».  „ao  nf  Tnl.n  Wilov's  father  with  a  loatlctl  sack  that  wns  .ar- 

Bccutocomo  out  of  the   "^  ;' '^^  „„,,;,  ^UouUlers,  ancl  to  i,'o 
"      1  Lh  ^b    on.  iu.  to  the  sumo  house,  situatea  i.  an  enclosed  yar 
";  ?.     f    u  n   t  rCne   the  house  an.l  stable  bcinj,^  on  the  same  ,.v... 

,,e  .     .11'*^  ^^'*  «  3\,,^  ^^,k  on  the  floor  tied  at  the  mouth,  an.l  tl,e 
goui-  in,  tlicy  found  tuc  sa  bargaining,  but  no  words 

^''^^V'lr^in:;: h  A     >le  in':t^;^r:u.b  ^..ch  ^ouUry  fo.h.s 

'""'  ;  hn^  The    1    when  opened  was  found  to  ..ontain  s.x  h.nB, 

were  protruding.     1  he  Da    y>ix       i  inhabitants  up 

two  cocks,  and  --j^  ;^.;  ^^^^^  charged  with  receiving  ti.e 

;:r  t::;  •;:: " "  :'':Si::  -  s^d  ^  he  did  not  th..  he  wo.a 

poultry  laid  in  the  indictment,  and  John  wuey  guu  y 

fouml  St,«ag.,a„.ml  WiUlamso,,  f"^.°„\;^';«'::;t  been  stolen. 

conviction  was  proper?  ^^^^^^  j^^rd 

Thiq  case  was  argued  on  the  2<tli  oi  Apru,  a.  ^'  » 

This  case  wa       »  ^^^euson,  B.,  Cuesswell,  J.,  and  Ekle  J. 

Cami-bell,  C.  J.,  1  AUKb,  15.,  A  ,  g„biect  of  receiving 

rroSri^' ".-rrX.  J.eeei.e  on,, .  .t  U,  «.ere,o., 


1  ch.  9,  Bee.  4. 
3  ch.  58. 


S  oh.  29,  sec.  B4. 


^^ 


H.   I'.  WILKY. 


»!4o 


\ck  that  wfts  ear- 
in  tlie  «uicl  lioiise, 

curt.  !Str!iiij,'!uui 
les,  ftiid  tliL'ii  wcie 
ihn  Wiley,  with  ft 
juUlers,  ami  to  i,'o 

an  enclosed  yar ' 
in  tbo  same  pivi 

on  the  policemen 
lie  moiitli,  and  tlie 
ling,  but  no  words 
;h  poultry  foiithirs 
3  contain  six  luns, 

the  inhabitants  up 
,  with  receiving  ttie 
lot  think  he  would 

Ity  of   stealing  the 
ity  oi  receiving  the 

lan  and  Williamson 
able,  over  which 
the  buyin.?  of  t' 
3  a  receiving  c 

whether  the  convic- 

for  stealing  and  re. 
ick  mentioned  in  the 
rt.  The  jury' again 
ng,  and  John  Wiley 
to  have  been  stolen, 
whether  this  second 

).  1850,  before  Lord 
•ELL,  J.,  and  Erle,  J. 
a  subject  of  receiving 
squent  statutes  up  to 
re  or  buy.  Statute  7 
)nly;  it  is,  therefore, 

54. 


nn  longer  a  felony  to  buy  unless  tin  re  is  also  a  receiving.  /?.  v.  II ill, ^ 
shows  that  there  must  bo  either  an  antual  or  potential  receiving.  Hero 
there  wivs  neither. 

Parkk,  B.  You  sa}'  th  it  there  must  bo  a  parting  with  tiie  posses- 
sion by  the  thief? 

Oltcr.  Yes ;  a  joint  receiving  with  the  thief  will  not  do ;  though  a 
joint  I "eeiving  with  any  one  else  will.  The  po-se-sion  of  the  thief  is 
inconsistent  with  that  of  tho  receiver.  Thu  (piestion  here  is — ■can  a 
person  who  takes  a  thief  with  stolen  goods  into  a  secret  i)!a(o  for  the 
luiiposo  of  negotiating  about  tho  piirchaso  of  thein,  knowing  tliein  to 
hive  been  stolen,  be  thereby  a  receiver  witliintlio  statutes.  Furind  v. 
llome,'^  shows,  that  to  constitute  an  actual  reec'i*^  of  goods  there  nuiat 
ho  a  i)artlng  with  the  possession  of  them  by  tiit  iiilder,  and  a  delivery 
of  them  to  the  receiver. 

Pahkk,  B.  You  say  that  he  was  intending  to  receive  but  ha  1  not 
actually  received  them. 

Lord  Camtuell,  C.  J.  Suppose  ho  had  said  to  the  thieves,  "  let  me 
take  them  into  my  hand  and  see  if  they  are  fat,"  and  that  the  thieves 
hud  consented  but  had  said,  "  mind  you  let  us  have  them  back  again." 
Would  that  be  a  receiving? 

Otter.  Yes  ;  because  they  would  have  parted  with  the  ooi'.oral  pos- 
«ssioa  of  them.  Potential  possession  must  mean  tiio  h;i\  ing  some 
control  over  the  goods  or  tho  person  in  whose  actual  possession  they 
were. 

Liddell,  for  tho  Crown. 

1.  Is  there  any  question  for  this  court  to  decide? 

There  is  some  evidence  of  receiving  at  all  events;  for  he  had  them  in 
the  house,  and  there  is  some  evidence  that  he  had  actually  bought  the 
cocks  and  the  ducks,  though  not  the  hens. 

2.  What  is  meant  by  potential  possession  ? 

Pauke,  B.  Could  the  receiver  have  brought  trover  against  the  police- 
man if  he  had  taken  the  goods  wrongfully? 

Liddell.  The  prisoner  assisted  in  carrying  the  fowls ;  he  lighted  the 
tliieves  to  the  stable.  Had  he  held  the  candle  while  the  larceny  was 
going  on  he  would  have  been  a  principal  in  the  larceny.  Had  he  done 
so  while  a  third  party  received  them  he  would  have  been  a  principal 
receiver.  He  did  more  than  evince  an  intent  to  receive.  He  in  part 
received.  His  acts  were,  at  all  events,  an  inchoate  receiving ;  therefore 
there  was  a  receiving,  though  unsuccessful,  because  interrupted.  No 
one  was  in  the  actual  corporal  possession  of  the  goods,  they  were  lying 
on  the  ground  before  them.  The  law  of  vendor  and  vendee  is  not  ap- 
plicable. 


1  1  Den.  C.  C.  463. 


a  16  M.  4  AV.  119. 


<)4<? 


RECEIVING  STOLEN  rROPEETY. 


Otter  replied. 

Cur.  adc.  vult. 

On  Wednesday,  26th  of  November,  A.  D.  1850,  this  case  was  re- 
ar^rued  in  the  Court  of  Exchequer  before  the  twelve  following  judges: 
Loud    Campbell,  C.    J.,    Parke.   B.,   Patteson,   J.,  Alderson,  B 
Mahle,  J.,  Coleridge,   J.,  Ckesswell,   J.,  Erle,  J.,  Platt,  B.,  V. 
Williams,  J.,  Talkoird,  J.,  and  Martin,  B.^ 

Otter,  for  the  prisoner.  .    ,   ,    ^  u 

Tlie  prisoner  miglit  have  been  an  accessory  after  the  fact,  but  he  wos 

not  a  receiver.^  ,,,        ,        .    ,,  .   , 

P  viuci-  B  I  question  very  much  whetlier  lie  could  have  been  indicted 
at  common  law  as  an  accessory  after  the  fact,  unless  what  he  did  was 
with  a  view  of  aiding  the  felon  or  furthering  his  escape. 

Olt>.'r.     Tl'e  question  is  as  to  tl.e  meaning  of   the  word   receiving. 
Tlie  statutes  taken  together  show  that  it  is  no  longer  an  offense  mere  y 
to  buy;  therefore  tlio  mere  fact  of  admitting  the  goods  w.th  a  view  to 
buvini  them  is  not  a  receiving.     The  property  remains  in  the  prosecu- 
to.-;  the  thief  gets  the  actual  possession,  and  nothing  more      The  word 
receive  is  to  be  constructed  with  a  reference  to  the  rights  of  all  the  par- 
ties'who  had  anything  to  do  with  the  goods.     The  thief  having  no  legal 
prop-Ttyiu  th;g)od3caa  only  pass  the  actual  possession;  and  if  l.e 
pu.les  tl.at  ho  lias  no  possession  left  In  him,  and  therefoi^  has  not 
even  constructive  possession,  and  so  he  can  not  be  taken  to  be  holding 
the  goods  as  agent  for  tlie  prisoner.     Therefore  the  prisoner  can  not  be 
held  t  >  have  had  constructive  possession.     It  is  doubtful  whether  mere 
naked  possession  will  entitle  a  party  to  maintain  trover  even  against  a 
wron-  doer.-'     Here  the   prisoner  had  not  even  such  possession,  and 
therefore  if  the  right  to  bring  trover  be  a  test  of  receiving,  it  is  clear 
that  he  is   not  a  receiver.     There  must  be  a  willing  parting  with  tlie 
possession  by  the  thief,  and  a  willing  taking  on  the  part  o'  the  re- 

Lord  Campbell,  C.  J.     Can  there  not  be  a  joint  possession  between 

a  receiver  and  a  thief?  ,       ,      .  -^^  4  • 

O'fr      Ileeeiviug  means  something  more  than  having  possession. 
L:.RD  CvMPBKLL,  C.  J.     Thc  latter  case  shows  that  actual  or  poten- 

tial  possession  is  enough.     There  may  be  possession  without  corporal 

touch. 

MviTLE,  J.     What  is  potential  possession? 

Otter.     There  must  be  a  disposing  power  over  the  goods. 


1  The  judges  had  rcsoWed  that  whenever 
the  (  ourt  ot  Criminal  Appeal,  crenled  by 
gtats.  11  and  11.  Vicl.,  ch.  78.  were  not  unani- 
mous, the  case  should  be  brought  before 
me  consideration  of  the  whole  beueU. 


2  1  Hale'B  C.  P.  018. 

3  Per  Parlic.  B.,  Fryeon  v.  Chambers,  0  M. 

*  U.  f.  Wade,  1  C.  &  K.  739;  B.  v.  Hill.l 
Den.  C.  C.  453. 


^^ 


i. 


50,  this  case  was  re- 
ive following  judges: 
,  J.,  Alderson,  B., 
,E,  J.,  Platt,  B.,  V. 


r  the  fact,  but  he  wos 

lulcl  have  been  indicted 
iiless  what  he  did  was 
iscape. 

'  the  word  receiving, 
iger  an  offense  merely 
le  goods  with  a  view  to 
■mains  in  the  prosccu- 
ihing  more.  The  word 
le  rights  of  all  the  par- 
e  thief  having  no  legal 
possession ;  and  if  he 
and  therefore  has  not 
be  taken  to  be  holding 
the  prisoner  can  not  be 
doubtful  whether  were 

I  trover  even  against  a 

II  such  possession,  and 
of  receiving,  it  is  clear 
villing  parting  with  the 
on  the  part  o*  the  re- 

oint  possession  between 

1  having  possession.'* 
vs  tliat  actual  or  poten- 
session  without  corporal 


!r  the  goods. 

C.  p.  018. 

Ue,  B.,  Fryeon  v.  Chambers,  9  M. 

ide,  1  C.  &K.739;  B.  «.  HlU.l 


n.  V.  WILEY. 


(547 


jRD  C.urpBKLL,  C.  .T.     Suppose  the  thief  and  receiver  to  have  at  the 
same  time  the  joint  manual  possession,  will  not  that  do? 

Aldersov,  B.     Suppose  there  was  a  large  bale,  and  A.,  a  thief,  had 
hold  of  one  end  of  it,  and  B.,  a  receiver,  had  hold  of  the  other  end 
there  would  be  actual  possession  in  l)oth;  here  the  auestion  is  only  as 
to  the  actual  possession;  that  may  be  in  two  persons. ^ 

We  have  to  decide  whether  the  direction  to  the  jury  is  right.  It  is 
consistent  with  that  direction  that  the  thieves  alone  had  actual  posses- 
>io.i  at  the  time  of  going  into  the  stable.  For  all  the  circumstances  set 
mit  m  the  case  are  not  to  be  taken  as  incorporated  into  the  direction  by 
the  words  "  as  above." 
Liddell,  for  the  Crown. 

Tlie  direction  to  the  jury  must  be  taken  to  incorporate  all  the  circum- 
stances set  out  in  the  case.  On  the  other  side,  the  fallacy  has  been 
10  confound  constructive  with  joint  actual  possession.  Here  the  pris- 
oner  had  the  latter  with  the  thieves. 

A  man  may  be  a  receiver  under  the  statute  who  would  not  be  an  ac- 
cessory at  common  low,  e.g.  A.,  a  tluef,  gets  B.  to  take  stolen  goods; 
B.  knows  that  the>  ....  stolen,  but  thinks  that  A.  is  not  the  thief;  he 
n-ould  be  a  ivcoiver  though  not  an  accessory,  for  he  would  not  have  the 
intent  of  aiding  the  thief.2 

The  right  to  bring  trespass  or  trover  is  inapplicable  as  a  test,  for  the 
question  here  is,  had  tiie  prisoner  had  possession  or  no ;  not  what  civil 
right  had  he,  supposing  him  to  have  possession.  Nor  \s  there  any  ques- 
tion as  to  constructive  possession,  nor  as  to  the  right  of  property.  At 
c  )iamon  law  receiving  a  felon  would  mean  knowingly  harboring  with  a 
view  to  aid.  Substitute  the  word  goods,  and  the  meaning  will  be  the 
same,  and  so  make  a  man  a  receiver  under  the  statute.  The  object  of 
all  the  statutes  relating  to  receivers  was  to  extend  the  subject-matter  of 
tlie  receipt,  so  as  to  include  the  goods  stolen,  as  well  as  the  receiver, 
tliereby  enlarging  the  definition  of  an  accessory  after  the  fact.  In  this 
c:ise  the  possession  must  be  conaidered  to  be  in  all  three  prisoners. 
They  are  all  treating  it  as  a  chattel  in  their  possession  and  power;  they 
were  only  undecided  as  to  the  mode  of  partition. 

Lord  Campbell,  C.  J.  If  a  man  receives  stolen  goods,  for  any  pur- 
pose, malo  animo,  knowing  them  to  be  stolen,  is  he  not  a  receiver? 
Supposing  the  prisoner  to  have  carried  the  sack,  then  he  would  have 
i>een  a  receiver;  supposing  him  to  have  carried  the  candle,  in  order  to 
aid  one  of  the  thieves  in  carrying  the  sack,  where  is  the  legal  differ- 
ence?   The  act  is  a*  joint  act.     It  is  difficult  to  see  why  the  prisoner 


1  R.  V.  Parr,  2  M.  A  R.  346. 
-  See  doflnitioii  of  "recolvinjr,"  ln2  East's 
P.O.  765;  K.  V,  David,  6  C.  &  P.  178,  per 


Gurney,  11.;  R.  t>.  Bichardeon,  6  C.4  P.  836, 
per  Taunton,  J. 


648 


RECEIVING    STOLEN   TROrERTY. 


had  not  joint  possession  of  the  sack  as  much  as  the  otlier  thief  who  is 
not  said  to  have  had  the  manual  possession.  As  to  the  word  potential. 
i  <^hink  that  must  be  put  out  of  consideration.  I  do  not  understand  its 
legal  meaning. 

Liddell.  R.  v.  Rogers,'^  R.  v.  Gerrisch,^  show  that  there  may  be  a 
personal  possession  in  A.  without  a  manual  possession  by  him. 

Maule,  J.  To  make  these  cases  applicable  the  money  should  have 
been  stolen. 

Otter  replied. 

The  judges  retired  to  consider  their  judgment,  and  on  their  return, 
there  being  a  difference  of  opinion,  gave  judgment  seriatm. 

Martin,  B.  I  think  the  conviction  wrong.  The  question  turns  on 
the  meaning  of  tlie  word  "  receiving,"  in  statutes  7  and  8  George  IV.' 
The  true  rule  for  the  construction  of  statutes  is  stated  by  Parke,  B., 
in  Becke  v. Smith.*  "  It  is  a  very  useful  rule  in  the  construction  of  a 
statute  to  adhere  to  the  ordinary  meaning  of  the  words  used,  and  to  the 
grammatical  construction,  unless  that  is  at  variance  with  the  intention 
of  the  Legislature  to  be  collected  from  the  statute  itself,  or  leads  to 
any  manifest  absurdity  or  repugnance,  in  wliich  case  the  language  may 
be  varied  or  modified  so  as  to  avoid  such  inconvenience,  but  no 
further."  Upon  the  facts  which  are  stated  in  this  case  I  think  the  pris- 
oner can  not  be  taken  to  have  received  the  goods.  The  direction  of  tlie 
judge  Cin  only  be  taken  to  refer  to  so  much  of  the  circumstances  stated 
as  relates  to  the  taking  into  the  stable,  and  the  subsequent  facts.  And 
upon  these  facts  it  seems  to  me  that  Straughan  and  Williamson  had  pos- 
session of  the  goods  as  vendors,  and  therefore,  adversely  to  Wiley,  ;ind 
never  intended  to  part  with  the  goods  until  the  bargain  was  concluded. 

Talfourd,  J.  I  think  tlie  conviction  wrong.  The  possession  of  the 
thieves  seems  to  exclude  the  notion  of  possession  by  the  prisoner.  I 
think  the  case  only  incorporates  so  much  of  the  transaction  as  relates  to 
the  taking  into  the  stable,  and  what  occurred  there. 

V.  Williams,  J.  I  think  the  conviction  right.  I  think  the  case  made 
out  against  the  prisoner,  if  he  is  proved  to  have  had  possession  of  the 
goods  malo  animo  knowing  them  to  be  stolen.  Here  the  knowledge  and 
the  animtis  are  clear.  The  only  question  is  as  to  tlie  possession.  I 
think  it  was  only  necessary  for  one  of  the  party  to  have  posscBsion  of 
the  goods ;  the  prisoner  was  proved  to  have  had  a  common  purpose 
with  the  thieves,  although  he  had  not  the  manual  possession.  They 
were  all  agents  for  each  other,  and  the  possession  of  the  thieves  was, 
therefore,  in  law,  the  possession  of  the  prisoner.  • 


1  2  Moo.  0.  C.  85. 
a  2  M.  ft  R.  219. 


3  ch.  %,  sec.  54. 

« 3  M.  &  w.  igs 


^aU 


n,  V.  WILEY. 


649 


le  otlier  thief  who  is 
I  the  word  potential. 
o  not  understand  its 

that  there  may  be  a 
sion  by  him, 
money  should  have 


and  on  their  return, 
seriatim. 

e  question  turns  on 
7  and  8  George  IV.' 
stated  by  Parke,  B., 
he  construction  of  a 
>rd8  used,  and  to  the 
ce  with  the  intention 
te  itself,  or  leads  to 
3e  the  language  may 
!onvenience,  but  no 
;ase  I  think  the  prls- 

The  direction  of  the 
circumstances  stated 
isequent  facts.  And 
Williamson  had  pos- 
'ersely  to  Wiley,  ;ind 
■gain  was  concluded, 
"he  possession  of  the 

by  the  prisoner.  I 
asaction  as  relates  to 

[  think  the  case  made 
ad  possession  of  the 
•e  the  knowledge  and 
>  the  possession.  I 
0  have  posseision  of 
a  common  purpose 
A  possession.  The_v 
a  of  the  thieves  was, 


» 


Platt,  B.  I  think  the  convictif)n  wrong.  It  seems  to  me  that  the 
goo.ls  must  have  been  in  such  a  condition  as  to  be  under  the  dominion 
of  tile  prisoner,  and  exclusive  of  that  of  the  thief.  If  they  all  are  to 
be  deemed  in  joint  possession  of  them,  the  possession  of  the  thieves 
would  be  different  in  kind  from  that  of  the  receiver ;  for,  in  him  it 
would  be  treated,  as  a  receiving,  and  in  them,  as  an  asportation.  I 
think  that  the  thieves  have  retained  the  control  and  possession,  and 
never  intended  to  part  with  it  until  after  their  bargain  was  concluded. 

EuLE,  J.     I  think  the  conviction  right  on  two  grounds.     First.     The 
prisoner  co-operated  with  the  thieves  in  removing  the  goods  into  the 
stable  malo  animo,  with  the  intent  of  bargaining  there  more  securely. 
If  he  had  actually  carried  them,  there  would  then  have  been  joint  pos- 
session ;  what  he  actually  did  was  legally  equivalent  to  carrying  them 
himself.     If  A.  steals  goods,  and  B.  afterwards  assists  him  in  carrying 
them,  B.  is  not  punishable  as  a  tliief ;  but  if  he  be  not  punishable  as 
a  receiver  either,  there  would  be  a  failure  of  justice,  arising  out  of  the 
principles  of  constructive  law.     Secondly.     I  attach  a  wider  meaning 
than  some  of  my  brethren  to  the  word  receive.     The  rules  of  the  crim° 
inal  and  the  civil  law  are  in  many  respects  different,  and  have  little  or 
no  bearing  on  each  other.     The  state  of  the  common  law  with  regard  to 
receiving  seems  to  show  that  the  word  must  here  be  construed  in  a 
ilifferent  sense  to  what  it  might  bear  in  a  case  of  vendor  and  purchaser. 
The  common  law  failed  to  provide  for  the  evil  which  the  statutes  vera 
passed  with  the  express  view  of  meeting.     They  should,  therefore,  be 
construed  with  analogy  to  the  word  harboring  at  common  law  in  the 
case  of  the  thief.     Here  the  prisoner  must  be  taken  to  be  the  owner  of 
the  stable,  and  he  autiiorizes  the  thieves  to  deposit  the  property.     It 
makes  no  difference  as  far  as  his  act  is  concerned  that  the  thieves  re- 
mained there  with  the  property.     The  earlier  statutes  did  not  con- 
template a  bargain  as  being  essential  to  a  receiving.     Statute  29  George 
II.,'  makes  the  crime  consist  in  buying  or  receiving  by  suffering  any 
door,  window,  or  shutter,  to  be  left  open,  or  unfastened  between  sun- 
setting  or  sun-rising  for  that  purpose,  or  in  buying  or  receiving  the 
feoods],  or  any  of  them  at  any  time  in  any  clandestine  manner  from 
any  person  or  persons  whatsoever,  etc. a    So  that  evidently  the  Legisla- 
ture then  contemplated  the  case  of  there  being  no  contract  of  bargain, 
or  any  direct  communication  between  the  thief  and  the  receiver,  Init  a 
mere  deposit  by  the  thief  in  some  place  belonging  to  the  latter  with  his 
consent.     In  2  East's  Pleas  of  the  Crown,3  it  is  said :   "  In  order  to  con- 
stitute a  receiver,  generally  so-called,  it  is  not  necessary  that  the  goods 


'  Ph.  30,  sec.  1. 

'  Compare  Stat.  21,  Geo.  Ill,,  ch.  69, 


p.  7«5, 


650 


RECEIVING   STOLEN   PROPERTY. 


should  be  actually  purchased  by  him ;  neither  does  it  seem  necessary 
that  the  receiver  should  have  any  interest  whatever  in  the  goods ;  it  is 
sufficient,  if  they  be,  in  fact,  received  into  his  possession  malo  animo; 
as  to  favor  the  thief,  or  without  lawful  authority,  express  or  implied 
from  circumstances."  It  has  also  been  twice  laid  down  that  there  may 
be  a  receiving  without  any  profit  to  be  derived  thereby  to  the  receiver,  i 
In  my  opinion  the  case  submitted  to  this  court  embodies  ail  the  circum- 
stances there  set  forth. 

Cresswell,  J.  I  agree  with  V.  Williams,  J.,  and  Erle,  J.,  in  think- 
ing this  conviction  right.  The  direction  of  the  bench  is  the  only  thing  to 
be  considered.  I  think  that  direction  must  be  to  be  taken  to  Incorporate 
all  the  circumstances  set  forth  in  the  case.  And  although  I  am  inclined 
to  agree  with  the  observations  of  my  brother  Erle  with  respect  to  the 
meaning  of  the  word  "receiving,"  I  ground  my  opinion  on  the  fact, 
that  the  prisoner  was  clearly  co-operating  with  the  thieves.  If  the 
goods  had  been  removed  by  the  thieves  from  one  part  of  the  owner's 
premises  to  another  part  of  those  premises  and  there  left,  and  the  pris- 
oner had  taken  them  from  the  latter  place  jointly  with  the  thief,  he 
would  have  been  jointly  liable  as  a  thief.  If  then  he  assisted  the  tliieves 
in  taking  them  elsewhere,  that  was  a  joint  taking  by  him,  and  as  he  did 
it  malo  animo,  he  was  criminally  co-operating  with  them,  and,  there- 
fore, guilty  of  receiving. 

Maule,  J.     I  think  the  conviction  wrong. 

Coleridge,  J.  I  think  the  conviction  wrong,  because  we  must  de- 
cide whether  it  be  so  or  not  upon  the  direction ;  and  the  direction  did 
not  make  it  the  duty  of  the  jury  to  consider  circumstances  sufficient  to 
establish  the  guilt  of  the  prisoner,  if  all  were  found  against  him,  and 
to  these  we  have  no  right  to  add  anything.  If  the  direction  be  con- 
strued strictly,  it  would  limit  us  to  consider  only  the  effect  of  the  facts  of 
leading  the  two  thieves  with  the  stolen  goods  from  the  house  to  the  sta- 
ble, and  into  it,  with  the  knowledge  that  the  goods  had  been  stolen,  and 
the  guilty  purpose  of  buying  them.  But  it  is  better  for  the  sake  of  the 
argument,  and,  perhaps,  more  correct  to  consider  it  as  including  also 
all  the  circumstances  under  which  the  fowls  were  brought  to  the  house 
and  taken  from  it  to  the  stable,  and  all  beyond  that  is  excluded. 
Among  these  circumstances  are  not  included  any  previous  invitation  or 
consent ;  not  even  any  consent  is  stated. 

So,  considering  the  facts,  the  prisoner  was  guilty  of  being  in  the 
house  with  the  thieves,  having  the  goods  in  their  possession,  and  help- 
ing them  with  the  goods  still  in  their  possession  to  a  place  under  his 
control,  with  the  knowledge  that  they  were  stolen,  and  the  guilty  pur- 

I  R.  V.  Davis,  6  C.  A  p.  178,  er  Gurney  B. ;  B.  v.  Richardson,  6  C.  &  P.  336,  per  Taunton, 
J. ; «.  c.  2  RuR8.  on  Cr.  247. 


"   •- 


R.  V.  WILEY. 


651 


seem  necessary 
the  goods ;  it  is 
on  malo  animo; 
ircss  or  implied 
1  tbiat  there  may 
to  the  receiver.! 
IS  ail  the  circum- 

RLG,  J.,  inthink- 
iho  only  thing  to 
in  to  incorporate 
gh  I  am  inclined 
th  respect  to  the 
nion  on  the  fact, 
thieves.  If  the 
■t  of  the  owner's 
eft,  and  the  pris- 
with  the  thief,  he 
isisted  the  thieves 
m,  and  as  he  did 
them,  and,  there- 


ause  we  must  de- 
he  direction  did 
mces  sufficient  to 
gainst  him,  and 
direction  be  con- 
ect  of  the  facts  of 
•■  house  to  the  sta- 
[  been  stolen,  and 
or  the  sake  of  the 
as  including  also 
ught  to  the  house 
;hat  is  excluded, 
k^ious  invitation  or 

y  of  being  in  the 

session,  and  help- 

a  place  under  his 

nd  the  guilty  pur- 

&  p.  336,  per  Taunton, 


pose  of  buying  them,  and  ho  himself  acquiring  a  possession  distinct 
from  that  of  the  thieves,  on  a  contingency,  wliich  never  liappened. 

Until  that  should  happen  he  never  intended  to  liave  a  possession,  nor 
is  it  found,  in  fact,  that  he  li  id,  nor  did  the  thieves  intend  to  admit 
him  to  any  such  possession,  actual  or  constructive.  No  case  of  joint 
possession  with  thom  inlerincdiately  arises ;  it  did  not  exist  in  fact ;  it  is 
excluded  by  the  common  intention. 

Now,  I  conceive  that  receiving  imports  possession,  actual  or  con- 
structive, and,  therefore,  that  the  verdict  was  wrong.  I  think  it  right 
to  add  my  concuiTcnce  in  what  has  fallen  from  my  brother  Martin  on 
the  great  importance  of  proceeding  in  all  questions  on  the  criminal  law 
on  broad  grounds  intelligible  to  the  common  sense  of  ordinary  peo- 
ple.i 

Pattesox,  J.  I  think  the  conviction  wrong.  I  don't  consider  a 
manual  possession  or  even  a  touch  essential  to  a  receiving.  But  it 
seems  to  me  that  there  must  be  a  control  over  the  goods  b}'  the  receiver, 
which  there  was  not  here.  How  far  the  other  circumstances  stated  in 
this  case  migi.,  affect  the  question,  I  don't  think  we  need  inquire,  for, 
in  my  opinion,  tliey  are  not  brought  before  us  for  consideration.  The 
case  as  submitted  to  us,  does  not  put  the  matter  on  that  ground.  How- 
ever, though  I  entertained  some  doubts  on  that  point,  I  am  inclined  to 
think  that  tliose  additional  facts  would  make  no  difference. 

Ai.DERSON,  B.  I  agree  with  the  majority  of  the  other  judges  in  think- 
ing this  conviction  wrong.  I  think  that  there  may  be  a  joint  possession 
of  goods  in  a  thief  and  a  receiver.  But  there  was  no  evidence  of  that 
here.  The  case  submitted  to  us  does  not  embody  all  the  circumstances 
of  the  transaction.  The  sack  may  have  been  on  Straughan's  back  all 
the  time  during  the  taking  into  the  stables;  and  it  is  that  part  of  the 
transaction  alone  which  I  think  was  treated  by  the  chairman  as  amount- 
ing to  a  receiving,  and  left  by  him  to  the  jury  as  evidence  of  it.  The 
thieves  seem  always  to  have  had  possession  of  the  goods,  and  the  pris- 
oner to  have  had  only  the  intention  of  receiving  them,  not  the  actual 
receipt.  In  all  these  cases  boundary  lines  are  matters  of  great  nicety, 
and  seem  to  unthinking  persons  to  involve  absurd  and  frivolous  distinc- 
tions ;  but  those  who  are  particularly  acquainted  with  the  administration 
of  the  law,  have  daily  experience  of  their  necessity,  and  know  that 
without  them  acts  and  principles  essentially  different  from  each  other 
in  nature  and  operation  would  be  confounded  together,  and  tliat  cases 
like  the  present  have  a  peculiar  value,  owing  to  their  furnishing  precise 
definite  rules. 

1  The  editor  is  indebted  to  the  kindness  of  Mr.  Justice  Coleridge  tor  a  copy  of  the 
above  judsment. 


652 


RECKIVINO    STOLEN   PKOPERTT. 


P.UKE,  B.  I  think  the  conviction  wrong.'  We  have  only  to  consider  the 
precise  point  submittea  to  us  in  the  case  reserved.  The  taking ' '  as  above 
ivas  snid  by  the  chairman  to  amount  to  a  receiving ;  that  only  nicorporated 
80  much  of  the  transaction  as  relates  to  the  taking  of  the  goods  into  the 
stable      We  must  not,  therefore,  speculate  on  the  question  v  hether  he 
three  prisoners   were  .all  participating  in  the  wrongful  act,  or  what 
would  be  the  legal  consequences  to  each  of  their  so  douig.     Receiv.ng 
must  mean  a  taking  into  possession,  actual  or  constructu-e,  w»"ch  I  do 
not  think  there  was  here.     The  prisoner  took  the  tiueves  into  the  stable, 
but  he  never  accepted  the  goods  in  any  sense  of  the  word  except  upon 
a  contingency,  which,  as  it  happened,  did  notarise      I  tank  the  posses 
.ion  of  the  receiver  must  be  distinct  from  that  of  the  thief,  and  that  the 
mere  receiving  a  thief  with  stolen  goods  in  his  possession  would  not 
alone  constitute  a  man  a  receiver. 

Loud  Campbkli,  C.  J.     I  think  the  conviction  right.     I  concur  in 
the  reasoning  of  the  minority  of  the  judges,  and  I  think  that  thei^  is  a 
receiving  whenever  the  prisoner,  knowing  the  goods  to  have  been  stolen, 
has  possession  of  them  m.lo  anirao.     I  think  we  need  not  enterinto 
considerations  respecting  the  right  of  property,  or  the  right  to  bring 
trespass  or  trover.     I  think  there  need  be  no  manual  possession  to 
constitute  a  receiving.     The  facts  were  that  the  sack  was  brought  into 
the  house,  and  taken  thence  to  the  stable  with  the  knowledge  and  co- 
operation  of  the  three  prisoners.     There  was  therefore  a  common  crim- 
inal purpose.     Was  not  Williamson  then  in  possRs---  ..  the  sack? 
Straughan  alone  carried  it,  but  it  is  agreed  that  ■      .  3  purposes  of 
larceny,  the  possession  of  Straughan  was  the  possession  of  Williamson. 
If  so  why  was  not  the  possession  of  Straughan  equally  the  possession 
of  Wiley'    Tliere  was  a  criminal  intent  in  all  three  at  that  time ;  and  a 
co-operation  for  the  purpose  of  carrying  that  intent  into  execution. 
What  difference  can  it  make  that  one  party  alone  had  manual  possession 
of  the  goods,  when  if  they  all  had  been  on  or  near  the  owner's  premises, 
such  possession  by  one  would  have  been  clearly  in  law  the  mutual 
possession  of  them  all?    That  there  may  be  a  joint  possession  in  the 
thief  and  the  receiver  I  have  no  doubt.     Moreover,  I  think  that  on  a 
fair  interpretation  of  the  case  before  us,  we  are  asked  our  opinion  of 
the  whole  transaction;  and  that  the  circumstances  set  forth  show  that 
the  goods  were  in  the  possession  of  Wiley  quite  as  much  as  in  that  of 
the  thieves.     Therefore,  in  either  view  of  the  extent  of  the  case  sub- 
mitted to  us,  I  am  of  opinion  that  there  was  ample  evidence  of  areceiv 
ing,  and  that  the  conviction  was  right. 


J 


K.  V.  SCHMIDT. 


653 


nly  to  consider  the 

taking  "as  above" 

t  only  incorporated 

the  goods  into  the 

lestion  v  hether  the 

igful  act,  or  what 

doing.     Receiving 

ructive,  which  I  do 

ves  into  the  stable, 

I  word  except  upon 

I  think  the  posses- 

e  thief,  and  that  the 

oasession  would  not 

right.     I  concur  in 
think  that  there  is  a 
to  have  been  stolen, 
need  not  enter  into 
ir  the  right  to  bring 
anual  possession  to 
,t'k  was  brought  into 
e  knowledge  and  co- 
fore  a  common  crim- 
iRSF-"'-  ji  the  sack? 
.  3  purposes  of 
ission  of  Williamson, 
lually  the  possession 
5  at  that  time ;  and  a 
itent  into  execution, 
ad  manual  possession 
the  owner's  premises, 
f  in  law  the  mutual 
oint  possession  in  the 
ver,  I  think  that  on  a 
asked  our  opinion  of 
B8  set  forth  show  that 
Eis  much  as  in  that  of 
:tent  of  the  case  sub- 
j  evidence  of  a  receiv- 


RECEIVING  STOLEN  GOOOS  —  STOPPAGE   IN  TRANSITU  FROM  THIEF 
TO  OWNER  — DELIVERY  BY  OWNER. 

R.  V.  Schmidt. 

[10  Cox,  172.] 
In  the  English  Court  of  Criminal  Appeal,  ISGG. 

A  Passenger's  Baggage  in  Charge  of  a  Railway  company,  was  stolon  from  the  rnllwoy 
gtation.  Afterwards  tlio  thieves  sent  a  portion  of  it  in  ii  bumUo,  and  delivered  it  to  the 
Piinie  riUlway  company  to  be  forwarded  by  them  to  U.,  at  Krighton.  When  it  arrived  ut 
Brighton,  the  police  olUcer  attached  to  the  railway  company  examined  the  bundle,  and 
finding  It  to  contain  part  of  the  stolen  property,  directed  a  porter  not  to  part  with  it 
until  further  orders.  The  thieves  were  then  arrested  and  on  the  following  day  the 
bundle  was  sent  by  the  railway  company  to  B.,  who  having  received  it.  was  charged  with 
feloniously  receiving  it.  JJeld.i  that  the  charge  could  not  bo  sustained,  the  property 
having  been  obtained  by  the  owners  from  whom  it  had  been  stolen  before  the  receiving 
by  the  prisoner.! 

Case  reserved  for  the  opinion  of  this  court  by  the  deputy-chairman 
of  the  Quarter  Sessions  for  the  Western  Division  of  the  county  of  Sus- 
sex. 

John  Daniels,  John  Scott,  John  Townsend,  and  Henry  White,  were 
indicted  for  having  stolen  a  carpet-bag  and  divers  other  articles,  the 
property  of  the  London,  Brighton  and  South  Coast  Railway  Company, 
and  tlie  prisoner,  Fanny  Schmidt,  for  having  feloniously  received  a  por- 
tion of  the  same  articles,  well  knowing  the  same  to  have  been  stolen. 

The  evidence  adduced  before  me  as  deputy-chairman  of  the  Court  of 
Quarter  Sessions  at  Chichester,  for  the  Western  Division  of  the  county 
of  Sussex,  on  the  20th  October,  1865,  so  far  as  relates  to  the  question 
I  have  to  submit  to  the  Court  of  Criminal  Appeal,  was  as  follows :  — 

On  the  29th  July,  1865,  two  passengers  by  the  prosecutor's  line  of 
railway  left  a  quantity  of  luggage  at  the  Arundel  Station,  which  lug- 
gage was  shortly  afterwards  stolen  therefrom. 

On  the  30th  July  a  bundle  containing  a  portion  of  the  stolen  property 
was  taken  to  the  Augmering  Station,  on  the  same  line  of  railway,  by 
tlie  prisoner  Townsend,  and  forwarded  by  him  to  the  female  prisoner, 
addressed,  "  Mr.  F.  Schmidt,  Waterloo  Street,  Hove,  Brighton."  The 
bundle  was  transmitted  to  Brighton,  in  the  usual  course,  on  Sunday 
morning  the  30th. 

Meanwhile  the  theft  had  been  discovered,  and  shortly  after  the  bun- 
dle had  reached  the  Brighton  Station  a  policeman  (Carpenter),  attached 
to  the  railway  company  opened  it,  and  having  satisfied  himself  that  it 
contained  a  portion  of  the  property  stolen  from  the  Arundel  Station, 

1  pw  Martin,  B.,  Keating  and  Lush,  J.  J.  »  Erte,  0.  J.,  and  Mellor,  J.,  dUsenttentUnu. 


654 


RECEIVINO   STOLEN   mOPEUTY 


tied  it  up  again  and  directed  a  porter  (Dunstall),  in  whose  charge  it 
was,  not  to  part  with  it  without  f  urtlicr  orders. 

About  8  p.  m.  of  the  same  day  (Sunday  SOth),  the  prisoner,  John 
Scott,  went  to  the  station  at  Bri<jliton  and  aalted  the  porter  (Dunstall) 
if  lie  had  got  a  parcel  from  the  Augmoriiig  Station  in  the  narae  of 
Schmidt,  Waterloo  Street.  Dunstall  replied,  "No."  Scott  then  said, 
"It  is  wrapped  up  iii  a  silk  handkercliief,  and  is  directed  wrong;  it 
ought  to  have  been  directed  No.  22,  Cross  Street,  Waterloo  Street." 
Dunstall,  in  his  evidence,  added,  "  I  knew  the  parcel  was  at  the  station, 
but  I  did    not    say  so   because  I    had    received    particular  ordsrs 

about  it." 

Tiic  four  male  prisoners  were  apprelionded  the  same  evening  in 
Brighton,  on  the  charge  for  wliich  they  were  tried  before  me  and  con- 
victed. 

On  Monday  morning,  the  31st  of  July,  the  pwter  (Dunstall),  by  the 
direction  of  the  policeman  (Carpenter),  took  the  bundle  to  the  house 
No.  22  Cross  Street,  Waterloo  Street,  occupied  as  a  lodging  house  and 
beer  house  by  the  female  prisoner  and  her  husband  (who  was  not  at 
home  and  did  not  appear),  and  asked  if  her  name  was  Schmidt,  on  as- 
certaining which  he  left  the  bundle  with  her  and  went  away.  Carpen- 
ter and  another  policeman  then  went  to  the  house,  found  the  bundle 
unopened,  and  took  the  prisoner  to  the  town  hall. 

All  the  prisoners  were  found  guilty,  and  I  sentenced  each  of  them  to 
six  months'  imprisonment  witii  hard  labor.  They  are  now  in  Petworth 
gaol  in  pursuance  of  that  sentence. 

At  the  request  of  the  counsel  for  the  female  prisoner,  I  consented  to 
reserve  for  the  opinion  of  this  court  the  question :  — 

Wliether  the  goods  alleged  to  have  been  received  by  her  had  not, 

under  the  circumstfinces  stated,  lost  their  character  of  stolen  property, 

so  that  she  ou^ht  not  to  have  been  con'victed  of  receiving  them  with  a 

guilty  knowledge  within  the  statute  ? 

°  Hasler  IIolust. 

Pearce  (  Willoughhy  with  him)  for  the  prisoner.  The  conviction  is 
wrong.  To  support  a  conviction  for  receiving  stolen  goods,  it  must 
appear  that  the  receipt  was  without  the  owner's  authority.  In  this 
case,  in  consequence  of  the  conduct  of  the  railway  company,  the  prop- 
erty had  lost  its  character  of  stolen  property  at  the  time  it  was  deliv- 
ered at  the  receiver's  house  by  the  railway  porter.  The  property  is 
laid  in  the  indictment  as  the  property  of  the  railway  company,  and  Car- 
penter was  not  an  ordinary  policeman,  but,  as  the  case  states,  a  police- 
man attaclied  to  the  railway  company.  He  opens  the  bundle,  and 
finding  therein  some  of  the  stolen  property,  he  gives  it  to  Dunstall  and 
orders  it  to  be  detained  until  further  orders,  and  in  the  meantime  the 


^^M 


R.  V.  SCHMIDT. 


655 


lose  charge  it 

risoncr,  John 
er  (Dunstall) 
the  narac  of 
ott  then  said, 
ed  wrong;  it 
irloo  Street." 
it  the  station, 
icular  ordsrs 

e  evening  in 
:  me  and  con- 

istall),  by  the 
c  to  tlie  liouse 
ing  house  and 
ho  was  not  at 
hinidt,  onas- 
ray.  Carpen- 
nd  the  bundle 

Lch  of  them  to 
w  in  Petwortli 

I  consented  to 

Y  lier  had  not, 
;olen  property, 
ig  them  with  a 

ER    IIOLLIST. 

8  conviction  is 
goods,  it  must 
arity.  In  this 
)ariy,  the  prop- 
ne  it  was  deliv- 
he  property  is 
pany,  and  Car- 
itates,  a  police- 
le  bundle,  and 
to  Dunstall  and 
e  moantime  the 


thieves  vere   arrested ;   Carpenter  then  directs  Dunstall  to  take  the 
bundle  to  the  receiver's  house,  so  that  the  receiver  go^  tiie  stolen 
property  from  the  railway  company,  who  alone  on  this  indictment  are 
to  be  regarded  as  the  owners  of  the  property.     The  railway  comi)any, 
the  owners,  having  got  their  property  back,  make  what  must  be  consid- 
ered u  voluntary  delivery  of  it  to  the  receiver.     The  case  is  similar  to 
l{ofjiHa  v.  Dolan,^  where  stolen  goods  being  found  in  the  pockets  of  the 
thief  by  the  owner,  who  sent  for  a  policeman,  and  then,  to  trap  the 
receiver,  the  goods  were  given  to  the  thief  to  take  them  to  the  receiver's, 
wliich  he  did,  and  t!ie  receiver  was  afterwards  arrested,  and  it  was 
held  that  the  receiver  was  not  guilty  of  feloniously  receiving  stolen 
goods,  inasmuch  as  they  were  delivered  to  him  under  the  authority  of 
the  owner.     In  that  case  Eeghmv.  Lyoru*^  was  expressly  overruled. 
Lord  Campbell,  C.  J.,  said,  in  Bcgina  v.  Dolan:  "If  an  artiilo  once 
stolen  has  been  restored  to  the  owner,  and  he  having  had  it  fully  in  his 
possession,  balls  it  for  any  particular  purpose,  how  can  any  person  who 
receives  the  article  from  the  bailee  be  said  to  be  guilty  of  receiving 
stolen  goods  within  the  meaning  of  the  act  of  Parliament?  " 

Hurst,  for  the  prosecution.     Unless  the  case  is  distinguishable  from 
Regina  v.  Dolan,  the  conviction,  it  must  be  conceded,  is  wrong.     But 
the  facts  of  this  case  are  more  like  the  view  taken  by  Cresswell,  J.,  in 
Regina  v.  Dolan,  "  that  while  the  goods  were  in  the  hands  of  the  police- 
man, they  were  in  the  custody  of  the  law,  and  the  owner  could  not  haw 
demanded  them  from  the  policeman,  or  maintained  trover  for  them," 
In  that  case  the  real  owner  intervened,  and  had  manual  possession  of 
the  stolen  goods ;  here  he  does  not.     The  goods  belonged  to  the  rail- 
way passenger,  and  the  company  are  only  bailees.     [Mkllor,  J.  The 
poiieeman  merely  opened  the  bundle  in  the  course  of  its  transit  to  see 
what  was  in  it,  and  then  sent  it  according  to  its  direction.     It  was  in 
the  iiands  of  the  policeman,  not  of  the  company.     Eule,  C.  J.  Suppose 
a  laborer  steals  wheat,  and  he  sends  it  by  a  boy  to  his  accomplice,  and 
the  policeman  stops  the  boy,  ascertains  what  he  has  got,  then  tells 
him  to  go  on,  and  follows  and  apprehends  the  accomplice,  is  not  the  ac- 
complice  guilty    of   feloniously  receiving?    Mellok,   J.     Here    the 
policeman  does  nothing  to  alter  the  destination  of  the  bundle.     The 
elements  of  the  real  owner  dealing  with  the  stolen  property  is  wanting 
in  this  case.     Keating,  J.  Scott  directs  the  address  to  be  changed.] 
The  bundle  was  sent  by  the  thieves  through  the  railway  company  to  the 
receivers ;  the  real  owner  had  nothing  to  do  with  this  part  of  the  transac- 
tion.   [Lush,  J.  If  the  true  owner  had  sued  the  company  for  the  property 
the  company  could  not  have  justified  detaining  or  converting  it.]     If  a 


1  6  Cox,  C.  C.  M9;  1  Dean.  C.  0.  436. 


3  Car.  &  M.  217. 


656 


RECEIVING   STOLEN   FUOPERTT. 


policeman  know,  of  -tolon  .o„,„  being  i,,  the  !-<•»;'  "»  i^;™'^ 
Lent  and  doe,  not  take  i,o»e,,ion  for  tl,o  o»ner,  and  the  umotent 
°?  °  uT«.o  police,nan'»  direetion.,  delivers  ti.om  o  a  reec  vcr,  that 
d^    not'in-event  tUe  .eoeiver  being  gnlity  o,  felon  ou.ly  reee  n  g. 

P.<irce  in  re,.lv.     Before  tto  bundle  was  Bent  out  for  dun ery  the 

tJ      to"  in'e,»tody.  and  b.ving  seenred  tl,en>  Om>'-'<^''^-l--^ 

orders  for  tho  bundle  to  bo  dollvored  to  tlie  reeoivors.    Carlionter  was 

Servant  of  i^e  railway  eon,„a„y,who  are  tUe  owners  for  the  purpose 

S  th  slndietment,  and  tbo  delivery  therefore  was  by  '^-™- ,,^„„„ 

rEBLi-    C  J.  and  Mci-wn,  J.,  were  of  opinion  that  tie  conv  ot  on 

^1^::  h  ,t  M°  «T,H   B.,  KK-msoand  Lusll,  JJ.,  hold  the  eonv,et,on 

To,?    In  eoZrnUo'f  tho  prisoner  having  suffered  half  the  term 

If  irnl-ri,  nment  flninabihty  to  get  hail,  and  the  further  unavoidablo 

dolav  tho  case  was  not  sent  to  be  argued  before  all  the  Judges  ] 

M*«n°T    I  thinlt  that  this  conviction  was  wrong  on  two  grounds, 

the  onTsiblotial,  the  other  formal,  '  ""^  ""'/t;- fr/a^'X 
ment  founded  ou  the  in.liotment,  tliat  the  property  is  there  laid  to  be 
roper^oi  tho  railway  company,  is  well  founded;  and  it  seems  to  me 
that  Dolan's  Case  applies  to  tliis. 

Eble  C    J.     I  ^^m  of  opinion  that  the  conviction  was  right      The 

nultln  is"  wl  ether  at  the  time  this  stolen  property  was  received  by  the 

Sr,  tT  r.  tbe  property  of  the  London  and  Brighton  Railway  Com- 

Z    am  if  so,  whether,  when  the  Policeman  Carpenter  caused  th.de- 

ve  y'  to  be  stopped  for  the  purpose  of  detecting  the  part.es  im^  catec 
t  thereby  lost    he  character  of  stolen  property.     If  it  had  lost  the 

:hi::erVfi^^  --  ^^'^^\:^^i 

the  receiving  by  her  will  not  amount  to  felony.     But  '"  *»"««*;«  /; 
ttink  that  the  railway  company,  when  they  took  this  bundle  into  the  r 
lossesstn  were  acting  asbaUees  of  the  thief,  and  were  innocent  agen  s 
rfoZding  U  to  the  receiver,  and  that  the  things  did  not  ose  their 
llZLr  of  stolen  prope  tyby  what  was  done  by  the  policeman. 
'"^^Z^TTalreLii  by  brother  M.im.that  the  conviction  was 
wron.    T  seems  conceded,  on  the  authority  of  Dolan's  Case  that  if  the 
Ine  ty  had  got  back  again  for  any  time  into  the  hands  of  the  true  owner 
^heronviction  would  be\rong.     It  is  said  that,  in  ^^^^^^^^^^^^ 
mentioned  in  the  indictment,  the  railway  company,  were  not  the  rea 
owners    wh.reas  in   Dolan's  Case  the  real  owner  intervened      But  I 
thTnk  tJeis  no  distinction  in  principle  between  this  ca.e  and  that   The 
th  nk  tnere  IS  ^    indictment  to  be  owners  of  the 

;::^::^y  aT:r.m,ngt^  ean  reeogni.  no  other  persons  than  tbem , 
t3.™  the  owners  from  whom  the  property  was  stolen  and  it  got 
5.  ,  11  ,L,r  nossosslou  I  can  sec  no  real  distinction  between  this 
'':^^  Dln'r  lu  °ho  reasons  given  for  the  Judgment  in  that  case 


R.  V.  SCHMIDT. 


657 


of  an  innocent 
lid  the  innocent 
)  a  recoiver,  that 
r  receiving. 

for  dciivery  the 
)entcr  then  gives 
Carpenter  was 
8  for  the  purpose 
le  owners, 
attlio  conviction 
ild  the  conviction 
;red  half  tlie  term 
rther  unavoidable 
!  judges.] 
T  on  two  grounds, 
[r.  Pearce'a  argu- 
is  tliere  laid  to  be 
id  it  seems  to  me 

II  was  right.     The 
as  received  by  the 
iton  Railway  Com- 
nter  caused  the  de- 
parties  implicated 
[f  it  had  lost  the 
red  by  the  prisoner 
But  in  this  case  I 
is  bundle  into  their 
ere  innocent  agents 
;3  did  not  lose  their 
le  policeman. 
;  the  conviction  was 
m's  Case,  that  if  the 
is  of  the  true  owner, 
his  case,  the  owners 
,  were  not  the  real 
intervened.     But  I 
3  case  and  that.  The 
,o  be  owners  of  the 
r  persons  than  them ; 
»  stolen,  and  it  got 
inction  between  this 
idofment  in  that  case 


apply  equally  to  the  case  of  the  ownership  in  this  case.  The  principle 
I  take  to  be,  that  when  once  the  party  having  the  right  of  con- 
trol of  the  property  that  is  stolen,  gets  that  control,  the  transaction  Is 
at  an  end.and  there  can  bo  nj  felonious  receipt  afterwards.  I  tlnnk 
the  test  put  by  my  brother  Llsii  in  the  course  of  the  argument,  as  to 
the  real  owner  suing  tlio  railway  company  for  the  property  after  they 
had -^ot  the  control  of  it,  is  decisive  of  the  matter. 

Mellok,  J.     I  agree  entirely  with  ray  brother  Erle,  C.  J.,  and  think 
the  conviction  was  right.    The  indictment  riglitly  alleges  the  property 
to  have  been  in  tlie  railway  company  at  the  time  it  was  stolen,  they  had 
the  bailment  of  it  from  the  true  owner.     Then  it  Is  stolen  whde  in 
their  custody,  and  the  next  step  is,  the  thieves  afterwards  send  a  portion 
of  it  by  the  same  railway  company  to  be  forwarded   to  the  receiver  at 
Brighton.    So  '.hat  the  railway  company  get  possession  of  this  part  from 
the  thieves  under  a  new  bailment.     Then  the  policeman  examines  the 
property,  and  directs  it  not  to  be  forwarded  until  furtlier  orders ;  but 
this  was  not  done  with  the  view  of  taking  possession  of  it,  or  altering 
its  transit,  but  merely  to  see  whether  it  was  the  stolen  property.     I 
agree  with  Dolan's  Cim,  but  in  the  present  case  I  think,  the  stolen  prop- 
erty had  not  got  back  to  the  true  owner. 

Lu«.H  J     I  agree  with  my  brothers  Martin,  B.,  and  Keating,  J., 
and  think  that  the  conviction  was  wrong.    I  think  that  the  goods  had 
got  bacl^  to  the  owner  from  whom  they  had  been  stolen.      UaA 
the  railway  company  innocently  carried  the  goods  to  their  destination, 
and  delivered  them  to  the  prisoner,  the  felonious  receipt  w-uld  have 
been  complete;  but  while  the  goods  aie  in  their  possession,  having 
been  previously  stolen  from  them,  the  goods  are  inspected  and  as  soon 
as  it  was  discovered  that  they  were  the  goods  that  had  been  stolen 
the  railway  company  did  not  intend  to  carry  them  on  as  the  agents 
of  the  bailor.    The  forwarding  them   was  a  mere  pretense  for  the 
purpose  of  finding  out  who  the  receiver  was.     It  was  not  competent 
to  the  railway  company  to  say,   as  between  them  and  the  angina 
bailor,  that  they  had  not  got  back  the  goods,  they  were  bound  to  hold 
them  for  him.    In  afterwards  forwarding  the  goods  to  the  prisoner, 
the  company  was  using  the  transit  merely  as  the  means  of  detecting 

tli6  receiver* 

Mautin,  B.  I  only  wish  to  add,  that  I  meant  to  say,  that  I  think  the 
conviction  wrong  in  substance  in  consequence  of  the  interference  of  the 
policeman  with  the  property,  and  this  independently  of  the  form  of  in- 
dictment. .    , 

Conviction  quasnea. 

3  Defences.  *2 


658 


RECEIVING  STOLEN  PROPERTY. 


RECEIVING  STOLEN  :G00DS- RESTORATION   TO  OWNER  BETWEEN 
STEALING  AND  UECEI VINO— SUBSEQUENT  SALE. 

li.  V.  DOLAN. 

[6  Cox,  449;  1  Dtars.  436.] 

In  the  English  Court  for  Crown  Cases  Reserved,  1855. 

If  Stolen  Oood«  are  Reetored  to  the  poBSOsMon  of  tho  owner,  and  he  returns  them  to  the 
thiol  lor  the  piirposo  of  cmil.llnK  him  to  Bell  them  to  n  third  porBOii,  they  are  ..o4ongcr 
•tolen  gooilB.  and  that  third  pereon  can  not  be  convicted  of  feloniously  receiving  stolen 
goods,  although  ho  received  them,  believing  them  to  be  stolen.  Where,  therefore, 
stolen  goods  were  found  In  the  pocket  of  the  thief  by  the  owner,  who  sent  for  ii  police- 
man •  aud  It  was  proved  that  iif  ler  tho  policeman  had  taken  the  goods,  the  three  went 
together  towards  the  prisoner's  shop,  where  the  thief  had  proviously  sold  other  stoltu 
goods :  that  when  near  that  shop,  the  policeman  gave  the  goods  to  the  thief  who  was 
sent  by  the  owner  Into  tho  nhop  to  sell  them,  and  that  tho  thief  accordingly  sold  them 
to  tho  prisoner,  and  then  returned  with  the  proceeds  to  the  owner.  Htld,  that  the  pri« 
oner  was  not  guilty  of  feloniously  receiving  stolen  goods;  inasmuch  as  they  wore 
delivered  to  him  under  •.ho  authority  of  tho  owner  by  u  i.erson  to  whom  the  owner  had 
bailed  thorn  for  that  purpose.  K.  t».  Lyons,  Oar.  &  M.  217,  overruled. 
aemblt,  per  Crkswbll,  J.:  That  the  more  possession  of  tho  goods  by  tho  policeman 
would  not  be  equivalent  to  a  restoration  to  tho  owner. 

The  following  case  was  stated  by  M.  D.  Hill,  Esq.,  A.  C,  Recorder 
of  Birmingliam :  — 

At  the  session  held  in  Birmingham,  on  the  5th  day  of  January,  1855, 
William  Rogers  was  indicted  for  stealing,  and  Thomas  Dolan  for  receiv- 
ing certain  brass  castings,  the  goods  of  John  Turner.  Rogers  pleaded 
guilty,  and  Dolan  was  found  guilty. 

It  was  proved  that  the  goods  were  found  in  the  pockets  of  the  pris- 
oner Rogers  by  Turner,  who  then  sent  for  a  policeman,  who  took  the 
goods,  and  wrapped  them  in  a  handkerchief,  Turner,  the  prisoner 
Rogers,  and  the  policeman  going  towards  Dolan' s  shop.  When  they 
came  nearer  the  policeman  gave  the  prisoner  Rogers,  the  goods,  and 
the  latter  was  then  sent  by  Turner  to  sell  them  where  he  had  sold  others ; 
and  Rogers  then  went  into  Dolan' s  shop,  and  sold  them,  and  gave  the 
money  to  John  Turner  as  the  proceeds  of  the  sale.  Upon  these  facts  it 
was  contended  on  tlie  part  of  Dolan,  that  Turner  had  resumed  the  pos- 
session of  the  goods,  and  Rogers  sold  them  to  Dolan  as  the  agent  for 
Turner,  and  that  consequently,  at  the  time  they  were  received  by  Dolnn 
they  were  not  stolen  goods  within  the  meaning  of  the  statute 

I  told  the  jury,  upon  the  authority  of  the  case  of  Re'  .yon} 

and  another  cited  by  the  counsel  for  the  prosecution,  that  t  juer  was 

liable  to  be  convicted  of  receiving,  and  the  jury  found  hin-      ilty: 

1  C.  4  M.  217. 


"  -- 


U.  V.   DOLAN. 


6A9 


NEU  BETWEEN 
SALE. 


!,  1855. 

B  returns  them  to  ihe 
II,  they  are  no  longer 
ugly  receiving  Btulen 
,  Where,  therefore, 
ho  sent  (or  II  police- 
oods,  the  three  went 
«ly  «ul(l  other  etokm 
to  the  thief  who  was 
scorilingly  eold  them 
mid,  %htit  the  prlH 
iniuch  BB  they  wore 
whom  the  owner  bad 
I. 
Ib  by  tbQ  policeman 


A.  C,  Recorder 

t  January,  1855, 

Dolan  for  receiv- 

Rogers  pleaded 

3kets  of  the  pria- 
m,  who  took  the 
er,  the  prisoner 
lop.  When  they 
,  the  goods,  and 
I  had  sold  others ; 
em,  and  gave  the 
pen  these  facts  it 
resumed  the  pos- 
as  the  agent  for 
iceived  by  Dolnn 
jtatute 

Be'  .(/o>i,i 

itt  oner  was 

hiiL     lilty: 


Upon  this  finding,  I  roriui'st  the  opinion  of  the  Court  of  Appeal  in 
Crimlnol  Casi-s  on  tlie  viili'lity  of  Doluu's  cDUviotion. 

Dolan  lias  been  sent  l):ic;k  to  prison,  and  I  respited  jiulgmenl  on  the 
conviction  against  him,  until  the  judgment  of  the  court  al.ove  shall  have 

been  given.  .  .      i 

O'Brien,  for  the  prisoner.  This  conviction  can  not  bo  sustained. 
The  objection  is,  tliatwhen  llie  goods  reuclicd  the  hands  of  Dolan  they 
were  not  stolen  goods.  Tlioy  li;id  been  restored  to  tlie  possctsion  of  the 
owner,  and  tlio  sale  to  the  prisoner  was  with  tlie  owner's  authority. 

Lord  Cami-beu.,  C.  J.  Tlicro  seems  to  be  great  weight  in  that  objec- 
tion, hut  for  the  authority  of  tlie  case  cited.  It  can  liardly  be  supposed 
that  if  goods  were  stolen  seven  years  ago,  and  liad  l)een  in  tlie  posses- 
sion  of  the  owner  again  for  a  considerable  period,  there  could  be  a 
felonious  receipt  of  tlicra  without  a  fresli  stealing. 

O'Brien.     Tliat  was  tlie  view  talien  by  the  learned  recorder;  and 
R.  V.  Lyons,^  wliicli  was  cited  for  tlie  prosecution,  does  not  appear  to 
have  been  a  case  much  considered.     Coleridge,  J.,  in  tliat  case,  said, 
"  that  for  the  purposes  of  the  day,  he  should  consider  llie  evidence  as 
sufficient  in  point  of  law,  to  sustain  the  indictment,  but  would  take  a 
note  of  the  objection. 
CoLERiDOE,  J.     I  certainly  do  not  think  so,  to-day. 
O'Brien.  There  is  also  a  slight  circumstance  of  distinction  between 
tliat  case  and  the  present.     It  docs  not  appear  in  that  case  that  tlie 
sl-.len  property  was  ever  actually  restored  to  the  hands  of  the  owner, 
nor  that  he  expressly  directed  the  thief  to  take  it  to  the  prisoner.     (He 

was  stopped.)  . 

Beasley  for  the  prosecution.     R.  v.  Lyons  is  expressly  in  point,  and 
thclearned  judge  who  decided  it  does  appear  to  have  had  his  attention 
recalled  to  the  point  after  the  conviction,  and  still,  upon  deliberation, 
to  have  thought  there  was  nothing  in  the  objection.     The  facts  are  thus 
stated  in  the  marginal  note :  "  A  lad  stole  a  brass  weight  from  his  mas- 
ter, and  after  it  had  been  taken  from  him  in  his  master's  presence  it 
was  restored  to  him  again  with  liis  master's  consent,  in  order  that  he 
micrht  sell  it  to  a  man  to  whom  he  had  been  in  the  habit  of  selling 
similar  articles  which  he  had  stolen  before.     The  lad  did  sell  it  to  the 
man;  and  the  man  being  indicted  for  receiving  it  of  an  evil-disposed 
person,  well  knowing  it  to  have  been  stolen,  was  convicted  and  sen- 
tenced to  be  transported  seven  years."     The  report  adds,  that  after 
the  sentence  "  the  matter  was  subsequently  called  to  his  lordship's 
attention  by  the  prisoner's  counsel,  yet  no  alteration  was  made  in  the 
judgment  of  the  court ;  from  which  it  is  to  be  infei-red  that,  upon  con- 

1  C.  &  M.  217. 


660 


RECEIVING   STOLEN   PROPERTY. 


sideration,  his  lordship  did  not  think  that  in  point  of  law  the  objection 
ought  to  prevail. ' '  The  piesent  is,  however,  a  stronger  case  than  that ; 
because  here  m  truth  the  master  did  not  recover  possession  of  the 
stolen  good^.  They  were  in  the  hands  of  the  police ;  and  what  the 
master  did  must  be  considered  as  dune  under  the  authority  of  the 

police. 

Lord  Campbell,  C.  J.     No ;  the  policeman  was  the  master's  agent. 

Platt,  B.     And  the  sale  was  by  direction  of  the  master. 

Beasley.  The  statute  does  not  require  that  die  receipt  should  be 
directly  from  the  thief.  It  only  required  that  the  prisoner  should  re- 
ceive stolen  goods,  knowing  them  to  have  been  stolen,  and  that  is  proved 
in  this  case.  In  many  cases  it  lias  been  held  that  where  the  owner  of 
property  has  become  acquainted  with  a  plan  for  robbing  him,  his  con- 
sent to  the  plan  being  carried  out  does  not  furnish  a  defence  to  the 

robbers.* 

Lord  Campbell,  C.  J.  But  to  constitti  3  a  felonious  receiving,  the 
ieceiver  must  know  that  at  that  time  the  property  bore  tiie  cliaracter  of 
stolen  property.  Can  it  be  said  that,  at  any  distance  of  time,  goods 
w'.'ci.  had  once  been  stolen  would  continue  to  be  stolen  goods  for  the 
purpose  of  an  indictment  for  receiving,  although  in  the  meantime  they 
may  have  been  in  the  owner's  possession  for  years. 

CuESSWELL,  J.  The  answer  to  hat  in  ttis  case  seems  to  be  that  the* 
policeman  neither  restoired  the  property  nor  the  po&=.-.3ion  to  the  mas- 
ter ;  tiiat  the  goods  were  in  the  custody  of  tlie  law ;  and  that  the  mas- 
ter's preseiwe  made  no  difference  in  that  respect. 

Beasley.  Tiiat  is  the  argument  for  the  prosecution ;  and  it  is  mani- 
fest that  if  the  policeman  ha\  dissented  from  the  plan  of  sending 
Rogers  to  Dolan's  shop,  the  master  could  not  have  insisted  upon  the 
policeman  giving  up  the  property  to  him. 

Lord  Campbell,  C  J.  I  feel  strongly  that  this  conviction  is  wrong. 
I  do  not  see  how  it  can  be  supported,  unless  it  could  be  laid  dovm 
that,  if  at  any  period  in  the  history  of  a  chattel  once  btoien,  though 
afterwards  restored  to  the  possessior  *  the  owner,  it  should  be  received 
by  any  one  with  a  knowledge  that  li  had  been  stolen,  an  offense  would 
be  committed  within  the  statute.  I  think  that  that  would  not  be  an 
offense  within  the  statute,  any  more  than  it  would  make  the  receiver  an 
accessory  to  the  felony  at  common  law.  If  the  article  is  restored  to 
the  owner  of  it,  and  he,  having, it  in  his  possession,  afterwards  bails  it 
to  another  for  a  particular  purpose  of  delivering  it  to  a  third  person, 
and  that  third  person  receives  it  from  that  bailee,  I  do  not  see  bow  it 
can,   under  these  circumstances,  be    feloniously  received  from  that 


1  R.  V.  Egglnton,  2  Bob.  ft  P.  808. 


R.  V.  DOLAN. 


661 


i  of  law  the  objection 
■onger  case  than  that ; 
er  possession  of  the 
police ;  and  what  the 
the  authority'  of  the 

the  master's  agent, 
lie  master. 

che  receipt  should  be 
,e  prisoner  should  re- 
en,  and  that  is  proved 
lat  where  the  owner  of 

robbit'g  him,  his  con- 
rnish  a  defence  to  the 

slonious  receiving,  the 
r  bore  tiie  cliaracter  of 
istance  of  time,  goods 
»e  stolen  goods  for  the 
1  in  the  meantime  they 
:'8. 

}  seems  to  be  that  the* 
possession  to  the  mas- 
iw ;  and  that  the  mas- 

aution ;  and  it  is  mani- 
1  the  plan  of  sending 
have  insisted  upon  the 

lis  conviction  is  wrong, 
it  could  be  laid  dovirn 
tel  once  &toien,  though 
ir,  it  should  be  received 
tolen,  an  offense  would 
;  that  would  not  be  an 
Id  make  the  receiver  an 
le  article  is  restored  to 
iion,  afterwards  bails  it 
ig  it  to  a  third  person, 
ilee,  I  do  not  see  bow  it 
3ly  received  from  that 


bailee.  Then  what  are  the  facts  here?  (His  Lordship  stated  the  facts 
as  above.)  Turner,  the  owner,  therefore,  had,  I  think,  as  much  pos- 
session of  the  goods,  as  if  be  taken  them  into  his  own  hands,  and  with 
his  own  hands  delivered  them  to  another  person  for  a  particular  pur- 
pose, which  was  perfornied. 

He  was,  subsequent  to  tlie  theft,  the  bailor,  and  the  other  person  was 
the  bailee  of  the  goods.  Then  they  were  carried  to  the  prisoner  by  the 
authority  of  the  owner;  and  I  can  not  think  that,  under  those  circum- 
stances, there  was  a  receiving  witliin  the  statute.  As  to  tlie  case  cited, 
I  can  not  help  thinking  that  the  facts  can  not  be  quite  accurately 
stated,  and  that  there  was  something  more  in  that  case  than  appears  in 
Llie  report;  but  if  not,  I  am  bound  to  say  that  I  do  not  agree  in  that 

decision. 

Coleridge,  J.     I  have  no  recollection  of  the  case  cited ;  and  I  have 
no   right,    therefore,    to   say  that  it  is   not   accurately   reported ;  but 
assuming  it  to  be  so,  I  am  bound  to  say  that  I  think  I  made  a  great 
mistake  there.     AVhat  is  the  case?    If  for  a  moment  the  interference 
of  the  policeman  is  put  out  of  the  question,  the  facts  are,  that  the 
goods  which  had  been  stolen  were  restored  to  the  possession  of  the  real 
owner,  and  were  under  his  control,  an<l  having  been  so  restored,  they 
were  put  again  into  the  possession  of  Rogers  for  a  specific  purpose, 
which  he  fulfilled.     It  seems  then,  to  me,  that  when  the  second  timo 
they  reached  the  hands  of  Rogers,  they  had  no  longer  the  character  of 
stolen  goods.     Then,  if  that  would  be  the  case,  supposing  the  police- 
man to  be  out  of  the  question,  does  the  interference  of  the  policeman, 
according  to  the  facts  hero  stated,  make  any  difference?     I  think  not. 
It  is  the  master  who  finds  the  goods  and  sends  for  a  policeman;  and 
it  is  by  the  authority  of  the  master  that  the  policeman  takes  and  keeps 
the  goods,  and  afterwards  hands  them  back  to  Rogers,     indeed,  it 
seems  to  me  that  all  that  was  done,  was  done  by  Turner's  authority ; 
and  that  it  must  be  considered  that  the  property  was  under  the  con- 
trol of  the  real  owner  when  he  sent  Rogers  with  them  to  the  prisoner. 
In  this  state  of  facts,  the  interference  of  the  policeman  seems  to  me  of 
no  importance. 

CuEsswELL,  J.  I  do  not  dissent  f r  m  the  decision  that  the  con- 
viction is  wrong;  but  as  we  are  called  upon  in  this  court  to  give 
the  reasons  of  our  judgment,  I  must  say  that  I  can  not  concur  in 
all  the  reasons  which  I  have  heard  given  in  this  case.  If  it  had  been 
necessary  to  hold  that  a  policeman,  by  taking  the  stolen  goods  from  the 
pocket  of  the  thief,  lestores  the  possession  to  the  owner,  I  should  dis- 
sent. I  think  we  can  not  put  out  of  the  question  the  interference  of  the 
policeman,  and  that  whilst  the  goods  were  in  his  hands  they  were  in 
the  custody  of  the  law,  and  that  the  owner  could  not  have  demanded 


662 


RECEIVING   STOLEN   PROPERTY. 


them  from  the  policeman  or  maintained  trover  for  them.  But  as  the 
case  finds  that  the  policeman  gave  them  back  to  Rogers  and  then  the 
owner  desired  him  to  go  and  sell  them  to  Dolan,  I  think  that  Rogers 
was  employed  as  an  agent  of  the  .wner  in  selling  them,  and  that  conse- 
quently Dolan  did  not  feloniously  receive  stolen  goods. 

Platt    B".     I  am  of  the  same  opinion.     Tlie  case  is,  'hat  the  stolen 
goods  wire  found  by  the  owner  in  the  pocket  of  the  thief.     They  were 
restored  to  his  possession,  and  it  does  not  appear  to  me  very  materia 
whether  that  was  done  by  his  own  hands  or  by  the  Instrumentality  of 
the  policeman.     Things  being  in  that  state,  it  seems  to  have  come  into 
their  heads  that  they  might  catch  the  receiver,  and  it  was  supposed  that 
bv  putting  the  stolen  property  back  into  the  custody  of  Rogers,  they 
cmild  pllce  all  parties  statu  quo  they  were  when  the  property  was 
found  1.1  the  pocket  of  Rogers ,  but  I  agree  with  the  rest  of  the  cour 
that  the  act  of  Parliament  does  not  apply  to  a  case  of  this  kind,  foi  if 
it  did  I  see  no  reason  why  it  should  not  equally  apply  to  restorea 
goods  stolen  ten  years  ago. 

Williams,  J.  The  reason  why  I  think  the  conviction  wrong  is,  that 
the  receipt,  to  come  within  the  statute,  must  be  a  receipt  without  the 
authority  of  the  owner.  Looking  at  the  mere  words  of  the  indictment 
every  averment  is  proved  by  this  evidence;  but  then  the  question  is 
whether  such  a  receipt  was  proved  as  is  within  the  statute,  viz. :  a  re- 
ceipt  without  the  owner's  authority,  and  here  Rogers  was  employed  by 
the  owner  to  sell  to  Dolan.  Conviction  quashed. 


RECEIVING  STOLEN  PROPERTY  -  PROPERTY  RECEIVED  MUST  BE 

STOLEN. 

United  States  v.  De  Bare. 

[6  Blss.  368.] 
In  the  United  States  District  Court,  Eastern  District  of  Wisconsin,  1875. 

1.  one  can  net  be  Convicted  o.  receiving  stolon  property  from  .  thief  on  proof  that 
he  received  it  from  another  person. 

property,  by  passing  into  the  hands  of  the  owner  or  his  agents,  the  charge 

The  accused  was  indicted  for  receiving  postage  Bt^mps,  knowing  them 
to  have  been  stolen.     The  stamps  were  stolen  by  -^/^'-^'r^ 
put  them  into  the  express  office  directed  to  the  defendant.    Crrwford 


UNITED   STATES   V.  DE   BARE. 


663 


lera.  But  as  the 
jrs,  and  then  the 
think  that  Rogers 
n,  and  thatconse- 

3. 

is,  ^hat  the  stolen 
thief.  They  were 
I  me  very  material 
Instrumentality  of 
to  have  come  into 
was  supposed  that 
y  of  Rogers,  they 
the  property  was 
3  rest  of  the  court 
3f  this  kind,  for  if 
apply  to  restored 

tion  wrong  is,  that 
receipt  without  the 
i  of  the  indictment 
len  the  question  is 
statute,  viz. :  a  re- 
3  was  employed  by 

inviction  quashed. 


CEIVED    MUST   BE 


of  Wisconsin,  1875. 

rom  a  thief  on  proof  that 

I  shown  that  before  the  de- 
loat  its  character  as  stolen 
,8,  the  charge  falls. 

tamps,  knowing  them 
T  one  Crawford,  who 
lefendant.    Crrwford 


was  arrested  at  Quincy,  Illinois,  and  on  a  written  order  from  him  the 
stamps  were  delivered  to  the  Quincy  postmaster.  Subsequently,  under 
orders  from  the  post-office  department,  the  postmaster  permitted  the 
stami)8  to  go  forward  to  defendant.  The  indictment  charged  that  iue 
defendant  received  the  stamps  from  Crawford. 

Dyeu,  J.     Careful  considcrc.lon  of  the  question  has  confirmed  me  in 
the  opinion  that  the  instruction  given  to  the  jury  was  right.    Undoubtedly 
it  is  not,  in  all  cases,  essential  that  an  indictment  against  a  receiver  should 
allege  by  whom  the  property  was  stolen.     A  party  may  be  indicted  for 
receiving  goods  stolen  by  persons  unknown.     In  a  case  where  an  indict- 
ment was  objected  to  because  it  did  not  ascertain  the  principal  thief,  and 
did  not,  therefore,  state  to  whom  in  particular  the  prisoner  was  accessory, 
it  was  held  good;  but  "  where  the  principal,  however,  is  known,  it 
seems  proper  to  state  it  according  to  the  truth."  '    It  is  laid  down  in 
tlie  books  as  a  settled  principle,  that,  if  an  indictment  allege  that  the 
goods  were  received  from  the  thief,  it  must  be  proved  that  they  were 
received  from  the  thief,  and  if  it  appear  that  the  thief  gave  them  to  a 
person  from  whom  the  accused  received  them,  it  is  a  fatal  variance.     In 
support  of  this  principle,  Arunders  Case,''  cited  by  defendant's  coun- 
sel on  this  motion,  is  tlie  leading  authority.     The  prisoner  was  indicted 
for  receiving  stolen  goods,  and  the  indictment  alleged  that  he  received 
them  from  the  person  who  stole  them,  and  that  this  person  was  a  cer- 
tain ill-disposed  person  to  the  jurors  unknown.     It  was  proved  that  the 
person  who  stole  the  property  handed  it  to  J.  S.,  and  that  J.  S.  deUv- 
ered  it  to  the  prisoner;  and  Parke,  J.,  held  that  on  this  indictment  it 
wns  necessary  to  prove  that  the  prisoner  received  the  property  from  the 
person  .vho  actually  stole  it,  and  he  would  not  allow  it  to  go  to  the  jury 
oay  whether  or  not  the  person  from  whom  he  was  proved  to  have  re- 
ceived  it  was  an  innocent  asent  of  the  thief. 

Now,  in  the  case  at  bar,  the  indictment  charges  that  the  defendant 
received  the  postage  stamps  from  Crawford.  To  convict,  the  proof 
should  conform  to  the  charge.  If  the  proof  is  that  the  defendant  re- 
ceived the  stamps  from  the  Quincy  postmaster  and  not  from  Crawford, 
the  variance  is  fatal.  Crawford  wag  the  principal  felon.  After  arrest, 
as  we  have  seen,  the  stamps  passed  =T.^o  the  possession  of  the  Quincy 
postmaster,  who  took  them  from  the  express  office,  and  subsequently, 
by  direction  of  the  department,  forwarded  them  to  the  consignee, 
There  was  no  relation  of  principal  and  agent  between  Crawford  and  the 
postmaster.  The  former  had  originally  authorized  the  express  com- 
pany to  carry  and  deliver  the  stamps  to  the  defendant.  By  his  order 
in  writing,  given  to  the  postmaster,  he  withdrew  that  authority,  ceased 


1  2  East's  Cr.  L.  781. 


1  1  Lew.  lis. 


6(J4  KECEIVINO   STOLEN   PROPERTY. 

to  be  a  party  to  the  contract  of  transportation,  and  surrendered  the 
Ups  to  the  postmaster.  The  subsequent  re-deposit  of  t^e  st«  J  •» 
L  express  office  was  the  act  of  the  postmaster  under  direction  of  the 
departmen  ,  and  I  think  the  case  is  directly  within  the  principle  o 
aZZs  6ase,  before  cited.  I  am  convinced,  therefore,  that  it  would 
tt  have  been  error  to  have  instructed  the  jury  that  the  variance  be- 
Tween  the  allegation  in  the  indictment  and  the  proof  is  fatal  to  a  con- 

""'irtLe  be  any  doubt  upon  the  point  thus  far  discussed,  there  can  be 
none,  I  think,  concerning  the  second  ground  ^^^^^^^^^2: 
motion     The  ownership  of  these  stamps  was  in  the  United  btates. 
?hXincy  postmaster'was  the  agent  of  the  owner.     When  Crawford 
Bumndercd  them  to  this  agent  they  were  reclaimed  property  that  had 
berstolen,  but  their  character  as  stolen  property  ceased  in  the  hands 
of  the  postmaster,  so  far  as  the  subsequent  receiver  was  concerned.    The 
moral  turpitude  of  a  receiver  under  «-^  "^^^  ^"^,««  "",^,^,;  J 
great  as  in  case  the  property  comes  directly  from  the  l-ds  of  the  th     , 
because  the  criminal  intent  on  his  part  exists  equally  m  both  cases 
But  to  create  the  offense  which  the  law  punishes,  the  proper  y^^when 
received,  must,  in  fact,  and  in  a  legal  sense,  be  stolen  property.     If 
Z.e  stamps  were  received  by  the  defendant,  they  did  not,  when  re- 
feLd,  upon  the  proof  made,  bear  this  character.    They  had  been  cap- 
Ted  from  the  th!ef  by  the  owner,  and  the  act  of  forwarding  them  to 
the  alleged  receiver  was  the  act  of  the  owner. 

I  regard  this  point  conclusively  settled  upon  authority.     In  State  v 
jJes  ^  it  was  held  that  an  indictment  for  receiving  stolen  goods  must  aver 
faom  w^om  the  goods  were  received,  so  as  to  show  that    he  person 
fhaTged  received  fhem  from  the  principal  felon.     If  rece.ved  from  any 
othef  person  the  statute  does  not  apply.     In  Queen  v.  Schrmdt,^  the 
C^e  was  this:  Four  thieves  stole  goods  from  the  custody  of  a  railroad 
comprny  and  afterwards  sent  them  in  a  parcel  by  the  same  company  s 
Une^I  etsed  to  the  prisoner.     During  the  transit  the  theft  was  dis- 
covered and  on  the  arrival  of  the  parcel  at  the  station  for  its  de  ivery 
a  poTceman  in  the  employ  of  the  company  opened  it  and  then  feturned 
it  to  he  porter,  whose  duty  it  was  to  deliver  it  with  instructions  to  keep 
i  tntn  furtte    orders.     On  the  following  day  the  policeman  du.cted 
tL  porter  to  take  the  parcel  to  its  address,  where  it  was  received  by 
£!  nr  soner    who  was  afterwards  convicted  of  receiving  the  goods 
InowTnrthem  to  be  stolen,  upon  an  indictment  which  laid  the  property 
fntrioods  in  the  railway  company.     Held,  that  the  goods  had  got 
back  into  the  possession  of  the  owner  so  as  to  be  no  longer  stolen 
goods,  and  that  the  conviction  was  wronp 


1  13  Irad.  338. 


2  10  Cox,  172. 


ALDRICH   V.  PEOPLE. 


665 


surrendered  the 
of  the  stamps  in 
direction  of  the 
ihe  principle  of 
re,  that  it  would 
;he  variance  be- 
s  fatal  to  a  con- 

led,  there  can  be 
i  support  of  this 
I  United  States. 
When  Crawford 
roperty  that  had 
ised  in  the  hands 
concerned.    The 
iuces  may  be  as 
ands  of  the  thief, 
ly  in  both  cases, 
e  property,  when 
en  property.    If 
lid  not,  when  re- 
ey  had  been  cap- 
rwarding  them  to 

rity.    In  State  v. 
a  goods  must  aver 
7  that  the  person 
received  from  any 
:  V.  Schmidt,^  the 
tody  of  a  railroad 
e  same  company's 
the  theft  was  dis- 
)n  for  its  delivery, 
and  then  f  eturned 
istructions  to  keep 
policeman  directed 
it  was  received  by 
iceiving  the  goods 
h  laid  the  property 
the  goods  had  got 
3  no  longer  stolen 


The  case  of  Regina  v.  Lyom,^  was  cited  by  counsel  for  the  prosecu- 
tion  in  support  of  a  conviction  in  this  case.     The  report  of  the  case  « 
meager,  but  it  appears  that  a  brass  weight  had  been  stolen  by  a  lad  in 
the  employ  of  the  prosecutors ;  and  it  having  been  taken  from  him  by 
another  servant  in  the  presence  of  one  of  the  prosecutors,  it  was  re- 
stored to  the  lad  again,  in  order  that  he  might  take  it  for  sale  to  the 
house  of  the  prisoner,  where  he  had  been  in  the  habit  of  selling  similar 
articles  before.     The  lad  took  it  and  sold  it  for  6  V^d.     The  point  was 
made  that  as  the  property  had  been  restored  to  the  possession  of  the 
owner,  it  could  not  afterwards  be  considered  as  stolen  property.     Col- 
ericVe  J.,  said  that  for  the  purposes  of  the  day  he  should  consider  the 
evicfence  sufficient  to  sustain  the  indictment,  but  would  take  a  note  of 
the  objection.     The  prisoner  was  convicted  and  sentenced  to  transpor- 
tation, and  no  change  was  subsequently  made  in  the  judgment  of  the 

''Bui  this  case  of  Eegiaa  v.  Lyons  is  expressly  overruled  in  the  case 
of  Regina  v.  Dolan,^  Lord  Campbell,  C.  J.,  delivering  a  judgment  in 
which  Justices  Coleridge,  Cresswell,  Piatt  and  Williams  concur 
Lord  Campbell  says:  "With  regard  to  Queen  v.  Lyons,  I  think  that 
the  facts  can  not  be  accurately  stated.  But  if  they  be,  I  must  say  that 
I  can  not  concur  with  that  decision,  and  I  think  that  it  ought  not  to  be 
acted  upon  "  Of  his  previous  decision  in  that  case,  Coleridge,  J., 
savs-  "  Having  no  recollection  of  the  case  of  Queen  v.  Lyons,  I  can  not 
take'upon  myself  to  say  it  is  wrongly  reported.  But  if  it  is  not,  I  am 
bound  to  say  that  I  think  I  mad'e  a  great  mistake.' 
Motion  for  a  new  trial  granted. 


RECEIVING     STOLEN      GOODS  -  CONCEALMENT  -  JWTENT  -  PROOF 

NECESSARY. 

Aldrich  V.  People. 

[101  111.  18.] 
In  the  Supreme  Court  of  Illinois,  1881. 

or  concealed,  wa.  m  laet  stolen ;  .econdly.  that  the  *««««••!  «^*'J«?  .'„"*  Tel;  o^t^. 
ing  them  to  hate  been  stolen,  guilty  knowledge  being  an  eB.ential  ingredient 


)  il  Eng.  Com.  L.  122. 


i  29  Eng.  L.  ft  Eq.  633. 


666 


RECEIVING   STOLEN   PROPERTY. 


crime ;  and  lastly,  that  the  acouged.  for  his  own  gain,  or  to  prevent  the  owner  from  re- 
covering tno  sarao,  bought,  received  or  aided  In  concealing  the  stolen  goods. 
2  Where  a  Defendant,  on  behalf  of  the  owner,  receives  stolen  goods  from  the  thief,  for 
the  honest  purpose  of  restoring  Ihcm  to  the  owner,  without  fee  or  reward,  or  the  ex- 
nectation  of  any  necuniary  compensation,  and  in  fact,  immediately  after  obtair  mg  Ihcir 
possession  restores  all  ho  receives  to  the  owner,  and  is  not  acting  In  concert  "r  connec 
tlon  with  the  party  stealing,  to  make  a  profit  ou-  of  the  transaction,  be  will  not  be 
*       guilty,  under  the  statute. 

WuiT  OF  Ekrou  to  the  Criminal  Court  of  Cook  County ;  the  Hon. 
Elliott  Anthony,  Judge,  presiding. 

John  Lijle  King,  for  the  plaintiff  in  error. 
Luther  Laflin  Mills,  State's  Attorney,  for  the  People. 
Mr.  Chief  Justice  Ckaio  delivered  the  opinion  of  the  court. 
This  was  an  indictment  in  the  Criminal  Court  of  Cook  County  against 
Charles  Aldrich  and  Emanuel  Isaacs,  for  larceny.     In  two  of  the  counts 
it  was  cliarged  in  tlie  indictment  that  for  their  own  gain,  and  to  prevent 
the  owners  from  again  possessing  their  property,  the  defendants  did 
buy,  receive  and  aid  in  concealing  the  goods  of  certain  named  persons 
lately  before  feloniously  stolen,  the  defendants  well  knowing  they  were 
stolen.    The  jury,  before  whom  the  cause  was  tried,  returned  a  verdict 
of  guilty  of  receiving  stolen  property,  and  found  tlie  property  to  be  of 
the  value  of  $6,000.     The  court  overruled  a  motion  for  a  new  trial,  and 
rendered  judgment  on  the  verdict,  and  the  defendants  sued  out  tliis 
writ  '.f  error.     In  order  to  obtain  a  clear  understanding  of  the  questions 
presented  by  the  record,  a  brief  statament  of  the  facts  seems  necessary. 
On  Friday  night,  November  26,  1880,  four  persons,  Mike  Bauer, 
Nick  Bauer,  Herman  Schroeder,  and  Matthew  Ash,  stole  a  trunk  from 
the  CUfton  House,  in  Cliicago,  belonging  to  J.  H.  Morrow,  which  con- 
tained jewelry  belonging  to  Eaton  &  Fans,  nnd  Ernest  Thoma,  of  New 
York,  of  the  value  of  from  $7,000  to  $8,000.     Moreow  had  the  goods 
for  sale  as  agent  of  the  owners.     On  the  night  the  trunk  was  stolen,  one 
of  the  thieves,  Mike  Bauer,  told  the  defendant  Isaacs,  who  was  a  pawn- 
broker in  Chicago,  tliat  he  had  a  quantity  of  jewelry  for  sale,  and 
offered  to  sell  to  the  defendant,  but  he  declined  to  buy.     Bauer  desired 
the  defendant  to  see  the  goods,  which  he  promised  to  do  at  a  future 
day.     On  the  following  Sunday,  Isaacs,  in  company  with  Bauer,  went 
to  a  room  where  the  latter  had  the  goods  concealed,  and  looked  over 
them,  and  was  offered  the  property  for  $600  or  $700.     Isaacs  declined 
to  buy,  but  told  him  not  to  be  in  a  hurry,  he  would  talk  to  him  the  next 
day.     On  Saturday  night,  before  this  occurred,  defendant,  Aldrich,  a 
policeman,  and  one  Levi,  were  at  Isaacs'  place,  and  the  robbery  having 
been  mentioned,  Isaacs  remarked  that  he  could  have  had  the  goods  for 
a  small  sum  of  money.     After  obtaining  tliis  information  from  Isaacs, 
Aldrich  and  Levi  conceive''  the  scheme  to  recover  the  property  and  re- 
turn It  to  the  owners  through  Isaacs.     On  Monday,  a  meeting  was  had 


ALDIIICH   V.  I'EOPLK. 


667 


le  owner  from  re- 
n  goods. 

from  the  thief,  for 
reward,  or  the  cx- 
iter  obtair  ing  Ihcir 
concert  or  connec- 
on,  be  will  not  be 


inty;  the  Hon. 


ourt. 

County  against 
vo  of  the  counts 
anr".  to  prevent 
defendants  did 
,  named  persons 
)wing  they  were 
turned  a  verdict 
roperty  to  be  of 
a  new  trial,  and 
s  sued  out  tliis 
of  the  questions 
ieems  necessary. 
IS,  Mike  Bauer, 
le  a  trunk  from 
TOW,  which  con- 
;  Thoma,  of  New 
w  had  the  goods 
k  was  stolen,  one 
who  was  a  pawn- 
Iry  for  sale,  and 
.     Bauer  desired 
I  do  at  a  future 
irith  Bauer,  went 
and  looked  over 
Isaacs  declined 
k  to  him  the  next 
ndant,  Aldrich,  a 
36  robbery  having 
had  the  goods  for 
ition  from  Isaacs, 
I  property  and  re- 
,  meeting  was  had 


between  Aldrich  and  Morrow,  at  the  Union  National  Bank,  in  the  pres- 
ence of  Finkcrton,  wliere  Aldrich  was  employed  as  special  policeman, 
which  resulted  in  an  arrangement  that  Aldrich  should  obtain  the  goods 
belon.nng  to  Thoma  for  $700,  or  less,  if  he  could,  without  disclosing 
the  name  of  the  person  with  whom  he  should  deal,  and  without  reward 
to  himself,  save  only  the  reputation  which  he  anticipated  would  follow 
the  transaction,  as  a  detective  of  stolon  property. 

On  the  following  Wednesday,  Morrow  paid  over  to  Aldrich  $700,  on 
the  guaranty  of  the  vice-president  of  the  Union  National  Bank,  that  the 
goods  or  the  money  should  be  returned.  On  the  same  day,  Aldrich 
paid  over  to  Levi  $r,00  of  the  money,  to  be  paid  to  the  party  who  had 
the  goods,  through  Isaacs,  who  alone  knew  such  party. 

Out  of  the  money  thus  received  by  Levi,  he  paid  over  $450  to  Isaacs. 
The  S450  Isaacs  paid  to  Bauer,  who  had  the  goods,  as  he  testified ;  but 
Bauer  says  he  only  received  of  Isaacs  $300.  However  that  may  be, 
upon  the  payment  of  the  money  to  Bauer,  on  Wednesday  evemng,  he 
took  the  goods,  and  in  company  with  Isaacs,  carried  them  to  a  cigar 
store  and  barber  shop  on  State  Street.  Then  Isaacs  notified  Levi  where 
the  goods  could  be  found,  and  he  notified  Aldrich,  who  went  to  tne 
place  designated,  found  the  goods,  and  within  ten  minutes  carried  them 
in  unopened  packages,  precisely  as  he  had  found  them,  to  the  CUfton 
House,  and  delivered  them  to  Morrow. 

Bauer  represented  to  Isaacs  that  the  packages  returned  contained  all 
the  goods  which  had  been  stolen;  those  belonging  to  Eaton  &  Faas 
and  also  those  belonging  to  Thoma,  and  Isaacs  and  Aldrich  both  under- 
stood this  to  be  the  case ;  but  upon  a  subsequent  examination,  it  is 
claimed  there  was  a  shortage  of  $1,300. 

These  are,  in  brief,  the  substantial  facts,  as  we  understand  the  tes- 
timony. 

In  the  argument  a  number  of  questions  have  been  presented  in  re- 
gard to  the  admission  and  exclusion  of  evidence,  but  we  have  concluded 
to  base  our  decisions  on  the  merits  of  the  case,  and  hence  it  will  not  be 
necessary  to  notice  these  questions. 

The  indictment  in  this  case  was  found,  and  the  conviction  had,  under 
section  239, ^  which  declares:  "  Every  person,  who,  for  his  own  gain, 
or  to  prevent  the  owner  from  again  possessing  his  property,  shall  buy, 
receive  or  aid  in  concealing  stolen  goods,  or  anything  the  stealing  of 
which  is  declared  to  be  larceny,  or  property  obtained  by  robbery  or 
burglary,  knowing  the  same  to  be  so  obtained,  shall  be  imprisoneu  rn 
the  penitentiary,"  etc.  On  an  indictment  under  this  section  of  the 
statute  for  receiving  goods,  the  first  thing  to  be  proven  is,  that  the  prop- 

1  oh.  38  of  the  Cr.  Code,  Rev.  Stats.  1874,  p.  888. 


RECEIVINO   STOLEN    PUOPERTY. 


In  this  case,  however, 
.riv  ftUeeed  to  have  been  received  was  stolen.  ^^^^^^  tlmt  the 

ti:T^  controversy  over  ^-^^^^^^^^^^^^^ 
eoods  in  question  were  stolen,     l'^^*^^;''  ^,„i  testified  to  tlie  lar- 

?he  property  were  -7;;-the"  a"^^^^^^^  P^^"  ''  '"°"". 

ceny  ol  the  goods.     After  tlie  larceny  .  ^^^  ^,^.^^  ^.^^^^    ^ 

Tcessary  to  establish  the  ^^fj^^f ^^^^^^^^  Guilty  knowledge 

^''^rprrthrd:;:^^^^^^^^^^    -  -  — ^^°"  -'  "^  " 

^^^Se  intent,  as  in  -en.  .  -  -- ^^^^  ;^^^^^ 

Thus,  where  A.  authorizes  or  l'««°^^^J    ^^^  ,^,.,,t  knowing  it  to  be 

Tole;  and  B.  receives  the  P-pe^  J  '^^^  ^,  ,  .^lony  in  receiving  the 
8tolen,withafeloniou3  mtent  he^g«.lty  ^^^  ^^^^^^^  ,^         , 

nronerty,   notwithstanding  the  hccnse.      v  defendant,  lor 

Tohe/'essential  fact  to  ^^^^^^^ZTirl^l^r.  possessing  his  prop- 
Ls  own  gain,  or  to  prevent  the  c^wnerjr«^ 

erty,  bought,  received  or  -^^^^  ^^j/;;;,  trfegavd  to  the  fact  that  the 
no  doubt,  from  the  evidence  mth.scae  g^  ^^^^^^^^^^  .^      ^, 

defendants  knew  the  goods  ^«  «  ^^^^^^^^  ^hat  the  stolen  goods,  m 
ceded  fact.     It  is  also  an  --^^^^l^\.  Morrow,  the  agent  of  the 

::d>'X  ul^^^^^^^^^^  of  -en-t  A^^^^^^^^^  ^^^„  ,^  ,,..     whether 
The  question  in  the  case  is  then  na^t o^v  ^^  ^^  ^^^^^^^^  ,^^ 

defendants  received  the  g^^./;',,^:  y"  TlL,  in  our  judgment,  is 
owner  from  again  possessing  Ins  ^^  ^^^  ^^^^  ^,,,  uinge.  In 
the  turning  point  upon  -^'^^'""^^^.^.^.^er  the  case  first  as  to  the 
the  disposition  of  the  question  we  wiU  ^^^^^^^  ^  ^^^  ^.^ts 

defendant  Aldrich,  and  b--^;-^^^^^^^^^^^  '.^flerent. 
relatin<r  to  each  defendant  are  «o«^«3  ^^^ure  the  return  of  the 

"  I  T;  not  claimed  that  ^^^^^^^'^tl^  L  expected  to  make  any 
goods  for  any  fee  or  reward  ^^^^^^'j^^^^^^.^ary,  it  was  proven  by  tt^e 
Lney  out  of  the  transaction  «"  ^^f  ,  Jtion  of  recovering  the 
Tosecution  that  all  he  wanted  7^f;^f/,Pp,ior  to  the  time  the  goods 
roods.  Upon  this  point  ^'^^l'^'^^t,eo^iou..^.e  a  cent  out  of  the 
Tre  returned,  Aldrich  said  he  d^n  t  expect  ^^^  eompensation, 

Tansaction;  said  this  ^^ ^^^ZUJlor-^^^^^^'^'n;  he  .aid  all  he 
or  made  offer,  bargain  or  P^?P;«;*"'"  ;^.  ^.u^w  and  getting  the  goods. 
Inted  was  the  glory  of  beating  th^^^^^^^^^  ^^^         ,,^     He  neve 

^^%^%:r'tistunrrai:a  in  ..  possession. .00  of  the 
asked  a  dollar,    ^i- 


iWhart.,  vol.  S.iec.  1889. 


sWhart.,  tec.  1819. 


m: 


A1.DRICII   V.  PEOPLE. 


(;rt9 


lis  case,  bowcver, 
onceded  tl»at  the 
I  thieves  who  stole 
Lifted  tr  the  lar- 
iroven  it  becomes 
the  crime  received 
Guilty  knowledge 
atitution  o«  the  of- 

nt  of  the  offense. 
,-c  property  lost  or 
t  knowing  it  to  be 
)ny  in  recfciving  the 
ar  statute  there  is 
,  the  defendant,  for 
possessing  his  prop- 
,a  goods.    There  is 
to  the  fact  that  the 
tnowledge  is  a  con- 
the  stolen  goods,  in 
ow,  the  agent  of  the 
lant  Isaacs,  and  sec- 

vn  to  this:  Whether 
un  or  to  prevent  the 
3,  in  our  judgment,  is 
case  must  hinge.  In 
the  case  first  as  to  the 
.nt  Isaacs,  as  the  facts 

Icure  the  return  of  the 

expected  to  make  any 
•,  it  was  proven  by  the 
,tion  of  recovering  the 
or  to  the  time  the  goods 

make  a  cent  out  of  the 
jked  for  compensation, 
3nsation;  he  said  all  he 

and  getting  the  goods. 

the  goods.  He  never 
1  possession  $100  of  the 

:t..»ec.l8W. 


money  which  Morrow  gave  to  him,  but  this  was  not  kept  for  his  own 
benefit,  but  for  the  benefit  of  Morrow.  Upon  this  point  the  same  wit- 
ness testified:  "  On  Wednesday  nisjlit  ho  said  he  had  got  all  the  goods, 
instciid  of  a  part,  and  that  he  had  saved  me  $100.-  How  could  he 
gave  for  Morrow  $100  if  the  money  was  retained  for  his  services?  This 
could  not  be  the  case,  as  he  had  paid  over  to  Levi  all  he  received  of 
Morrow  except  this  $100. 

It  is,  apparent,  from  the  evidence,  that  no  agreement  was  ever  made, 
imder  which  Aldrich  was  paid  anyting  for  his  services,—  that  he  ex- 
pected nothing  and  received  nothing  for  the  ser^'ices  he  rendered  in 
securing  the  return  of  the  goods.  How  can  it  then  be  said  that  he  re- 
ceived "the  goods  for  his  own  gain?  Nor  did  he  receive  the  goods  to 
prevent  the  owner  from  again  possessing  his  property,  but,  on  the  other 
hand,  he  received  them  for  the  very  purpose  of  restoring  them  to  the 
owner,  which  he  did  within  ten  minutes  from  the  time  they  came  into 
his  i>ossession. 

We  will  now  consider  the  testimony  as  to  the  defendant  Isaacs.     He 
was  a  pawnbroker,  and  on  the  night  the  goods  were  stolen  he  was  ap- 
proached by  one  of  the  thieves,  and  requested  to  buy  the  goods.     Thia 
he  refused  to  do,  but,  having  obtained  information  as  to  the  custody  of 
the  goods,  he  undertook,  afterwards,  to  assist  Aldrich  in  the  consumma- 
tion of  his  scheme,  to  obtain  the  goods  and  restore  tliem  to  the  owner. 
There  was  no  contract  or  agreement  under  which  he  was  to  receive  any 
pay,  for  what  he  might  do  in  the  premises.     All  that  he  did  was  done 
as  a  favor  to  help  Aldrich,  who  wanted  the  credit  of  getting  the  goods 
returned.     Levi,  who  held  $600  to  be  paid  for  the  return  of  the  goods, 
handed  Isaacs  $450,  and  retained  the  balance  until  it  could  be  ascer- 
tained that  all  the  goods  were  returned.     This  sum  Isaacs  testified  he 
paid  over  to  Bauer,  but  Bauer  swears  that  Isaacs  only  paid  him  $300 
promising  to  pay  the  balance  the  next  day.     Tnis  is  the  only  evidence 
contained  in  the  record  tending  to  show  money  in  the  hands  of  Isaacs 
as  compensation  for  what  he  did  in  the  transaction.     We  do  not  regard 
the  evielence  suflScient.     Conceding  that  the  credibility  of  the  two  men 
is  equal,  which  is  quite  as  favorable  a  view  on  the  side  of  the  prosecu- 
tion as  they  could  ask,  it  would  leave  the  matter  standing  one  oath 
against  another,  which,  under  the  circumstances  of  the  case,  could  not 
be  regarded  as  establishing  the  fact,  beyond  a  reasonable  doubt. 

Again,  if  Isaacs  had  been  endeavoring  to  make  money  out  of  the 
transaction,  it  is  strange  he  did  not  avail  himself  of  the  opportunity 
to  buy  all  the  goods  for  the  $600  for  himself,  and  say  nothing  to  the 
detectives  in  regard  to  the  matter. 

Ti>is  would  have  been  the  course  he  doubtless  would  have  adopted, 
had  ho  undertaken  to  get  the  goods  for  his  own  gain.     The  fact  that  he 


.  r*'t>jllSffrfi:s>'i  .'M*?'  *- 


g70  RECEIVINO   STOLEN   PROPERTY. 

did  not  take  this  course  is  a  circumstance  tending  to  corroborate  M^^ 
evidence  that  all  ho  did  was  with..,.t  pay  or  ''^"•«^"^- /^  *  \'-°' ^"^'^ 
received  no  compcnHation,  and  had  no  arrangement  under  winch  he  wa 
to  be  paid  for  what  he  might  do,  wo  perceive  no  ground  "P0«  ^;;;«^  U 
can  bo  determined  that  he  received  the  goods  for  his  own  gam,  o  hat 
he  received  them  to  prevent  the  owner  from  again  possessn.g  Ins  nop- 
ertv   within  the  meaning  of  tlie  statute. 

It  m^,  however,  bo  said  that  as  the  goods  passed  through  defendant's 
hamC^W  Bhould  bo  held  liable  for  the  shortage  of  $1  300,  and  m  tins 
way  they  received  the  goods  for  their  own  gain.     If  they  retained  the 
lods  hat  were  missing  there  might  bo  force  in  the  PO«i"0".j>"^  f-™ 
fho    vidence  that  was  impossible.     Isaacs  only  saw  the  in-operty  on  two 
occasions,  first  on  Sunday,  when  ho  looked  it  over  ,n  the  presence  of 
Baue     who  .V-'^  not  pretend  that  Isaacs  offered  to  take  any  part  of  the 
go"d      again  on  Wednesday  evening,  when  the  goods  wex.  earned  ^^ 
Bauer  from  Fourth  Avenue,  in  packages,  to  the  e.gar  store.     While 
Isalcs  was  in  company  with  Bauer,  at  the  time,  it  does  not  appear  that 
he m  aly  manner  Landled  the  goods.     As  to  Aldrieh  his  only  posses- 
8ion  of  the  property  was  during  the  ten  minutes  which  it  took  h.m  to 
cairy  he  goocfs  from  the  cigar  store  to  the  hotel,  when  the  property 
Z7in  pacL..es,  and  unopened.     We  can  see  no  ground  upon  which  it 
Ti  7rom  the  ev  dence,  be  claimed  that  either  of  the  defendants  can  be 
he  d  iable  for  the  shortage  in  the  goods.     The  more  reasonable  view 
i,  that  the  missing  articles  were  taken  by  the  thieves  and  appropriated 
to  their  own  use  while  they  had  the  goods  in  possession.     It  is,  however 
urged  that  the  fact  that  the  property  could  have  been  returned  soon 
2r  the  larceny  for  $500,  and  the  fact  that  Aldrieh,  in  i-  ^-t  ^^- 
view  with  Morrow,  in  substance  said  it  would  require  $1,400,  to  obta m 
the  property,  the  long  pendency  of  the  negotiations  as  to  the  amount  to 
be  paTand  the  f act  tiat  $200  more  was  paid  to  Aldrieh  than  was  de- 
manded bv  the  thieves,  are  facts  which  prove  motive  of  gam.     As  we 
understand  the  evidence,  the  defendants  could  not  at  any  time  have  ob- 
tained possession  of  the  propertyso  itcould  be  ^<^t«'-"«^' 7^^,^"* P^"^ 
the  thieves  the  amount  of  money  demanded  by  them.     The  defendants 
can  not,  therefore,  be  blamed  for  the  delay,  as  they  acted  ^  soon  as 
Morrow  furnished  the  money  to  be  paid  to  the  thieves.     It  ib  true 
Aldrieh,  in  his  first  interview  with  Morrow,  expressed  the  opmion  that 
$1  400  would  be  required  to  obtain  the  property,  and  this  may  be  le- 
gaided  as  a  circumstance  against  him;  but  his  subsequent  conduct 
agreeing  to  obtain  the  property  for  one-half  that  sum,  or  as  much  les 
afhe  could,  clearly  repels  the  inference  that  he  --/-^^g;?^;^ 
any  gain  out  of  the  transaction.     It  has  been  suggested  that  Levi  was  a 
myth -that  no  such  person  ever  lived.     The  fact  that  he  was  never 


^  -^ 


LEAL    V.  STATE. 


(571 


orroborate  his 
;f  then,  Isaacs 

•  which  he  was 
upon  which  it 
a  gain,  or  that 
jsiufj  liis  "i-op- 

gh  defendant's 
$00,  and  in  this 
iy  retained  the 
iiion,  but  from 
roperty  on  two 
lie  presence  of 
any  part  of  tlie 
fere  carried  by 

•  store.  While 
not  appear  that 
lis  only  posses- 
1  it  took  him  to 
jn  the  property 
[I  upon  which  it 
fendants  can  be 
reasonable  view 
nd  appropriated 

It  is,  however, 
1  returned  soon 
n  his  first  inter- 
>1,400,  to  obtain 
to  the  amount  to 
ich  than  was  de- 
of  gain.  As  we 
iay  time  have  ob- 
1,  without  paying 

The  defendants 
acted  as  soon  as 
jves.  It  is  true, 
the  opinion,  that 

this  may  be  re- 
sequent  conduct, 
1,  or  as  much  less 
I  seeking  to  make 
d  that  Levi  was  a 
that  he  was  never 


seen  or  hoard  of  after  the  nigljt  the  goods  were  returned  looks  somewhat 
suispicious,  but  we  must  be  controlled  liy  the  evidence  in  the  record, 
and  unless  Isaacs,  Aldrich,  and  also  the  father  of  Aldrich,  are  guilty  of 
willful  perfury,  then  Levi  was  no  myth,  but  was  in  Chicago  at  the  time 
of  this  occurrence,  and  participated  therein,  as  testified  by  the  de- 
fendant. 

We  have  given  the  evidence  in  the  record  a  careful  consideration,  and 
the  only  conclusion  we  have  been  able  to  reach  is  that  it  has  not  been 
established  that  the  defendants  were  receivers  of  the  goods  for  their 
own  gain,  or  to  prevent  the  owners  from  again  possessing  their  prop- 
erty. On  the  other  hand,  the  only  logical  conclusion  that  can 
reached  from  the  evidence  is  that  defendant  undertook  on  behalf  of 
the  owners,  to  obtain  a  return  of  the  goods  without  compensation 
or  reward,  and  that  all  the  goods  that  came  into  tiieir  possession 
were  in  good  faith  returned  to  the  owners.  If  it  had  been  proven 
in  this  case,  that  the  defendants  hod  entered  into  negotiations  with 
Morrow  to  secure  a  return  of  the  stolen  goods  in  pursuance  of  a  prior 
arrangement  or  understanding  with  the  persons  who  had  stolen  the 
property  with  the  intent  or  purpose  of  making  a  profit  out  of  the  trans- 
action, we  would  not  hesitate  to  hold  that  they  were  guilty  under  the 
statute. 

A  party  can  not  shield  himself  behind  a  supposed  agency,  growing 
out  of  an  agreement  made  with  the  owner  of  stolen  goods  for  their  re- 
turn, where  it  appears  he  is  acting  in  conjunction  with  the  thieves  to 
make  a  gain  or  profit  out  of  the  transaction.  But  where  the  defendants 
are  not  actuated  by  the  motive  of  gain,  as  they  were  not  in  this  case, 
and  do  not  aid  in  secreting  the  property,  we  do  not  understand  that  a 
conviction  can  be  had. 

The  judgment  will  be  reversed  and  the  cause  remanded. 

Judgment  reversed. 


BBCEIVING  EMBEZZLED  PROPERTY. 

Leal  v.  State. 

[12  Tex.  (App.)  279,] 
In  the  Court  of  Appeals  of  Texas,  1882. 
Keoelvlns  Embezzled  Property  is  not  a  violation  of  the  penal  laws  of  this  State. 

Appeal  from  the  District  Court  of  Bexar.     Tried  before  the  Hon.  G. 

H.  NOONAN. 


(572  RECEIVING   STOLEN   I'ROPEKTY. 

The  case  is  sufficiently  stated  i"  tbe  <>pi"^°;  ^  ,^^,  „„  act  or 

Bryan  Callaghan,  for  the  «^PPf  7'; /^VLr^^euiawof  tholaud.' 
omission  is  an  offense,  unless  so  '^^^^^^J^^f^^y^'^^reTs  follows :  - 
Ti.  only  P-Uion  hcaru^  on^^^^^^^^^^^^^^^        ^^ ';-    ^„^,  ,,,  , 

Stealing  the  same  would  be  liable  to  be  P^-^^^^^^^  ^„,  ,,  .eceiv. 

The  last  cited  article  declares .t  *«  ^'^^f^.f;";,;*"'  vious  wrong-doe. 

or  conceal  property  when  the  ac,—^^     tbstLte '' word"  for 

?.r m" tl  Z:Z2^^^-^^  -e  the  same  signi.cation. 

in  such  manner  as  that  tbe  --l-;^  -J^^;;;;  „   ,ue  degrees  of  theft, 
word  theft ; "  -  not,  it  is  «"bm.tted,  with  n      y^^  ^^^^  ^^  ^^^^^ ..  .^  ^^^^ 

but  within  the  meaning  of  ^^^jo  d  the  ^      ^s  that  term  is  employed 

deprive  tb.  ov,ner  thereof  P"°"'"°°"'';,_rtv  knowtog  It  to  be  Btota 
It  may  be  »Md  ttot  reee.vmg  .tolen  property,  Kno      b  ^^^ 

,e  taeuied  ,n  tbeft,  .nrt  that  *«  -^^  -'^^ ;V^  .    Wh  a  convietion 
^.eee ;  therefore  It  Is  contende,.    h»t  ao  »*  «-  _;„  'fj^  «  „ 

-:rLrefrr;^9S:=r  "'"^'' ~ 

"Vr  "carbe-l^t-Lr-r  ;'ro" V  -ss  there  wa,  the,. 

'";r-  "emhon  a  defendant  .  -^X':::^^''^^'^^^'^' 
shows  that  he  did  not  steal  the  property,  but  that  he  Mo      g 

.0,M«..81.ie.<T.i.(iPP-)»liM»''' 
1  Penal  Coaa.  art.  S.  ,  ^  „,  gtata.  10  Tex.  (App.)  «"• 

1  Penal  Code.  an.  7«.  •  Orlffln  ..  Siaia,  <  Tex.  (App.)  m- 

.Grtinn  ..>«•"• 'Tex.  (App.) '"■  ,  pi.!,.  Cr. L..  eec  1191 1  Oueela  «.»»». 

*aBail'«P.C.B63iaEUM.Cr.ai.  4  Xerg.  l«i  Wilgim>.8>a»,»  *•"»•"*• 


LKAL   V.  STATE. 


678 


that  no  act  or 
aw  of  the  laud.' 
'ollows :  — 
,ch  has  been  ac- 
jn  comes  within 
ive  been  so  ac- 
^  law  the  person 

ly  one  to  receive 
ious  wrong-doei 
lite  "word"  for 
ime  signification, 

[uired  by  another 
e  meaning  of  the 

degrees  of  theft, 
n  "theft"  in  the 
term  is  employed 
;d:  "Tlie  wrong- 
intrinsic  value  be- 

the  intention  to 

ring  it  to  be  stolen 
jaiise  in  one  count 
istain  a  conviction 
ay  that  the  indict- 
t  the  original  taker 
r  say  that  "theft" 

5 

eludes  different  de- 
:  rging  embezzle- 
ew  the  property  to 
!s  charge,  discloses 

less  there  was  theft 

ft,  and  the  evidence 
e  knowing  it  to  have 

.  4  Tex.  (App.)  891;  Bland- 

X.  (App.)  627. 

5, 4  Tex.  (App.)  *11- 

ec.  1095;Ca8eel8  t».  SUte, 

iH>.8Ute,6  Yerg.  18*. 


heen  stolen,  did  fraudulently  receive  the  same,  that  he,  under  proper 
instructions  from  the  court,  might  be  convicted  for  receiving  stolen 
property,  knowing  it  to  bo  stolen.' 

In  tlio  cases  last  cited  the  indictment  charged  the  greater  offense, 
"  theft  i"  and  the  conviction  was  for  a  lesser  offense.  The  greater  of- 
fense Includes  the  lesser  one,  but  the  lesser  does  not  include  the 
jrn'ater.  An  indictment  cliarging  murder  will  support  a  conviction  for 
Tigiiravated  assault;  but  the  converse  of  tlie  proposition  in  not  true." 

Enibezzloment  is  not  a  degree  of  the  offense  defined  in  article  743  of 
the  Penal  Code,  and  the  offense  charged  in  the  indictment  in  this  cause, 
to  wit:  receiving  embezzled  property  knowing  it  to  be  embezzled,  is  not 
defined  in  the  Penal  Code  of  tliis  State ;  and,  therefore,  tlie  defendant 
lias  not  violated  any  law,  and  the  court  should  have  sustained  the  mo- 
tion to  quasli. 

D.  Coopwood,  also  for  the  appellant,  filed  an  able  brief  and  argu- 
ment. 
//.  Chilton,  Assistant  Attorney-General,  for  the  State. 
HruT,  J.  The  appellant  was  convicted  for  receiving  property  which 
had  been  embezzled-,  his  punishment  being  fixed  at  two  years'  confine- 
ment in  the  State  penitenthiry.  The  indictment  charges  that  one  Con- 
ception Torres  embezzled  certain  hides ;  not  only  the  facts  constituting 
embezzlement  are  averred,  but  the  offense  of  embezzlement  is  charged 
in  terms.  It  then  alleges  that  the  defendant  received  the  hides  know- 
ing them  to  have  been  embezzled. 

Tlie  question  presented,  conceding  all  this  to  be  true,  is,  has  the  de- 
fendant Leal  violated  article  743  of  the  Penal  Code,  which  reads:  |'  If 
any  person  shall  receive  or  conceal  property  which  has  been  acquired 
byanotlier  in  such  manner  as  that  the  ac^utsttjon  comes  within  the 
meaning  ot  tlie  term  theft,  knowing  the  same  to  have  been  so  acquired, 
he  shall  be  punished  in  the  same  manner  as,  by  law,  the  person  stealing 
the  same  would  be  liable  to  be  punished."  ^Italics  ours.)  It  Torres 
acquired  the  hides,  and  his  acquisition  was  in  such  manner  as  to  con- 
stitute the  crime  of  theft,  and  defendant  received  them  knowing  them  to 
have  been  so  acquired,  he  would  be  liable.  But  were  the  hides  so  ac- 
quired? By  no  means.  The  allegations  in  the  indictment  place  this 
question  beyond  cavil.     The  acquisition  by  Torres  was  not  fraudulent 

but  was  legal, a  duty,  —  and  did  not  constitute  theft     This  being 

the  case,  receiving  them  by  defendant  was  not    a  violation  of  the 
Code. 

While  it  is  true  that  a  majority  of  this  court  have  held  t^at  theft  in- 
cludes embezzlement,  they  have  never  held  that  embezzlement  includes 


iParchman  «.  State,  2  Tex.  (App.)  228; 
Vincent  v.  State,  10  Tex.  (App.)  33t. 

8  Defences.  ^3 


2  Griffin  V.  Stote,  4  Tex.  (App.)  412. 


674 


RECEIVING   STOLEN   PROPERTY. 


theft  To  thus  hold  would  make  the  lesser  iuclude  the  greater.  But, 
be  this  as  it  may,  no  person  can  be  legally  convicted  of  receiving  stolen 
goods  unless  when  the  acquisition  was  in  such  manner  as  to  constitute 
theft  We  are  therefore  of  the  opinion  t.  at  to  receive  property  whicli 
has  been   embezzled  constitutes  no  offense  against  the  law  of  this 

State.  .       ,.      •      J 

The  judgment  is  reversed  and  the  prosecution  dismissed. 

Eeversedand  dismisaed. 


RECEIVINO    STOLEN    PROPERTY -BANK-NOTES  NOT    GOODS  AND 

chattels. 
State  v.  Calvin. 

[22  N.  .''.  (L.)  207.] 
Jn  the  Supreme  Court  of  New  Jersey y  1849. 

»*«!,  Not.,  are  nof'Ctoods  and  Chattel.."  and  the  receiver  of  stolen  bank-notes 
"•^n^oJ  be  i"!cted«nS  the  statute  making  It  a  mlBdem.anor to  receive  etolen"  good. 
or  chattels." 

This  case  came  before  the  court  from  the  Passaic  Oyer  for  an  ad- 
visory  opinion.  The  defendaro  was  indicted  for,  and  convicted  of^ 
receiving  a  large  number  of  bank  bills,  amounting  in  value  to  $4,000 
"of  the  propercy,  goods  and  chattels"  of  Drew,  Robinson  &  Kelly, 
the  defendant  well  knowing  said  bank-bills  wore  taken  by  robbery, 
etc. ,  contrary  to  the  statute,  etc.  ^     d    ^ 

Argued  before  the  Chief  Justice,  and  Randolph,  Justice,  by  Bar/ca- 
low,  for  the  State,  and  A.  S.  Pennington,  for  defendant. 
Randolph,  J.,  de'.ivered  the  opinion  of  the  court. 
As  cboses  in  action  and  bank-bills  had  no  intrinsic  value  at  common 
law,  and  were  not  the  subject  of  larceny  or  robbery,^  the  question  i8, 
whether  they  are  included  in  the  statute  respecting  the  receiving  cf 
stolen  goods  or  goods  and  chattels  taken  by  robbery.     The  language 
of  the  act  is,2  -  if  any  person  shall  receive  or  buy  any  goods  or  chp.t- 
tels,  that  shall  be  stolen  or  taken  by  robbery,"  e  -;.    In  the  thirty- 
fourth,  thirty-fifth  and  thirty-sixth  sections  of  the  same  act,  whicn 
treat  of  the  crime  of  larceny,  the  phrase  used  is,  "shall  steal  of  the 
money  or  personal  goods  and  chattels,"  but  in  the  thirty-seventh  sec- 


1 1  Hawk.  U2;  4  Bla.  C-  m.2M; 
Or.  PI.  66. 


ALrchb. 


2  Rev.  SUtB.  J99,  sec.  72. 


,  -  ua«s*i«»-'M^***"«'*****^ 


STATE    V.  CALVIN, 


(575 


the  greater.    But, 

of  receiving  stolen 

iner  as  to  constitute 

jive  property  whicli 

ist  the  law  of  this 

smissed. 

edand  dismissed. 


NOT    GOODS  AND 


,  1849. 

Blver  of  Btolen  bank-notes 
or  to  receive  stolen  "  gooda 


saic  Oyer  for  an  act- 
ir,  and  convicted  of. 
ig  in  value  to  $4,000 
,  Robinson  &  Kelly, 
re  taken  by  robbery, 

I,  Justice,  by  Barka- 
mdant. 

Tt. 

insic  value  at  common 
bery,^  the  question  is, 
jting  the  receiving  cf 
)bery.  The  language 
ly  any  goods  or  chp.^ 
•  e  •;.  In  the  thirty- 
tbe  same  act,  which 
3,  "shall  steal  of  the 
the  thirty-seventh  sec- 

299,860.    73. 


tion,  which  applies  to  double  larcenies,  the  words  "  goods  and  chattels," 
only  are  used.     Sections   38  and   39  respecting  robl'ery,   and  assault 
with  intci.ti  to  rob,  etc.,  make  use  of  the  words  "  money,  or  personal 
goods  and  ch.attels,"  and  the  forty-lifth  section  makes  the  stealing  or 
tiikino-  by  robbery  of  any  bank-bill  or  note,  bill  of  exchange,  order,  etc., 
a  misdemeanor  of  the  same  degree  and  nature  as  if   the  offender  had 
stolen  or  taken  l)y  robbery  "  any  other  goods  of  like  value,  with  tbe 
money  due  on  such  bank-billfi,"  etc.,  "money,  wares,  merchandise, 
goods,  or  chattels  "  are  used  iu  the  fifty-second  section,  which  relates 
to  obtaining  goods  under  false  pretenses.     The  same  phraseology  is 
u:.od  in  all  tiie  pi-eceding  statutes  applied  to  the  respective  crimes,  as  is 
now  used  in  the  Koviscd  Statutes,  they  being  copied    almost  literally 
from  the  English  statutes.    Thus  tb*  3  Willian  and  Mary'  states  that  if 
any  person  shall,  "buy  or  receive  any  goods  or  chattels,"  feloniously 
taken  or  stolen,  he  sh*il  be  deemed  an  accessory  ;  and  5  Anne,^  George 
I., 3  and  22   George  III.,*  all  relating  to  receivers  of  stolen  goods 
make  use   of  the   words  "goods"    or"   goods   and  chattels"   only. 
"But,"  says  a  loarnod  author,  "it  has  often  been  determined  that  re- 
ceivers of  stolen  moi       are  not  within  the  statutes."  ^     In   the  case  of 
Sadi  and  Wiilidm  Morris,'^  it  was  directly  ruled,  by  a  majority  of  t  .e  ten 
judges,  that  bank-notes  were  not  within  the  statutes  relating  to  the  re- 
wiving  of  stolen  goods;  one  of  the  judges   thought  the   construction 
would  have  been  the  same,  if  the  act  of  2  George  II.,  which  first  made 
the  stealing  of   bank-bills  felony,  had  been   pnssed  prior  to  tlie  act  of 
3  William  apd  Mary ;  but   other  judges   thought  that   inasmuch  as   2 
George  II.  had  rendered   tlie  stealing   of  bank-notes   felony,  it  drew 
after  it  all  the  incidents  of  felony  at  common  law,  and  therefore  included 
receivers  as  accessories  after  the   fact ;  the  majority,    however,   con- 
sidered the  offense  not  within  the  statute,  and  refer  to  Cayle'a  Case,' 
and  Miller  v.  Race.^    See  also  3  Bun)  Justice  ^  and  4  Blackstone's  Cora- 
mentaries.'"    In  Itex  v.  William  and  Anne  Oaze,^^  who  were  convicted, 
the  former  of   stealing  and  tlie  latter  of  receiving  a  promissory  note, 
eleven  of  tlie  judges  were   unanimously  of   the   opinion  tha'    William 
Gaze  was  not  rightfully   convicted  under  the  statute  of  T    William 
and  Mary.     Upon  the  reason  assigned  by  Justice  Ashurst,   in  Rex  v. 
»S(((;j  one?   Williavi  Morris,  that  although  2  George  II.,  making  the 
stealing  of  notes  and  securities  felony,  would  draw  after  it  all  the 
common-law  incidents  of  felony,  and  render  accessories   liable,  yet  re- 


1  ch.  9  ace,  4. 

2  cli.  31,  eec.  1 

3  ch.ll. 

*  ch,  63. 

'  See  2  EasfB  Cr.  L.  748. 

e  2  £ast,  748,  and  Leacb'a  Cr.  Ca*.  404. 


'  8  Co.  33 ;  Jelr.  Ml 
«  1  Burr.  4S7. 
>  TiL  Larceny,  M. 
1"  p.  133;  note  It. 
II  R.  ftK.  dm. 


(576  RECEIVING   STOLEN   PROPERTY. 

ceivers  were  not  accessories  at  common  law,  and  were  not  included. 
Tbs  ainl-s  '.0  be  the  settled  construction  of  the  Enghsh  statutes, 
lou^h  Xre  are  some  cases  not  entirely  reconcilable  with  it     Thus,  m 
Sv   c'one,  defendant  was  convicted  of  a  misdemeanor  for  rece.v- 
S  a  piom^ory  note,  under  the  act  23  and  24  of  George  lU.,  wh,ch 
mfntionHnly  goods  ^nd  chattels.^    So  there  have  been  several  conv.c- 
Son   ?or  receilg  bank-bills  under  12  Anne  ^  which  mentions  money 
loods  or  chattels      lu  Eexy.  F,.e,3  the  conviction  was  suslamedony 
fn  those  counts  which  charged  the  promissory  noU.  a-o  -j^y  P^^^^^^^ 
of  stamped  paper  of  the  goods  and  chattels  of  J.  W.     These  difficulties 
howe'r,  hive  all  been  obviated  in  England  by  the  P-«Jg«  «'     - 
fT    rnf%r.eor-e  IV  ."^  which  makes  the  receiving  of  bank-bills, 
prt    so  y  no  e^ln^^ther  securities  a  distinct    and  independent 
o  fen  e      The  case  of   Bo,dcu,d  .o,/-eM^uts  the  same  construction  on 
he  New  l^ork  statute  as  Be.  v.  Morris  does  on  the  English  acts ;  and 
^.celTat  decision  tl>e  New  York  statute  has  been  amended.     Our  stat- 
ue makes  the  receiving  of  goods  and  chattels  stolen  or  taken  by  rob- 
bry  a  distinct  offense,  and  not  as  accessory  to  the  larceny  or  robbery ; 
and  although  subsequent  sections  ronder  the  steahng  or    aku  g  by 
robbery  balbills,  as  well  as  goods  and  chattels,  an  indictable  offense 
yet  these  can  not  draw  after  them,  as  a  necessary  consequence,  anothe 
d  St  net  and  independent  offense;  so  that  whether  common  law  or 
stftutorx  accessor  es  are  included  or  not  in  the  principal  act  under  the 
rrh-Ututrneither  can  be  included  under  ours,  'or  that  embac^^ 
no  "such  offense  as  accessory  to  the  larceny  or  robbery,  bu   the  rece  v- 
fnVis  a  misdemeanor  by  the  statute,  and  by  that  which  alone  creates 
th!  crime   mtt  it  be  defined  and  specified  ;  and  as  that  does  no     in- 
dudernk-bills,  although  tl>e  other  sections  of  the  act  do,  it  is  to  be 
^ZnLd  that  the  Le,nslature  never  intended  that  the  receivnig  of 
iriank4nllssi>ouUri>e  an  indictable  offense.    /»  ^^^^ j'f^^' 
and  William  Morris  (before  referred  to)   the  court  remark,  that  bant 
Tit  Iviul  no  peculiar  mark  may  enter  into  the  currency  be  passed 
as  sucran"d  .^  deceived  ;  and  hence  the  propriety  of  including  them  in 
the  offense  f.-r  receiving  stolen  goods  is  much  questioned. 
The  indictment,  therefor*-   can  not  be  sustained. 


1  3  Br.  Cr.  Ca.  47. 

s  ch.  7. 

3  1  Br.  Cr.  0».  218. 


*  p.  24. 

»  To  be  found  In  8  City  H.  Kec.  67. 


RECEIVING  STOLEN   GOODS. 


G77 


B  not  included, 
uglish  statutes, 
th  it.  Thus,  in 
mor  for  receiv- 
•ge  Hi.,  ■which 

several  convic- 
lentions  money, 
3  sustained  only 
so  many  pieces 
hese  difficulties, 

passage  of  the 
r  of  bank-bills, 
xnA  independent 

construction  on 
nglish  acts ;  and 
nded.     Our  stat- 
or  taken  by  rob- 
!cny  or  robbery ; 
ing  or  taking  by 
Qdictable  offense, 
jequencc,  another 
common  law  or 
ipal  art  under  the 
For  that  embraces 
•y,  but  the  reoeiv- 
lich  alone  creates 
that  does  not  in- 
act  do,  it  is  to  be 
,  the  receiving  of 
II  the  case  of  Sadi 
•emark,  that  bank- 
rrrency,  be  passed 

including  them  in 
sued. 


8  city  H.  Kec.  67. 


»NOTFS. 

§  581.  Receiving  Stolen  Goods  — Goods  D/f.--  be  Stolen.  — The  goods  must 
be  stolen.i 

§582.  Becelvlns  Embezzled  Property.  —  Receiving   embezzled  prop- 
erty is  not  within  tlie  penal  code  of  Texus.^ 

§  583. Gocos  must  be  Actually  m  Prisoner's  Poasesslon.— This  is  essen- 
tial to  the  criTTj.^  lu  CommoinceaUh  v.  Sheriff,*  the  prisoner  swore  that  he  found 
his  stolen  irou  upon  the  prisoner's  scales,  who  with  the  carter  were  weighing 
itTb'.t  it  had  not  been  delivered  to  the  prisoner.  Buewster,  J.,  said:  "If 
tliis  had  beeu  a  sale  by  the  lawful  owner  of  the  iron,  tlie  right  of  property  and 
.{  possession  would  have  remained  in  the  vendor  until  actual  delivery.  For 
aught  that  here  appears,  the  defemlaut  might  have  refused  to  complete  the  bar- 
g;uu  or  take  the  iron.  There  was  a  loais  pfmitcntia;,  very  small,  perhaps,  but 
still  sulllcien*-.  to  entitle  the  defendant  »o  the  benefit  of  the  doubt. 

§  :.H\  _  stoppage  in  Transitu  Before  Receipt.  —  So  if  the  goods  get  back 
into  uift  owner's  possession,  or  are  stopped  in  transitu,  tlie  crime  is  not  com- 

In  li.  V.  Hancock,*  a.  lad  was  detained  on  leaving  his  master's  premises,  and  a 
policeman  sent  for  who  searched  him,  and  took  a  stolen  cigar  the  property  of 
:, :,  •  vster,  from  him  in  the  master's  presence.  In  consequence  of  the  lad's 
.!  •.  uent,  the  cigar  was  returned  to  him,  with  five  oth«  rs  which  the  lad  took 
to  tii^  prisoner  and  gave  to  hlra.  It  was  held  that  the  case  was  not  distin- 
guishable from  li.  V.  Dolan,''  and  the  prisoner  could  not  be  convicted. 

§  585.  Knowledge  Essential.  —  The  receiver  must  know  that  the  goods 

were  stolcu.'  In  It.  v.  Wood,^  the  prisoner  was  ladicted  for  receiving  stolen 
poods,  knowing  the  same  to  have  been  stolen.  The  fucts  were  that  a  boy  had 
IxL'u  convicted  of  stealing  from  his  employer  the  silver  tops  of  a  whip  and  two 
walking  siicks.  It  appeared  he  had  sold  them  to  the  prisoner,  a  "a  general 
cltuler."  and  he  was  examined  on  tlie  trial  of  the  Loy,  and  stated  that  he  gave 
3s  for  the  articles,  and  that  the  boy  had  said  he  got  tliem  from  the  coachman, 
of  one  B.  The  value  was  stated  to  have  been  three  times  the  sum  which  the 
lirisoiicr  gave  for  them. 

The  boy  was  now  examined,  and  stated  that  he  had  broken  up  the  sticks  and 
taken  the  sliver  mountings  in  a  detached  state  to  the  prisoner,  and  that  he  had 
Sivi'u  L'd,  (Id,  and  !1 '  for  them.  On  cross-examination  it  appeared  that  he  liad 
hvvn  iu  the  service  of  B.,  whose  man  had  sent  him  repeatedly  to  the  prisoner 
with  articles  of  a  very  varied  character  to  sell;  and  that  on  the  tirst  occasion 
the  prisoner  asked  him  who  he  was,  and  had  a  note  of  introduction  from  B.  or 


I  State  V.  Shonf ,  6S  N.  C.  378  (1873). 
a  t-.sal  tt.  Stale,  12  Tox.  tApp.)  279  n6»l). 
■■'■  li.  V.  Wiley,  1  Ueii.  43  (1050). 
'  :i  Rrew-t.  342  (ISW). 
It.  11.  Sdimiat,  10  Cox,  172  (1866) ;  R.  f. 
Dolttii,6Cox,449  (1855). 


«  14  Cox,  119(1878). 
'  6  Cox,  449;  Dears.  43G. 

8  Wilson  V.  Stttto,  12  Tex.  (App.)  48  (1882). 

9  1  F.  &  F.  497  C1859). 


G78 


RECEIVING   STOLEN  PROPERTY. 


his  man;   and  tliat  he  was  never  told  by  the  witness  that  he  had  left  the 

employment  of  B.  ,,  ,      ^,      „..„. 

Maktiv,  B.  (to  the  juryj.  If  you  think  that  the  prisoner  did  not  know  tha^ 
the  b  >y  had  left  the 'service  of  B.  you  should  acquit  him.  For  you  must  not 
find  him  quilty  if  you  infer  that  he  had  no  guilty  knowledge. 

^  Verdict,  lot  guilty. 

Tlie  fact  that  the  goods  are  found  on  t',o  prisoner's  premises  is  not  sufficient 
alone  to  sustain  a  conviction.* 

§  586.  Stealer  not  Receiver.  -  The  stealer  of  the  property  can  not  be  cou- 
Ticted  of  receiving  stolen  goods.^ 

§  587.  Principal  and  Acceaaory.  -One  of  several  principals  or  an  acces- 
sory can  not  be  a  receiver.'' 

8  588    .. Goods "-Bank-notea.  -The  receiver  of  a  bank-note  Is  not  n 

receiver  of  stolen  "  goods  "  within  the  statute,*  and  bank-notes  are  not  "goods 
and  cliattels."'-'  • 

I  588a    Receiving  Property  Stolen  from  Mall. -In  United  States  v. 

Montgomery  <^  it  was  held  that  to  constitute  the  guilty  receiving  cf  property 
stolen  from  the  mail,  as  defined  and  punished  by  section  6470,^  It  must  appear 
that  the  def  endaut  voluntarily  took  the  property  Into  his  control  and  possession, 
or  voluntarily  had  it  in  nis  possession  and  control,  wlivi  intent  to  prevent  the 
larceny  or  the  tliief  from  being  discovered,  or  the  property  from  being  reclaimed 
by  the  true  owner,  or  for  his  benefit;  but  It  need  not  appear  that  he  received  it 
with  intent  to  make  any  gain  or  profit  thereby  to  himself.    A  guilty  concealing 
also  lmplle«  that  the  defendant  voluntarily  secreted  the  property  or  put  it  out  of 
the  way,  or  in  some  manner  disposed  of  It  with  like  intent  as  In  the  case  of  re- 
ceiving    To  aid  ia  concealing  the  stolen  property  the  defendant  must  do  some 
act  with  intent  to  assist  the  thief  or  other  person,  then  In  the  guilty  possession 
of  the  property,  in  concealing  it,  or  furtively  disposing  of  It,  with  a  like  intent 
as  in  the  case  of  receiving.    The  possession  by  the  defendant  of  gold  coin 
received  at  the  mint  In  exchange  for  gold  dust  stolen  from  the  mall,  will  not 
support  an  Indictment  under  section  5470,«  for  receiving  or  concealing,  or  aiding 
in  concealing,  property,  knowing  that  It  had  been  stolen  from  the  mall. 

Dfady,  J.,  delivered  the  following  charge:  The  Indictment  in  this  case  is 
founded  upon  section  5470  of  the  Revised  Statutes,  wliich,  among  other  things, 
provides  that  any  person  who  shall  receive  or  conceal,  or  aid  In  concealing,  any 
article  of  value,  knowing  the  same  to  have  been  stolen  or  embezzled  from  the 
mail  of  the  United  States,  shall  be  punlsliable  l)y  a  fine  of  not  more  than  «2,000, 
and  l>y  Imp.-isonment  at  hard  labor  not  more  than  five  years.  The  reason  and 
necessity  of  s.ch  a  statute  Is  apparent.  The  post-offlce  is  one  of  tlie  principal 
departments  of  the  government.  Upon  the  security  and  celerity  with  which  the 
mails  are  carried  and  delivered  throughout  the  country  depends  to  a  great  ex- 
tent the  preservation  of  the  business  and  social  relations  of  the  people.    Upon 


1  U.  r.  Pratt,  4  F.  &  F.  315  (18C5). 

2  StiUc  r.  Honig,  9  Mo.  (App.)  298  (1881). 
•  li.  V.  Coggins,  12  Cox,  M7  (1873). 

<  Butherfordt).Com.,2Va.  Oas.  141  (1818). 


B  State  V.  Calvin,  22  N.  J.  207  (1849) ;  Boyd's 
Caae,  3  City  Hall,  Kec.  69  (1818). 
«  3  Sawy.  3U  (1878). 
'  Ttev.  8t!its. 
8  Rev.  StatK 


itt^-rninnrmfmi  TiiMwimiBwvwani'iliw  i  ji».m«i«- 


^nwiiiill^ii*nf*ii»a^ig 


|)^A^^■^^IW>T-^.•^'V-  •W,W«l^.*^^?"-'-*W"^^'^ 


PROPERTY  STOLEN  FROM  MAIL 


679 


le  had  left  the 

1  not  know  thai 
r  you  must  not 

ict,  not  guilty. 
is  not  sufficient 


can  not  be  cou- 


pals  or  an  acces- 


Qk-note  Is  not  n 
tare  not  "goods 


United  States  v. 
ing  cf  property 

it  must  appear 
1  and  possession, 
nt  to  prevent  the 
I  being  reclaimed 
lat  lie  received  it 
guilty  concealing 
ty  or  put  it  out  of 
In  the  case  of  re- 
mt  must  do  some 
guilty  possession 
with  a  like  intent 
ant  of  gold  coin 
the  mail,  will  not 
cealing,  or  aiding 
the  mail, 
at  in  this  case  is 
long  other  things, 
in  concealing,  any 
tibezzled  from  the 
more  than  «2,000, 
The  reason  and 
e  of  the  principal 
ity  with  which  the 
nds  to  a  great  ex- 
the  people.    Upon 

.  J.  207  (1849) ;  Boyd's 
9  (181b). 


the  Ion-established  maxim  that  «  a  receiyer  is  as  bad  as  a  thief,    the  statute 
has  alsoin-ovided  for  the  punishment  of  persons  who  assist  others  in  s  ealing 
or  en'beMling  from  the  mails  by  receiving  the  stolen  property,  or  concea  ing  t, 
or  aid.ng  in  concealing  it,  substantially  in  the  same  manner  as  the  thief  himself. 
Bv  this  indictment  the  defendant  is  accused,  in  different  modes  or  counts,  of 
receiving,  concealiug,  and  aiding  in  the  concealing,  of  three  cans  of  gold  dust, 
o   the  aggregate  value  of  $1,830,  the  same  having  been  stolen  from  the  mails 
of  the  United  States,  to  the  knowledge  of  the  defendant,  in  October,  1874,  near 
Canvonville.    But  these  seventeen  counts  only  chiirge  one  crime,  that  of  recc  v- 
ing,  concealing,  and  aiding  in  the  concealing  of  the  stolen  dust,  under  the  cir- 
cunstances  stated,  and  the  proof  of  receiving,  concealing,  "'^aiding  In  concealing, 
is  sumcient  to  establish  the  guilt  of  the  defendant.    To  this  Indictment  the  de- 
fendant has  pleaded  not  guilty,  and  the  effect  of  this  plea  is  to  put  n  issue  or 
controvert  all  the  material  allegations  of  the  indictment.    This  be  ng  so,  .he 
burden  of  proof  Is  upon  the  United  States  to  prove  to  your  satisfaction  each  of 
Buch  allegations,  beiore  it  r.n  ask  a  verdict  of  guilty  at  your  hands.    The  de- 
fendant  stands  before  ycu  as  a  person  charged  with  the  commission  of  a  grave 
crime,  and  the  fact  that  she  is  also  a  woman  and  a  mother  does  not  change  the 
rules  of  law  or  the  duties  of  jurors  in  such  cases.    In  determining  the  questiou 
of  her  guilt  or  Innocence,  you  are  not  to  be  swerved  by  any  sympathy  for  her 
sex  or  condition,  but  you  are  to  say  truly  whether  she  is  guilty  or  not  as 
charged,  irrespective  of  such  con.wMerations  or  the  consequences  to  her  or 
others  that  may  W.low  your  verdict.    Of  course,  the  fact  that  the  defendant  Is 
a  ^voman  may  be  more  or  less  material  in  judging  of  her  conduct  and  motives 
in  Heelng  the  country  as  she  did  with  Harmison,  the  party  who  appears  to  have 
stolen  tlTis  dust  and  had  it  in  his  possession.    In  considering  their  reiationsand 
intimacy,  upon  the  questi -n  of  whether  this  stolen  dust  was  received  or  con- 
cealed  by  her,  or  her  aid,  you  may  properly  consider  the  fact  of  the  difference 
in  their  sex  -  that  they  were  traveling  and  cohabiting  together  as  man  and  wife, 
with  trunks  and  other  traveling  gear  in  common.    The  indictment  charges  that 
the  defendant  and  Harmison  both  committed  this  crime,  without  alleging 
whether  it  was  done  jointly  or  severally,  and  counsel  for  defendant  now  insists 
that  neither  party  can  be  found  guilty  of  a  separate  receiving  under  such  a 
charge     Waiving  the  consideration  of  that  precise  question,  as  not  being  mate- 
rial  to  the  present  aspect  of  the  case,  the  fact  being  that  Harmison  has  been 
discharged  from  this  indicunent  upon  his  plea  of  autrefois  convict,  the  defendant 
is  now  being  tried  upon  it  alone,  and  may  be  found  guilty  under  it  of  commit- 
ti.,-  the  crime  therein  charged,  separately.    Before  the  defendant  can  be  found 
guilty  of  the  charge  in  the  indictment  the  United  States  must  show  that  the 
gold  dust  in  question  was  stolen  or  embezzled  from  its  mails.    The  record  of 
Harmlson's  conviction  in  this  court  of  ti^o  crime  of  stealing  three  «toilar  cans 
of  gold  dust  from  the  mails  has  been  innoduced  in  evidence.    This  is  sufficient 
evidence  of  the  fact  until  the  contrary  appears,  it  being  also  shown  or  proven 
to  your  satisfaction  that  the  property  mentioned  in  the  two  indictments  is  the 
same.    It  must  also  be  shown  that  the  defendant,  knowing  it  to  have  been  so 
stolen  or  embezzled,  received  it  from  the  thief,  or  concealed,  or  aided  the  thief 
or  some  one  else  in  concealing  It.    To  constitute  a  guilty  receiving  of  stolen 
property  by  the  defendant,  it  mu.t  appear  that  she  voluntarily  took  it  into  her 
control  and  possession,  or  voluntarily  had  It  In  her  possession  and  control,  with 
intent  to  prevent  the  larceny  or  the  thief  from  being  discovered,  or  the  property 


680 


RECElVINa   STOLEN   PROPERTY. 


from  beiug  reclaimed  by  the  true  owner  or  for  his  benefit;  but  it  need  not 
appear  that  she  received  it  with  Intent  to  nialte  any  ^aiu  or  profit  thereby  to  litr- 
self     A  guilty  concealing  also  implies  that  the  defendant  voluntarily  secreted 
this  dust,  or  put  it  out  of  the  way,  or  in  some  manner  disposed  of  it  with  a  lllve  in- 
tent  as  in  this  case  of  receiving.    To  aid  in  concealing  stolen  property,  a  party 
must  do  some  act  with  intent  to  assist  the  thief  or  other  person,  then  in  the 
guilty  possession  of  the  property,  in  concealing  it.  or  furtively  disposing  of  it, 
with  a  like  intent  as  in  the  case  of  receiving.    The  possession  of  property  l^y 
the  defendant  for  which  the  stolen  dust  was  exchanged-  as,  for  instiince,  go  d 
coin  for  which  it  may  have  been  exchanged  by  Harmison  at  the  Philadelphia 
mint  -  will  not  support  the  charge  in  the  indictment.    The  possession  of  such 
coin  would  not  be  the  possession  of  the  stolen  property,  and  would  not  of  itsdf 
tend  to  prove  the  defendant  guilty  of  the  charge  in  the  indictment.    But  if  the 
stolen  dust  was  made  into  coin,  this  circumstance  would  not  change  Its  identity, 
and  the  possession  of  such  coin  would  be  the  possession  of  the  stolen  prop- 
erty    But  this  can  not  be  a  material  question  in  this  case  because  it  is  admitted 
that  if  this  dust  was  changed  into  or  for  coin  by  Harmison,  it  was  done  at  the 
Philadelphia  mint.    Now  the  defendant  can  not  be  convicted  of  the  crime 
char-ed  in  the  indictment  upon  proof  of  receiving,  concealing,  or  aiding  in  con- 
cealing.  this  dust  or  the  coin  into  which  it  may  have  been  changed  beyond  this 
district  -  without  the  State  of  Oregon.    Evidence  has  been  given  to  you  in  re- 
gard  to  the  conduct  and  declarations  of  Harmison  and  the  defendant  beyond 
this  district,  during  their  journey  to  Texas  and  back  again  but  only   or  the 
purpose  of  throwing  light  upon  their  acts  and  conduct  while  In  the  district     It 
being  Incumbent  on  the  United  States  to  show  that  this  dust  was  stolen  from 
the  mails,  instead  of  introducing  the  record  of  Harmison's  conviction  of  the 
theft,  in  the  first  instance,  the  prosecution  saw  proper,  as  It  had  the  right  to  do, 
to  go  into  the  original  proof  of  the  fact.    In  so  doing  the  acts  and  declara  ions 
of  Harmison,  both  within  and  without  this  State,  finding  to  prove  that  the 
larceny  was  committed  by  him,  have  been  given  to  you .    But  you  are  to  remem- 
ber  that  this  evidence  was  only  received  for  the  purpose  of  proving  the  theft  of 
the  property,  and  that  the  defendant  is  not  to  be  affected  by  the  acts  or  decla- 
rations  of  Harmison,  only  so  far  as  it  appears  the  former  were  known  to  her  or 
the  latter  were  made  to  her,  or  in  her  presence,  and  assented  to  by  her.       . 
though  you  should  find  that  the  defondant  knew  from  Harmison,  or  other^ 
wiserthat  this  dust  had  been  stolen  from  the  mails,  that  itself  is  not  sufflcien 
to  convict  her  of  the  crime  charged.    And,  in  this  connection,  It  may  be  material 
for  you  to  consider  the  sex  of  the  defendant  for  the  purpose  of  determiuing 
whether  her  flight,  and  subsequent  association  with  H«™if "' 7**  f  ^^'^  f^" 
complice  in  the  crime  or  his  paramour.    Proof  that  the  defendant  fled    he 
country  with  the  thief  as  his  wife  is  not  sufficient  to  sustain  the  charge  In  the 
indictment.    A  woman  who  deserts  her  husband  and  flee,  the  country  with 
another  man  who  has  committed  larceny.ought  not  to  complain  if  a  jury  finds 
her  guilty  of  receiving,  or  aiding  in  concealing,  the  property  sto  en  by  he 
paramour,  upon  circumstances  which  would  be  deemed  insufficient  «  the  ^.s 
of  an  honest  woman.    But  you  are  not  to  convict  the  defendant  of    he  cr  ne 
charged  in  the  indictment  because  she  appears  to  have  been  guilty  of  the  crime 
of  adultery.    The  defendant's  illicit  relation  with  Harmison  may  have  afforded 
her  favorable  opportunities,  and  offered  strong  temptations,  to  assist  bim  In 
concealing  the  fruits  of  his  crime,  but  It  is  not  sufflclent  of  itself  to  establish 


PUOPERTY  STOLEN  FROM  MAIL. 


681 


;  but  it  need  not 
)ftt  thereby  to  litr- 
>luntarily  secreted 
ot  Itwilhallkein- 
i  property,  a  party 
erson,  then  in  the 
ly  disposing  of  it, 
Ion  of  property  by 
for  instiince,  gold 
t  the  Philadelphia 
possession  of  such 
would  not  of  itself 
tment.    But  if  the 
change  its  identity, 
)f  the  stolen  prop- 
:ause  it  is  admitted 
it  was  done  at  the 
cted  of  the  crime 
ig,  or  aiding  in  con- 
langed  beyond  this 
given  to  you  in  re- 
3  defendant  beyond 
n,  but  only  for  the 
1  In  the  district.    It 
St  was  stolen  from 
s  conviction  of  the 
had  the  right  to  do, 
jts  and  declarations 
;  to  prove  that  the 
t  you  are  to  reraem- 
proving  the  theft  of 
ly  the  acts  or  decla- 
ere  linown  to  her  or 
nted  to  by  her.    ..". 
larmison,  or  other- 
self  is  not  sufficient 
n,  it  may  be  material 
lose  of  determining 
lison,  was  as  his  ac- 
i  defendant  fled  the 
In  tlie  charge  in  the 
E>s  the  country  with 
i.plain  If  a  jury  finds 
iperty  stolen  by  her 
sufficient  In  the  case 
feudant  of  the  crine 
m  guilty  of  the  crime 
an  may  have  afforded 
)ns,  to  assist  him  in 
t  of  itself  to  establish 


the  fact  that  she  did  so  assist  him.    But  whatever  her  conduct  or  condition  the 
law  presumes  tliat  the  defendant  is  innocent  of  the  crime  charged  against  her 
until  the  contrary  is  proven  bevond  a  reasonable  doubt.    In  this  respect,  and 
80  far  us  the  crime  charged  in  the  indictment  U  concerned,  she  stands  before 
the  law  as  the  peer  of  any  woman,  however  virtuous  or  honorable.    This  pre- 
sumption of  innocence  is  the  shield  which  the  law  interposis  between  her  and 
her  accusers,  and  it  can  not  be  thrust  aside  or  beaten  down  except  by  the  force 
of  evidence  which  shall  satisfy  your  minds,  beyond  a  reasonable  doubt  of  her 
guilt.    A  reasonable  doubt  is  a  substantial  one  — not  a  mere  whim,  caprice  or 
speculation.    It  arises  out  of  the  case,  from  some  dofect  or  insufficiency  In  the 
evidence  which  makes  a  juror  hesitate  and  feel  that  lie  is  not  satisfied.    Mathe- 
matical certainty  is  not  attainable  in  criminal  trials.    If  you  are  morally  certain 
of  the  defendant's  guilt  you  should  say  so  by  your  verdict,  but  unless  you  are, 
however  you  may  suspect  it,  you  must  say  not  guilty.    You  are  the  judges  of 
the  credibility  of  the  witnesses  and  the  weight  to  be  given  to  tlieir  testimony. 
The  evidence  of  Cardwell,  tending  to  show  that  the  defendant  attempted  to 
suborn  him  to  swear  falsely  on  the  trial  of  Harmison,  was  admitted  without 
objection,  but  it  is  my  duty  to  say  to  you  tkat  it  is  not  relevant  or  competent 
proof  of  the  crime  charged  In  this  indictment.    It  may  tend  to  show  that  the 
defendant  was  willing  to  run  any  risk,  or  even  commit  a  crime,  to  save  her 
paramour  from  conviction  and  punishment,  but  it  does  not  prove  that  she  com- 
mitted the  crime  for  which  she  is  on  trial.    Montgomery,  the  late  husband  of 
the  defendant,  is  contradicted  by  several  witnesses  and  by  the  reporter's  notes 
of  his  testimony  ou  Harraison's  trial.    Besides,  it  appears  from  his  own  evi- 
dence that  he  knew  of  the  theft  soon  after  it  was  committed,  in  October,  1874, 
and  had  had  the  gold  dust  in  his  buggy  and  in  his  house  without  disclosing  the 
fact.    Besides,  Cardwell,  a  witness  called  by  the  prosecution,  testifies  that 
Montgomery  saw  him  at  Canyonville,  about  the  time  the  warrants  were  sworn 
out  for  Harmison  and  the  defendant,  and  urged  upon  him  the  necessity  of 
their  — that  is,  Montgomery  and  Cardwell  —  making  up  a  good  story  about  the 
robbery,  and  sending  Harmison  and  the  defendant  "  up."    Upon  this  trial  he 
testitled  that  when  Harmison  left  this  dust  for  him  at  the  toll  house  the  defend- 
ant said  he  was  foolish  not  to  take  It,  when  he  spoke  of  their  little  child,  and 
said  it  would  ruin  tliera.    Upon  cross-examination  he  stated  that  he  testified 
to  this  conversation  on  Harmlson's  trial,  but  it  appears  from  the  reporter's 
notes  that  he  did  not.    The  witness  was  the  husband  of  the  defendant,  and 
she  deserted  him  for  Harmison.    He  may  entertain  unkind  feelings  towards 
her  on  this  account,  he  may  desire,  as  he  said  to  Cardwell,  according  to  the 
latter's  testimony,  to  "  send  her  up."    All  these  circumstances  go  to  affect  the 
credibility  of  this  witness.    What  weight  shall  be  given  to  his  testimony  you 
must  judge,  always  remembering  that  a  witness  who  is  Intentionally  false  in  a 
material  part  of  his  testimony  ought  to  be  at  least  distrusted  as  to  the  rest  of 
it.    The  postal  agent,  Mr.  Underwood,  who  acted  as  deputy  marshal  In  pursuing 
and  arresting  Harmison  and  the  defendant  at  Seguln,  Texas,  And  bringing  them 
here  for  trial,  testifies  to  conversations  and  confessions  of  the  defendant  all 
along  the  route  from  there  here.    This  kind  of  testimony  should  be  received 
with  caution.    The  witness  testified  in  a  very  indefinite  manner  as  to  the  time 
and  place  of  these  conversations  — giving  them  apparently  In  his  own  language 
and  not  always  In  the  same  words.    After  being  on  the  stand  one  afternoon,  and 
apparently  going  over  the  same  subject,  he  came  back  the  next  morning  and 


j»m— MHWWWWWW 


RECEIVINO   STOLEN   PROPERTY. 


0)82 

conversation.  Uellrst  said  «»;«"- ^^^'^V^^Vrifdl^eren^^^^^^      tl.e  cense  and 
used  ..we "-a  cl>anse  which  ^^^^^'t'';^'^—^^^ 
eflect  o!  the  admission.    I  malco  tf'';«J"fJ,r'^it„es9%u.,  that  his  testl- 
question  or  casting  doubts  upon  the  "^^Srlty  ol  ^l^j'^^'^^^^^^^^^  ^^^  ^^^ 

;„ony  may  be  received  with  due  ^^'^""^"•^^^PP"^^^^^^^^        the  arrest  of  Har- 
o.  loot  by  him.  and  he  has  since  b««"  ;7;;.'^  ^^^^^^^^^^  their  conviction. 

n,ison  and  the  defendant  and  the  f"-"'  ^.^^jj^^f^^^^^^  ,a  the  premises 

and  he  is  liable  to  ^«  "--^^/^^^Jji^^"  r^hat  he  has  undertaken.    Upon 
and  the  very  natural  d«8lre  of  success  m  w  ,  ,,arge,  from 

the  subject  of  verbal  conf-^  ons.  I  read  to  you  as  a  pa.t  of^^^^ 

1  Greenleaf  on  Evidence,'  as  ^^'^^^'^''.J^ll'XLieB  the  danger  or  mistalce 

guilt,  is  to  be  received  with  great  caution.    ^°''  "^f  ^^  ^^^  ^j^n^^e  of  the 

from  tixe  apprehension  of  witnesses.  '';^\^X^^^LZZlZl  it  should  be 

party  to  express  his  own  meaning,  and  «\«»"™yj"',ed  by  tlie  calamity 

LoLcted  that  the  mind  of  the  prisoner  h'™  «"  ^; ^-^^^^^  ^^p,  „  fear  to 

of  the  situation,  and  that  he  t-^'^^^-f^^^^''^,^^^^^^ 

xnake  an  untrue  confession.    The  zeal,  too,  ^^^^^  »«f  "^   the  strong  disposl. 

tect  offender.,  especially  in  case    of    g^^^^^^^^^^ 

tlon  in  the  persons  engaged  in  "'^P^^'^J'/jT^i.^t'roof,  together  with  the 

of  suspicion,  which  are  "'^SS^'^ '^^  1°'"  ^"Xles  in  cases  of  secret  and 

character  of  the  P«'««"«  °«'^«r'^"  ^  *=;"'talurS    hU  k"nd  of  evidence,  and 
atrocious  crime,  all  tend  to  impair  the  value  of  this  Kin  ^^^^  ^^_ 

sometimes  lead  to  its  rejection  when,  in  fj'^^'^.'^^^l^^^^^ 

celved."    The  weighty  «^--'^;'«"/*  f  Ji;%*oul  of  things,  to  be  d's- 
mind,  that  this  evidence  is  not.  In  the  ordinary  cou  ^^^^^  ^^^ 

proved  by  that  sort  ^J  "^^  VJi^  eTto  t^^^^^^^  -cefving  them  and 

be,  and  often  is.  «°°«'°"*''**- ./"^'^  5ha  deliberate  confessions  of  guilt  are 

?=j::;^jin:t-r::^rs^^ 

and  at  any  place  subsequent  to  the  Perj^t-^^;  ^l^^  ^^^^^^  ,J,,. 
vlous  to  his  examination  before  the  ™^f  ^'^  ^'^^  ;  ,j^,,^  ,,i,ence  In  the 
celved  m  evidence,  as  '^•"^"g  P''^"  \«' J"^ f;„J,  l^e  cLsldered  possession  of 

case  which  brings  ^^^J^^^^^^^Z^lX^'^^^^^^^^  '^^'"^^'^^  ^^"'^^ 
this  dust,  in  Oregon,  is  that  «*  M''^"^;^'  ^j.^  15,.^^  In  the  spring  of  1875. 
the  toll-house,  near  CanyonviUe.  whe.a  h«  «><l  «^«  Ind  found  his  wife,  the  de- 
According  to  his  account,  he  ;=^™« '^^^^.^^^^''^XJshe  t^^^^  akd  said: 
fendant,  lying  on  the  lounge  In  tlie  front  '"""j.^;^" '^*  ^ent "  He  asked 
..Dan  smith  (Harmison)  has  been  here  "^"Z,^^;  '  ^^^J^^  ^J^t  bac^oom. 
w,at  it  was,  and  she  -^ ^i^thl  p^otaTolt    t  Put  h"s  hanfinto  the  sack. 

Li:tre'rofdu:ranTi':rer:rin.^^^^^^^^^ 


1  sees.  2X4, 21S. 


PROPERTY   STOLEN  FROM   MAIL. 


688 


I  Texas,  and  be- 
day  before,  or 
t  ot  a  particular 
terwardB  said  she 
In  the  cense  and 
wav  of  calling  lu 
but  that  his  testl- 
'osecutlon  was  set 
the  arrest  of  Har- 
B  their  conviction, 
il  In  the  premises 
mdertaken.    Upon 
f  my  charge,  from 
rbal  confessions  of 
danger  or  mistake 
the  failure  of  the 
mory,  It  should  be 
sed  by  the  calamity 
of  hope  or  fear  to 
illy  prevails,  to  de- 
the  strong  dlsposl- 
y  on  slight  grounds 
,  together  with  the 
cases  of  secret  and 
id  of  evidence,  and 
(vould  have  been  re- 
Is  also  to  be  kept  in 
>f  things,  to  be  d's- 
f  ot  plain  facts  may 
receiving  them  and 
fessions  of  guilt  are 
depends  on  the  sup" 
e  presumption  that  a 
s  Interest  and  safety, 
science.    Such  con- 
ly  moment  of  time, 
;he  crime,   and    pre- 
at  common  law  re- 
lirect  evidence  In  the 
sldered  possession  of 
the  dust  being  left  at 
in  the  spring  of  1875. 
)und  his  wife,  the  de- 
ihe  laughed  and  said: 
present."    He  asked 
m  Into  the  back  room, 
kls  hand  into  the  sack, 
in  he  said:  "It  Is  that 


d— d  Infernal  dust!  Give  It  back  to  him,  and  have  nothing  to  do  with  it." 
The  defendant  urged  him  to  keep  the  dust;  but  ho  declined,  saying  that  it 
would  be  the  ruin  of  them,  when  she  promised  to  return  it,  and  Montgomery 
never  saw  it  afterwards.  Upon  this  evidence,  assuming  it  to  be  true,  I  do  not 
thluk,  as  a  natter  of  law,  that  the  defendant  was  then  and  there  guilty  of  the 
crime  charged  in  the  indictment.  A  package  is  brought  to  the  house  and  left 
with  her  for  her  husband,  which  she  delivered  to  him,  and  he  refuses  to  accept 
it,  and  directs  her  to  return  it  to  the  person  who  brought  it,  which  she  does. 
This  alone,  does  not  make  her  guilty  of  recelTing,  concealing,  or  aiding  in  the 
concealing  of  stolen  property,  even  if  we  assume,  as  is  probable,  that  she 
knew  these  cans  of  dust  had  been  stolen  from  the  mails.  And  although  It  was 
wrong  to  advise  her  husband  to  take  It  (If  she  did),  yet  she  did  not  hereby 
commit  the  crime  with  which  she  is  charged.  Gentlemen  of  the  jury,  the  case 
IB  now  submitted  to  you,  to  say  upon  your  oaths,  under  the  law  and  evidence 
given  you  in  court,  whether  tl^  defendant  is  guilty  or  not.  Take  the  law  so 
given  you,  and  apply  It  to  the  facts,  as  you  may  find  them  from  the  evidence, 

and  make  up  your  verdict  accordingly. 

Verdict,  not  guilty. 


G«4 


KOUBEBV. 


Part  V. 
ROBBERY. 


BOBBERY -FORCE  AND  VIOLENCE  ESSE5TIAL. 

McCloskey  V.  People. 

In  the  Supreme  Court  of  New  York,  1862. 
[6  Park.  279.]' 

oonviclod  under  Buch  a  charge,  the  Judgment  wa8  reversed.  ,„„«diate 

will,  but  la  spite  ot  his  resistance. 

The  prisoner  was  indicted  for  a  robbery,  charged  to  have  been  com- 
mitted  on  Halsey  F.  AVing,  in  taking  violently  from  his  person  four 
silver  coins  of  the  value  of  one  dollar,  and  one  hat  of  the  value  of  four 

^"^Thrprisoner  pleaded  not  guilty,  and  was  tried  at  a  Court  of  Sessions 
held  in  the  County  of  Kings,  in  March,  1862,  before  the  county  judge 
and  the  justices  of  the  Sessions.  .„    ,       ^  „ 

Halsey  F.  Wing,  called  by  the  district  attorney,  testified  as  follows: 
I  never  knew  defendant  before  the  evening  in  question ;  he  came  into 
White's  drinking  saloon ;  think  it  was  about  1 1  o'clock  p   m. ;  he  came 
Tw^th  a  young  man  and  had  a  drink;  he  then  asked  if  I  couldn  t 
trert-  I  said  I  supposed  so;  took  a  drink  with  them;  I  paid  for  it; 
star  ed  to  go ;  he  said  I  must  go  with  hhn ;  took  hold  of  my  arm  and 
putd  me  U;  said  he  was  going  down  Ryerson  Street ;  puUed  me 
with  him,  asked  me  how  much  money  I  had  ;  said  not  much ;  he  said 
let  me  see  it.     I  pulled  out  some  change  from  my  pocket,  and  held  it 
close  in  my  hand;  he  said  I  had  more  money  than  that;  jumped 
around  in  front  of  me,  had  one  arm  around  my  neck,  put  his  handiu 
my  pocket,  pulledout  a  half-dollar  and  asmaller  coin  and  kmfe ;  said  1 
couldhavetheknife,  and  handed  it  back  to  me;  he  called  me  Belknap- 
aaid  he  would  be  easy  with  me  if  I'd  give  him  some  money.     I  askea 


mmmmm^mmmmmmmmiif^^'' 


m'closkey  v.  people. 


G85 


ITIAL. 


^62. 


sr  without  any  Btruggle 
t  oJ  the  thief,  will  not 
nat  feloniously  takinn 
ault  and  battery  would 
le  prisoner  having  been 

a  In  fear  of  Immediate 
use  amount  to  robbery 
ty,  not  only  against  his 


to  have  been  com- 
m  his  person  four 
if  the  value  of  four 

I  Court  of  Sessions 
e  the  county  judge 

;estifled  as  follows: 
ition ;  he  came  into 
)ck  p.  m. ;  he  came 
asked  if  I  couldn't 
lem ;  I  paid  for  it ; 
lold  of  my  arm  and 
1  Street ;  pulled  me 
.  not  much ;  he  said 

pocket,  and  held  it 
than  that;  jumped 
eck,  put  his  hand  in 
in  and  knife;  said  I 

called  me  Belknap ; 
me  money.     I  asked 


liiin  if  ho  wanted  to  rob  mo ;  I  ran  up  on  tlic  stoop  and  rang  the  bell. 
He  ciiine  up,  I  got  hold  of  his  hands  and  held  him,  and  kicked  against 
the  door;  I  luislied  him  off  the  stoop;  ho  came  up  a<j;ain;  I  piisliod 
liiin  off  again ;  he  got  up,  took  my  hat  and  ran   away ;  went  to  the 
station  house,  got  an  ofllccr  and  liad  him  arrested ;  he  came  out  of  a 
liquor  store  in  Myrtle  Avenue,  not  quite  a  block  from  where  the  dilH- 
culty  took  place. 
Dining  the  cross-examination  of  the  witness  he  stated :  — 
Tiie  defendant  had  been  drinking  that  niglit;  didn't  consider  him 
intoxicated ;  I  consider  a  man  intoxicated  when  he  staggers  from  one 
side  of  tlie  sidewalk  to  the  otlieivo'>t  otherwise;  he  put  his  hand  in 
my  right  side  pocket ;  he  stood  in  front  of  me  at  the  time ;  stoodso, 
probably  fifteen  seconds,  or  perhaps  not  so  long ;  we  walked  along  to- 
gellier ;  before  that  he  had  hold  of  my  arm ;  he  took  a  fifty  cent  piece 
and  another  coin ;  don't  know  what  it  was ;  smaller  than  fifty  cents ;  he 
gave  me  the  knife  back ;  witness  had  some  small  coin  in  the  right  hand 
holding;  don't  know  what  was  done  with  the  other;  remember  I  broke 
loose  and  ran  away  from  him ;  I  tfied  to  get  loose  from  him  whilst  he 
had  iiis  hand  in  my  pocket ;  tried  to  shove  him  away  with  my  left 
hand  1  think ;  am  not  positive ;  I  shoved  him  away  with  my  left  or 
right  hand;  am  not  positive  1  shoved  liim  with    the  other  hand;  I 
stepped  back  from  him  or  tried  to ;  ho,  defendant  took  the  change  out 
of  his,  witness'  right  pocket ;  knew  a  fifty  cent  piece  and  some  other 
change  remained;  don't  know    how    much  I  had   in  my  hand;  left 
fifty  cents  and  coin  in  my  pocket;  didn't  want  him  to  know  how 
ranch ;  didn't  try  to  prevent  his  putting  his  hand  in  my  pocket ;  it  was 
there  before  I  knew  he  intended  to  do  it ;  I  knew  when  lie  drew  his  hand 
out ;  lie  put  it  in  and  took  it  out  in  an  instant ;  don't  remember  I  said  any 
thing  at  the  moment  he  put  his  hand  in  or  out ;  I  turned  round  and 
tried  to  get  into  the  house ;  don't  know  that  I  stepped  in  front  of  him. 
Q.  What  were  you  doing  with  your  right  hand  while  the  defendant 
had  his  arm  over  your  shoulder,  and  his  hand  in  your  pocket?    A.  I 
had  some  small  change  in  my  right  hand  holding.     Q.  What  were  you 
doing  with  your  left  hand  during  this  time?    A.  I  don't  know.     Q. 
What  did  he  say  to  you  while  he  had  his  hand  in  your  pocket?    A. 
Nothing.     Q.  What  did  you  say  to  him  ?    A.  Nothing.  I  tried  to  shove 
him  away  with  my  left  hand  I  think ;  I  am  not  positive ;  I  can  not  say 
that  I  did  any  thing ;  he  took  his  arm  from  my  shoulder  when  he  took 
liis  hand  out  of  my  pocket ;  I  am  not  positive  I  shoved  him  with  either 
hand ;  I  stepped  back  from  him  or  tried  to.     Q.  Did  you  do  any  lai  ig 
to  prevent  him  from  putting  his  hand  in  your  pocket?    A.  I  did  not. 
Q.  Did  you  do  anything  to  prevent  him  from  taking  the  money  out  of 
your  pocket?    A.  No.     Q.  Did  he  make   any  threats?    A.  No.     Q. 


ja[esiW*iTWWisiMBBBWW»' 


Qgg  RUUUEllY. 

Were  you  f rightenc<l  at  the  time  ho  took  the  money?  A.  I  did  not 
know  but  he  wae  playing  or  joking  with  me  when  he  put  his  hand  in 
my  pocket.  Q.  Then  it  did  not  oceur  to  you  at  the.  time  that  he  wiw 
robbing  you?  A.  No.  Q.  Wlien  did  it  first  occur  to  you?  A.  After 
he  took  the  money  and  asked  me  if  I  liadn't  more  ;  he  did  not  injure 
me  iu  any  way ;  lie  talked  friendly  and  good-naturedly  tlie  little  Way 
we  came  togetlier.  I  walked  along  with  him  of  my  own  accord,  when 
he  pulled  me  out  of  the  door;  I  took  it  to  be  good  natured. 

Re-direct:  I  had  bills  about  me;  I  paid  for  the  drinks  I  took  witli 
him  in  change;  he  shoved  my  vest  up;  had  bills  in  my  pocket;  that 
was  after  he  took  the  money  out  of  my  pocket. 

By  the  Court,  Emmot,  J.  The  Revised  Statutes  define  robbery  in  the 
first  degree  to  consist  in  feloniously  taking  personal  property  of  another 
from  hi°  person,  or  in  his  presence  against  his  will,  by  violence  to  his  per- 
son, or  by  putting  such  person  in  fear  of  immediate  injury  to  his  person,' 
The  common-law  definition  of  rol)bery  was  the  same.a  The  mere  snatch- 
ing anything  from  the  hand  or  tie  person  of  any  one,  without  any  struggle 
or  resistance  by  the  owner,  or  any  force  or  violence  on  the  part  of  the 
thief,  will  not  constitute  robbery. 

In  Gascoigne's  Case,^  the  prisoner  snatched  some  money  out  of  the 

pocket  of  a  woman  whom  he  was  conveying  to  prison  on  a  criminal 

charge.    The  prisoner  was  not  a  constable,  but  attended  the  police 

office  as  a  runner.     He  was  convicted  of  robbery  and  tl'°.  conviction 

was  sustained  on  the  ground,  which  was  proved,  that  he  had  violently 

forced  the  woman  into  a  coach  and  handcuffed  her,  with  the  felonious 

intent  of  getting  her  money,  and  the  direction  to  the  jury  at  the  trial 

put  the  case  upon  this  exclusively.     Tiie  cases  which  are  often  cited  of 

taking  an  ear-ring,  which  was  held  to  be  a  robbery  when  it  was  taken 

with  such  violence  aa  to  lacerate  the  ear  of  tiie  wearer,  or  a  diamond 

hair  ornament,  tearing  out  with  it  a  part  of  the  lady's  hair  from  her 

head,  are  illustrations  of  the  rule  as  to  the  degree  of  violence  necessary 

to  constitute  the  offense  of  robbery.'' 

The  court  below  in  the  present  case  instructed  the  jury  in  effect  that 
feloniously  Uking  another's  property  with  violence  sutficient  to  conati- 
tute  an  assault  and  battery,  would  make  out  the  crime  of  robbery ;  and  ] 
again,  that  if  they  believed  the  story  of  the  principal  witness,  the  of- 
fense was  made  out. 

In  these  instructions  the  judge  was  in  error. 

In  the  cases  to  which  I  have  refereed,  as  well  as  to  many  others  to  be  | 
found  in  the  books,  the  snatching  of  tlie  property  was  sufficient  to  con- 


1  2  Rev.  StatB.  677,  sec.  65. 
.4Bla.  Com.  243;  1  Hale's  PI.  vol.; 
46;  2  East's  Or.  L.,  ch.  16,  sec  124,  teq. 


i  Leach,  313 ;  East  Or.  L.,  vol.  2,  p.  709. 
*  Leach,  238. 


^V/"^- 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


2.0 


lAO 


1-     ^ 


1.8 


L25  IIIU    111.6 


V 


<^ 


^i 


Photographic 

Sciences 

Corporation 


s/ 


23  west  MAIN  STREIT 

WEBSTER,  N.Y.  14SM 

(716)  872-4503 


^^^^^ 


CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


'"mmrmmmS^ 


^^ 


iMMai 


STATE    V.  JOHN'  ""' 


stitute  an  assault  an.l  battery,  yet  that  alone  did  not  make  the  felonious 
tuking  more  than  a  larceny.     Tne  property  must  be  taken  by  violence 
to  the  person,  which  means  more  than  a  simple  assault  and  battery. 
The  violence  must  be  sufficient  to  force  the  person  to  part  with  his 
property,  not  only  igainst  his  will  but  in  spite  of  his  resistance.     The 
rule  of  law  laid  down  by  the  court  below  went  further  than  the  author- 
ities justify,  and  the  application  of  t;ie  rules  to  the  facts  was  also  incor- 
rect.    The  proof  showed  th.at  the  prisoner  took  the  money  which  he 
stole  out  of  the  prosecutor's  pocket,  while  they  were  walking  together 
in  a  friendly  manner.     No  more  force  was  used  than  was  sufficient  to 
pull  t'le  money  out  of  the  pocket  of  the  witness.     Both  men  had  been 
drinkinc^,  and  the  prosecutor,  at  the  time  of  the  act,  evidently  consid- 
ered and  treated  the  prisoner's   conduct  as  a  joke.     He  made  no 
resistance,  and  yielded  neither  to  force  nor  fear.     If  he  was  led  to  en- 
tertain the  idea  that  the  prisoner  intended  to  rob  him,  or  to  any  fear 
or  apprehension  of  violence  or  injury  from  him,  it  was  not,  as  he  him- 
self states,  until  after  this  offense  was  committed. 

Under  these  circumstances,  the  violence  to  the  person  in  taking  the 
property,  which  is  the  essential  element  of  robbery,  was  wanting,  and 
the  prisoner's  offense  was  simply  a  larceny. 

The  judgment  of  the  Court  of  Sessions  must  be  reversed  and  a  new 
trial  ordered. 


ROBBERY -USE  OF  FORCE  NECESSARY -OR  TERROR. 

State  v.  John. 

[6  Jones  (L.),  1C3;   69  Am.  Dec.  777.] 

In  the  Supreme  Court  of  North  Carolina,  1857. 

L  Bobbery  1.  Committed  by  IToroe.  Larceny  by  Stealth,  »"'', '»^'""  »""«'•  "J 
TlolenJJor  circumstance  of  terror  resorted  to  for  the  purpose  of  inducing  the  owner  to 
lart  with  hi.  property,  for  the  sake  .f  hi.  person,  the  crime  committed  i.  not  robbery, 
but  larcenv.  ^      ,         ... 

9  T«  Oon-titnte  Bobbery,  the  force  used  must  be  either  before  or  at  the  time  of  the 
2.  To  Oonatltwto  Jioi)Dory.j.      *  intended  to  overpower  the  party 

taklne.  and  of  sucli  iiatuie  as  lO  snow   iiiai  n  "■»=  »"»'  _„t„_  „«  .1,. 

rSi.  or  to  prevent  resistance  on  his  part,  and  not  merely  to  get  possession  of  the 

property. 

Indictment  for  highway  robbery.  The  only  facts  necessary  to  an 
understanding  of  the  points  decided,  are,  that  one  Brooks,  theprosecut- 
Ing  witness,  was  sitting  in  and  driving  liis  wagon  along  a  road  one  even- 
ing  after  dark,  when  he  overtook  the  defendant.  They  traveled  on 
together,  the  defendant  walking,  and  Biooks  riding,  until  defendant  told 


nrwtiTif! 


688 


ROBBERY. 


him  that  he  had  found  a  bill  of  money,  and  that  he  wished  Brooka  to 
tell  him  its  .lenomination.  Brooks  objected,  but  defendant  insisted. 
At  len-th  a  torch  was  lighted  and  the  bill  examined.  Its  amount  being 
large,  excited  the  suspicions  of  Brooks,  and  caused  him  to  take  partic- 
ular  notice  of  defendant's  face,  his  wearing  apparel  etc.  W.iile 
Brooks  was  examining  the  bill,  he  felt  defendant's  hand  in  his  pocket 
on  his  pocket-book.  He  seized  defendant's  arm,  who  at  the  same  time 
snatched  the  bill.  A  scuffle  took  place.  Brooks  was  thrown  out  of 
liis  wacron.  When  he  arose,  defendant  had  escaped,  taking  with  him 
the  bin,  and  also  the  pocket-book,  containing  two  hundred  and  twenty- 
seven  dollars.  Brooks  testified  that  defendant  was  the  man  who  com- 
mitted the  crime.     Defendant  was  convicted,  sentenced  to  death,  and 

took  this  appeal.  ^     t    i-       a4. 

K.  P.  Battle  and  Wmiam  IL  Bailey  and   WUliam  A.  Jenfctna,  At- 

torne5'-General,  for  the  State. 

Defendant  was  not  represented  by  counsel. 

Bv  the  Court,  Pearson,  J.  Robbery  is  committed  by  force ;  larceny 
bv  stealth.  The  original  cause  for  making  highway  robbery  a  capital 
felony,  without  benefit  of  clergy,  was  an  evil  practice  in  former  days 
very  common,  of  meeting  travelers,  and  by  a  display  of  weapons  or 
other  force,  putting  them  in  fear  (-  stand  and  deliver '),  and  in  th^ 
way  taking  their  goods  by  force.  Hence,  the  indictment  (the  form  is  still 
retained)  contains  this  allegation :  -And  him  [the  person  robbed]  in 
bodily  fear,  and  in  danger  of  his  life,  in  the  highway,  then  and  there, 
did  feloniously  put:  "  and  it  was  for  a  long  time  held  that  the  aUega- 

tion  must  be  proved. 

In    Foster's    Criminal    Law,i   i^  this    passage:     "The    prisoner  8 
counsel  say  there  can  be  no  robbery  without  the  circumstance  of  putting 
in  fear      I  think  the  want  of  that  circumstance  alone  ought  not  to  be 
rc-rarded      I  am  not  clear  that  that  circumstance  is  of  necessity  to 
be^laid  in  the  indictment  so  as  the  fact  be  charged  to  be  done  noleiiter  et 
contra  voluntatem.     I  know  there  are  opinions  in  the  books  which  seem 
to  make  the  circumstance  of  fear  necessary,  but  I  have  seen  a  good 
manuscript  note  of  an  opinion  of  Lord  Holt  to  the  contrary   and  I  am 
very  clear  thakthe  circumstance  of  actual  fear  at  the  time  of  the  robbery 
need  not  be  strictly  proved.     Suppose  the  true  man  is  knocked  down 
without  any  previous  warning  to  awaken  his  fears,  and  lieth  totally  'n- 
sensible  while  the  thief  rifleth  his  pockets,  is  not  this  robbery?    And 
vet  where  is  the  circumstance  of  actual  fear?  Or  suppose  the  true 
man  maketh  a  manful  resistance,  but  is  overpowered,  and  his  property 
taken  from  him  by  the  mere  dint  of  superior  strength,  this  doubtless 


1  p.  128. 


I  Brooks  to 
it  insisted, 
lount  being 
take  partic- 
jtc.  While 
\  his  pocket 
e  same  time 
rown  out  of 
g  with  him 
and  twenty- 
,n  who  com- 
>  death,  and 

Jenkina,  At- 


rce ;  larceny 
sry  a  capital 
former  days 
weapons,  or 
I,  and  in  this 
e  form  is  still 
1  robbed]  in 
n  and  there, 
eit  the  aUega- 

le  prisoner's 
ice  of  putting 
ght  not  to  be 

necessity  to 
ne  nolenter  et 
IS  which  seem 

seen  a  good 
iry,  and  I  am 
)f  the  robbery 
mocked  down 
eth  totally  in- 
)bbery?  And 
[lose  the  true 
i  his  property 
this  doubtless 


STATE    V.  JOHN. 


089 


is  robber3\  In  cases  wher  the  true  man  delivcreih  liis  purse  witliout  re- 
sistance, if  the  fact  be  attended  with  those  circumstances  of  violence 
and  terror  whivh  in  common  experience,  are  likely  to  induce  a  man  to 
part  with  his  property  for  the  sake  of  his  person,  that  will  amount  to  a 
robbery.  If  fear  be  a  necessary  ingredient,  the  law  in  odium  spolia- 
toris  will  presume  fear,  where  there  appeareth  to  be  so  just  a  ground 
for  it." 

In  Foster's  day,  it  would  not  have  occurred  to  any  lawyer,  that  the 
facts  set  out  in  tlie  record  now  under  consideration  made  a  case  of 
highway  robbery.  There  was  no  violence  —  no  circumstance  of  terror 
resorted  to  for  the  purpose  of  inducing  the  prosecutor  to  part  with  his 
property  for  the  sake  of  liis  person. 

Violence  may  be  used  for  four  purposes:  1.  To  prevent  resistance. 
2.  To  overpower  the  party.  3.  To  obtain  possession  of  the  property. 
4.  To  effect  an  escape.  Either  of  the  first  two  makes  the  offense  rob- 
bery. The  last,  I  presume  it  will  be  conceded,  does  not.  The  third  is 
a  middle  ground.  In  general,  it  does  not  make  the  offense  robbery, 
but  sometimes,  according  to  some  of  the  cases,  it  does.  It  is  neceS" 
sarj',  therefore,  to  see  how  the  authorities  stand  in  respect  to  it. 

After  Foster's  day,  the  idea  of  robbery  was  extended  sa  as  to  take 
in  a  case  of  snatching  a  thing  out  of  a  person's  hand,  and  making  oU 
with  it,  witliout  further  violence,  but  in  Horner's  Case,^  tried  before 
BuUer,  J.  and  Thompson,  B.,  it  was  held  that  snatching  an  umbrella 
out  of  a  lady's  hand  as  she  was  walking  the  street,  was  not  robbery, 
and  the  court  say :  "It  had  been  ruled  about  eighty  years  ago,  by  very 
high  authority,  that  the  snatching  any  thing  from  a  person  unawares 
constituted  robbery ;  but  the  law  was  now  settled  that  unless  there  was 
some  struggle  to  keep  it,  and  it  were  forced  from  the  hand  of  the 
owner,  it  was  not  so.  This  species  of  larceny  seemed  to  form  a  middle 
case  between  stealing  privately  from  the  person  and  taking  by  force  and 
violence."  In  Lapier's  Case,^  an  ear-ring  was  so  suddenly  pulled  from 
a  lady's  ear  that  she  had  no  time  for  resisting,  yet  being  done  with  such 
violence  as  to  iny.  re  her  person,  the  blood  being  drawn  from  her  ear, 
which  was  otherwise  much  hurt,  it  was  held  to  be  robbery.  So  in 
Moore's  Case,^  a  diamond  pin  which  a  lady  had  strongly  fastened  in 
her  hair  with  a  corkscrew  twist,  was  snatched  with  eo  much  force  as  to 
tear  out  a  lock  of  hair,  it  was  held  robbery,  because  of  the  injury  to 
the  person.  Possibly  the  ground  on  which  these  two  cases  is  put  may 
be  questioned,  its  the  injury  to  the  person  was  accidental,  and  seems  not 
to  have  been  contemplated ;  but  they  have  no  bearing  on  our  case. 

In  Davies'  Case,*  the  prisoner  took  hold  of  a  gentleman's  sword, 


1  S  East's  r.  C.  703. 
a  Id.  708. 

8  Defekces. 


3  1  Leach,  335. 

«  2  East's  P.  C.  709. 


44 


«)90 


ROBBERY. 


who,  perceiving  it,  laid  bold  of  it  at  the  same  time  and  struggled  for  it. 
This  was  adjudged  to  be  robbery. 

In  Mason's  Cuse,^  the  prisoner  took  a  watch  out  of  a  gentleman's 
pocket,  but  it  was  fastened  to  a  steel  chain  which  was  around  his  neck. 
The  prisoner  made  two  or  three  jerks,  until  he  succeeded  in  breaking 
the  chain.  Parke,  B.,  instructed  the  jury  that  this  was  robbery,  but 
doubts  being  expressed,  he  referred  it  to  all  tlie  judges  uho  were 
unanimous  in  the  opinion  that  it  was  robbery,  because  of' the  force 
used  to  break  the  chain  which  was  around  tlie  gentleman's  neck. 
This  is  all  the  report  says.  It  is  short,  and  to  me  unsatisfactory, 
seeming  to  go  back  to  the  idea  of  robbery  that  existed  before  Plunket'a 
Case. 

In  Gnosil's  Case^  the  prosecutor  was  going  along  the  street,  the 
prisoner  laid  hold  of  his  watch  chain,  and  with  considerable  force 
jerked  it  from  his  pocket ;  a  scuffle  then  ensued,  and  the  prisoner  was 
secured.  Garrow,  B. :  "  The  mere  act  of  taking  being  forcible  will  not 
make  this  otfense  a  highway  robbery.  To  constitute  the  crime  of  high- 
way robbery,  the  force  used  must  be  either  before  or  at  the  time  of  the 
taking,  and  must  be  of  such  a  nature  as  to  ow  that  it  was  intended 
to  overpower  the  party  robbed,  or  prevent  his  resisting,  and  not  merely 
to  get  possession  of  the  property  stolen.  Thus  if  a  man  walking  after 
a  woman  in  the  street  were,  by  violence,  to  pull  her  shawl  from  her 
shoulders,  though  he  might  use  considerable  force,  it  would  not  in  my 
opinion,  be  highway  robbery ;  because  the  violence  was  not  for  the 
purpose  of  overj)oweriiig  the  party  robbed,  but  only  to  get  possession 
of  the  property."  This  decision  was  four  years  after  Maaoii's  Case,^ 
and  I  suppose  Garrow,  was  then  one  of  the  judges.  According  to 
this  case,  which  is  the  latest  that  we  have  met  with,  our  case  is  not 
robbery,  even  if  it  be  admitted  to  fall  under  the  third  head  of  violence 
above  enumerated.  Our  case  is  clearly  distinguishable  from  Davies' 
Case,*  for  both  parties  had  hold  of  the  sword  and  struggled  for  it.  If 
Davies  had  let  it  go,  there  would  have  been  no  necessity  for  violence ; 
and  his  holding  on  and  struggling  for  it  could  only  be  imputed  to  his 
determination  to  take  it  by  force.  In  our  case,  the  prosecutor  did  not 
have  hold  of  the  pocket-book ;  there  was  no  struggle  for  it ;  but  he  had 
hold  of  the  prisoner's  arm;  so  he  could  not  by  letting  go  the  pocket- 
book,  have  avoided  the  necessity  for  violence ;  and  the  struggle,  in 
which  the  prosecutor  fell  under  the  tongue  of  the  wagon,  is  fairly 
imputable  to  an  effort  on  the  part  of  tlie  prisoner  to  get  loose  from  his 
grasp  and  make  his  escape.     The  only  difference  between  this  case  and 


1  2  UU98.  *  Ky.  419  (In  1820). 
8  1    0.  *  P.  SU;    11  Bng.  Com.  L. 
(1824). 


1 00 


'  $upra. 

*  2  East's  P.  C.  709. 


^^1 


STATE   t'.  JOHN. 


691 


gled  for  it. 

pntlemar.'s 
i  bis  neck, 
n  bieaking 
bbery,  but 
uho  were 
"tlie  force 
an's  neck, 
itisfactory, 
B  Plunket'a 

street,  the 
able  force 
isoner  was 
ble  will  not 
ne  of  high- 
time  of  the 
9  intended 
not  merely 
Iking  after 
f\  from  her 
1  not  in  my 
ot  for  the 
possession 
oil's  Case,^ 
cording  to 
case  is  not 
of  violence 
)m  Davies' 
for  it.  If 
p  violence ; 
ited  to  his 
tor  did  not 
but  he  bad 
the  pocket- 
;ruggle,  in 
I,  is  fairly 
ie  from  his 
is  case  and 


that  of  Gnosil  is  that  the  one  succeeded  in  getting  loose,  and  the  other 
was  less  fortun.itc.  Supi)Ose  in  the  struggle  the  prosecutor  had  been 
too  strong  for  the  prisoner,  and  had  succeeded  in  arresting  him,  there 
was  a  taking  of  the  pocket-book,  and  an  asi'ortacit,  so  as  to  constitute 
larceny  In  "  picking  of  the  pocket;  "  but  would  any-one  have  said  it 
amounted  to  robbery?  Can  the  nature  of  the  offense  be  changed  by 
the  accident,  that  the  prisoner  succeeeded  in  getting  away  because  the 
prosecutor  happened  to  fall  on  the  tongue  and  doubletree,  Tbich  broke 
bis  bold  from  the  arm  of  the  prisoner? 

Our  case  is  also  clearly  distinguishable  from  Mason's  Case.^  The  watch 
was  fastened  to  a  steel  chain,  which  was  round  the  neck  of  the  prose- 
c  lor.  Had  Mason  let  the  watch  go,  there  would  have  been  no  neces- 
sity for  violence ;  bis  holding  on  and  jerking  until  he  broke  the  chain 
could  only  be  imputed  to  a  determination  to  take  the  watch  by  force. 

State  V.  Ti'exler,'^  was  also  cited  in  the  argument.  That  was  an  in- 
dictment for  forcible  trespass.  The  defendant  had  taken  a  bank-note 
out  of  the  pocket-book  of  the  prosecutor,  who  tried  to  get  it  away  from 
him.  He  resisted,  and  a  struggle  ensued.  Seawell,  J.,  arguendo,  ex- 
presses the  opinion  that  the  evidence  showed  force  enough  to  constitute 
robbery,  although  the  prosecutor  did  not  have  hold  of  the  bank-note. 
This,  I  suppose,  was  said  to  meet  what  Duller  says  in  Plunket's  Case, 
"  unless  there  was  some  struggle  to  keep  it,  and  it  were  forced  from 
the  band  of  the  owner."  However  that  may  be,  it  is  sufficient  to  say 
that  was  a  mere  dictum.  It  is  true,  Judge  Seawell  was  greatly  dis- 
tinguished as  a  criminal  lawyer,  but  a  dictum  in  reference  to  a  capital 
offense  can  not  be  much  relied  on  when  thrown  out  in  considering  a 
misdemeanor. 

After  much  consideration,  I  am  convinced  that  the  facts  set  out  in 
this  record  do  not  constitute  highway  robbery.  I  am,  therefore,  of 
opinion  that  the  judgment  ought  to  be  reversed  and  a  venire  de  novo 
awarded. 

Nash,  C.  J.,  absent. 

Let  the  judgment  be  reversed,  and  this  opinion  certified,  to  the  end 
that  the  prisoner  may  have  a  new  trial. 


1  mpra. 


2  Oar.  Law  Repos.  90  (6  Am.  Dec.  S5S). 


692 


ROBUERY. 


ROBBERY  — VIOLENCE    ESSENTIAL  — SNATCHING    FROM   HAND  — 
SUBSEQUENT  VIOLENCE. 

Shinn  V.  State. 

(64  Ind.  13.) 

In  the  Supreme  Court  of  Indiana,  1878. 

Honey  was  anatohed  from  A.'s  hand  by  B.  but  wlthont  yiolenco  to  his  person,  the  onlv 
riolonco  useil  bolng  in  proventini;  its  recovery  and  struggling  to  retain  it  after  it  was 
talcen.  Helil,  tliat  such  snatching  or  taking  was  not  such  violence  as  to  constitute  rob- 
bery, and  timt  subsequent  violence,  or  putting  in  fear,  will  not  make  a  previous  clan- 
destine taking  robbery. 

NiBLACK,  J.  The  prosecution  in  this  case  was  upon  an  indictment 
contaiiiiag  two  counts. 

The  first  count  charged,  that  Robert  Shinn  and  another  person,  whose 
name  was  to  the  grand  jury  unknown,  "  on  the  15tli  day  of  August, 
A.  D,  1878,  at,"  etc.,  "did  then  and  thci-e  unlawfully,  forcibly  and 
feloniously  take  from  the  person  of  Ithamar  McCart}-,  by  violence,  three 
ten  dollar  National  Bank  bills,  of  the  value  of  ten  dollars  each,  and  of 
the  aggregate  value  of  thirty  dollars  upon  a  national  bank  and  na- 
tional banks  to  tlie  said  grand  jury  unknown,  of  the  personal  property, 
goods  and  moneys  of  Jasper  N.  IMcCart}'." 

The  second  cdunt  cliarged  the  same  person  with  stealing,  taking  and 
carrying  away  three  ten-dollar  national  bank  bills,  describing  such  bills, 
in  the  same  manner  as  in  the  flist  count. 

Shinti,  the  appellant,  plead  not  guilty,  and,  upon  u  trial  by  a  jury* 
was  found  guilty  of  the  robbery  charged  in  tlie  first  count  of  the  indict- 
ment. His  punishment  was  fixed  at  a  fine  of  one  dollar  and  at  impris- 
onment in  the  State  prison  for  two  years. 

Disregarding  a  motion  for  a  new  trial,  the  court  rendered  a  judgment 
of  conviction  upon  the  verdict. 

One  of  the  causes  assigned  for  a  new  trial  was  the  insufficiencj'  of  the 
evidence  to  sustain  the  verdict,  and  that  constitutes  the  principal  ques- 
tion to  which  our  attention  has  been  invited  here. 

Ithamar  McCarty  was  the  prosecuting  witness,  and  the  only  witness 
as  to  most  of  tlie  material  facts  relied  on  by  the  prosecuting  attorney 
for  a  conviction. 

He  testified,  that  late  in  the  evening  of  August  14,  1878,  he  went  from 
Hancock  County  to  the  City  of  Anderson,  in  the  count}'  of  Madison  to 
sell  some  flax  seed  for  his  brother,  Jarper  McCarty ;  that  he  received 
a  check  for  tliirty-five  dollars  and  eighty-five  cents,  the  value  of  the  flax 
seed,  upon  a  bank  of  that  city ;  that  next  moraing,  after  he  had  received 


SHINN    V.  STATE. 


698 


the  money  on  the  check,  he  sat  clown  on  the  step  at  a  store  door,  to 
look  over  the  money  and  to  see  that  it  was  all  right;  that  while  so  en- 
gaged, a  man  came  up  in  front  of  him  and  engaged  him  in  conversation ; 
that  this  man,  was  the  person  designated  in  the  indictment  as  tlie  person 
unknown  to  the  grand  jury,  and  who  was  referred  to  upon  the  trial  as  the 
"padlock  man,"  made  some  inquiry  as  to  his  (witness')  future  business 
intentions,  saying  that  he  had  for  sale  a  very  remarkable  padlock,  de- 
nominated a  burglar-proof  padlock,  or  something  of  that  kind,  ami  su-r- 
gesting  that  he,  said  McCarty,  should  become  an  agent  for  the  sale  of 
this  padlock ;  that  this  unknown  man,  after  some  further  conversation, 
left  witness  to  get  a  specimen  lock  for  his  examination  and  further 
lufornuation ;  that  after  an  apparent  second  effort  to  fnid  a  lock,  the  pad- 
lock man  came  to  witness  at  an  appointed  place  with  a  lock ;  that,  there- 
upon, lie  and  witness  went  walking  together  upon  one  of  the  streets 
dunng  which  time  he  explained  to  witness  how  to  unlock  this  sixecimen 
lock,  claiming  that  no  person  not  previously  instructed  could  unlock  it  • 
that  they  soon  came  to  the  door  of  a  church,  where  they  sat  down  upon 
the  step  in  the  shade,  and  continued  the  discussion  of  the  merits  (n  the 
lock;  that  soon  after  thoy  were  thus  seated,  the  appellant,  who  was  a 
stranger  to  witness,  came  up  in  front  of  them  and  inquired  when  the 
tram  left  for  Rushville,  remarking  that  his  father,  who  lived  in  Marion 
in  Grant  County,  had  had  two  horses  stolen,  and  that  he  was  in  pursuit 
of  the*  horses ;  that  the   padlock  man  then  handed  the  lock  to  the 
appellant,  with  a  remark  that  if  his  father  had  had  such  a  lock  on 
his  barn  as  that,  his  horses  would  not  have  been  stolen  ;  that  the  appel- 
lant, taking  the  key,  made  a  seeming  effort  to  unlock  the  lock,  but 
failing,  said  the  lock  was  a  sham;  that,  being  assured  by  the  padlock 
man  that  it  was  a  very  easy  thing  to  do  if  he  only  understood  its  work- 
ings, the  appellant  made  another  apparent  effort  to  unlock  the  lock 
but  again  faihng,  he  handed  the  lock  back,  saying  he  would  bet  fifty 
dollars  there  was  not  a  man  in  the  State  who  could  unlock  that  lock  • 
that  witness  pulled  out  of  his  pocketthree  ten-dollar  national  bank  bills,' 
and  holding  them  in  his  hands,  remarked,  that  if  he  was  a  betting  man,' 
he  would  bet  that  amount  that  he  would  unlock  the  lock  very  easy ;  that 
at  that  point  witness  became  suspicious  that  the  padlock  man  was  too 
anxious  for  him  to  bet,  and  was  about  to  return  these  bills  to  his  pocket 
when  the  padlock  man  snatched  them  from  his  hand  and  handed  them 
over  to  the  appellant,  who  started  off  on  a  run;  that  the  padlock  man 
then  took  witness  by  the  arms  and  slioved  him  over  the  steps  in  front  of 
the  church;  that  witness,  getting  loose,  ran  after  appellant,  and  caught 
him  by  the  arm  and  demanded  a  return  of  the  money ;  that  the  padlock 
man  again  caught  hold  of  witness,  about  which  time  the  appellant 
handed  back  to  witness  a  ten-dollar  bill,  requesting  him  to  accept  it  as 


v.J«'VWiaMMJ*U4W!a»JilgM'J'tJ,"WR,'WiliK''.i  I'MiiJH  t«'i 


694 


UOBBERV. 


comi)romise  ;  that  witness  still  bung  on  to  appellant,  insisting  on  a  re- 
turn of  the  remaining  twenty  dollars,  when  another  tussle  ensued,  in 
which  all  three  engaged,  but  the  attention  of  others  being  attracted  l)y 
this  time,  the  padlock  nin  very  suddenly  disappeared  from  the  ciiy,  and 
the  appellant  was  soon  after  arrested. 

This  we  regard  as  a  fair  synopsis  of  so  much  of  the  testimony  of  the 
prosecuting  witness  as  is  necessary  to  indicate  the  character  of  the 
transaction^for  which  the  appellant  was  convicted  as  above  set  forth. 

The  synopsis  above  given  embraces  the  substantial  portions  of  the 
testimony  which  went  most  strongly  against  the  appellant. 

It  is  said  that  the  principle  of  robbery  is  violence,  but  it  has  been 
held  that  actual  violence  is  not  the  only  means  by  which  a  robbery  may 
be  effected ;  that  it  may  also  be  accomplished  by  fear,  which  the  law 
considers  as  constructive  violence.^ 

With  respect  to  the  degree  of  actual  violence  necessary  to  constitute 
a  robbery,  more  than  a  sudden  taking  or  snatching  must  be  shown. 

Archbold's  Treatise  on  Criminal  Practice  and  Pleading  gives  several 
illustrations  in  support  of  this  rule,  and  concludes:  "  So  that  the  rule 
appears  to  be  well  established,  that  no  sudden  taking  or  snatching  of 
property  from  a  person  unaware,  is  sufficient  to  constitute  robbery,  un- 
less some  injurv  be  done  to  the  person,  or  there  be  some  previous  strug- 
gle for  the  possession  of  the  property,  or  some  force  used  in  order  to 

obtain  it.  "■•^ 

The  taking  must  not  precede  the  violence  or  putting  in  fear.  In 
other  wordsrthe  violence  or  putting  in  fear  will  not  maKe  a  precedent 
taking,  effected  clandestinely  or  without  either  violence  or  putting  in 
fear,  amount  to  a  robbery. =' 

Applying  the  well  established  rules  of  law  thus  enunciated  to  the 
the  cause  in  hearing,  it  is  manifest  that  a  case  of  robbery  was  not  made 
out  against  the  appellant,  on  the  evidence.^ 

The  evidence  tended  to  show  the  fraudulent  and  felonious  obtaining 
of  money  from  the  prosecuting  witness  by  means  of  a  previously  ar- 
ranged trick  or  contrivance,  but  did  not  sustain  the  charge  of  robbery 
contained  in  the  indictment.^ 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial. 


1  DoimftUy's  Case,  1  Leach,  229;  Long  v. 
Stale,  12  Ga.  2ii3. 

2  vol.  2,  p.  1290.   See,  also,  2  Whar.  Cr.  L., 
sec.  1701. 


3  2  RU88.  Cr.  108 ;  2  Archb.  Cr.  Pr.  4  Plead. 
12S3. 

<  Brennon  v.  State,  26  Ind.  403 !  Hart  v. 
State,  57  Iiul.,  102. 

»  Uuber  v.  State,  57  Ind.  341. 


COMMONWEALTH  V.  GALLAGHER. 


695 


listing  on  a  re- 
sale ensued,  in 
g  attracted  l)y 
n  the  ciiy,  and 

stimony  of  the 
aracter  of  the 
re  set  forth, 
ortions  of  the 
t. 

)iit  it  has  been 

a  robbery  may 

which  the  law 

ry  to  constitute 
be  shown, 
ig  gives  several 
o  that  the  rule 
or  snatching  of 
itc  robbery,  un- 
previous  strug- 
sed  in  order  to 

ig  in  fear.  In 
aKe  a  precedent 
le  or  putting  in 

undated  to  the 
•y  was  not  matie 

)nious  obtaining 
a  previously  ar- 
large  of  robbery 

or  a  new  trial. 

fchb.Cr.Pr.  APlead. 
2S  Ind.  403 ;  Hart  v. 
Ind.  Ul. 


ROBBERY  — WITH  INTENT  TO  MAIM  OR  KILL  WITH  DANGEROUS 

WEAPON. 

Commonwealth  v.  Gallagher. 

[t]  Mctc.  50C.] 
In  the  Supreme  JmUcial  Court  of  Massachusetts,  1842. 

An  Indictment.  Which  Alleges  that  the  defendant  assaulted  and  robbed  A.,  and  boln» 
armed  will,  a  dniiKorous  weapon,  did  strike  and  wound  hlni.  is  not  proved,  as  to  the 
wounding,  l.y  evidence  that  the  defendant  innde  a  slight  scratch  on  A.'s  faw,  by  rup- 
turing the  cuticle  only,  without  separating  tiio  whole  skin ;  nor  as  to  the  striking,  by 
evidence  that  the  defendant  put  hli  arms  al)0ut  A.'s  uock,  and  threw  him  on  the 
ground,  and  held  him  Jammed  down  to  the  ground. 

An  indictment  was  found  against  the  defendants,  on  section  13  of 
chapter  125  of  the  Revised  Statutes,  which  is  in  these  words:  "If 
any  person  shall  assault  another,  and  shall  feloniously  rob,  steal  and 
take  from  his  person  any  money,   or  other  property  whicli  may  be 
tiie  subject  of  larceny,  such  robber  being  armed  with  a  dangerous 
weapon,  with  intent,  if  resisted,  to  kill  or  maim  the  person  robbed,  or 
if,  being  so  armed,  he  shall  wouna  or  strilte  the  person  robbed,  he  shall 
suffer,"  etc.    The  indictment  alleged  that  Thomas  Gallagher  and  John 
Burns,  on  the  24th  of  February,  1842,  with  force  and  arms,  at  Tewks- 
bury,  in  the  county  of  Middlesex,  "  in  and  upon  one  Chauncy  Cook, 
feloniously  did  make  an  assault  and  sundry  bank-bills,  current,"  etc., 
"  of  the-  value  of  thirty  dollars,  of  the  money  and  property  of  him  the 
said  Cook,  from  the  person  and  against  the  will  of  him  the  said  Cook, 
then  and  there  feloniously  and  by  force  and  violence,  did  rob,  steal  and 
carry  away ;  and  that  they,  the  said  Thomas  Gallagher  and  John  Burns, 
at  the  time  of  committing  tlie  assault  and  robbery  aforesaid,  were  then 
and  there  armed  with  a  certain  dangerous  weapon,  to  wit,  with  a  pis- 
tol, and  being  then  and  there  armed  as  aforesaid,  they,  the  said  Thomas 
Gallagher  and  John  Burns,  him  the  said  Cook  then  and  there  feloniously 
did  actually  strike  and  wound,  and  with  force  and  violence  did  then 
and  there  feloniously  throw  him  on  the  ground,  against  the  peace,"  etc. 
The  defendants  were  tried  in  the  Court  of  Common  Pleas,  before 
Cummins,  J.,  on  the  testimony  of  said  Cook,  which,  so  far  as  it  related 
totlie  point  now  in  question,  was  thus:  "I  asked  the  robbers  what 
they  wanted,  and  they  replied,  that  they  wanted  my  money,  and  if  I  did 
not  deliver  it,  they  would  blow  me  through ;  and  one  of  them  drew  a 
pistol,  as  I  thought,  and  I  turned  and  ran.     They  overtook  me  imme- 
diately,  put  their  arras  about  my  neck  and  threw  me  on  the  ground. 


■  -  -  JliWaMaiMBAWiiJW .'- 


696 


ROBllERY. 


One  of  them  held  rac  jammed  down  to  the  ground,  while  the  other 
opened  my  vest.  I  felt  stiff  tlic  next  day.  Tiierc  was  a  sliglu  scratch 
on  my  face  the  next  day.     IIow  it  came  there  I  do  not  know." 

The  counsel  for  the  defendants  objected  that  there  was  no  sufficient 
evidence  of  an  actual  striking  and  wounding,  to  support  the  allegations 
in  the  indictment.  The  judge  overruled  the  objection;  but  the  ques- 
tion being,  in  hin  opinion,  so  important  and  doubtful,  as  to  require  the 
decision  of  the  Supreme  Judicial  Court,  he  reported  the  case,  as  above, 
pursuant  to  the  Revised  Statutes.' 

This  case  was  decided  at  October  term,  1842. 

B.  F.  Duller,  for  the  defendants.  Under  tlie  section  of  the  statute  on 
^hich  this  indictment  is  founded,  the  striking  and  wounding  must  be 
with  the  dangerous  weapon  with  which  the  robber  is  armed.  In  Rex  v. 
Harris,^  tl»e  defendant  was  indicted  on  statute  9  George  IV.  ,3  which 
enacts  that  any  one,  who  "  shall  unlawfullj'  stab,  cut  or  wound  any  per- 
son, with  intent  to  maim,  disfigure  or  disable  such  person,  etc.,  shall  be 
guilty  of  felony."  The  proof  was,  that  the  defendant  bit  off  the  end  of 
the  prosecutor's  nose.  It  was  held  that  this  was  not  n  wounding, 
within  tlic  statute,  which  meant  that  the  wounding  should  be  inflicted 
by  some  instrument,  and  not  by  the  hands  or  teeth. 

But  in  the  present  case,  there  was  neither  a  wounding  nor  striking. 
To  constitute  a  wound  legally  or  medically,  the  whole  skin  must  be  rup- 
tured.'' To  strike  is,  *'  to  make  a  quick  blow  or  thrust,"  which  is  not 
done  by  putting  onc':^  arms  about  another's  neck,  throwing  him  down, 
and  lR)lding  him  jammed  down. 

Austin,  Attorney-General,  for  the  Commonwealth.  The  case  of  Com- 
momvealth  v.  Martin,^'  shows  that  the  striking  need  not  be  with  the  dan. 
gerous  weapon.  Striking  with  such  weapon  shows  an  intent  to  kill  or 
maim.  But  it  is  not  necessary  to  show  such  intent,  in  order  to  convict 
the  defendants.  Hence,  it  is  not  necessary  that  there  should  have 
been  a  wounding  of  Cook,  and  it  might  be  conceded  that  the  evidence 
did  not  prove  a  wounding.  But  there  was  a  wounding,  within  the 
meaning  of  the  statute.  The  Englisih  cases,  cited  for  the  defendants, 
were  under  statutes  against  stabbing  and  cutting.  Where  the  word 
"  wound  "  or  "  wounding  "  has  been  introduced,  it  is  true  that  break- 
ing a  collar  bone,  or  biting  off  the  end  of -a  finger  or  a  nose,  has  been 
held  not  to  be  wounding  under  those  statutes.  Wounding  is  there  con- 
nected with  stabbing  and  cutting.  But  in  Regina  v.  Smith,  cited  on 
the  other  side,  Lord  Denman  and  Mr.  Justice  Park,  held  that  where  the 


I  ch,  138,  sec.  13. 
*  7C.  *P.446. 
3  cb.  31,  sec.  12. 


*  Reg.  V .  Smith,  and  Reg  v.  McLoughUn 
8  0.  A  P.  173,  636 ;  Rex  v.  Wood,  4  C.  &  P.  381 ; 
(.  c.  1  Moo.  Cr.  Cae.  278. 

'  17  Mass.  363, 364. 


rliile  the  other 


I  Blighc  scratch 

low." 

IS  no  sufficient 

the  allegations 

but  the  ques- 

to  require  the 

:ase,  as  above, 


'.  the  statute  on 
nding  must  be 
id.  In  Itex  V. 
ye  IV.  ,3  which 
round  any  per- 
],  etc.,  shall  be 
t  off  the  end  of 
t  n  wounding, 
uld  be  inflicted 

g  nor  striking. 
in  must  be  rup- 
"  which  is  not 
ring  him  down, 

le  case  of  Com- 
e  with  the  dan. 
intent  to  kill  or 
rder  to  convict 
-e  should  have 
at  the  evidence 
ing,  within  the 
he  defendants, 
rhere  the  word 
rue  that  break- 
nose,  has  been 
ng  is  there  con- 
<lmith,  cited  on 
that  where  the 


leg  V.  McLoughlin 
nrood.  4C.  ftp.  381; 


COMMONWEALTH   V.  (JALLAGHEU. 


05)7 


skin  was  broken  internally,  though  not  externally,  there  was  a  wound- 
ing, within  tlie  meaning  of  statute  7  William  IV.  and  1  Victoria.  See 
also  I{e.c  v.  Shmtbolt.^ 

The  Revised  Statutes,''  made  it  as  penal  to  strike  witiiout  wounding, 
as  to  wound,  if  the  i)arty  be  armed  wilii  a  dangerous  weapon.  And 
there  was  a  striking,  in  tiiin  case,  witliin  the  meaning  wiiich  common 
sense  would  give  to  the  word  "  strike,"  and  within  tlie  mischief  which 
the  statute  was  deaigued  to  meet. 

Butler,  in  rei)ly.  As  the  indictment  avers  a  striking  and  wounding, 
both  must  be  proved.  If  the  evidence  sliows  a  wounding  and  not  a 
striking,  or  a  striking  and  not  a  wounding,  it  can  not  be  known  on 
which  the  jury  found  the  defendant  guilty;  for  they  were  instructed 
that  both  were  proved. 

SiiAw,  C.  J.  Tlio  prisoners  were  indicted  for  robbi  ly,  on  the  Re- 
vised Statutes,^  following  the  previcms  Statutes  of  1818. '  The  indict- 
ment avers  that  the  prisoners,  at  the  time  of  the  robbery,  were  armed 
with  a  dangerous  weapon,  and  being  so  armed,  .  b  tliey  did  ac'Maily 
strike  and  wound  the  person  robbed.  This  offense  by  the  Ueviscd 
Statmec,  \  aa  made  punishable  with  death;  butby  Stutm.  1839, '^  im- 
prisonment for  life  in  the  State  prison  is  substituted.  In  all  other 
respects,  this  provision  of  the  Revised  Statutes  remains  in  force. 

The  question  raised  on  this  bill  of  exceptions  is,  whether  the  evidence 
therein  set  forth  was  sufficient  to  warrant  the  jury  in  finding  an  actual 
striking  or  wounding,  so  as  to  bring  the  case  within  this  clause  of  the 
statute. 

This  evidence  depends  wholly  upon  the  testimony  of  Cook,  the  person 
robbed,  which,  after  a  verdict  of  conviction,  and  for  the  purposes  of 
this  inquiry,  must  be  considered  as  entitled  to  full  credit. 

The  proof  of  being  armed  with  a  dangerous  weapon,  is  unquestiona- 
ble ;  the  doubt  is  as  to  actual  striking  or  wounding. 

1.  First,  as  to  wounding.  In  many  cases  there  is  great  difficulty  in 
determining  what  constitutes  a  wound.  It  has  been  a  subject  of  con- 
siderable discussion  under  some  of  the  English  statutes ;  but  we  shall 
not  attempt  to  give  a  definition.  The  scratch  on  the  face,  even  if  it 
were  given  by  the  prisoners  on  that  occasion,  which  is  left  wholly 
doubtful  by  the  testimony,  we  are  satisfied  was  not  a  wound  within  the 
statute.  At  most  it  was  a  rupture  of  the  cuticle,  and  not  of  the  whole 
skin,  and  would  not  necessarily  cause  any  blood  to  flow.'* 

2.  And  we  are  also  satisfied  that  the  evidence  shows  no  blow  stricken. 


ISC.  &P.6M. 
a  ch.  135,  sec.  13. 
S  ch.  12S,  80C.  13. 
*  ch.  lU;  sec.  1. 


'  ch.  127. 

•Reg.  ».  MoLonghlin,  8  C.  *  P.  636; 
Eex  V.  Brackett,  1  M.  &  R.  626;  Roscoe 
Orim.  Ev.  (2d  Am.  ed.)  729. 


698 


KOBBEBY. 


The  prisoners  ran  after  the  prosecutor,  put  their  arras  around  his  neck 
and  threw  him  on  the  ground ;  and  one  of  them  held  him  jammed  down 
to  the  ground,  whilst  the  other  rifled  his  pocket.  Here  was  force,  un- 
doubtedly, enough  to  do  considerable  violence  t^^  the  man's  per&on,  and 
to  produce  the  feeling  of  stiffness,  of  wliich  he  complained  on  the  next 
day.  But  it  was  not  the  particular  violence  which  is  expressed  by  the 
term  "  striking  "  which  implies  force,  applied  with  an  impetus ;  a  blow. 
The  pressing  with  their  arms  and  throwing  him  down,  and  holding  him 
down,  were  neither  of  them  a  blow.  The  words  "jammed  down,"  in 
which  they  are  used,  do  not  come  up  to  the  idea  of  striking;  the 
terms  are,  that  they  iield  him  jammed  down  to  the  ground,  from  which 
we  understand  that  they  held  him  down  firmly,  and  pressed  on  him 
forcibly,  so  that  he  could  not  extricate  himself.  This  evidence  proves 
a  very  atrocious  crime,  and  one  which  under  other  provisions  of  the 
statute,  must  subject  to  the  offenders  to  a  severe  punishment.  But  the 
court  are  of  opinion  that  it  does  not  prove  a  robbery,  .attended  with 
the  specific  aggravation  of  being  armed  with  a  dangerous  weapon,  and 
actually  wounding  or  striking  the  party  robbed. 

Verdict  set  aside  and  a  new  trial  granted. 


ROBBERY— PROPERTY    MUST   BE    PROPERTY 
ROBBER  —  INDICTMENT. 


OF    OTHER  THAN 


Commonwealth  v.  Clifford. 

[8  Gush.  215.] 
In  the  Supreme  Jirlicial  Court  of  Massachusetts,  1851. 

To  Constitute  the  Offense  made  Punishable  by  the  Revised  Statutes,!  the  articles 
stolen  must  bo  carried  away  by  the  robber,  and  must  be  thr  property  of  the  person 
robbed,  or  of  some  third  person;  and  these  facts  must  be  alleged  in  an  indictment  on 
that  section,  in  the  same  manner,  as  in  an  indictment  for  robbery  at  common  law. 

This  was  an  indictment  for  robbery,  which  alleged  that  the  defend- 
ants, at  the  time  and  place  named  therein,  "  with  force  and  arms  in 
and  upon  one  Charles  Pendexter,  then  and  there  in  the  peace  of  said 
Commonwealth  being,  an  assault  did  make,  the  said  Isaac  Clifford  and 
James  Bamerick  not  being  then  and  there  armed  with  a  dangerous 
weapon,  and  him  the  said  Charles  Pendexter,  did  then  and  there  by 
force  and  violence  feloniously  put  in  fear,  and  did  then  and  there 


1  ch.  125,  sec.  15. 


round  his  neck 
jammed  down 
was  force,  un- 
j's  person,  and 
ed  on  the  next 
pressed  by  the 
petns ;  a  blow. 
id  holding  him 
ned  down,"  in 
striking;  the 
id,  from  which 
ressed  on  him 
vidence  proves 
ovisions  of  the 
raent.  But  the 
,  .attended  with 
us  weapon,  and 

\rial  granted. 


)THER  THAN 


,  1831. 

itutes.i  the  articles 
perty  ot  the  person 
n  an  indictment  on 
i  common  law. 

Iiat  the  defend- 
36  and  arms  in 
e  peace  of  said 
lac  Clifford  and 
,th  a  dangerous 
n  and  there  by 
then  and  there 


COMMONWEALTH    V.  CLIFFOni). 


699 


feloniously  rob,  steal,  and  take  from  the  person  of  him  the  said  Charles 
Pendexter,  against  his  will,  one  leatlier  wallet  of  the  value  of  one  dol- 
lar, and  sundry  bank-bills  of  the  value  in  all  of  twenty-nine  dollars, 
against  the  peace  of  said  Commonwealth,  and  the  form  of  the  statute 
in  such  case  made  and  provided." 

The  defendants,  after  conviction  in  the  Court  of  Common  Pleas, 
moved  in  arrest  of  judgment,  on  the  ground  of  the  insufficiency  of 
the  indictment.  But  the  presiding  judge  (Mellen,  J.,)  ruled  that  the 
indictment  was  sufficient  under  Revised  Statutes,^  and  overruled  the 
motion.     Whereupon  the  defendants  alleged  exceptions. 

B.  F.  Butler,  for  the  defendants. 

Clifford,  Attorney-General,  for  the  Commonwealth. 

Metcalp,  J.  Robbery,  by  the  common  )aw,  is  larceny  from  the 
person  accompanied  by  violence  or  by  putting  in  fear ;  and  an  indict- 
ment therefor  must  allege  that  the  taking  was  from  tiie  person,  and 
that  it  was  by  violence  or  by  putting  in  fear,  in  addition  to  the  aver- 
ments that  are  necessary  in  indictments  for  other  larcenies.''  If,  there- 
fore, the  present  indictment  were  for  the  common-law  offense  of  rob- 
bery, it  would  be  fatally  defective,  for  want  of  the  averments  that  the 
articles,  alleged  to  have  been  stolen  and  takeh  from  Pendexter,  were 
his  property  or  the  property  of  some  third  person ;  •''  and  that  they  were 
carried  away  by  the  defendants.''  As  the  indictment  is  drawn,  all  the 
averments  therein  may  be  true,  and  yet  the  defendants  not  be  guilty 
of  robbery  at  common  law.  The  wallet  and  the  bank-bills  may  have 
been  the  property  of  the  defendants,  and  may  have  been  unlawfully 
taken  from  them  by  Pendexter.  If  so,  the  forcible  retaking  of  them 
from  him,  by  the  defendants,  would  not  be  the  offense  of  robbery. ^ 

It  was  suggested,  in  argument,  that  as  this  indictment  is  on  section 
15,  of  chapter  125  of  the  Revised  Statutes,  and  uses  the  statute  words, 
it  is  sufficient.  But  we  can  not  adopt  tliis  suggestion.  The  words  of 
that  section  are,  tliat  "  if  any  person  shall,  by  force  and  violence,  or  by 
assault  and  putting  in  fear,  feloniously  rob,  steal  and  take  from  the 
person  of  another,  any  money,  of  other  property  which  may  be  the 
subject  of  larceny  (such  person  not  being  armed  with  a  dangerous 
weapon),  he  shall  be  punished,"  etc.  This  is  a  re-enactment  of  statute 
1804,6  which  was  substantially  the  same.  In  neither  statute  is  the  car- 
rying away  of  the  property  mentioned  as  a  part  of  the  offense,  nor  is  it 
declared,  in  either,  that  the  property  taken  shall  belong  to  the  person 
robbed,  or  to  any  third  person.     Yet  it  was  not  the  purpose  of  the 


1  ch.  126,  sec.  15. 

2  King  V.  Hogan,  Jebb's  Cr.  Cas.  62; 
Smith's  Case,  2  East's  P.  C.  783,  784;  Ring  v. 
Donnally.  1  Leach  (3d  ed.),  229;  2  Stark. 
Cr.  PI.  (2d  ed.)  474. 


3  2  Hawk.,  ch.  25,  sec.  71. 

*  Archb.  Cr.  Pi.  (5th  Am.  ed.)  308. 

'  Rex  V.  Hall,  3  C.  «  P.  409. 

0  ch.  143,  sec.  7. 


700 


ROBBERY. 


Legislature  to  create  a  new  offense,  but  merely  to  prescribe  a  new  pun 
ishment  of  acts  which  constitute  robbery  at  common  law.  And  it  was 
held,  in  Commonwealth  v.  Humphries,^  that  the  statute  of  1804  did  not 
change  the  definition  of  the  crime  of  robbery,  nor  reg^r  it  necessary, 
in  an  indictment  therefor,  on  that  statute,  to  allege  a  putting  in  fear, 
in  addition  to  the  allegation  of  force  and  violence.  The  word  "  rob  " 
was  inserted  in  the  indictment  in  that  case,  and  also  in  Martin's  Case,^ 
in  addition  to  the  words  "  steal,  take  and  carry  away,"  which  only  are 
inserted  in  indictments  at  common  law.  And  as  that  word  was  used 
in  statute  1804,  and  is  used  in  chapter  125  of  the  Revised  Statutes,  it 
is  advisable,  and  perhaps  necessary,  to  insert  it  in  indictments  on  that 
cliapter.  But  in  framing  an  indictment  oa  a  statute  it  is  not  "suffi- 
cient to  peruse  the  very  words  of  the  statute,  unless  by  so  doing  you 
fully,  directly  and  expressly  allege  the  fact  in  the  doing  or  not  doing 
whereof  tb  :  offense  consists,  without  any  the  least  uncertainty  or  am- 
biguity." 3  The  words  of  the  Revised  Statutes,'^  do  not  set  forth,  and 
were  not  intended  to  set  forth,  fully,  directly  and  expressly,  all  that  is 
necessary  to  constitute  the  offense  thereby  intended  to  be  punished. 
To  constitute  that  offense,  the  articles  stolen  must  be  carried  away  by 
the  robber,  and  must  be  the  property  of  the  person  robbed,  or  of  some 
thi.-d  person.  These  facts,  therefore,  must  be  alleged,  in  an  indict- 
ment on  that  section,  in  the  same  manner  in  which  they  are  required 
(as  we  have  seen)  to  be  alleged  in  an  indictmen':  at  common  law.  And 
as  they  are  not  alleged  in  this  indictment,  judgment  must  be  arrested. 
Under  the  English  statute  7  and  8  George  IV., *  which  simply  enacts 
that  "  if  any  person  shall  rob  any  other  person  of  any  chattel,  money, 
or  valuable  security,  every  such  offender,  being  convicted  thereof,  shall 
suffer,"  etc.,  it  has  been  decided  that  an  indictment,  alleging  that  the 
defendant  robbed  A.  of  certain  chattels  mentioned,  need  not  allege  that 
he  did  it  with  violence;  the  word  "rob"  necessarily  importing  force 
and  violence.*'  But  that  decision  is  not  an  authority  for  a  similar  de- 
cision under  our  Revised  Statutes,^  which  have  expressly  made  "force 
and  violence,  or  assault  and  putting  in  fear,"  as  well  of  robbing,  steal- 
ing, and  taking  from  the  person,  a  part  of  the  description  of  the  of- 
fense thereby  made  punishable. 

Judgment  arrested. 


1  7  MasB.  242. 

2  17  Uasa.  359. 

3  2  HRwk.,  ch.  2S,  leo.  S;  Boo.  Abr.  ladict* 
uent,  H.  3. 

*  Ob.  129,  seo.  IS. 


•  oh.  29. 

•  Lennox  and  Pybuss's  Case,  2  Lew.  Or. 
Cas.  268. 

'  cb.  12S,  sec.  15. 


ew  pun 


KIMBLE   V.  STATE.  ,  7Q1 

ROBBERY -CONSTITUENTS  UNDER  TEXAS  CODE. 

Kimble  v.  State. 

[l2Tex.  CApp.)420.] 
Ill  the  Court  of  Appeals  of  Texas,  1882. 

^  *m«^*bTt!H«^*„^?'h*'*  ^^  ""*  ^f""'  °'"'''  ">»<». '"""""tute  the  offense  the  property 
taluir     If  it  L  h    »■■  ''yr  »","•»■•  !>?  violence  and  putting  1„  fear  of  life  or  bodVly 

ment  andi  iwli  r         V""T*'  ""•*  """'"^^  "»^««'-™''y  Oo  omitted  In  the  indict- 
ment,  and  if  by  violence  and  putting  in  fear,  assault  may  be  omitted. 

^  *th^?!??."  ^•''Ifd'ot^'ot  Charw.  by  "  assault  and  putting  In  fear  of  bodily  injury" 
IIX  '"J'cfnent  would  be  good  on  the  ground  of  assault  (treating ''puttin^a 
crvrHon'"'"'  "'T,^'"""  "*  "'  '"  '"''  «»««.  ">o  ground  of  assault  be  abandoneXe 
conyiction  can  not  be  sustained  on  the  other  ground,  because  of  the  omission  of  the 
necessary  descriptive  term  "  violence  "  in  the  indictment  omission  of  the 

3.  Bvldeaoe  Hold  In.uffloleat  to  sustain  a  conviction  for  robbery  by  means  of  aasanU. 

Appeal  from  the  District  Court  of  Gaudalupe.  Tried  below  before 
the  Hon.  E.  Lewis. 

The  opinion  discloses  the  nature  of  the  case,  and  sets  out  the  char<r. 
ing  part  of  the  indictment.  The  punishment  assessed  by  the  jury  wm 
a  term  of  two  years  in  the  penitentiary. 

The  injured  party  was  the  only  witness  examined,  and  he  testified  in 
effect  tliathe  was  a  youth  of  fifteen  years  at  the  date  of  tlxis  trial,  May 
1882.     During  the  spring  of  1881,  he  was  by  himself  on  the  San  Marcos 
Kivcr,  fishing.     The  defendant  came  to  the  river  where  he  was,  watched 
him  a  while,  and  asked  him  if  ho  had  any  other  lines  and  hooks.     The 
witness  replied  that  he  had,  and  the  defendant  asked  to  see  them.     The 
witness  handed  him  one,  which  he  examined  and  proposed  to  borrow. 
The  witness  declined  to  lend  it,  and  the  defendant  said :  "  If  you  won't 
lend  it  to  me,  I  will  take  it,  and  give  it  back  when  I  get  through."    The 
witness  becr.me  friglitened  and  started  up  tlie  river  to  take  up  some 
hues  he  had  staked  out.     The  defendant  followed  him.     Witness'  line 
was  staked  out  from  a  small  peninsula  which  jutted  into  the  river,  and 
when  he  had  recovered  his  line  and  started  back,  the  defenJanfc  '  jok  a 
position  with  legs  outstretched  so  that  the  witness  could  not  pass  with- 
out getting  into  the  river.     He  had  seen  the  witness'  pocket-book,  in 
which    there    was   fifty  cents  in  silver;  he  asked  to   see  it.      The 
witness  was  frightened  and  handed  it  to  him.     He  examined  it  and 
handed  it  back,  saying  that  times  were  very  hard,  and  he  wanted  to 
borrow  the  money.     The  witness  told  him  that  he  did  not  want  to4oan 
it.     Defendant  insisted  on  borrowing  it,  saying  tiiat  his  brother  was 
going  to  San  Marcos  that  evening,  and  lie  wanted  to  send  for  some 
whisky,  that  his  name  was  Jeff  Gray,  and  that  he  worked  for  Mr.  Al- 


msAmm 


702 


KOBBEItY. 


^bright,  from  whom  he  would  get  the  amount  and  repay.  The  witness 
still  refused,  and  the  defendant,  who  was  still  between  the  witness  and 
the  main  shore,  said :  "  I  have  asked  you  lil^e  &  gentleman  to  lend  me 
the  money,  now  if  you  don't  lend  it  to  me,  I  will  take  it  from  you,"  at 
the  same  time  stretching  his  legs  clear  across  the  peninsula.  There  was 
no  one  in  sight,  and  the  witness  being  afraid  of  violence,  handed  him 
the  money.  The  defendant  made  no  threats  or  demonstrations  of  vio- 
lence  towards  the  witness. 
Ireland  &  Barges,  for  the  appellant. 
C.  Edmundson,  for  the  State. 

Hurt,  J.  This  is  a  conviction  for  robbery.  The  charging  part  of 
the  indictment  is  as  follows:  ''  Mathew  Kimble,  late  of  said  county,  on 
the  fifth  day  of  July  in  the  year  of  our  Lord  eighteen  hundred,  eighty-one, 
with  force  and  arras  in  the  county  aforesaid,  did  then  and  there  willfully, 
unlawfully  fraudulently  and  feloniously,  inand  upon  the  person  of  Clay- 
ton McLelland  make  an  assault,  and  him,  the  said  McLelland  put  in 
fear  of  bodily  injury,  and  while  so  in  fear  of  bodily  injury  from  him, 
the  said  Kimble,  the  said  Kimble  did  then  and  there  unlawfully,  fraudu- 
lently and  feloniously,  and  against  the  will  of  said  McLelland,  induce 
the  said  McLelland,  by  reason  of  said  putting  in  fear,  to  deliver  to  him, 
the  said  Kimble,  fifty  cents,"  etc. 

Article  722  of  the  Penal  Code,  defines  robbery  as  follows:  "  If  uny 
person,  by  assault,  or  by  violence  and  putting  in  fear  of  life  or  bodily 
injury,  shall  fraudulently  take  from  the  person  or  possession  of  another 
any  property  with  intent  to  appropriate  the  same  to  his  own  use,  hg 
shall  be  punished  by  confinement  in  the  penitentiary  not  less  than  two 
nor  more  than  ten  years." 

It  will  be  seen  from  this  definition  of  robbery,  that  the  taking  of  the 
property,  to  constitute  robbery,  must  either  be  by  assault  or  by  vio- 
lence, and  putting  in  fear  of  life  or  bodily  injury.  If  by  assault,  vio- 
lence and  putting  in  fear  may  be  omitted ;  and  if  by  violence  and 
putting  in  fear,  the  assault  may  be  omitted.  If,  however,  the  in- 
dictment should  charge  (as  does  this)  the  assault  and  putting  in 
fear  of  bodily  injury,  omitting  the  violence,  it  would  be  good,  treating 
"  putting  in  fear ' '  as  surplusage.  But  the  assault  is  abandoned  in  this 
bill ;  because  it  alleges  positively  and  affirmatively  that  McLelland  waa 
induced  to  deliver  the  money  "  by  reason  of  said  putting  in  fear."  If, 
therefore,  the  State  relied  upon  this  ground,  which  is  evidently  the  case, 
tho  indictment  is  not  sufficient,  for  the  plain  reason  that  a  necessary  in- 
giediont  is  omitted,  to  wit,  violence. 

AVhen  both  grounds  are  relied  upon,  the  indictment  should  charge 
that  the  defendant,  by  assault,  and  by  violence  and  putting  in  fear  of 
life  and  bodily  injury,  did,  etc.     Under  this  form  of  allegation,  if  either 


^^ 


tness 


H.   V.  WALTON. 


703 


means  by  which  the  robbery  was  committed  be  proved,  the  conviction 
would  be  legal,  because  the  charge  covers  both  phases. 

But,  proceeding  upon  the  hypotnesis  that  the  assault  is  not  aban- 
doned, this  conviction  can  not  be  sustained,  the  evidence  failing,  beyond 
question,  to  show  any  assault  whatever.  The  State,  because  of  thus 
being  forced  to  rely  upon  the  other  ground,  to  wit,  "i)utting  in  fear  of 
bodily  injury,"  must,  to  support  a  conviction  on  this  ground,  charge 
all  of  its  elements.  This  is  accomplished  by  alleging  that  the  defend- 
ant by  violence  and  putting  in  fear  of  bodily  injury,  took  the  money, 
etc. 

We  are  of  the  opinion  that  the  indictment  is  insufficient,  and  that  the 
exceptions  of  the  defendant  should  have  been  sustained.  We  are  also 
of  opinion  that  if  the  indictment  is  sufficient  by  reason  of  the  assault 
which  is  charged,  still,  there  being  no  evidence  of  an  assault  the  verdict 
upon  this  phase  of  the  indictment  is  not  supported. 

The  judgment  is  reversed  and  the  prosecution  dismissed. 

Reversed  and  dismissed. 


ROBBERY -DEMANDING  PROPERTY  WITH  MENACES. 

R.  V.  Walton. 

[L.  &C.  289]. 
In  the  English  CouHfor  Crown  Cases  Reserved,  1863. 

1.  In  Order  to  Constitute  the  Statutory  offense  of  demanding  property  with  menacei. 

the  'meuBces-  must  cause  such  alarm  as  to  unsettle  the  mind  of  the  person  on 
whom  it  operates,  <.n-5  take  away  from  his  acts  that  element  of  free  voluntary  action 
which  alone  constitutes  consent. 

2.  Where  the  Menaces  are  not  necessarily  of  such  character,  the  question  ia  for  the  lory 

whether  they  were  mado  under  such  circamstances  of  intimidation. 

3.  W.  had  Obtained  money  by  threatening  to  execute  a  distress  warrant,  which  he  had  no 

authority  to  do.  The  judge  directed  the  jury,  that  as  a  matter  of  law,  this  constituted  a 
"menace  "within  the  statute:  Beld,  error. 

The  prisoner  was  convicted  as  stated  above,  but  his  case  was  reserved 
for  the  full  court,  where  it  was  argued  on  the  24th  of  January,  1863, 
before  Erle,  C.  J.,  Blackburn,  J.,  Keating,  J.,  Wilde,  B.  and  Mel- 

LOR,  J. 

V.  Blackburn,  for  the  prisoner.  The  prisoners  are  indicted  under 
section  45  of  the  24  and  25  Victoria,^  which  is  a  re-enactment  of  the 


1  ch.  96.  This  section  is  as  follows; 
"  WhoBoeyer  shall  with  menaces  or  by  force 
demand  any  property,  chattel,  money,  valu- 


able security  or  other  valuable  thing  of  any 
pcro'in,  with  intent  to  steal  the  same,  shall 
be  guilty  of  felony,  and  being  convicted 


704 


ROBBERY. 


7  William  IV.  and  1  Victoria,^  for  demanding  money  with  menaces  with 
intent  to  steal.  It  is  submitted  that  the  menaces  must  be  menaces  of 
injury  to  the  person.  Menaces  of  injury  to  property  are  not  sufficient. 
There  is  no  decision  to  that  effect ;  but  all  the  cases  that  can  be  cited, 
are  cases  of  menaces  of  injury  to  the  person,  such  as  holding  a  i)istol 
to  the  prosecutor's  head  and  demanding  his  money.'*  Threatening  to 
injure  the  property  is  specifically  provided  for  by  Act  of  Parliament.^ 
Here  there  is  merely  an  endeavor  on  the  part  of  the  prisoners  to  clothe 
themselves  with  legal  authority. 

Blackbi-rn,  J.  There  is  more  than  that.  There  is  a  threat  to  break 
open  the  door  and  take  the  goods. 

V.  Blackburn,  Tlie  offense  amounted  to  an  obtaining  of  money  by 
false  pretenses.  The  prisoners  can  not  be  convicted  of  larceny,  be- 
cause the  money  was  parted  with  absolutely. 

Hannay,  for  the  Crown.  It  is  submitted  that  there  is  here  such  a 
menace  as,  if  t)ie  mone}'  had  been  obtained  hy  means  of  it,  wouli"  have 
amounted  to  robbery.  Putting  in  fear  is  of  three  kinds:  1st,  •  ar  of 
injury  to  the  person;  2d,  fear  of  injur}' to  the  character;  3d,  fear  of 
injury  to  the  property ;  and,  with  regard  to  the  latter,  it  is  said  in 
Russell  on  Crimes,''  that  such  cases  are  principally  those  in  which  the 
terror  excited  was  of  the  proliable  outrages  of  a  mob  ;  and  several  cases 
are  there  quoted,  amongst  them  Simon's  Case,5where  the  prisoner  came 
with  about  seventy  others,  and  threatened  to  tear  the  mow  of  corn,  and 
level. the  house  of  the  prosecutor,  and  Taplin'a  Case,^  where  money  was 
extorted  b}'  the  prisoner  at  the  head  of  a  mob  without  any  particular 
threat  being  expressed. 

Blackburn,  J.  It  should  be  remembered  that  those  were  times  of 
great  riot. 

Ilannay.  Section  45  seems  intended  to  meet  a  class  of  cases  differ- 
ing from  assaults  with  intent  to  commit  robber}'. 

Blackburn,  J.     In  order  to  constitute  robbery  there  must  be  a  threat 
of  such  a  nature  as  to  make  the  parting  with  the  money  an  invol!;p.<a:- 
act. 

Hannay.     The  parting  with  the  money  was  involuntary  here,  in 
was  the  consequence  of  tlie  menaces  held  out  by  the  prisoners ;  for 
prosecutor  refused  to  part  with  his  money  until  they  threatened  to 
break  his  door  open  and  sent  for  a  policeman. 


thereof  shall  be  liable,  at  the  discretion  of 
the  court,  to  be  kept  in  penal  servitude  for 
the  term  of  three  years,  or  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with 
or  without  hard  labor,  and  with  or  without 
solitary  conllnoment." 


1  ch.  87,  sec.  7. 

8  Kex  r.  Fartait,  1  East's  P.  C.  416 

3  24  and  25  Vlct.,ch.  97,  sec.  50. 

<  Russ.  on  C.  &  M.,  vol.  1,  p.  881,  3d  ed. 
»  2  East's  P.  C,  ch.  16,  sec.  131,  p.  781. 

<  3  East's  P.  0.,  ch.  16,  sec.  128,  p.  712. 


^^ 


R.  V.  WALTON. 


705 


i 


Mellob  J     The  presence  of  a  policeman  -vould  surely  prevent  his 
feeling  that  he  was  not  a  free  agent. 

fhZllZ'^'^'^'^''"''''  ""^  ""^'''"'"S  ^"Sal  process  is  different  from  a 
threat  of  making  an  unjust  charge  affecting  a  man's  character. 

alZ'^'Ti'     ^^  ^"f?"  ""  ^""'''' ''  ''  «^'^'  "'••^^  ^  ^'^livery  of  goods 
obtained  by  a  fraudulent  abuse  of  legal  process  is  amongst  the  mos 
aggravated  of  those  cas.s  of  larceny  where  the  taking  is^ffec  ed  by 

hoTedr;       "■^"' /'^^"''^  ^^^^  *^«°-"-  --"-^  person  au! 
tliorized  to  dispose  of  them.^ 

,if  "^'''  ^'  ^i  ^°  *^^'*''^*  •'  '*^^'  "^*  '•«™«i°«  further  to  be  con- 
side  ed  of  what  nature  this  fear  may  be ;  "  and  after  adverting  to  the 
op  nions  expressed  in  the  acknowledged  treatises  upon  the  subject,  the 
aji^orsays:  ''  have  the  authority  of  the  judgel  as  mentioned  t; 
Willeo  J.,  ,n  delivering  their  opinion  in  Donalh/s  Case  at  the  O.  B.. 
1-79,  0  justify  me  in  not  attempting  to  draw  the  exact  line  in  thii 
case ;  but  this  much  I  may  venture  to  state,  that  on  the  one  hand  the 
fear  is  not  confined  to  an  apprehension  of  bodily  injury,  and  on  the 

is  St  rind ''  ^"^■" '  ""*"" "  ^"  ^'^^^^^  «"^'  -«---  -p-^- 

IS  likely  to  nduce  a  person  to  part  with  his  property  against  his  will, 
and  to  put  him  as  it  were  under  a  temporary  suspension  of  the  pow 
of  exercising  ,t.  through  the  influence  of  the  terror  impressed;  in 
which  case  fear  supplies,  as  well  in  sound  reason  as  in  legal  const;ue- 
t  on  the  place  of  force  or  an  actual  talcing  by  violence  or  assault  upon 
the  person  Several  cases  show  that  a  menace  to  property  is  sufficient. 
Amongst  them  I  find  i?..  v.  Astley,*  where  the  prisoner  threatened  to 
f  TLh  .  ^'"'^^''^'^Sh'im  and  burn  the  prosecutor's  house  down 
If  he  did  not  give  him  money,  which  he  did  under  fear  of  that  threat- 
and  the  majority  of  the  judges  held  this  to  be  robbery. 

Wilde,  B.  Suppose  you  meet  a  man  riding,  and  say,  «•  I  have  au- 
thority  to  distrain  your  horse,"  there  would  be  no  fear  there  and  no 
injury  to  the  property.     Would  that  be  robbery  v 

Blackburn,  J.  JUerrimany.  The  Hundred  of  Chippenliam,^  shows 
that  violence  may  be  committed  under  pretense  of  legal  and  ri<.htful 
proceedings.  There  Merriman,  carrying  his  cheeses  along  the  highway 
m  a  cart  was  stopped  by  one  Hall,  who  insisted  on  seizing  them  for  the 
want  of  a  permit  (which  was  found  by  the  jury  to  be  a  mere  wetense 
or  the  purpose  of  defrauding  Merriman,  no  permit  beinrnTcLsty 

S  the  d.  ""r    ™'  ^'''''  '^"'""^  riotously  assembled  on  account 

of  the  dearness  of  provisions,  and  in  confederacy  with  Hall  for  the 

>  yol.2,p.  S4,3ded. 

>  Seo  1  Hawk.  P.  C,  cli.33,  sec.  12;  2  East. 
r.  O.,  ch.  16,  sec.  96,  p.  660. 

3  Dbfkncbs.  45 


3  2  p.  C.  713. 

*  2  East's  P.  O.  729. 

'  a  East's  P.  C.  709. 


706 


ROBBERY. 


purpose,  carried  off  the  goods  in  Merriman'3  absence.  That  must  h.ve 
been  considerea  to  have  amounted  to  robbery,  otherwise  the  plaintiff 
could  not  have  recovered  against  the  hundred. 

Hanixay.  In  Ilex  v.  Knewlaiid,'  it  was  held  that  to  obtain  money  by  a 
threat  to  send  for  a  constable,  and  take  the  party  to  prison,  is  not  rob- 
bery;  for  the  threat  of  legal  imprisonment  ought  not  so  to  alarm  any 
mind  as  to  induce  the  person  to  part  with  his  property. 

Eble  C.  J.  In  Gascoigne'x  Case;'  it  was  held  to  be'  robbery  if  a 
bailiff  handcuff  a  prisoner  under  pretense  of  carrying  him  to  prison 
with  greater  safety,  and  by  means  of  this  violence  extort  money. 

Hannay.  Section  45  comes  after  sections  ^  relating  to  robbery  and 
assaults  with  intent  to  commit  robbery,  and  is  intended  to  provide  for 
cases  not  within  the  preceding  sections. 

Erie  C.J.  Sections  40  to  43  relate  to  robbery.  Section  44  relates 
to  the  offense  of  sending  letters  demanding  property  with  menaces. 
Then  comes  section  45.  It  would  rather  seem  that  the  statute  is  pass- 
ing from  cases  of  robbery,  and  coming  to  cases  where  money  is  de- 
mandcl  with  intent  to  steal  it. 

Mei  LOU  J.  The  prosecutor  followed  the  prisoner  to  a  gm  shop,  and 
gave  them  the  money  there.  Surely  he  was  not  then  under  the  influ- 
ence of  fear. 

Wilde,  B.  It  all  comes  to  this  that  the  prisoners  say.  We  have  a 
right  to  distrain,  and  will  distrain,  if  you  do  not  give  us  money." 

Hannay.  Further,  it  is  not  less  a  demanding  because  the  money 
is  actually  given  ;*  It  is  also  submitted  that  the  transaction  docs  not 
amount  to  an  obtaining  by  false  pretenses  but  to  a  larceny.  The  pros- 
ecutor  did  not  part  with  the  money  in  consequence  of  the  false  pre- 

Wilde,  B.  There  may  be  an  obtaining  by  false  pretenses,  whether 
the  victim  parts  with  property,  from  a  hope  of  benefit,  or  from  a  fear  of 

detriment.  ,  ^      j.j       ^ 

Blackburn,  J.  It  can  hardly  be  said  that  the  prosecutor  did  not 
part  with  his  property  willingly,  seeing  that  a  poUceman  was  present  to 
whom  he  might  have  appealed  for  protection. 

V.  Blackburn,  in  reply.  The  cases  cited  on  the  other  -ide  are  all 
cases  of  threat  to  do  some  injury  to  person  or  property.  Here  there 
was  nothing  more  than  a  threat  to  put  legal  process  in  execution.  The 
prosecutor  followed  the  prisoners  to  another  place,  and  paid  them  the 
money  there.  The  menaces  must  be  such  as  would  avoid  a  deed  ob- 
tained thereby.     In  Shephard's  Touchstone.s  a  ig  gaid:     "If  I  be 


I  3  Leach,  0. 0.  731. 
•  1  Leacb,  C.  C.  280. 
S  BecB.  42, 43. 


*  Beg  V.  Morton,  8  C.  A.  P.  671. 
i  vol.  1,  p.  til. 


n.  V.  WALTON. 


707 


imprisoned  at  one  man's  suit  (l)c  tlio  cause  just  or  not),  and  beinc  in 
prison  I  make  an  obligation  or  any  other  deed  to  a  third  man ;  this  shall 
not  be  said  to  l,e  by  duress,  but  is  a  ffoo,!  deed.     So  if  on^  threaten  me  to 
take  away  ray  goods,  burn  or  break  my  house,  enter  upon  my  land   kill 
or  wound  my  father,  mother,   etc.,  or  ,lo  in.prison  anv  of  them,' and 
thereupon  I  seal  a  deed;  this  is  good  and  shall  bind  me.     So  if  one 
distrain  my  beasts,  to  compel  me  to  seal  a  deed,    and  will  not  deliver 
tliera  unless  I  do  so,  and  threaten  me  that   if  I  take  the  beasts  a-ain 
and  not  seal  the  deed  he  will  kill   mo,  and  tliereupon  I   seal  the  ,1  "ed  • 
this  IS  a  good  deed  and  shall  bin.l  me."     A-ain,  in   Comvn's   Dicrest  i 
It  IS  said :     -  So,  ;,./•  minus.     And  menace  of  life,  member,  mayhem,  o'r 
imprisonment,  is  sufHcient  to  rvoid  a  deed.     But  menace  of  battery  is 
not  sulHcient  to  avoid  a  deed  ;  nor  menace  of  burning  his  houses      Or 
taking  or  destroying  his  goods;  for  he  may  recover  damages  for  them  " 
Cur.  adv.  vuU. 

The  judgment  of  the  court  was  delivered  on  the  31st  of  January 
lo()3,  by  •" 

Wilde,  B.  The  question  in  this  case  turns  upon  the  proper  con- 
struction of  the  24  and  25  Victoria.-^  The  section  is  in  these  words- 
•  Whosoever  shall  with  men.icea  or  by  force  demand  any  property' 
chattel,  money,  valuable  security,  or  other  valuable  t\nn<r  of  any  per- 
MMi,  with  intent  to  steal  the  same,  shall  be  guilty  of  felony  "  There 
are  many  demands  for  money  or  property  accompanied  by  menaces  or 
threats  which  are  obviously  not  criminal  nor  intended  to  be  made 
so.  Ihus,  m  case  of  disputed  title  to  personal  property,  a  man  may 
tin-eaten  his  opponent  with  personal  violence  if  he  does  not  relinquish 
tiie  subject  of  dispute,  and  he  would  not  be  within  the  intention  of  this 
.statute. 

Other  instances  would  offer  themselves  to    a  little  consideration. 
Where  then  is  a  proper  limit  to  the  operation  of  this  section?     It  is  to 
be  found  in  the  words  "with  intent  to  steal."     There  is  no  other  re- 
striction  expressed.     Nothing  is  said  about  "  violence  "  in  conjunction 
with  menaces,  still  less  of  violence  to  the  person  as  distinct  from  vio- 
lence to  property.     There  is  no  express  limit,  except  in  the  words  ' '  with 
Hitent  to  steal."     Now,  a  demand  of  money,  with  intent  to  steal,  if  suc- 
cessful, must  amount  to  stealing.     It  is  impossible  to  imagine  a  demand 
for  money  with  intent  to  steal,  and  the  money  obtained  upon  that  de- 
mand, and  yet  no  stealing.     The  question  then  arises  what  are  the 
incidents  attending  the  procurement  of  money  or  property  by  menace  or 
threats  necessary  to  constitute  stealing.     It  is  said  in  East :  3     "  The  tak- 
mg  in  all  cases  must  be  against  or  without  the  consent  of  the  owner  to  con- 


1  PI.  2  W.  20. 

2  ch.  98,  sec.  4a. 


3  2  P.  C.  ch.  16,  sec.  o,  n.  668. 


708 


UODUKUy. 


stiiucc  larcenj'  or  robbciy."  On  the  other  hand  it  is  said  at  the  same 
place :  "A  colorable  gift  which  iu  truth  was  extorted  by  fear,  amounts 
to  a  taking  and  trespass."  These  two  passages  of  the  learned  writer, 
when  taken  together,  appear  to  define  the  offense  of  stealing  in  the  case 
of  menaces. 

For,  if  a  man  is  induced  to  part  with  property  through  fearer  alarm, 
he  is  no  longer  acting  as  a  free  agent,  and  is  no  longer  capable  of  the 
consent  above  referred  to,  and  accordingly,  in  the  cases  cited  in  argu- 
ment, the  threatened  violence,  whether  to  person  or  property,  was  of  a 
character  to  produce  in  a  reasonable  man  some  Vgree  of  alarm  or 
bodily  fear.  The  degree  of  such  alarm  may  vary  in  different  cases. 
The  essential  matter  is  that  it  be  of  a  nature  and  extent  to  unsettle  the 
mind  of  the  person  on  whom  it  operates,  and  take  away  from  his  acts 
that  element  of  free,  voluntarj'  action  which  alone  constitutes  consent. 
Now,  to  api>ly  this  principle  to  the  present  case,  a  threat  or  menace  to 
execute  a  distress  warrant  is  not  necessarily  of  a  character  to  excite 
either  fear  or  alarm.  On  the  other  hand,  the  menace  may  be  made 
with  such  gesture  and  demeanor,  or  with  such  unnecessarily  violent 
acts,  or  under  such  circumstances  of  intimidation  as  to  have  that 
effect.  And  this  should  be  decided  by  the  jury.  Now,  in  this  case 
there  was  evidence  very  proper  to  be  left  to  the  jury  to  raise  the  above 
question.  But  the  chairman  left  no  such  question  to  them,  and  di- 
rected them  as  a  matter  of  law  that  the  conduct  of  the  prisoners  (if 
believed)  constituted  a  menace  within  the  statute.  Our  judgment,  that 
this  conviction  can  not  be  sustained,  is  founded  entirely  on  this  ground. 

Conviction  quashed 


ROBBERY— LARCENY  FROM  THE  PERSON. 

Fannino  V.  State. 

[66  Ga.  167.] 

In  the  Supreme  Court  of  Georgia,  1883. 

Slatlnotion  Between  Bobbery  and  Larceny  firom  Person.  —  To  constitute  robbery 
as  distinguished  from  larceny  from  the  person,  tliere  must  be  force  or  intimidation  in 
the  act ;  therefore,  where  a  thief  slipped  his  hand  into  the  pocket  of  a  lady  and  got  his 
linger  caught  therein,  and  she  felt  the  hand,  and,  turning,  saw  him  unconcernedly 
looking  at  the  houses,  and  caught  him  ))y  the  coat,  which  was  left  with  her  in  making 
his  escape,  htld,  that  the  crime  is  larceny  from  the  person,  and  not  robbery,  though 
the  lady's  pocket  was  torn  in  extracting  his  baud. 

Appeal  from  conviction  before  Judge  Sisimons,   Fulton  Superior 
Court. 


Fran 

B.  h 

Jack 

fendant 

from  a 

the  han 

purse  Ti 

and  whe 

hoi'ses  I 

tlie  coat 

sion.     A 

The  8' 

ceny  fro 

The  ci 

tlie  lady. 

can  not  I 

hie,  or  pi 

the  effoi-t 

and  triec 

open  viol 

Under 

and  violej 

other  by 

Tiiero  wa 

lence  as 

■mictions  J 

from  the 

tiic  person 

out  violeni 

case  was  p 

lady,  exce 

thief,  and 

the  capture 

There  b< 

timidate  tt 

take  the  pn 

it,  and  the 

is  always  ai 

case  was,  ii 

elude  that  t 

hut  of  larce 


1  Code,  s 


FAN'NIXO   V.  STATE. 


70& 


Frank  A.  Arnold,  for  plaintiff  in  error. 
B.  II.  im,  Solicitor-General,  for  the  State 

feZr:ni>^Ai.'i;:at;:at^/"^^  •" '''-  ^^^^  --  ^^^^^thede. 

from  a  purs     of  no  i;      Befo,-  to  '  '7T'  ""'  '"'^"'^  *"^'^*^-«- 
purse  was  eone      In  ,.vf,.,.  f       .       I  ' ""'  ^"ccceded  and  the 

l.oi's.a  on  Whitehall  Sirce      si        ,    ,  '  ""™'"«"'«%»t  the 

'|.e  coa.  Which,  In  M^  :;;;«X    ^'Tas'';".::'  """f"  "'■"  "' 

«.. ..ot be  eo„siac„.c, ,„ <io.o„„i,:^JhV3  ,k a:;'rT;''' '^ 

I'lc,  or  i>,ivate  ami  furtive.     Tho  me™  fac  ,  .  ,  n      ^    ''"  ""'  ''"■'^'• 
11.0  eitort  toget  the  ft.rti.e  Inn    „ri^,h  ^,  """"^  "»'  '""■ '» 

..Ki  trio,,  ,o',oi.e  it,  -sZ  z^::^^'::^  '"Vf'  "•" " 

01.™  violonco,  a,  makes  the  orimo  „;  rohbery  '""'  ''"■•''  '"'' 

antil;:  «::ro,°lon:/tror'''7  '^ ';'"'° "™'"'"'-  '--^^-^ 

from  the  person  is  tho  IV  !      '^'^^'"'^^tioa  is,  that  larceny 

ontiioience  and  f 0;^:  :rin:i:::  I  ^'rat7mrrr  f:  ""''■ 

wise  was  private  and  tl,^  ^«»,i  ,        -^°®  attempt  and  intent  in  this 

.-.,  e^e^t  ir  r  tif  rmX  ;t  ;r;"r  r  ""^'^  °' '"- 

■Uof,  and  then  »ith  the  knowle<l.-o  oLe  T.H    ?  ■°'°='  ""'  "" 

.^0  captnre  „,  hut  to  .eeaptn,:!  theToC^r '  ""  '°  "'"""  "" 

ti  J5:;:  hrixtriheToLr:  °' ''- """"° "'''°-  -  '^  '- 
take  the  p„.e  pk'XZ'':iirL'lZ2tTtTrrr " 

It,  and  the  nafnro  nf  ♦),..  «  •       .    .  •^'^o^'ieage,  with  intent  to  steal 

isa,crerei«„X":.er:fhTSt'"^r'*-'''°°"^'''' 
^«on..en..oj'r;et:?nr:rtr^S':it"^'^- 

Judgment  reversed. 


'  Code,  sec.  4389. 


s  Code,  sec.  4392. 


710 


KOUUERY. 


NOTES. 

J  589.  Robbery -Force  Muet  be  Ueed.-To  constitute  robbery  the  «..  of 
force  18  e..8tntial.'    Secretly  plcklu,;  a  pocket  Is  uot  robbery.' 

.  .oA  or  PuttlnKlnFear.-(1r  else  the  prosecutor  must  be  put  In 

fca^  Ta7ir«°;oper"  irom  the  person  without  violence  or  putting  him  In  fe.r 
Unot  robbery.' 

.  .„, Force  Must  be  Uaed  to  Overcome  Resistance.  -  So  the  force 

„,ult  be  I'^ed  to  overconu.  the  resistance  o.  the  person  robbed,  and  not  simply 
3.  t  .OS  cs  lo7of  the  property.  Therefore.  n>erely  snatching  an  ar  icle  from 
':.otllr;um.t  robbery'     So  force  only  suftlclent  to  turn  the  party's  pockets 

'""T^aiHTZ^^X  asked  D.  what  o'clock  it  was,  and  B.  took  out  his 
watch  to  1  M  loUllng  it  loosely  In  both  his  hands.  A.  caught  hold  of  the 
Illn  and  kevauached'to  the  watch  and  snatched  it  from  B.  and  made  off 

"'^:  «.':n:^«  r:r ^r  was  .ndlcted  for  a  highway  ,j>bbery.    Th. 

r;:ir;v  voM^to'onstUnt  fhe  oB^nse  of  highway  r^^^-^y'^^^J^^^ 
JjZZLr  before  or  at  the  time  of  the  taking,  and  must  be  such  a  nature 
:::  l  ov  ^t ;;  ;;:  mtended  to  overpower  the  party  robbed,  am.  prevent  is 
Je'slstu...  and  not  merely  to  ^^  ^-^:^  ^J^ZS^:!!^::^;:^^ 

rmrrsiLr: z:;:^ ;:  r^i^e^rstdrbie  force.  it\vouid  not.  m 

rvli  Jon  brM^hway   obberv.  because  the  violence  was  not  for  the  purpose 

7^::::^:^^  p-y  robbe.  hut  only  to  ^^^^;--::^- 
"^rz:  :e^rs:oTisr=Xt^^r:sr::s:^^^^ 


1  Plato's  Case,  2  City  Hall  Rec.  7  (1817). 

2  Norris'  Caee,  6  City  Hall  Rcc.  86  (1821). 

3  Wilson  V.  State,  3  Tex.  (App.)  64  (1871). 

4  People  V.  Hall.  6  Park.  614  Il8(i5) ;  Shlnn 
t,.  State.  04  Ind.  13;  Boneall  v.  State  35  Ind. 
460  (1871) ;  State  v.  John,  6  Jones.  163  (1857) ; 


Andereon'8  Oas..  1  City  Hall  Rec.  163  (1816) ; 
McCloBkey  v.  People.  5  Park.  299  (1861). 

6  Brennanv.  State,  25  InU.  403  (1865). 
«2C.  &K.214(1845). 

7  C.  &P.  304  (1824). 

8  24  Hun,  62  (18il). 


^M 


FORCE   MUST  HE  USED. 


711 


th«  uie  of 


be  put  In 
Urn  tn  fear 


o  the  force 

not  simply 
irticle  from 
y's  pockets 

ok  out  bis 
hold  of  tlie 
d  made  off 

ibery.    The 
Walsal,  the 
',  jerked  his 
ras  secured, 
this  offense 
y,  the  force 
ich  a  nature 
prevent  his 
Thus,  If  a 
ill  her  shawl 
?auld  not,  In 
the  purpose 
;he  property. 
Tceny  only. 
that  on  Jan- 
,  wife  of  one 
»x  of  catarrh 
for  the  raed- 
in  the  book ; 
et-book  from 
rlnty  grabbed 
>ut  doors  and 
Id  him  he  had 
,t  there  were 
irty  cents  for 

Rec.  163  (1816) ; 
.  299  (186»). 
403  (1869). 


the  book,  and  that  the  money  and  wallet  were  his)  that  the  defendants  and  Mrs. 
McGlnty  were  In  the  bar-room. 

Lkarnkd,  p.  J.  The  court  charged :  "  If  you  come  to  the  conclusion  that  the 
force  which  was  used  in  taking  this  po<;ket-book  from  the  hand  of  Guy  Swallow 
was  rtiiinclent,  under  the  clrcumslanci's,  to  tieprlvo  lilm  of  his  property,  and  If 
you  find  that  the  Intent  was  feloniously  to  steal  the  property,  then  I  charge  you, 
as  a  matter  of  law,  that  within  that  clement  of  the  statute  the  charge  Is  made 
out."  The  prisoner  excepted.  Again,  the  court  charged  that  the  taking  by 
violence  means  a  taking  l)y  force  which  is  sulllclent  to  take  the  property  against 
the  owner's  will.  Again,  the  prisoner  rccjuestud  the  court  to  charge  that  the 
striking  of  the  pocket-book  from  the  hand  of  tiie  complainant,  as  testified  to  by 
him,  does  not  constitute  robbery.  The  court  refused  and  charged  that  If  the 
jury  believed  his  testimony,  that  makes  out  the  element  of  robbery.  The  pris- 
oner excepted. 

The  testimony  of  the  complainant  was  that  he  went  into  a  saloon  kept  by 
Mrs.  Ginty;  that  slie  and  the  prisoner,  McGin.y  and  Kinseila  were  present,  and 
no  one  else;  that  he  took  out  his  pocket-book;  that  McGlnty  knocked  It  out  of 
his  hands  upon  the  bar;  that  Kinseila  picked  it  up;  that  McGlnty  grabbed  the 
defendant  and  put  him  out  of  doors;  that  he  demanded  his  pocket-book  and 
McGlnty  told  him  he  had  better  go  away,  he  would  never  see  the  pocket-book 
again. 

The  point  is  whether  the  court  properly  submitted  the  question  of  violence 
to  the  person  to  the  jury.  Even  if  we  assume  that  the  forciljle  turning  of  the 
complainant  out  of  doors  might  be  properly  considered  as  characterizing  the 
act  of  the  prisoner,  the  question  still  remains  wliether  the  court  adopted  the 
proper  rule  as  to  what  constituted  violence  to  the  person.  The  court  charged 
that  if  the  force  which  was  used  was  sufficient  to  deprive  complainant  of  his 
property  against  his  will,  that  would  be  sufficient  to  constitute  the  violence  to 
tlie  person,  which  is  a  necessary  element  of  the  crime.  Here,  we  think  that  the 
court  erred.  The  language  used  would  Include  any  larceny  from  the  person. 
The  pickpocket  who  steals  a  handkerchief  uses  sufficient  force  to  deprive  the 
owner  of  his  property,  and  his  taking  is  felonious  and  against  the  owner's  will. 
"The  mere  snatching  of  any  thing  from  the  hand  of  a  person  without  any 
struggle  or  resistance  by  the  owner,  or  any  force  or  violence  on  the  part  of  the 
thief,  will  not  constitute  robbery."  i 

The  violence  contemplated  means  more  than  simple  assB'ilt  and  battery. 
"  It  must  be  sufficient  to  force  the  person  to  part  with  his  property  not  only 
against  his  will,  but  in  spite  of  his  resistance."  i* 

Now  the  present  case  was  only  like  the  snatching  of  a  pocket-book.  The 
complainant  was  not  struck  or  held,  nor  was  any  resistance  overcome  on  his 
part.  The  pocket-book  was  only  knocked  from  his  hands,  just  as  It  might  have 
been  snatched  away  from  them.  The  court  below  drew  this  distinction,  that  ii 
the  violence  was  only  the  result  of  the  taking,  then  the  crime  was  not  robbery; 
but  if  the  taking  was  the  result  of  the  violence,  then  It  was  robbery.  There 
Is,  perhaps,  some  force  In  this  distinction  if  It  were  properly  qualified.  But  we 
think  that  the  error  was  in  holding  that  aiiy  physical  act  to  the  person  of  the 
complainant  which  resulted  in  the  taking  was  violence  within  the  meaning  of 
the  statute. 


1  MoCloskey  v.  People,  6  Park.  S«99;  to  the 
same  effect,  People  v.  Hall,  6  Park.  642. 


•  McCloBkey  v.  People,  ut  mtpra. 


712 


ROBUKUY. 


It  is  not  easy,  uor  perhaps  is  it  best,  to  attempt  to  make  an  exliaustlve  defini- 
tion of  violence  as  useil  in  tlie  statute;  but  we  may  say  tliat  it  generally  implies 
the  overcoming,  or  attempting  to  overcome,  an  actual  resistance,  or  the  prtv 
vcnting  sucli  resistance  through  fear.  It  may  include  restraint  of  the  person, 
as  in  Muhnney  v.  People,^  where  the  complainant  was  held  around  his  neck  and 
by  his  arms.  And  it  generally  implies  that  the  acts  tuiul  to  produce  terror  and 
alarm  in  the  person  on  whom  the  violence  is  committed.  And  it  out;ht  not  lo 
be  held  that  every  assault  and  battery,  even  the  most  trivial,  which  results  in 
the  talving  of  property  from  the  assaulted  person,  constitutes  that  element  of 
violence  which  is  mentioned  in  the  statute.  The  penalty  is  severe;  the  crime 
arrived  at  is  grave;  and  we  should  be  careful  not  to  magnify  a  less  offense  into 
one  which  has,  and  deserves  so  severe  a  punishment.  In  my  own  opinion,  the 
facts  of  the  present  case  are  not  sulllcient  to  show  the  defendant  to  be  guilty  of 
this  crime.  The  judgment  and  conviction  must  be  reversed,  and  the  cause 
remitted  to  the  Court  of  Sessions. 

BoAKDMAN,  J.  I  concur  in  the  conclusion  of  the  presiding  justice  that  the 
charge  of  the  judge  was  erroneous  and  was  likely  to  mislead  the  jury.  As  this 
will  lead  to  a  new  trial,  I  desire  to  add  that  the  seizure  of  complainant,  in  con- 
nection with  getting  his  pocket-book  and  forcibly  putting  him  out  of  the  house, 
may  by  possibility,  upon  a  new  trial,  furnish  that  element  of  force,  overcoming 
resistance  or  inspiring  fear,  which  is  necessary  in  robbery.  In  this  respect  I 
think  our  decision  should  not  be  deemed  to  be  conclusive  of  the  case,  or  to 
require  the  discharge  of  the  plaintiff  in  error  from  l  he  indictment. 

BocKEs,  J.  I  concur  in  the  opinion  of  my  Brother  Lear.nkd,  as  regards  the 
error  in  the  charge  of  the  crurt  on  the  trial.  I  am  also  of  the  opinion  that  the 
facts  proved  do  not  make  out  a  case  of  robbery  under  the  statute  on  which  the 
indictment  Is  found.  The  cases  cited  in  the  fifth  and  sixth  Parker  show,  as  j 
think,  very  clearly  the  insufficiency  of  the  proof  to  establish  the  crime  charged, 
as  regards  violence  to  the  person. 

Judgment  and  order  reversed  and  cause  remitted  to  Bssex  County  Sessions, 
new  trial  granted. 

§  502.  Fear  Must  be  ot  Personal  Violence  —  Threateniner  to  Proseout* 

on  False  Cbargre.  —  Obtaining  money  or  p^'operty  by  threats  of  a  criminal  prose- 
cution is  not  robbery.  In  JBritt  v.  State,'^  Reese,  J.,  delivering  the  opinion  of 
the  court  said:  "FlaintifC  in  error  was  iudictod  and  convicted  in  the  Circuit 
Court  for  Roane  County,  for  the  offense  ol  robbing  from  the  person  of 
Robert  L.  Phillips,  the  prosecutor,  by  violence,  and  putting  him  in  fear  of  his 
life,  or  great  bodily  harm,  a  sum  of  money  and  a  horse.  Without  detailing  the 
iniquity  and  crimes  of  the  plaintiff,  which  the  record  discloses,  it  is  sufficient  to 
state  that  on  the  trial  the  prosecutor  swore,  that  he  gave  up  the  money  to  the 
prisoner,  solely  on  the  ground  of  the  prisoner's  threat  to  prosecute  him  for 
having  passed  to  prisoner  a  five  dollar  note,  which  prisoner  alleged  was  coun- 
terfeit; and  that  he  was  not  alarmed  or  afraid  of  violence  at  any  time  while 
with  prisoner,  or  apprehended  bodily  danger  or  violence  to  his  person. 

"The  court  charged  the  jury,  •  that  if  the  prosecutor  was  pus;  f u  fear  of  con- 
finement in  the  penitentiary,  so  that  he  gave  up  the  money  or  property  to  the 
defendant  by  reason  of  the  defendant  making  falsely  a  threat  to  prosecute  him 
for  passing  a  counterfeit  bank-note,  the  punishment  for  which  would  be  con* 


1  3  Unn,  203. 


3  7  Humph.  45(1846). 


rUTTlNU   I\    FKAR. 


713 


exhaustive  deflni- 
geuerally  implies 
tiiuce,  or  tlie  pr«- 
liut  oi  the  person, 
ouud  his  neck  and 
iroduce  terror  and 
.nd  it  oiiiiht  not  lo 
1,  which  results  in 
IS  that  element  of 
severe ;  the  crime 
a  less  offense  into 
y  own  opinion,  the 
laut  to  be  guilty  ol 
jd,  and  the  cause 

Qg  justice  that  the 
1  the  jury.  As  this 
jmplainant,  In  con- 
m  out  of  the  house, 
E  force,  overcoming 
r.  lu  this  respect  I 
e  of  the  case,  or  to 
tment. 

NED,  as  regards  the 
he  opinion  that  the 
itatute  on  which  the 
th  Parlier  show,  as  i 
1  the  crime  charged, 

ex  County  Sessions, 

tenlns  to  Prosecute 
of  a  criminal  prose- 
erlng  the  opinion  of 
ivicted  in  the  Circuit 
from  the  person  of 
ng  him  in  fear  of  his 
V^lthout  detailing  the 
•ses,  it  is  sufficient  to 
1  up  the  money  to  the 
to  prosecute  him  for 
ler  alleged  was  coun- 
nce  at  any  time  while 
o  his  person, 
as  put  iii  fear  of  con- 
iiey  or  property  to  the 
reat  to  prosecute  him 
which  would  be  con- 

45(1846). 


flnement  in  the  penitentiary,  that  the  defendant  would  be  guilty  of  robbery. 
But  If  the  prosecutor  actually  passed  to  the  defi'ndant  a  t-ouiitL-rfcit  note  it 
would  not  be  a  robbery,  but  a  mure  eorapoundlug  a  felony,  and  they  ought  „c 
acquit  the  defendant.  The  principle  of  the  charge  iu  l)rluf  is  thai  if  one  ex- 
cites  the  fear  of  an  innocent  man,  try  falsely  charging  him  witii  th  o^nunlssioa 
of  a  felony,  the  punishment  for  which  is  connueiueiit  in  the  peniteujary  anl 
threatens  a  criminal  piosecution,  and  thus  induces  liini  to  surruiiati  money  or 
otlier  valuable  tilings  to  the  person  accusing  and  threatening,  such  person  is 
guilty  of  rf''>.ery.  This  charge  is  erroneous.  It  has  been  settled  upon  much 
consideration,  by  judges  of  England  in  more  than  one  case,  that  threatening  to 
prosecute  an  Innocent  man  for  any  crime  whatever,  except  ouiv  the  crimen  in- 
nominatum,  and  by  the  fear  arising  from  such  threat,  to  compel  he  surrender  oi' 
money  or  property,  does  not  amount  to  robl)ery.  The  fear  constituting  an  ele- 
ment of  the  crime  is  fear  of  present  personal  peril  from  violence  offered  or 
impending.  The  fear  of  being  arraigned  before  those  tribunals,  whoso  func- 
tion it  is  to  protect  and  vindicate  Innocence  as  well  as  to  ascertain  and  punish 
crime,  sliould  not  shake  a  firm  mind  of  conscious  rectitude  so  far  from  its  pro- 
priety, as  to  induce  the  surrender  of  money  or  otlier  valuable  thing  to  the  base 
accuser;  and  it  is  not  the  fear,  except  in  the  single  instance  indicated,  which 
connects  Itself  with  the  legal  Idea  of  robbery.  The  reasoning  on  which  the 
single  admitted  exception  is  made  to  rest,  turns  upon  the  overwhelming  and 
withering  character  of  the  charge  and  damning  infamy,  so  well  calciilut'ed  to 
unman  and  subdue  the  will  and  alarm  the  fears  of  the  falsely  accused.  It  is 
evident  that  the  courts  of  England  felt,  that  even  this  exception  looked  ex- 
tremely anoma' JUS,  and  they  strive,  while  permitting  it  to  stand,  to  place  it  on 
ground  unapproachable  by  any  other  case  of  f  .ar  of  prosecution,  as  if  deter- 
mined hereafter  it  8houl<;  have  no  associate  in  the  offense  of  rot)bery. 

"  Our  statute  creates  no  change  in  this  respect.  Indeed  tlie  definition  of  the 
offense  therein  seems  to  have  been  made  studiously  with  a  view  to  exclude  the 
idea  of  any  appreliension  than  that  of  bodily  danger  or  impending  peril  to  the 
,.erson.    The  judgment  must  be  reversed  and  a  new  trial  awarded." 

Obtaining  money  from  a  woman  by  threatening  to  accuse  her  husband  of  aa 
indecent  assault  is  not  robbery  —  the  element  of  fear  not  being  present.^ 

§  693.  Threat  — Threat    of    Legal    Imprisonment  not  a  Putting  In 

Fear.  — In  R.v  Kneiland'  it  was  held  that  to  obtain  money  by  a  threat  to  send 
for  a  constable  and  take  the  patty  before  a  magistrate  and  from  thence  to  prison 
Is  not  robbery,  for  the  threat  of  legal  imprisonment  ought  not  to  alarm  any  one. 
"The  force  and  terror  "  said  AsnuRs.,  J.,  "  necessary  in  contemplation  of  lawr 
to  perfect  this  species  of  crl-ne  being  wanting.  Terror  is  of  two  kinds ;  namely, 
a  terror  which  leads  tlie  mind  of  the  party  to  apprehend  an  Injury  to  his  per 
son,  or  a  terror  which  leads  him  to  apprehend  an  injury  to  his  cbaractfjr  The 
first  kind  of  terror  is  that  which  is  commonly  made  use  of  on  the  commission 
of  this  offense,  and  Is  always  held  sufficient  to  support  an  indictment  of  this 
description.  But  the  second  species  of  terror  has  never  beeudeemed  sufficient, 
except  In  the  particular  case  of  exciting  it  by  means  of  insinuations  against,  or 
threats  to  destroy,  the  character  of  tlie  party  pillaged,  by  accusing  him  of 
sodomltical  practices.    The  fears  unavoidaI)ly  excited  by  Uiese  means,  have  on 


»  B.  ».  Edwards,  5  C.  &  P.  518  U833). 


3  2  Leach,  833  (179«). 


714 


ROBBERY. 


several  occasions,  been  aetern.nea  .y  tUe  j^tLfc^rXV^'^- "- 
the  crime  of  robbery;  but  it  is  ^7"»f^J°  ^^.^^^^^^^^^  nodomy,  is  of 

of  being  thought  addicted  to  so  odious  and  ^^^*^f  ^7^/^'^"„j„,.t,  ^„a  advaut- 
^^-"  r^t'lZS^  r;:t,^S\:;u  V:,=^:iionandreaiity 

terbysuch  an  imputation  '^-''1- /^/    /^^  ent  cas^the  thread  vUich  the 
taining  other  personal  injury     But  in    he  present  ^^^^^^  ^^ 

prisoners  made  .as  ^^^^^^^'^^^  o'JthV  jndges,  is  not  sui«- 
Ne^vgate;  a  species  «*  ^hreatjl ucl  ^l  i^  ^^  constitute  the  crime  of 

cieut  to  raise  such  a  degree  of  terror  "Y»-»  ^  ^   j  ,^    ^n  inno- 

complex  idea  annexed  to  ^1-  term  '  robbery,' U^  ^Tho'vev^r  the  prisoners 

onensc.  A  d«ma»d,  l.owcvCT,  may  b»  °»''«^>"™  ••,,„!  „„'  1,|9  h.t  Into 
„„„  „.ho ..  deal  ...d  <';™V:S,n7£  .  P  Sr»^^^^^^^  .1..  ..he,,  .r 
,be  carriage  wM  0„»  Hand,  wUlle  ''''^»f';'™     ,,.<,,,.,,>. impor.  a  demaud. 

"",;;r„;  :::r  ::rrii'»trr  diid  .^e  p,o,ecu.or.  .0.. 

was  made. 

§  695.  ^o^^-y-^r^cf  f  rrTo'eT,  r  iuT'>^^^^^  l-tmcted  as  follows, 
the  prisoner  being  indicted  for  '"^^'^^  >;^\'^^^^^^^^^  appropriate  the  thing  taken 
"  The  talcing  must  be  fraudulent  and  ^Uth  '"Jj"* '^  j]  'j'^^^^  ^aken  by  assault 
to  the  use  or  beuetit  of  the  Pe-on  Uk^g.  J^  -^^^^^^  ;  ^  ^^j.^y  Intended 
or  by  Violence  ^V"'  't  'alnTor  a  resUn'  a  pe  "^  without  aJthority,  or  a 
„y  violence  "^^ ^^^^^^  ^  "  ,:;rr^^^^^^  It  the  mind.  It  is  for  you  to 
sense  of  shame  or  «th«^  di«agreea  ^^^^         ^^^  ^^^^  ^^  ^^„. 

decide  in  this  case  ^^fll'^'Jlll^^\,,,,  ,ou  are  authorized  to  look  to 
straint  by  the  defendant,  and  to  ^etermue  i  ^^  ^^  ^^  ^^^^^^ 

what  capacity  ^l^f  ^^^^f^^  SdC^uTnJohron  under  constraint  or  fear  of 

;^;:;^rn;u:;^rdrh:rryto\'i5;:Lneyasai.^^^ 


1  1  Leach,  23. 


2  12  Tex.  (App.)  240  (18S2). 
ble  V.  state,  Id.  420  (1882) 


AndsoeKim- 


iMl 


PUTTING   IN  FEAR, 


715 


o  constitute 
le  bare  idea 
odomy,  is  of 
and  advuut- 
II  and  reality 
)sing  charac- 
If,  or  of  sus- 
ttt  vliicli  tlie 
om  thence  to 
,  is  not  suffl- 
llie  crime  of 
aw ;  an  inno- 
inger. 

3cr  prisoner, 
e  prosecutrix 
her  until  she 
it  part  of  the 
i  be  complete 
the  prisoners 
icy  can  not  in 

t,i  It  appeared 

is  coach  along 

pistol  at  him 

\A  not  appear 

of  Parliament ; 
constitute  this 
speech ;  as  If  a 
ut  his  hat  Into 
n  the  other,  or 
port  a  demand, 
ecutor's  money 


lliams  V.  State,^ 
ited  as  follows  I 
the  thing  taken 
taken  by  assault 
injury  Intended 
,  authority,  or  a 
It  is  for  you  to 
It  in  fear  or  cou- 
)rized  to  look  to 
if  as  an  officer, 
ralnt  or  fear  of 
all  the  other  evi- 

9S2).    AndBoeKim- 
) 


dence  in  the  case ;  and  decide  under  this  charge  whether  the^defendant  is  guilty 
of  robbery  or  not  guilty,"  etc. 

At  the  request  of  the  defence  the  court  gave  a  further  instruction  to  the  jury, 
but  it  also  authorized  them  to  convict  whether  the  taking  was  by  assault  or 
by  violence  and  putting  in  fear. 

HiRT,  J.  The  appellant  Williams  was  convicted  of  robbing  one  Calvin 
Johnson  of  §5.  The  indictment  charges  that  the  appellant  Williams  did 
make  an  assault  upon  one  Calvin  Johnson,  and  then  and  there  put  him  in  fear 
of  life  and  bodily  injury,  and  S5  in  silver  coin  money,  from  the  said  Johnson's 
possession  and  against  his  will,  then  and  there  unlawfully,  fraudulently,  vio- 
lently and  with  force  and  arms  did  seize  and  take,"  etc. 

The  code  deflMcs  robbery  as  follows:  "  If  any  person  by  assault,  or  by  vio- 
lence and  putting  In  fear  of  life  or  bodily  injury,  shall  fraudulently  take  from 
the  person  or  possession  of  another  any  property  with  intent  to  appropriate  the 
same  to  her  own  use,  he  shall  be  punished  by  confinement  In  the  penitentiary 
not  less  than  two  nor  more  than  ten  years."  Under  the  code  it  will  readily  be 
seen  that  to  constitute  robbery  the  taking  of  the  property  must  either  be  by 
assault  or  by  violence  and  puttiug  in  fear  of  life  and  bodily  injury.  (We  are  now 
treating  of  the  other  elements.)  If  the  property  is  taken  by  assault,  the  person 
from  whom  taken  need  not  be  put  in  fear  of  life  or  bodily  Injury.  But  if  by 
violence,  the  person  from  whom  the  property  is  taken  must  be  put  in  fear  of 
life  or  bodily  injury.  It  follows,  therefore,  that  an  indictment  that  charges  the 
taking  by  assault  need  not  allege  that  the  person  assaulted  was  put  in  fear  of 
life  or  bodily  injury.  On  the  other  hand  when  the  charge  In  the  indictment  is 
based  upon  the  other  clause  or  phase,  the  Indictment  must  allege  that  the  tak- 
ing was  by  violence  and  putting  In  fear  of  life  or  bodily  injury.  We  are  aware 
that  in  Wilson  v.  State,^  it  was  held  that  in  either  event,  whether  by  assault  or 
by  violence,  there  must  be  a  putting  in  fear  of  life  or  bodily  Injui-y.  This  opin- 
ion was  under  the  statute  before  the  change.  The  statute  then  read :  "  If  any 
person  by  assault  or  by  violence  and  putting  in  fear  In  life  or  bodily  injury." 
The  difference  being  that  in  the  former  there  was  no  comma  after  assault. 

The  indictment  in  this  case  charges  the  assault  and  putting  in  fear  of  life 
and  bodily  injury,  but  does  not  charge  violence  and  putting  in  fear.  Hence, 
the  evidence  must  support  the  charge  of  an  assault  to  sustain  the  indictment.  Do 
the  facts  support  the  charge?  The  evidence  is  as  follows:  Green  McArver, 
witness  for  the  State,  says:  «<  I  was  in  Troupe,  Smith  County,  Texas,  some  time 
In  January  last.  I  saw  the  defendant  there,  and  also  Calvin  Johnson.  The  lat- 
ter had  sold  a  horse  there  that  day,  and  he  came  along  by  defendant,  who  was 
sitting  down  on  the  railroad,  when  defendant  said  to  him,  '  Young  man,  j'ou 
have  got  yourself  into  quite  a  scrape,  if  you  only  knew  it,  by  selling  that  horse 
here  this  evening  without  license.  I  am  town  marshal  here,  and  it  is  my  duty 
to  arrest  you  and  put  you  in  the  calaboose,  and  then  take  you  before  the  mayor 
and  to-morrow  morning  take  you  to  Tyler  jail.'  Defendant  then  figured,  or 
pretended  to  figure  a  little  on  a  book  he  had  with  him,  and  then  he  said :  '  But, 
young  man,  if  you  pay  me  five  dollars  you  can  go  and  I  will  not  bother  you ;  oth- 
erwise, I  will  have  to  arrest  you  and  put  you  In  the  calaboose,  and  take  you  to 
Tyler  jail  to-morrow.'  Calvin  Johnson  then  pulled  out  five  dollars,  and  gave 
to  defendant,  and  defendant  told  him  to  go  down  to  the  store  and  get  his 
budget  and  come  back  up  there,  which  Calvin  did.    When  Calvin  came  back 

1  3  Tex.  (App.)  63. 


Bl 


716 


ROBBERY. 


With  his  l)uiullc  tlefcndant  said :  '  Young  man,  that  live  didn't  quite  settle  up 
what  was  against  you.  I've  llgured  up  and  And  it  will  talie  one  dollar  more  to 
settle  it  up  straiglit;  so  you  had  better  pay  this,  or  I  wili  put  you  in  tlie  cala- 
l)oosc,  and  talce  von  up  to  Tyler  jail  to-morrow.'  And  Calvin  then  paid  him  one 
dollar  more.  Defendant  then  said  to  Calvin :  '  Now  take  the  railroad  here  and 
■,'o  on  to  Jacltaonvllle,  and  if  anybody  asks  you  about  Troupe,  tell  liim  you  don't 
know  anythin;^  about  Troupe.'  Calvin  then  went  on  down  the  railroad  in  tne 
direction  of  Jacksonville.  All  this  occurred  in  Smith  County,  Texas.  I  <Ud  not 
see  defendant  use  auy  violence  on  said  Calvin,  nor  offer  to  do  so,  nor  make  any 
gestures  like  he  was  going  to  do  so.  The  mom.'y  was  delivered  up  to  him  by 
Calvin,  as  I  said,  on  his  threatening  to  arrest  Calvin  and  put  him  in  the  cala- 

Ijoose." 

Calvin  Johnson  corrol)orated  Green  McArver  in  every  material  particular, 
adding:  "  I  had  sold  my  horse  and  was  not  used  to  town  affairs,  having  been 
raisecrin  Georgia  and  in  the  country.    When  defendant  halted  me  and  told  me 
I  had  got  mvself  into  trouble  (as  stated  by  Green  McArver),  I  became  scared 
and  very  uneasy,  although  I  was  satisfied  I  had  done  nothing  to  be  arrested  for, 
except  that  it  might  be  for  selling  my  horse  in  town.    I  thought  he  was  marslial 
of  the  town  and  would  put  me  in  the  calaboose,  and  carry  me  to  Tyler  jail, 
twenty  miles  distant,  if  I  did  not  let  him  have  some  money,— the  amount  he 
demanded,  five  dollars.    He  first  got  five  silver  dollars  United  States  of  Amer- 
ica coin,  worth  five  dollars,  from  me  against  my  will  and  consent.    I  let  him 
have  it  because  I  was  afraid  noi,  to;  I  was  mighty  scared;  thought  he  was  going 
to  imprison  me;  would  have  given  him  all  I  had  if  he  had  demanded  it  of  me. 
After  getting  the  money  defendant  told  me  to  strike  out  down  the  railroad  to 
Jacksonville,  and  not  stop;   never  to  let  any  body  know  that  I  had  been  In 
Troupe.    I  started,  and  on  the  way,  at  the  section  house,  learned  from  some 
white  men  that  defendant  was  not  marshal  of  Troupe.    I  then  turned  back,  and, 
being  cited  to  the  mayor,  went  to  him  and  informed  him  against  the  defendant 
and  had  him  arr-^stcd.    He  was  not  marshal  as  I  afterwards  learned,  but  at  the 
time  I  thought  so.    He  never  hit  me  or  in  any  way  put  his  hands  on  me,  or  tried 
to  hit  me,  but  threatened  and  frightened  me.    I  did  just  as  he  ordered  me.    He 
was  a  stranger  to  me  at  that  time,  but  I  have  since  learned  his  name  to  be  John 
Williams,  and  would  know  him  anywhere,  and  is  the  man  now  on  trial." 

This  evidence  falls  completely  to  show  an  assault,  consequently  the  charge 
in  the  Indictment  is  not  supported  by  the  proof.  But  let  us  suppose  that  the 
indictment  had  alleged  that  the  money  was  taken  by  "violence  and  putting  in 
fear  of  life  or  bodily  Injury,"  would  these  averments  be  sustained  by  the 
above  facts?  There  was  certainly  no  fear  of  loss  of  life;  was  there  of  bodUy 
Injury?  What  is  meant  by  bodily  injury?  Most  evidently  it  means  an  Injury  to 
the  person,  to  the  body. 

Proceeding,  then,  upon  the  supposition  that  the  indictment  contained  the 
proper  allegations  to  admit  evidence  of  "  fear  of  life  or  bodily  injury,"  still  we 
are  of  opinion  that  the  evidence  In  this  case  would  not  support  these  alle- 
gations. 

H  what  has  been  written  be  a  correct  solution  of  the  code  defining  robbery,  a 
discussion  of  the  other  points  raised  In  the  brief  of  appellant  is  unnecessary ; 
for  the  errors  in  the  charge  of  the  court  will  very  clearly  appear,  tested  by  the 
exposition  of  the  law  of  robliery  as  above  set  forth. 

The  verdict  of  the  jury  not  being  supported  by  the  evidence  a  new  trial 
Bhould  have  been  granted.    The  judgment  Is  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 


t  ■»*HMi«i..«nWr.^rc»«r4i»»  ?«'~ 


A^i 


e  settle  up 
ivr  more  to 
In  tlic  calti- 
,id  him  one 
(I  here  ami 
1  you  don't 
road  in  tiie 
I  rlld  not 
r  make  any 
to  him  by 
u  the  cala- 

particular, 
laving  been 
md  told  me 
ame  scared 
rrested  for, 
k'us  marshal 
>  Tyler  jail, 

amount  he 
es  of  Amer- 
;.  I  let  him 
e  was  going 
d  it  of  me. 

railroad  to 
dad  been  in 

from  some 
d  ))ack,  aud, 
le  defendant 
1,  but  at  the 
me,  or  tried 
•ed  me.  He 
3  to  be  Joha 
rial." 

y  the  charge 
ose  that  the 
d  putting  in 
ined  by  the 
ire  of  bodily 

an  injury  to 

ontained  the 
ry,"  still  we 
t  these  alle- 

ig  robbery,  a 
mnecessary ; 
ested  by  the 

;  a  new  trial 
se  remanded. 
I  remanded. 


ELEMENTS  OF  CRIME  OF  KOBUERY. 


717 


§  590.  Intent  to  Steal  at  Tin  e  Necessary.  —  So  if  one  attacking  another 

snatches  a  pistol  from  the  liand  of  tlie  prosecutor  who  lias  (h-awn  it  against  Ids 
assailant,  simply  to  prevent  the  proseouor's  from  using  it  against  lilm,  without 
Intending  at  tlie  time  to  appropriate  ii ,  he  is  not  guilty  of  robbery  though  he 
afterwards  takes  it  away  and  sells  it.^ 

§  697.  Subsequent  Use  of  Violence.  —  If  the  property  is  taken  without 

violence  or  putting  in  fear,  the  subsequent  use  of  violence  to  retain  it  does  not 
make  tlie  taking  robbery.!*  "  The  force  necessary  to  constitute  robbery  must 
be  em|)loyed  be'fore  the  property  is  stolen.  If  the  stealing  be  tlrst  and  the  force 
afterwards,  the  offense  is  not  robbery,  but  stealing  from  the  person."  '■^ 

§  598.  Taking  Must  be  In  Prosecutor's  Presence.  —  The  goods  must  be 

taken  in  the  presence  of  tlie  prosecutor.* 

§699.  Bobbery— Property  Must  be  In  Possession  ot  Party  Robbed. In 

n.  V.  Fallows,'' A.  ami  H.  were  walking  together,  B.  carrying  A.'s  bundle,  when 
C.  and  D.  came  up  and  assaulted  A.  B.  threw  down  the  bundle  and  ran  to  the 
assistance  of  A.  when  C  took  it  up  and  ran  off.  It  was  held  that  C.  and  D.  could 
not  be  convicted  of  robbery.  "Tlie  bundle,"  .'said  Vaughan,  B.,  «<was  not 
in  A.'s  possession.  If  the  prisoners  intended  to  take  the  bundle,  why  did  they 
assault  A.  and  not  the  person  who  had  it." 

In  Ji.  v.Iiudick,'a.  servant  being  sent  out  to  receive  money  for  his  master 
was  robbed  of  it  as  he  came  home.  It  was  held  that  the  robbers  could  not  be 
convicted  of  the  robbery  of  the  master. 

In  B.  V.  Edwards,''  A.  was'decoyed  into  a  house  and  chained  down  to  a  seat 
and  compelled  to  write  an  order  for  the  payment  of  money  and  the  delivery  of 
deeds.  The  paper  on  which  he  wrote  remained  in  his  hand  half  an  hour,  but  he 
was  chained  all  the  time.  It  was  held  that  there  was  no  rol)bery.  On  the  ar- 
gument the  counsel  for  the  prosecution,  Adolphus,  cited  thecaseof  i2.  v.PAfpoe,' 
as  in  point,  but  Bosanquet,  J.,  said :  In  tliat  case  the  judges  distinctly  decided, 
that  obtaining  valuable  securities  from  the  maker  by  duress  was  not  stealing. 
In  this  case  the  documents  were  obtained  by  duress.  The  question  is,  whether 
the  documents  were  even  In  Mr.  Goe's  possession. 

Bodkin.    We  can  prove  that. 

C.  Phillips.    Not  in  his  peaceable  possession;  he|was  In  duress  at  the  time. 

PATTK.SON,  J.  The  documents  are  certainly  such  as  the  act  contemplated. 
The  question  Is  as  to  the  mode  in  which  they  were  obtained. 

F.  V.  Lee.  The  documents,  when  written  by  Mr.  Goe,  remained  with  him  for 
half  an  hour  or  more  while  he  wrote  some  letters.  They  were*,  therefore,  In  his 
peaceable  possession  during  that  time.  He  only  resigned  them  on  account  of 
the  menaces  and  threats  used  towards  him.  There  is  a  difference  between  this 
case  and  that  of  Mrs.  Phipoe,  for  Mr.  Courtols  had  never  the  peaceable  pos- 
session of  the  note  for  £2,000  which  was  extorted  from  him. 

Patteson,  J.  The  learned  counsel  has  put  his  case  with  great  Ingenuity,  but 
I  am  not  able  to  see  the  slightest  difference  between  the  two  cases.    Mrs. 


1  Jordan  v.  Com.  2fi  Gratt.  94,1  (1874) 
S  State  V.  Clark,  12  Mo.  (App.)  893  (1S82)  j 
Sliinn  V.  State,  64  Iiid.  13. 

3  K.  t'.  Smith,  1  Lcwiu,301  (1830). 
*  Crews  V.  State,  3  Cold.  390  (1866). 


'  6  C.  A  P.  608  (1832). 
«  8C.&  P.  237(18.18). 
'  6  CAP.  621  (1834). 
e  2  Leach. 


718 


ROBBERY. 


Phipoe  htild  a  knife  to  Mr.  Courtols'  throat,  and  compellecl  him  to  give  a  prom- 
issory note  for  £2,0i)0.  He  signed  tho  notes  and  it  was  held  that  it  was  no 
robbery;  for  he  never  had  peacealvle  possession  of  it,  but  had  been  forcibly  and 
and  by  violence  compelled  to  sign  the  paper.  Now,  how  does  Mr.  Goe's 
case  stand?  He  was  chained  and  padloclted,  a  rope  was  put  round  his 
nccl<,  anil  his  feet  were  tied  to  thi!  ground;  he  could  not  move  hand  or 
foot,  except  just  to  write.  They  l)rin!i  him  pens,  ink  and  paper,  -nd  he 
writes  tlie  orders.  He  had  the  panirs,  it  was  true,  in  his  hand;  but 
chained  as  he  was,  Is  It  possil)lc  to  conceive  that  he  had  such  a  peaceable  pos- 
session  of  tliem  as  to  l)e  at  liberty  to  do  what  he  pleased  wltli  them?  For  that 
is  tlie  meanini;  of  p.-aceable  possession.  I  can  not  perceive  the  difference  be- 
tween tlie  case  of  Contois  and  th*  present,  except  that  the  latter  is  the  stronger 
case  of  the  two.  Tlie  ground  of  decision  in  that  case  must  govern  the  decision 
of  the  court  in  this.  A  rol)l)ery  can  not  l)e  committed  unless  the  person  has  the 
properfv  In  his  peaceal)le  possession,  to  do  with  it  as  he  choses.  If  Mr.  Goe 
had  broufiht  the  documents  ready  written,  the  case  would  have  been  different; 
but  he  does  not  write  them  until  he  is  chained.  Several  nice  and  subtle 
distinctions  have  been  taken,  but  I  do  not  favor  such  distinctions;  and 
therefore,  I  hold  with  the  previous  decision  of  the  judges,  and  am  bound 
to  be  governed  by  It. 

BosANquET,  J.  I  entirely  concur  In  this  view  of  the  question.  The  case  Is 
not  to  be  distiugulshed  in  principle  from  Mrs.  PMpoe's  Case.  The  decision  of 
the  judges  in  that  case  was,  that  It  was  not  a  robbery,  because  Mr.  Courtols 
had  never  been  in  peaceable  possession  of  the  note;  th.-  circumstances  are  siml- 
lar  In  this  case,  and,  therefore,  the  jury  must  acqifit  the  prisoner. 

Verdict,  not  guilty. 

I  599a. Receiver  not  Guilty  of  Robbery.  —  One  who  receives  money  ob- 
tained by  robbery,  with  knowledge  of  how  it  was  obtained.  Is  not  guilty  of  the 
crime  of  robbery. ^ 

§  600  Articles  Taken  muBt  be  Property  ol  ProBecutor  or  Third  Per- 
son.-In  CommonioealtU  v.  Clifford,^  Metcalk,  J.,  said:  "Robbery by  the  com- 
mon  law  Is  larceny  from  the  person,  accompanied  by  violence  or  by  putting  in 
fear ;  and  an  Indictment  therefor  must  allege  that  the  taking  was  from  the  person, 
and  that  it  was  by  violence  or  by  putting  in  fear.  In  addition  to  the  averments 
that  are  necessary  In  Indictments  for  other  larcenles.3  n,  therefore,  the  present 
Indictment  were  for  the  common-law  offense  of  robbery,  It  would  be  fatally 
defective  for  want  of  the  averments  that  the  articles  alleged  to  have  been  stolen 
and  taken  from'Pendexter  were  his  property  or  the  property  of  some  third 
person,*  and  that  they  were  carried  away  by  the  defendants.*  As  the  indict- 
ment Is  drawn,  all  the  averments  therein  may  be  true,  and  yet  the  defendants 
not  be  guilty  of  robbery  at  common  law.  Tlie  wallet  and  the  bank  bills  may 
have  Ijeen  the  property  of  the  defendants,  and  may  have  been  unlawfully  taken 
from  them  by  Pendexter.  If  so,  the  forcible  retaking  of  them  from  him  by 
the  defendants  would  not  be  the  offense  of  robbery."  • 


1  People  V.  Shepardson,  48  Cal.  189  (1874). 

2  8Cu8h.21.%(l85i.). 

3  King  V.  Rogard,  Jebb's  Crown  Ofts.  62; 
Smith's  Case,  2  East's  V.  0. 783, 784 ;  King  v. 


Donalley,  1  Leach  (3d  ed.),229;  2  Stark.  Cr. 
im.  I'l.  (2ded.)474. 

«  2  Hawk.,  ch.  28,  sect  71. 

'  Archb.  Cr.  PI.  (5th  Am.  cd.)  3(«. 

«  Ueg.  r.  Hall,  3  C.  &  V.  409. 


ROBBERY  —  LUCUI    CAUSA. 


719 


ve  a  proin- 
t  It  was  no 
arclbly  and 
Mr.  Goe'8 
round  hla 
e  hand  or 
31",  ".nd  he 
hand;  but 
ceablu  pos- 
?  For  that 
'erence  be- 
he  stronger 
he  decision 
■son  has  the 
If  Mr.  Goe 
Q  different; 
and  subtle 
ctions;  and 
am  bound 

Tlie  case  is 
decision  of 
Ir.  Courtois 
;es  are  slmi- 

not  guilty. 

s  money  ob- 
;uilty  of  the 

Third  Per- 
by  the  com- 
y  patting  in 
ii  the  person, 
e  averments 
,  the  present 
Id  be  fatally 
s  been  stolen 
?  some  third 
3  the  indict- 
e  defendants 
nk  bills  may 
■wfully  taken 
rom   him  by 


9;  2  Stark.  Cr. 


§  601.  Robbery  —  Lucrl  Causa  Essential.  —  In  United  States  v.  Ihirkee,^  the 
prisoner  and  others  were  luilicted  for  piracy,  the  act  charged  being  tliat  they, 
being  engaged  in  a  riot,  robbed  a  vessel  in  the  harbor  of  San  Francisco  of  a 
lot  of  arms,  the  projierty  of  the  State,  wiiich  had  been  bought  for  the  purpose 
of  suppressing  the  riot.  The  court  ruled  that  lucH  causa  was  essential.  It 
was  not  robbery  for  one  of  a  number  of  rioters  to  break  Into  a  ship  and  seize 
arms  belonging  to  the  State  which  were  procured  to  be  used  against  the  rioters, 
if  such  arms  were  not  seized  for  tlie  purpose  of  appropriating  them,  or  any 
part  of  them,  to  the  taker's  own  use,  but  simply  for  the  purpose  of  preventing 
their  being  used  against  his  associates.  McAlustkr,  J.,  in  charging  the  jury, 
said: —  ^ 

The  act  on  which  this  indictment  is  founded  declares  robbery  committed 
on  tiie  high  seas  and  in  certain  places  shall  be  dijemed  to  be  piracy.  To 
become  a  pirate  under  this  law,  a  man  must  have  committed  robbery.  Of  the 
meaning  of  the  term  'robbery' we  thir'-.  tUtre  can  be  no  doubt.  It  must  be 
understood  as  it  was  recognized  and  dellned  to  be  at  common  law.  Although 
the  common  law  is  not  a  source  of  jurisdiction  in  the  courts  of  the  United 
States,  it  is  necessarily  referred  to  for  the  definition  and  application  of  terms. 

The  only  inquiry,  then,  is,  what  was  robbery  at  common  law  at  the  time  of 
the  separation  of  the  American  colonies  from  the  parent  country?  2    In  robbery, 
which  is  larceny  accompanied  by  intimidation  or  force,  the  felonious  intent  in 
taking  constitutes  the  offense.    Blackstone  tells  us  the  taking  and  carrying 
away  must  be  done  animo  fitrandi,  or,  as  the  civil  .law  expresses  it,  lucri  causa, 
Lord  Coke,  in  his  '  Institutes,'  aud  Hawkins,  in  his  « Pleas  of  the  Crown,' 
gives  the  same  deflnition.3    Archbold  states  that  « larceny,  as  far  as  respects 
the  intent  with  which  it  is  committed,  is  where  a  man  knowingly  takes  and  car- 
ries away  the  goods  of  another  without  any  claim  or  pretense  of  right,  with 
intent  wholly  to  deprive  the  owner  of  them  and  to  appropriate  or  convert  them 
to  his  own  use.'    In   Pear's  Case,*'  Baron  Eyre  defines  larceny  to  be  'the 
wrongful  taking  of  goods  with  Intent  to  spoil  the  owner  of  them  causa  lucri. 
The  foregoing  authorities  all  include  in  larceny,  as  an  essential  element,  what 
is  termed  the  hicri  causa.    A  similar  view  is  taken  by  the  Supreme  Court  of 
Missouri  In  the  case  of  State  of  JUissouH  v.  Conway.^    'The  taking  [s.ay  the 
court]  must  be  done  animo  furandi,  or  as  lucri  causa.    The  felonious  intent  is 
the  material  ingredient  in  the  offense.'    To  constitute  this  offense,  therefore, 
in  any  form,  there  must  be  a  taking  from  the  possession,  a  carrying  away 
against  the  will  of  the  owner,  and  a  felonious  intent  to  convert  it  to  the 
offender's  use.    Again,  in  the  State  of  Delaware,  it  was  ruled  that,  If  the  party 
indicted  for  larceny,  where  he  took  a  horse  for  the  stealing  of  which  he  was 
indicted,  intended  to  appropriate  him  to  his  own  use  by  selling  or  retaining  him 
to  his  own  use,  it  was  felony;  but  if  he  only  took  him  to  aid  him  in  his  escape 
as  a  runaway  slave,  it  was  no  more  than  a  trespass.*    In  Alabama  the  Supreme 
Court  considered  the  doctrine  at  common  law  to  be  '  that  the  criminal  intention 
constitutes  the  offense,  and  is  the  only  criterion  to  distinguish  a  larceny  from  a 
trespass.    That,  according  to  the  common-law  writers,  to  constitute  the  offense 
of  larceny,  it  was  not  sufficient  that  the  goods  be  taken  for  the  purpose  of 
destroying  them  to  injure  his  neighbor,  and  actually  destroying  them.    Such 
offense  would  be  malicious  mischief;  but  it  would  want  one  of  the  essential 


d.)  308. 


1  1  McAll.  176  (1856). 

2  United  States  v.  Palmer,  3  Wheat.  610. 

3  1  Hawk.  93. 


*  East's  P.  C,  tit.  Larceny,  sec.  2. 
'  18  Mo.  321. 
'  2  Harr.  529. 


720 


ROBBERY. 


ingredients  of  larceny  — the  lucri  cawsa  — the  intention  is  to  profit  hy  the  act 
by  tlic  couverslon  of  the  property  J  lu  that  case,  although  It  was  evident  the 
prisoner  had  secrtted  the  slave  from  lier  owner  with  a  view  to  do  the  owner  an 
injury  l)y  aiding  the  slave  to  obtain  her  freedom,  still,  as  there  was  no  Intention 
to  convert  the  slave  to  his  own  use,  the  party  was  held  to  be  not  guilty  of 
larceny. 

The  courts,  then,  of  Missouri,  of  Delaware  and  of  Alabama,  in  the  three  cases 
cited,  consider  the  doctrine  of  the  common  law  to  be  that,  to  constitute  larceny, 
there  must  be  as  an  essential  ingredient  and  a  necessary  element,  the  animus  fur- 
andi  or  lucrl  causa.  There  are  decided  cases  in  England  which  sustain  a  similar 
doctrine.  Tliu:4,  in  Rex  v.  IMloiBan,-  decided  iu  1833,  the  prisoner  was  In- 
dicted for  stealing  a  gun  from  the  prosecutor,  who  was  a  gamelieeper.  The 
latter,  knowing  him  to  be  a  poacner,  seized  him.  A  companion  of  the  prisoner 
rescued  him;  and  the  latter,  getting  free,  wrenched  the  gun  from  tlie  prose- 
cutor and  ran  off  with  it.  It  was  proved  that  the  prisoner  said  he  would  sell 
the  gun,  and  It  was  not  afterwards  found.  The  jury  returned  that  they  did  not 
thinlc  that  the  prisoner,  at  the  time  he  took  the  gun,  had  any  Intention  of 
appropriating  it  to  his  own  use.  •  Then  [said  the  court]  you  must  acquit  him. 
It  is  a  (luestlon  peculiarly  for  your  consideration.  If  he  did  not,  when  he  took 
It,  intend  its  appropriation,  it  is  not  felony j  and  his  resolving  afterwards  to 
dispose  of  it  win  not  make  It  such.' 

In  J?ex  V.  Crump,^  the  prisoner  was  Indicted  for  stealing  a  horse,  three  bri- 
dles, two  saddles  and  a  bag;  and  the  court  left  it  to  the  jury  to  say  whether 
the  prisoner  intended  to  steal  the  horse  j  for  if  he  intended  to  steal  the  articles, 
and  only  to  use  the  horse  to  convey  the  articles  away,  he  would  not  be  guilty 
of  stealing  the  horse.  The  case  of  Bex  v.  Wright  was  that  of  a  servant  indicted 
for  stealing  his  master's  plate;  and  it  appeared  that,  after  the  plate  was  missed 
but  before  complaint  was  made,  the  prisoner  replaced  it.  It  was  In  proof  that 
the  plate  had  been  pawned,  and  the  pawnbroker  testified  that  the  prisoner  had, 
on  previous  occasions,  pawned  plate  and  redeemed  it.  The  court  left  it  to  the 
jury  to  say  wliether  the  prisoner  took  the  plate  with  intent  to  steal  it,  or  to 
raise  money  on  It  and  then  return  it;  for  in  the  latter  case  it  was  no  larceny. 
The  prisoner  was  acquitted. 

In  Bex  v.  Van  Muyen,*  the  prisoner,  who  was  master  of  a  Prussian  vessel 
captured  by  the  British  and  carried  into  a  home  port,  was  indicted  for  stealing 
certain  articles  from  the  ship.  There  was  no  evidence  to  prove  whether  the 
prisoner  had  taken  the  articles  for  his  own  use  or  that  of  his  owners.  Cham* 
bre,  J.,  reserved  the  point  for  the  opinion  of  the  judges;  and  a  majority  of 
them  were  of  the  opinion  that  if  the  prisoner  had  taken  the  articles  for  his  own 
use.  It  was  larceny;  otherwise  it  was  not.  In  Begina  v.  Godfrey,^  It  was 
decided  that,  where  a  person  from  curiosity,  either  personal  or  political,  opens 
a  letter  addressed  to  another  person,  and  keeps  the  letter  (this  In  the  absence 
of  a  statute).  It  is  a  trespass,  not  a  larceny,  even  though  a  part  of  his  object 
may  be  to  prevent  the  letter  from  reaching  its  destination. 

The  foregoing  decisions  embody,  in  a  practical  form,  the  principle  enunciated 
in  tlie  definitions  given  by  the  text-writers.  We  will  now  advert  to  three  or 
four  recent  English  decisions  which  seem  to  qualify  the  doctrine.    In  the  year 


1  state  V.  Hawkins,  8  Port.  461. 
i  6  C.  A;  P.  M*. 
3  1 C.  &  P.  658. 


«  1  Runs.  A  R.  118. 
M  C.  A  P.  563. 


by  the  act 
vident  the 
B  owner  an 
3  Intention 
it  gi'ilty  of 

three  cases 
ite  larceny, 
animus  fur- 
n  a  similar 
er  was  in- 
eper.  The 
lie  prisoner 
the  prose- 
would  sell 
ley  did  not 
Qteution  of 
icqutt  him. 
ten  he  took 
erwards  to 

!,  three  bri- 
lay  whether 
^he  articles, 
ot  be  guilty 
int  indicted 
was  missed 

proof  that 
■isoner  had, 
dt  it  to  the 
3al  it,  or  to 

no  larceny. 

isian  vessel 
for  stealing 
whether  the 
ers.  Cham* 
majority  of 
for  his  own 
rey,*  it  was 
Itical,  opens 
the  absence 
f  his  object 

!  enunciated 

t  to  three  or 

In  the  year 


ROBBERV  —  LUCKI   CAUSA. 


721 

^™::r:;hr^^^^^^ 

(a'>age,^  The  principle  enunciated  was"  J  Itlf  tl  .  T'  u  """'  "'  ^^^^  ^• 
article  taken,  it  will  be  sudlcient  to  cons'tluue  L  oV  ' ,'?  *"  ''""^'^^  ^^e 
to  serve  the  prisoner  or  any  other  person  th./"""  °'  ^"""'"y'  "  <^«no 
The  case  was  this:  the  i-risonei  to  «.,,.'  '^^  ""'  *"  »  Pecuniary  way  • 
stealing  a  horse,  broU  In  Hi  '^^oS^  1  ^^.TP"?'  ^^^  --  '".iSodTor 
which  he  backed  Into  a  coal-i.it  and  ki^w  T^"  T  '""'^  '"""'^  ""«  """e. 
this  was  larceny.  At  such  a  decision  we  Ire" not  ^T'.'"'  *"^  J"''«^«  ^"<='''«^^^ 
oxclalmlng,  in  1838,  when  that  ca  e  wis C  d  In  hT"  "'  '"  ""'  ^"'^'  ^^'"«t<"> 
to  that  J '  "'*  "^"^  <^"«d  »n  his  presence,  •  I  can  not  accede 

tJit;:7r  fortr.'  7,:r:VZTl  *^  ^-  -  ^-^^  decided  on  the  a«. 
master,  by  means  of  a  falsrk;^  «nd  ±,.?"'""'''V"''^"*'''  »"«  S™"»ry  of  their 
-ster's  horses,  m  adc.ltion  to  tJ^Ctltran"    '^'  "'  "^''"^  '"^  «'-  »°  »»>«'' 
l^^rceny.    Someof  the  judges  aLsed^mh^      T"*'  ""^  "  ^"«  ^eld  to  be 
^liramish  the  work  of  the  Tn  who  had  tn.  ^  '^,'"''"*'''"*""'y«'  beans  wouW 
;.t.on  ,„  their  labor  was  ZZtlT.  ZTLT  it'T?'  "''  ''''  •^'™'- 
t  e  /„cr.  causa  wa.s  nought  for  and  discovered Tuthat  Is  ?*"^^°^««  ^'»h  which 
."Stringency  of  the  rule  which  requires  It  as  In  'cf,  ff    '"  "^''^''^  P''«°'  «'  the 
larceny.    This  case  is  referred  to  by  a  decent  wh"/''  '"^""^"*  '"  *"«  ""~  <>' 
point.'  3    Such  it  undoubtedly  is  as  in  lttZ\7\    ! ''"  "  '  ""S"'*'"  ^*««  «°  t^s 
•-d  existed  from  au  ancient  peIod,etwt!rwT'  *'"'  ''«""''"°°  ^^Ich 
With  some  of  the  judges,  deU  thriven"  oT'tCz ''""""'  ""'^^'^  "«  ^»». 
Looking  Into  the  cases  last  cited  and  ^1        ,  ^"'"  '*""'«  *"  ^^at  case 

we  deem  the  observations  made  in  ,  f  f,^'^^""^'^  «°  ^^ich  they  were  decided 
Alabama  not  Inappropriatr^Jt  apnea  s^  '^/i'""  '^  ^'''^  «"P-™«  ^o-rt « 

notbeconsldered'as'auth;r.ty  nXsco  1;:  ^''^rV!""'  "'^^^  ^^-^--^ 
ag'nary  distinctions  upon  which  they  rest  ar»,.  ^'^''dowyand  almost  im- 

^^•ScirrnrdTr  ^-^^^^^^ '''''-'-  "^ 

and  An,er.ca;%re  i;    X' CdCd? h  "'"T^  ^"^''°''"-'  ^"« 
't  existed  at  the  time  of  the  eS   on  of  o-  «n'T  ""^  *''  ^•"""'°"  '''^  «« 

we  can  not  recognize  modmcationsrecenUyrdeTth"  '°  '"'  '^"""^'y'  *«"» 
as  controlling  this  court.    If  an  author  v^^Jm  V       k'"'"°°  ^'*^^°' England 

from  an  American  court  adopting  tW  1.  k  ^'"'^  ""^^  '"""^^  emanating 
could  not  have  eluded  therer:oV?h:;r'otsior'  '^^"°^"°"«'  '*  "'***"'* 
tiot ll^h^lttr  •°''"°"  ^'  *^«  ^-'  -  «- you.  gentlemen,  the  .nstruc. 

1.  That  if  you  believe  from  tbe  evidence  th«t  fj,«      ■ 

away  the  arms,  with  the  Intent  to  approprTate  11  /"'°"^  *°°'  "^  "'"»«" 
h.s  own  use,  or  permanently  deprive  thonl„       .J    "^  *"^  P*""""""  "'  them,  to 

2.  But  if  you  Shan  believe  tha    he  did  n^r.^k.r'""'^'  *'^°  ""'  "  ^»"^y' 
appropriating  them,  or  any  part    hereo    to  his  ""'  '""■  *^^  P"P"««  <" 
pose  of  preventing  their  being  us  d  on  Jlmsel    o7hl"'''  '^'  ""''  ''''  "'«  P"' 
oner  is  not  guilty.                                   """'^''  °'  ^^^  associates,  then  the  prls- 


Verdict,  not  guilty. 


»  1  RU88.  A  R.  292. 
'  I  Buss.  A  R.  S07. 

3  Defences. 


46 


'  Archb.  Cr.  L.,  ad.  1853. 
*  s  Port.  465. 


722 


ItOUBEUY. 


_     . v>^  viniancfl  —The  owner  o!  property,  en- 

5  602.  —  0.ttiB»  Of-0-;,7,  uwy  violence  ami  puttln.  In  fear.  Is  not 
titled  to  lt8  possession,  though  taKliU'  it  "Y  moiuui- 

guilty  ol  robbery .>  i„,ii,.t„,i  for  robbery  of  one  Eden  of  a 

,„  n.  V.  Hennino,^  the  P[  ^^'JJ^^^^" '^'^^^^^^  ...  Inn. 

Cheque  and  some  n.oney,wthv^  on- to  ;^^^^^^^^^^^  J^  ^  „^.,,^  „„.,,,, 

keeper  at  Wlncbelsea,  and   Ivlen.  t"«  P-^"^^^'"  ''  ^    ,  ^^       t,  he  was 

promised  to  pay  him  £6  when  he  rece  ved  "^^^y^^XTmou.y.    TM.e  prisoner 
at  the  prisoner's  Inn  drinking,  and  «»'-ved  that  he  had    """^y  ^  ,,,^^  ^ 

pressed  h..n  for  I^^^-'^  ^^^  ^  ^^^  ^Td  ^  1^,  -elar.d  that  he 

private  room,  and  there,  after  r^-P*^"""-  ,  ^  j^  j,,  take  It  from 

^vould  have  it,  knocked  him  down  and  knelt  upon  hi  w  ana  t^^^^^^  ^^^  ^ 

him.  The  prosecutor  said  If  he  wou  d  et  ''l^lfl\ZXho..Jr,  repeated 
cheque  for  £4  he  h:ul  about  him,  and  did  '*»^-  J'^ J/'J^''^^^^  according  to  the 
his  iemand  for  money,  and  doc  ared  he  ^""j  ,  f '^^^/i'J.,  him  np  by  the  heels 
prosecutor's  evidence,  knocke.l  '••-•'•-^/Xd";^  ••  M  mul  "  Tnd  his  money 
Latmg  his  head  against  the  «--"J'' ^''^;^'-  ^^^  ':;,,  ^  known,  as  It  was  not 
dropped  out  of  his  pockets,  but  ^^ '^'^  V'^^*^*™'' ° '",  „  p  j  g^ld  he  thought  the 
found,  though  searched  for  Upon  J^-^^-^^lJ^^^obbery  It  -^  rather  an 
jury  could  hardly  convict  the  prisoner  ^    '^'^^^^^^^^^  ^ebt,  an  unlawful 

Lsanlt  by  a  creditor  on  a  ^'^''tor  J"  ^  "^^'^  7hresence  of  the  offense  now 

ss:;:^^  t^ ^r  ::rtr  i::  iiw  j;^  po«-  to  .nd  upon  the. 

facts.  Verdict,  not  guilty. 

..      Tf  ft  nerson  with  menaces  demands  money  from 
§  603.  —  ;'  ^-«;t",    -."t^enThls  Jo  session,  and  Intending  only  to  ob. 
'    ^T::^'Z:rlZ'i::::X^^  .J.e^^u..^.  P-Perty  wUh  menaces 
within  the  sUtute.^ 

§  60*.  —  "Public  Hl«bway."-A  railroad  track  Is  not  a  ..public  high, 
way.". 

§  COB.  —  Time  of  War.  -  It  Is  not  robbery  for  a  soldier  to  take.  In  time  of 
war,  the  weapon  of  a  captured  enemy.' 


1  Barne.  v.  State.  9  Tex.  (App.)  128  (1880). 

8  4  F.  4  F.  50  (1804). 

3  K.  V.  Kdwardi.  6  C.  4  P.  515  (1834). 


4  State  V.  John.on,  PhUl.  I..  140  (1867). 

5  HumBond  V.  State,  8  Cald.  129  (1866). 


^^m 


property,  en- 
In  lear,  is  not 


one  Eden  of  a 
ner  was  i>;i  Inn. 

debt,  and  had 

August,  he  was 

The  prisoner 

vltli  him  Into  a 

leclurod  that  he 

to  take  It  from 
iild  give  hlrn  a 
wever,  repeated 
:cordlng  to  the 

up  by  the  heels 
'  and  his  money 
,vn,  as  It  was  not 
I  he  thought  the 
It  v;r.8  rather  an 
ebt,  an  unlawful 

the  offense  now 
0  find  upon  these 

•diet,  not  guilty. 

inds  money  from 
mdlng  only  to  ob. 
ty  with  menaces 

t  a  '•  public  high- 

to  take.  In  time  of 


?hlU.I..140(1867). 
,  8  Cald.  129  (1866). 


CHAPTEK    YIII. 


CRIMES  AGiUNST  THE  PERSONS  OF  INDIVIDUALS. 


Part  I. 
ABDUCTION  —  SEDUCTION 


abduction  for  "purposk  of  prostitution." 
State  v.  Stoyell. 

[54  Me.  24.] 
In  the  Supreme  Court  of  Maine,  ISGG. 

1-  Abduotion  for  the  Purpoae  of  Sexual  Intercourse  in  not  abduction  for  tho"pur- 
poao  o(  prostitution." 

i-  The  Defendant,  by  False  Sepreaentationa,  persunclcil  a  girl  to  go  with  liim  to  a 
neighboring  town,  where  lie  took  lior  to  ii  liotel  untl  miiJo  lier  partly  drunlc,  wlion  lio  hud 
intercourse  Willi  her  during  soTcrnl  days,  mui,  that  ho  was  not  guilty  of  ubducting  her 
"  tor  the  purpose  of  prostitution  "  within  the  statute. 

The  case  camo  before  the  full  court  on  tlomnrrer  to  the  evidence. 

It  was  proved  that  the  unmarried  female  named  in  the  indictment, 
wa^,  on  March  2,  18G6,  residing  in  her  father's  family,  in  this  county; 
that  she  then  went  to  the  railroad  station  to  meet  her  music  teacher, 
where  she  met  the  defendant  with  whom  she  had  a  slight  acquaintance  ; 
that  the  defendant  urged  her  to  go  with  him  to  the  cars,  then  about 
starting  to  a  neighboring  town  for  a  ride,  promising  her  as  an  induce- 
ment, that  he  would  bring  iier  back  in  a  carriage  in  two  hours ;  that, 
suspecting  no  intention  on  the  defendant's  pai-t,  and  having  none  her- 
self, other  than  the  avowed  one  of  taking  a  ride,  she  consented  to  ac- 
company him.  When  they  arrived  at  the  station  in  the  neighboring  town 
they  took  a  carriage  to  a  hotel,  when  he  engaged  a  private  room  and 
conducted  her  to  it,  that,  when  they  had  entered  the  room,  he  locked 
the  door  and  put  the  key  in  his  pocket ;  that  she  at  once  asked  to  go 
home,  and  demanded  a  fulfillment  of  his  promise  to  take  her  home,  but 
that  she  was  quieted  with  assurances  that  she  should  be  returned  in  a 
short  time ;  that  the  defendant  then  left  the  room,  locking  the  door 

(723) 


7H  CKIMKH    AGAINST   THK    I'KHSONS   OF    INDIVIDUALS. 

"""'•  r"'?"u,    '  u'     i,r      t  k,„„v  La  the  ll,,,ml  «:..,  ln,t  that  it 
w«s  oH.MOil;  tliiit  .lit  111.1  i»»  «•  i,„l,,,.,.<\  her  to  drink  a 

„,.,,,„,„  ,  „  ,„,,,ee  o,  ;.*•*«  I^,      tJ::;  '      ,lr ;  thiit  .i,e  i.i., 

,„„  r.,,nenil-  r  «'"  "  ,„„  „„,,,„|„„t  proimscl  to  got  a  oar- 

".'"""r:;: :  r.t  r  :>  ii" .ief™.i-t  thi-t  ii.  u.  n,„r„ii,,shc ^ 

^L':;;;.:  tvI.rK.ii*  „.  her  then  p    ...t  co,,..it,,.;  that    «  r  P  e 

"'  -"•'.  »"•' >  "";t: ;;  :r;;:,;,;:;'J:-rriit  .;.,»rt,  that 

"r  """"        h  "::  n,      t.^      -     .  the  private  room,  gave  her  more 
f-l  3    :     1  ll      m-tio„  with  hen  that,  after  re„eateH  re.,„e«, 
tr  It    h      Iro  -h  the  interposition  ot  a  young  man  whom  they 
on  licr  part.  In  uiroii,.i  i  ,,|,,.|,„„.  „„,!  drove  witli  her 

together  w.nt  to  «ee,  procure,   a  ^  -  -  -         1    =^^^  ^^  ,^^^. .  ^^^.,.^^  ,^ 

*^  ^'"  ff  T  ;  ^;:u    ^;  > '    .^  n  e  ana  ho  told  her  she  could  fabn- 
account  to  her  vaunts  for  u  ^^^^  ^^^^^^,^ 

cate  a  «tory  thut  won      . a   . ^      -- ^  ^^J^j;,,,,  ,  ,,,,  ,,«  told  the 
late  at  u,ght  and  fouu.K  ''--^'''^ ''""'"=  ^^^^^  ,,,  g^^ui  she  must 

defend.nt  .he  -  a  -d  to  ,  ^2:^^:^,  „„,,,,„,  ,,  do,  but 
return  to  thevr  hotel   wh  c       Ue  ^  ^^^^^.^^^^  j^^^,^  ,^  ,„,,, 

while  she  was  talkui-,  he  tu  ued  f''^^J^^^'  *-  ^^^,31^  to  oh- 

hotel  wlu-re  they  an  ved  af  or  '-  '  f  ;;  ^^^^''^  J,,,,  «,„,u,ed  ad- 
tain  aduuttance  to  then-  »-  f '/^  ,;';\;;;^^ /,,,,  ,,„«  bed ;  that,  in 
mittauce;  took  a  ro.wn  ^^S^^^''^^^"  ^^^j"     ^^^^^^  again  bad  connection 

X  ff  ? :;:::  t::t:z:^^^^^^  — ed  by  c.s; 

with  her;  <^l»^V"  *''^ 'J.  ^  .  „^  ^j^h  him  to  Portland  and  stay  a  few 
^:^t;;r:"r  2mi%':'X  h„ng.or  asheep  a.  a  lamh,  hnt 

'1tt::lr;ro::;uLT:o,a.ontN„v.mher,oUowin,*ega« 

to  a  living  child.  ^  j^      j^  aforesaid 

;  :er  "lonThan  the  defendant  had  any  connection  with  her  wh.le  ai. 
tZL  home  with  him,  and  that  no  pay  was  given  to  her. 


rii* 


y  a  servtint 
tired  where- 
to think  of 
(I  lior;  that 
drunii  wluit 
,  but  that  it 
to  driult  a 
tlmt  she  did 
ifii ;  that  she 
to  get  a  car- 
•ning  she  bad 
at  he  replied 
,vhile  be  took 
upport;  that 
ivo  lier  more 
ated  requests 
.n  whom  tliey 
rove  with  her 
er  inability  to 
a  could  fabri- 
,t  her  father's 
it  she  told  the 
gaid  she  must 
ing  to  do,  but 
I  back  to  their 
!  unable  to  ob- 
•,  obtained  ad- 
bed  ;  that,  in 
lad  connection 
irned  by  cars ; 
and  stay  a  few 
as  a  lamb,  but 

'y  she  gave  birth 

larch  aforesaid 
;  that  on  being 
nd  of  his  would 
id  would  like  to 
,  but  her  father 
>peared  that  no 
th  her  while  ab- 
her. 


STATE    V,  STOVKLL. 


'•25 


Tlio  ovidenee  was  reported  to  the  full  court,  wiio  nere  to  determine 
whether  the  tacU  proved  constituted  the  offi'n>*o  alleged  ;  if  they  did, 
till'  case  was  to  stand  for  trial ;  if  not,  a  710II.'  prosequi  to  6e  entered, 

J.  A.  Peters,  Attorney-GenenU,  for  the  State. 

//.  L.  Wiiti-omb  and  Dauis  A  Dr,niimon(l,  for  defendant. 

An-hKTo.v,  C.  J.  Tiio  defendant  i.  indicted  for  a  violation  of  chap- 
ter 1,  section  1,  of  the  acts  of  IHC.I. 

By  Revise.l  Statiili-s,  iHoT,'  "  if  an  unmarried  man  commits  fornica- 
tion  with  an  unmarried  woman,  they  shall  each  be  ])iinislic(l  by  impris- 
onment not  more  than  sixty  ilays  and  fined  not  exceediuff  one  hundred 
dollars." 

By  chapter  4,  section  1,  of  the  acts  of  ISC.l,  "whoever  fraudulently 
and  deceitfully  entices  or  takes  away  an  unmarried  female  fnjiu  her 
father's  house,  or  wherever  else  she  may  be  found,  for  the  purpose  of 
prostitution,  at  a  h  )Uso  of  ill-fame,  assignation,  or  elsewhere,  and 
wiioever  aids  and  assists  in  .sucii  abducti  )n  or  secretes  sucli  female  for 
such  purpose,  shall  bo  punished  by  imprisonment  in  the  State  prison 
not  loss  than  one  nor  more  than  ten  years." 

Tlieso  sections  are  for  different  purposes,  they  create  different 
offenses  and  impose  different  punishments.  A  person  may  be  guilty  of 
one  offense  and  not  of  the  other.  He  may  commit  fornication  with 
a  female  without  intending  to  induce  such  female  to  become  a  prosti- 
tute. He  may  entice  one  away  from  her  father's  house  for  the  purpose  or 
prostitution,  lie  may  induce  her  to  become  a  prostitute  without  commit- 
ting fornication  with  her.  Indeed,  personsof  either  sex  may  entice  away 
females  for  the  purpose  of  supplying  brothels  and  houses  of  ill-l.  me. 

The  offense  set  forth  in  the  statute   under  which  this  indictment  is 
found,  is  the  fraudulently  and  deceitfully  enticing  a  married  woman 
from  her  father's  house  or  wherever  she  may  be  found,  for  the  purpose 
of   prostitution,    at    a  house    of  ill-fame,   assignation  or    elsewhere, 
etc.     Worcester  defines  prostitution  thus:     "To  offer   to  a  common, 
le.vd  use;  to    make    a    prostitute    of;  to  corrupt;  'Do    not    prosti- 
tute thy  daughter.'     Leviticus  xix:29."     A  prostitute  is  a    female 
given  to  indiscriminate  lewdness  for  gain.     In  Its  most  general  sense, 
prostitution  is  the  sotting  one's  self  to  sale ;  or  of  devoting  to  infam- 
ous purposes  what  is  in  one's  power.     In  its  more  restricted  sense,  it  is 
tiie  practice  of  a  female  offering  her  body  to  an  indiscriminate  inter- 
course with  men;  the  common  lewdness  of  a  female.*     In  Com.  v. 
Oook,^  a  statute  similar  in  its  language  and  its  object  to  that  of  this 
State  now  under  consideration,  received  a  judicial  construction  and  it     , 
was  there  held,  that  it  did  not  apply  to  the  case  of  a  man's  enticing  a 


1  ch.  124,  sec.  (!. 

2  Carpenter  v.  People,  8  Barb.  603. 


s  12  Mete.  03. 


726  CRIMES  AGAINST  THE  PERSONS   OF  INDIVIDUALS. 

woman  to  leaving  bcr  place  of  abode  for  the  sole  purp.se  of  ilUcit 
sexual  intercourse  with  him. 

I  appears  in  proof  that  the  defendant,  by  false  representations,  pro- 
cur  d  The  complainant  to  go  with  him  to  Bath  and  then,  ha^.ng 
induced  partial  intoxication,  had  repeated  sexual  intercourse  w.  h  her^ 
Sexual  ii  tercourse,  the  evidence  showed,  was  the  whole  object  he  had 
fnXl     Nothing  Indicates  a  design  on  his  part  to  make  her  a  common 

prostitute.  His  "only  purpose  was  sexual  S^^'^'^^f^^\.J'rZZ 
Lous  the  conduct  of  the  defendant -however  deserving  o  pumsh 
Lent  he  may  be,  he  can  not  be  legally  convicted  of,  or  l--^^^^^^^^^^^ 
crime  he  has  never  committed.  Tne  evidence  on  t  .e  pa  t  of  the  govern- 
L  nt  fails  to  sustain  the  allegations  of  the  indictmen^  while  it  abun- 
dantly  proves  him  guilty   of   another  and  different  offense -that  lo, 

*°  The' facets  on  the  part  of  the  government  are  uncontradicted.     No 
further  evidence  is  attainable.     To  send  the  cause  to  a  jury  would  only 
delay  its  decision  without  changing  the  result.     By  the  agreemen  of 
partL  the  case  stands  as  on  a  demurrer  to  tl-;vidence-a^^ 
form  of  procedure,  though  sometimes  recogmzed,  as  in  ktate  v.  Hoper 
urn  the  facts,  .s  proved,  the  defendant  can  not  legally  be  convicted 
of  the  offense  for  which  he  is  indicted,  and  the  County  Attorney  may 
Terv  properly  enter  a  nolle  prosequi. 

Kent,  Walton,  Dickinson,  and  Danfouth,  JJ.,  concurred. 


ABDUCTION 


FOR  PROSTITUTION-PROSTITUTION-ILLICIT   INTEB- 
COURSE. 

OsBORN  t'.  State. 


[52  Ind.  526.] 
In  the  Supreme  Court  of  Indiana,  1876. 

course  only. 

Worden,  J.     The  appellant  was  tried,  convicted,  and  sent  to  the 
State  prison  upon  the  following  indictment,  its  sufficiency  having  been 

^'?!The  grnd  jurtr's7etc7  "  in  the  name  and  by  the  authority  of  the 
State  of  Indiana,  upon  their  oaths  present  and  charge  that  on  or  about 

1  16  Me.  is33. 


iMi 


DUALS. 

purp /se  of  illicit 

rcsentations,  pro- 
.ncl  then,    having 
?rcourse  with  lier. 
ole  object  he  had 
ike  her  a  common 
on.     However  in- 
serving  of  punish- 
or  punished  for  a 
,)art  of  the  govern- 
jnt,  while  it  abun- 
offense  —  that  ia, 

contradicted.  N^* 
a  jury  would  only 
y  the  agreement  of 
ence  —  an  obsolete 
in  State  v.  Soper,^ 
igally  be  convicted 
unty  Attorney  may 

incurred. 


r  — ILLICIT   INTEB- 


976. 

roe,  and  not  illielt  inter- 
nbduction  for  the  purpose 
I  purpose  of  sexual  inter- 


3d,  and  sent  to  the 
Hciency  having  been 

the  authority  of  the 
rge  that  on  or  about 


OSBORX   V.  STATE. 


727 


the  15th  day  of  January,  A.  D.  1875,  at  and  in  tlie  county  of  Franklin, 
and  State  of  Indiana,  one  James  T.  Osborn  unlawfully  and  feloniously 
enticed  away  one  Alvaretus  Faurote,  a  female  of  previously  chaste 
character,  from  said  county  of  Franklin,  in  the  State  of  Indiana,  to  the 
city  of  Jeffersonville,  in  the  county  of  Clarke,  in  said  State  of  Indiana, 
for  the  purpose  of  having  illicit  sexual  intercourse  with  her,  the  said 
Alvaretus  Faurote,  contrary  to  the  form  of  the  statute,"  etc. 

The  indictment  is  based  upon  the  following  statutory  provisions,  viz : 

"If  any  person  shall  entice  or  take  away  any  female  of  previous 
chaste  character,  from  wherever  she  may  be,  to  a  house  of  ill  fame,  or 
elsewhere,  for  the  purpose  of  prostitution,  and  every  person  who  shall 
advise  or  assist  in  such  abduction,  shall  be  imprisoned  in  the  State 
prison  not  less  than  two  nor  more  than  five  years,  or  may  be  imprisoned 
in  the  county  jail,  not  exceeding  one  year,  and  be  fined  not  exceeding 
five  hundred  dollars ;  but  in  such  case  the  testimony  of  such  female 
shall  not  be  sulHcient,  unless  supported  by  other  evidence,  corroborat- 
ing to  the  same  extent  as  i"!  required  in  cases  of  perjury  as  to  the  prin« 
cipal  witness."  ^ 

It  will  be  seen  by  the  indictment  that  the  appellant  is  charged  with 
having  abducted  the  female  "  for  the  purpose  of  having  illicit  sexual 
intercourse  with  her ;  "  and  not  "  for  the  purpose  of  prostitution,"  as 
is  provided  for  by  the  statute.  The  question  arises  whether  the  facts 
charged  come  within  the  statute.  We  are  of  opinion,  upon  an  examina- 
tion of  the  authorities,  that  they  do  not. 

The  first  case  to  which  our  attention  has  been  called  is  that  of  Com- 
monwealth V.  Coolc.^  There  Cook  was  indicted  under  a  statute  quite 
similar  to  our  own.  The  court  say,  m  speaking  of  the  point  here  in- 
volved: 3  "The  court  are  of  opinion,  that  the  offense  made  punishable 
by  this  statute  is  something  beyond  that  of  merely  procuring  a  female 
to  leave  her  father's  house  for  the  sole  purpose  of  illicit  sexual  inter* 
course  with  the  individual  thus  soliciting  her  to  accompany  him ;  that 
she  must  be  enticed  away  with  the  view,  and  for  the  purpose,  of  plac- 
ing her  in  a  house  of  ill-fame,  place  of  assignation,  or  elsewhere,  to  be- 
come a  prostitute,  iu  the  more  full  and  exact  sense  of  that  term ;  that 
she  must  be  placed  there  for  common  and  indiscriminate  sexual  inter- 
course with  men ;  or  at  least,  that  she  must  be  enticed  away  for  the 
purpose  of  sexual  intercourse  by  others  than  the  party  who  thus  en- 
tices her,  and  that  a  mere  enticing  away  of  ,a  female  for  a  personal 
sexual  intercourse  will  not  subject  the  offender  to  the  penalties  of  this 
statute." 


1  aG.  AH.  441.  Bee.  16. 
>  12  Mete.  93. 


5  p.  98. 

<  8  Barb.  603. 


728  CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

The  next  case  is  that  of  Carpenter  v.  People. '  In  that  case,  Carpen- 
ter was  prosecuted  under  a  similar  statute,  and  the  court  came  to  the 
same  conclusion  as  that  arrived  at  in  Massachusetts,  tliough  the  Massa- 
chusetts' case  is  not  therein  mentioned.  The  court  say,i  "  We  arc  en- 
tirely clear  that  by  the  expression  in  question"  (prostitution),  "as 
used  in  the  statute,  it  was  intended  that  in  order  to  constitute  the 
offense  thereby  created,  the  abduction  of  the  female  must  be  for  the  pur- 
pose of  her  indiscriminate  commerce  with  men.  That  such  must  be 
the  case  to  make  her  a  prostitute,  or  her  conduct  prostitution,  witiiin 

the  act."  ,  , 

Following  these  cases  is  that  of  State  v.  Ruhl.^  The  latter  was  also 
a  prosecution  under  a  similar  statute,  for  enticing  away  a  female  for  the 
purpose  of  prostitution.  Tliere  was  evidence  of  a  purpose  on  the  part 
of  the  defendant  "  to  seduce  and  enjoy  the  body  of  the  said  Matilda 
(the  female),  "  and  that  he  had  taken  her  away,  in  order  to  have  carnal 
intercourse  with  her,  and  did  so  enjoy  her  person;  but  there  was  no 
testimony  that  he  purposed  that  she  should  be  carnally  enjoyed  by 
others,  nor  that  she  should  be  devoted  to  promiscuous  carnal  intercourse, 
nor  that  he  took  her,  or  proposed  taking  her,  to  any  house  of  prostitu- 
tion."    On  these  facts  the  defendant  asked  the  following  instruction, 

which  was  refused,  viz. :  —  •,,,11 

«'  If  the  defendant  only  intended  to  obtain  the  body  of 'said  Matilda, 
for  his  own  personal  carnal  enjoyment,  and  no  more,  then  the  act  did 
not  amount  to  her  prostitution,  in  the  sense  of  the  law." 

It  was  held  that  the  charge  should  have  been  given,  that  the  word 
"prostitution"  means  common,  indiscriminate,  illicit  intercourse,  and 
not  sexual  intercourse  confined  exclusively  to  one  man.  To  the  same 
effect  is  the  still  later  case  of  State  v.  Stoyell.^ 

In  view  of  these  authorities,  we  think  it  clear  that  the  indictment  does 
not  charge  the  abduction  of  the  female  "  for  the  purpose  of  prostitu- 
tion,"  within  the  meaning  of  the  statute.  The  judgment  below  is  re- 
versed, and  the  cause  remanded,  with  instructions  to  the  court  below  10 
sustain  the  motion  to  quash  the  indictment. 

The  denk  will  give  the  proper  notice  for  the  return  of  the  pris- 
oner. 


1  p.  611. 


3  8  Iowa,  4i7. 


3  U  Me.  24. 


UAL8. 


PEOPLE   V.  RODEBIGAS. 


729 


t  case,  Carpen- 
iirt  came  to  the 
(Ugh  the  Massa- 
,1  "  We  arc  cn- 
istitutiop),  "as 
I  constitute  the 
,t  be  for  the  pur- 
t  such  must  be 
stitution,  within 

c  latter  was  also 
a  female  for  the 
pose  on  the  part 
J  said  Matilda  " 
>r  to  have  carnal 
it  there  was  no 
ally  enjoyed  by 
rnal  intercourse, 
)use  of  prostitu- 
ring  instruction, 

of 'said  Matilda, 
then  the  act  did 

Q,  that  the  word 
intercourse,  and 
lu.     To  the  same 

i  indictment  does 
30se  of  prostitu- 
ment  below  is  re- 
,he  court  below  to 

urn  of   the  pris- 


sUMe.24. 


ABDUCTION     FOR    PROSTITUTION —  "  CHASTE     CHARACTER"— EVI- 
DENCE. 

Lyons  v.  State. 

[32  Ind.  42G.] 
In  the  Supreme  Court  of  Indiana^  1S76. 

A  Statute  Affainat  the  abduction  of  fomales  of  "  previous  chaste  character  "  meaua,  of 
actual  personal  virtue  in  distinction  from  a  good  reputation.  On  the  trial  of  an  indict- 
ment founded  on  that  statute,  it  is  admissible  to  prove  previous  particular  acts  of  Illicit 
intercourse  on  the  part  of  the  female  abducted. 

Downey,  C.  J.  This  was  a  prosecution  for  abduction,  under  section 
16.^  The  defendant  was  convicted  and  sentenced  to  the  State's  prison. 
The  refusal  of  the  court  to  quash  the  indictment,  and  the  overruling  of 
the  defendant's  motion  for  a  new  trial,  are  assigned  as  errors.  We  see 
no  valid  objection  to  the  indictment.  There  is  a  little  surplusage  in  its 
allegations,  but  it  is  good,  notwithstanding. 

On  the  trial,  the  defendant  proposed  to  prove  acts  of  illicit  sexual 
intercourse  on  the  part  of  the  prosecuting  witness  prior  to  the  alleged 
abduction,  but  the  court  rejected  the  evidence.  We  think  this  was 
an  error.  In  such  a  case  the  female  must  be  of  "  previous  chaste 
character."  This  hag  been  held  to  mean  that  she  shall  possess  actual 
personal  virtue  in  distinction  from  a  good  reputation.  A  single  act  of 
illicit  connection  may,  therefore,  be  shown  on  belialf  of  the  defendant.* 

The  preceding  section  relating  to  seduction  is  different.  It  only  re- 
quires that  the  female  shall  be  "  of  good  repute  for  chastity." 

The  authorities  cited  by  the  State  do  not  bear  on  the  exact  question 
under  consideration. 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial. 

The  clerk  will  certify  to  the  warden  of  the  State  nrisou  as  reouired  by 
law. 


abduction  —  proof  —  seduction. 
People  v.  Roderigas. 

[49Cal.  9.] 
In,  the  Supreme  Court  of  California,  1874. 

1.  An  ladlotment  for  Entlolnsr  an  Unmarried  female  to  a  hense  of  Ulfame  for  ,ur- 
poses  of  prostitution  must  allege  and  the  prosecution  muit  prove,  on  the  trial,  that  ■ucn 
female  was  ol  previona  chaste  character. 


ip.  UI,2G.  AH. 

•  Blsh.  Stat.  Cr.,  sec.  689<  Carpenter  ». 
People,  8  Barb.  603;  Kenyon  v.  People,  26  M. 


Y.  203 ;  State  ».  Shean,  82  lovra,  88 ;  Andre  ». 
State,  5  /d.  38e ;  Boak  v.SUte,  Id.  430. 


730 


CRIMES   AGAINST  THE  PERSONS   OF   IITOIVIDUALS. 


8  Proof  in  such  Case  that  the  female  was  of  previous  chnste  character  need  not  be  made 

^evlderce  directly  upon  the  point,  but  may  be  shown  prima  /acU.  by  presumption  from 

other  facts. 

S  Beduoinir  a  Pemale.-To  seduce  a  female  Is  not  an  offense  within  the  meaning  of  the 

*two  hu^l*.T.!r»ixly..ixlh  section  of  the  Penal  Code,  which  make«  .t  a  "ime  to  pro^ 

cur.  any  female  to  have  illicit  carnal  connection  with  any  man     The  act  refers  to  on. 

who  procures  the  gratlflcation  of  the  passion  of  lewdness  In  another. 

Appeal  from  the  County  Court.  Santa  Clara  County. 
The  facts  are  stated  in  the  opinion. 

John  J.  Love,  Attorney-General,  and  James  H.  Campbell,  for  the  ap- 
pellant  cited,  Crozier  v.  People  ^  and  People  v.  Kane.^ 
C.  V.  Terry,  for  the  respondent. 

By  the  Court,  Wallace,  C.  J.    The   indictment  in  this  case    is 
founded  upon  the  act  of  March  1,  1872,3  ^hich  act  for  the  purposes  of 
this  case  may  be  considered  as  identical  with  section  two  hundred  and 
sixty-six  of  the  Penal  Code.    The  indictment  alleges  that  the  defendant 
willfully  and  feloniously,  and  by  false  pretenses  and  fraudulent  repre- 
sentations did,  on  a  day  therein  mentioned  inveigle  and  entice  a  certain 
unmarried  female,  in  the  indictment  named,  under  the  age  of  eighteen 
years,  to  wit,  of  the  age  of  sixteen  years,  from  her  home  in  the  city  of 
San  Jose  to  the  town  of  Santa  Clara,  for  the  purpose  of  prostitution, 
and  did  on  said  day,  at  a  certain  hotel,  in  the  said  town  of  Santa  Clara, 
by  and  through  his  false  pretenses  and  fraudulent  representations  pro- 
cure the  said  female  to  have  illicit  carnal  connection  with  himself,  the 
said  defendant,  contrary  to  the  form  of  the  statute,  etc. 

The  defendant  interposed  a  demurrer,  which  having  been  sustained 
by  the  court  below,  and  the  prisoner  discharged,  this  appeal  is  prose- 
cuted by  the  People.  The  grounds  of  the  demurrer  were,  that  it  is  not 
alleged  in  the  indictment  that  the  female  therein  mentioned  was  of  pre- 
vious chaste  character;  that  the  facts  stated  do  not  state  a  pubUc 
offense ;  and  "  that  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action."  ,      XU 

1  To  entice  a  female  into  a  house  of  ill-fame,  or  elsewhere,  for  the 
purposes  of  prostitution,  is  not  an  offense  under  the  two  hundred  and 
sixty-sixth  section  of  the  Penal  Code,  nor  under  the  provisions  of  the 
act  of  March  I,  1872, "  unless  such  female  was  of  previous  chaste  char- 
acter Character  in  this  respect  is  a  fact,  and  one  which  must  be  al- 
leged in  the  indictment,  and  established  by  the  prosecution,  in  order  to 
a  conviction  of  the  accused.  It  need  not,  however,  be  proven  by  evi- 
dence given  directly  upon  the  point,  but  may  be  shown  prma  facte 
by  presumption  from  other  facts  and  circumstances  attending  the  trans- 
action ;  as,  for  instance  that  the  unmarried  female  -  the  subject  of  the 


1  1  Park.  453. 
a  UAbb.  Pr. 


16. 


sstati.  18tl-if,p.l84. 
«p.  880. 


JALS. 


PEOPLE   V.  RODERIOAS. 


731 


:  need  not  be  mftde 
'  presumption  from 

the  meaning  of  the 
( it  a  crime  to  pro- 
lie  act  refers  to  on« 


)hell,  for  the  ap- 


1  this  case  is 
;he  purposes  of 
ro  hundred  and 
A,  the  defendant 
ludulent  repre- 
entice  a  certain 
age  of  eighteen 
Qe  in  the  city  of 
of  prostitution, 
I  of  Santa  Clara, 
esentations  pro- 
ith  himself,  the 

:  been  sustained 
appeal  is  prose- 
jre,  that  it  is  not 
jned  was  of  pre- 
it  state  a  public 
sufficient  to  con- 

Isewhere,  for  the 
;wo  hundred  and 
provisions  of  the 
ious  chaste  char- 
rhich  must  be  al- 
ution,  in  order  to 
)e  proven  by  evi- 
lown  prima  facie 
;ending  the  trans- 
the  subject  of  the 


injury  —  was  at  the  time  residing  with  her  parents,  or  other  relatives, 
or  her  guardian,  or  in  some  respectable  household,  or  by  \)root  of  other 
like  circumstances  consistent  with,  and  the  usual  concomitants  of, 
rhaste  female  character.  But  by  whatever  evidence  it  may  be  proven 
in  the  case,  the  fact  of  previous  chaste  character  must  be  alleged  in  the 
indictment.  It  is  not  a  presumption  of  mere  law,  to  be  indulged 
against  the  counter  presumption  of  the  innocence  of  the  prisoner  on 
trial  upon  a  charge  of  crime  committed.  We  are  of  opinion,  therefore, 
that  the  indictment  in  question,  omitting  as  it  does,  to  allege  that  Car- 
lotta  Lopez  was  a  female  of  previous  chaste  character,  is  insufficient 
under  the  first  clause  of  the  statute. 

2.  Nor  do  we  think  that  it  can  be  supported  under  the  last  clause  of 
the  act  referred  to.  The  facts  stated  in  the  indictment  in  this  respect 
(even  assuming  Carlotta  Lopez  to  have  been  of  previous  chaste  character) 
amount  to  a  charge  of  seduction,  and  do  not  import  a  crime  under  that 
clause.  To  "  procure  a  female  to  have  illicit  carnal  connection  with 
any  man,"  is  the  offense  of  a  procurer  ot  procuress  —  of  a  pander. 
This  is  the  natural  meaning  of  the  words  —  the  fair  import  of  the  terms 
of  the  statute  —  and  in  our  opinion  this  construction  effects  the  objects 
had  in  view  by  the  law-maker  in  its  enactment.  The  argument  for  the 
People  is  that,  as  a  seducer  is  a  person  who  prevails  upon  a  female, 
theretofore  chaste,  to  have  illicit  carnal  connection  with  himself,  he  is 
thereby  brought  within  the  mere  words  of  the  statute,  and  so  made 
liable  to  the  punishment  it  inflicts.  But  we  think  that  this  view  can  not 
be  maintained  by  any  rule  of  fair  interpretation.  The  statute  uses  the 
word  "procure  —  procures."  The  recognized  meaning  of  this  word 
in  the  connection  in  which  it  appears  in  the  statute  refers  to  the  act  of  a 
person  "  who  procures  the  gratification  of  the  passion  of  lewdness  for 
another."  This  is  its  distinctive  signification,  as  uniformly  understood 
and  applied.  The  subsequent  words  "  with  any  man  "  ("  procures  any 
female  to  have  illicit  carnal  connection  with  any  man"),  therefore,  so 
far  from  being  inconsistent  with  this  construction,  lend  it  support. 

It  would  be  to  utterly  disregard  the  relations  which  these  words  bear 
to  the  remainder  of  the  sentence  in  which  they  occur,  and  to  indulge  in 
a  most  latitudinarian  construction,  should  we  hold  that  they  include 
and  apply  to  the  defendant  in  this  case.  He  can  not,  under  the  facts 
stated  in  the  indictment,  be  considered  to  have  been  both  procurer  and 
seducer  at  the  same  time,  and  in  one  and  the  same  instance,  without 
utterly  confounding  distinctions  and  definitions  well  established  and 
universally  recognized. 

It  results  that  the  court  below  correctly  sustained  the  demurrer  and 
its  judgment  must  be  affirmed.     So  ordered. 

Mr.  Justice  McKinstrt  did  not  express  an  opinion. 


ii.-„ 


iiMiiriliiHiiil«i 


782  CRIMES   AOAINST  TEE  PERSONS  OF   INDIVIDUALS. 

SEDUCTION -GOOD  REPUTE  OF  FEMALE  MUST  BE  PROVED. 

Oliver  v.  Commonwealth. 

[101  Pa.  St.  215.] 

In  the  Supreme  Court  of  Pennsylvania,  1SS2. 

1.  In  an  Indictment  TTr.der  the  Statute  for  seducing  a  female  of  good  repute  under 
twenty-one  year,  of  a^-c,  under  i.rom.Bc  of  ma.ringe.  the  Commonwealth  must  pr.re 
nfllrmatively  the  good  rc-,m.e  of  the  female.    The  proper  practice  in  Buch  case  is  for 
the  Co.nmonweal.h  to  call  witnesses  to  prove  that  the  general  reputation  of  the  pro 
secutrix  for  chastity  in  the  neighborhood  in  which  she  has  lived  is  good. 

2  It  ia  Error  for  the  conrt  to  charge  the  'jury  tliat  they  may  infer  good  repute  from  the 
'    general  evidence  offered  by  the  proeacution,  not  adduced  lor  that  purpose  and  having 
scarcely  the  slightest  tendency  in  th-jt  direction. 

Before  Sharswood,   C.   J.,  Mercur,   Gordon,  Paxson,  Trunket, 
Stei^"'    ■     ind  GuKKN,  JJ. 
V        ;..  ti-e  Court  of  Quhrter  Sessions  of  Jefferson  County  ;  of  Oc- 

tob-- ;.-.!.  .^82. 

Indictment  of  John  T.  Oliver,  for  seduction  under  promise  of  mar- 
riage of  Annie  ^Vhitmore,  "  a  single  woman,  of  good  repute,  under  the 
ageof  t\vL   ,y-o,,i  .eiirs  "     Plea,  not  guilty. 

On  the  trial  ihu  Caiainonwealth's  counsel  called  the  prosecutrix  who 
testified.  »  *  *  "  In  November,  1880,  when  he  proposed  what  he 
did,  I  refused  him.  I  says,  '  no  sir,  not  till  I  am  your  wife.'  I  says, 
'  wait  till  you  marry  me,  and  not  till  then.'  He  says,  '  you  know  we 
will  be  married  in  a  few  weeks.  I  am  just  the  same  as  a  husband,  and 
you  a  wife.'  At  lost,  I  gave  up  to  him."  *  *  *  Between  Novem- 
ber  and  March  he  had  connection  with  me  frequently,  in  consequence 
of  which  a  child  was  born  on  the  30th  of  October,  1881. 

No  evidence  was  offered  by  the  Commonwealth  for  the  express  pur- 
pose of  proving  that  the  girl  was  "  of  good  repute  "  but  in  the  course 
of  the  trial  it  appeared  that  she  had  always  resided  at  home  with  her 
parents  and  both  she  and  her  mother  testified  that  she  "  had  never  had 
any  gallant  or  beau  but  the  defendant." 

The  defendant  presented  the  following  point:  — 

•'That  as  the  Commonwealth  has  offered  no  evidence  to  show  that 
the  prosecutrix  was  a  woman  of  good  repute,  there  can  be  no  convic- 
tion for  seduction. " 

Answer.— We  do  not  remember  of  any  direct  evidence  going  to  show 
that  this  was  a  woman  of  good  repute.  We  instruct  the  jury  that  if 
the  Commonwealth  has  failed  to  show  this  good  repute,  or  what  is  its 
equi\  alent,  that  there  could  be  no  conviction.  After  reflecting  upon 
the  question  presented  in  this  point  and  obtaining  all  the  light  we  can 


^ttm 


LS. 


PROVED. 


io(>  repute  under 

iallli  muBt  prv~o 

J  Buch  rase  is  for 

tation  ol  the  pro- 

d. 

i  repute  from  the 

rpoBe  and  having 


)N,  Trunket, 

junty ;  of  Oc- 

•omise  of  mar- 
ute,  under  the 

•osecutrix  who 
posed  what  he 
wife.'  I  says, 
you  know  we 
,  husband,  and 
tween  Novena- 
n  consequence 

le  express  pur- 

t  in  the  course 

lome  with  her 

had  never  had 


B  to  show  that 
.  be  no  convic- 

i  goinf;  to  show 
lie  jury  that  if 
,  or  what  is  its 
reflecting  upon 
he  light  we  can 


OLIVEB  V.  COMMONWEALTH. 


733 


from  the  books  furnished,  wc  add  this  further  instruction  bearing  upon 
the  question  presented  in  this  point.     To  constitute  the  offense  of  seduc- 
tion under  the  act  of  H>th  of  April,  184:5,  tlierc  must  be  illicit  connection 
and  the  female  must  be  drawn  aside  from  the  path  of  virtue  which  she 
was  honestly  pursuing  at  the  time  the  defendant  approached  her.     Tlie 
law  does  not  presume  the  previous  chastity  of  the  female,  such  a  pre- 
sumption being  inconsistent  with  that  of  the  prisoner's  innocence;  but 
such  chastity  must  be  proved  by  the  government,  it  being  essential  to  the 
offense  charged.     Taking  the  authorities  therefore    and  the  reasons 
upon  whicli  they  seem  to  proceed,  we  think  ourselves  justified  in  stating 
the  law  and  leaving  you  to  determine  under  the  evidence  whether  the 
prosecution  has  come  up  to  the  point  the  law  requires.     We  believe 
that  if  it  is  affirmatively  proved  that  the  prosecutrix  has  always  main- 
tained a  consistent  character  for  chastity  —  if  the  evidence  showed  that 
she  had  never  been  approached  by  any  other  man ;  that  she  had  never 
kept  company  with  any  other  man  ;  and  if  the  evidence  showed  that  the 
defendant  was  the  first  person  who  had  illicit  intercourse  with  her,  and 
had  drawn  her  aside  from  the  path  of  virtue ;  if  this   be  proven  wc 
believe  that  the  requirements  of  the  Act  of  Assembly  would  be  met  so 
far  as  the  proof  of  good  repute  is  concerned.     And  we  add  further 
that  it  is  always  necessary  to  the  prosecutor's  cause  to  make  out  the  fact 
that  the  prosecutrix  had  always  maintained  a  good  character  for  chas- 
tity.    One  or  the  other  of  tliese  is  necessary  to  maintain  the  prosecu- 
trix's case.     And  their  existence  may  be  inferred  from  general  evidence 
offered  by  the  prosecution.     We  think  in  the  statement  we  have  thus 
made  of  the  law  upon  this  branch  of  the  case,  we  will  be  fully  sustained 
by  the  reason  of  the  thing  and  by  the  weight  of  the  authorities.    We 
thus  answer  the  point  put  to  us  by  the  defendant. 

Verdict,  guilty,  and  the  defendant  was  sentenced.  An  allocatur  hav- 
ing been  obtained  from  a  judge  of  the  Supreme  Court,  the  defendant 
took  this  writ  of  error,  assigning  for  error,  inter  alia,  the  answer  of  the 
court  to  defendant's  point  as  above. 

White  (with  him  Scott  and  Corbett)  for  the  plaintiff  in  error,  cited 
West  v.  State,^  Commonwealth  v.  McCarty.^ 

Jenks  iClark  with  him),  for  defendant  in  error.  The  legal  pre- 
sumption of  fact  is  always  in  favor  of  "  good  repute,"  and  moreover 
there  were  ample  circumstances  proved  from  which  good  repute  could 
be  inferred  by  the  jury.  The  girl  was  only  eighteen  years  old,  lived 
with  lier  parents  and  worked  in  the  household,  went  to  church,  never 
before  had  any  beau  or  gallant,  no  aspersion  ever  made  as  to  her  char- 
acter for  chastity  before  the  defendant  seduced  her  under  promise  of 


1  1  wis.  209;  Whart.  Cr.  L.,   sec. 
and  note. 


8673 


3  2  Pa.  L.  Jour.  136. 


■IP 


734 


CHIMES   AGAINST   THE   PEKSONS   OF   INDIVIDUALS. 


marriuge.  "Good  character  being  presumed,  evidence  to  support  it 
will  not  be  received  until  it  lias  l)«'en  assailed."  '  "  Chaste  character  is 
presumed  and  need  not  be  proved."  a  In  Pennsylvania  it  has  been 
expressly  decided  that :  "  The  rule  is  well  settled  that  witnesses  on  part 
of  plaintiff  can  not  be  examined  as  to  general  character  of  the  e  duced 
for  chastity  until  evidence  of  general  bad  character  has  l)een  adduced 
by  defendant.  "3  It  is  therefore  not  only  unnecessary,  but  it  would 
be  improper  to  offer  direct  evidence  of  good  repute  until  the  presump- 
tion is  rebutted  by  evidence  offered  by  defendant.  Even  then  direct 
evidence  is  not  essential,  if  circumstantial  or  presumptive  evidence  is 
clear.  "  Chaste  character  in  the  person  seduced  may  be  inferred  from 
the  general  evidence  offered  by  the  prosecution  when  not  expressly  tes- 
tified to  as  an  independent  ingredient  of  its  case."  •• 

Mr.  Justice  Steuuktt  delivered  the  opinion  of  the  court. 

The  statute  under  which  the  plaintiff  in  error  was  indicted  declares 
"  that  the  seduction  of  any  female  of  good  rei)ute,  under  twentyrone 
years  of  age,  with  illicit  connection  under  promise  of  marriage,"  shall 
be  a  misdemeanor.  5  The  "  good  repute  "  of  the  female  alleged  to  have 
been  seduced  is  thus  made  an  essential  ingredient  of  the  offense,  and 
hence  it  was  not  only  necessary  that  it  should  be  specially  averred  in 
the  indictment,  but  it  was  incumbent  on  the  Commonwealth  to  prove 
the  fact  alHrmatively  by  such  evidence  as  would  justify  the  submission 
of  that  question  to  the  jury.  The  ordinary  presumption  of  her  good 
reputation  for  chastity,  without  more,  was  insufficient  for  that  purpose." 
This  was  conceded  by  the  learned  judge  in  his  answer  to  defendant's 
request,  requesting  him  to  charge,  "that  as  the  Commonwealth  has 
offered  no  evidence  that  the  prosecutrix  was  a  woman  of  good  repute, 
there  can  be  no  conviction."  It  was  also  conceded  in  the  same  con- 
nection that  there  was  no  direct  evidence  on  the  subject  of  good  repu- 
tation ;  but  the  point  was  refused,  and  the  jury  were  instructed,  inter 
alia,  that  if  the  Commonwealth  failed  to  show  "good  repute,  or  what  is 
its  equivalent,"  there  could  be  no  conviction.  It  must  be  shown  "  that 
the  prosecutrix  was  a  person  of  good  repute,"  or  that  she  "  had  always 
maintained  a  good  character  for  chastity.  One  or  the  other  of  these  is 
necessary ;  and  their  existence  may  be  inferred  from  general  evidence 
offered  by  the  prosecution."  In  thus  instructing  the  jury  and  submit- 
ting the  question  to  them  on  insufficient  evidence,  we  think  there  was 
eiTor.  It  is  "  the  good  repute  "  of  the  female  seduced,  and  not  eome- 
thing  else  that  may  be  regarded  by  the  jury  as  "equivalent"  tnat  is 


1  Whart.  Cr.  Ev.  (8th  ed.),  sec.  50; 
Snyder  V.  Commonwealth,  85  Pa.  St.  519. 

0  State  V.  IIigdon,32  Iowa,  262;  State  v. 
Wells,  48  Iowa,  671. 

3  WU8on  17.  Sprottl,  3  P.  A  W.  49, 53. 


*  Whart.  Cr.  L.  (8th  ed.),  sec.  1757. 
<>  Purd.  826,  pi.  6«. 

•  West  V.  State,  1  Wis.  199;  1  Bish.  Or.  Pr. 
1106. 


ALS. 

1  to  support  it 
tte  character  is 
a  it  has  been 
nesses  on  part 
)f  the  e  .ducetl 
I  l)cen  adduced 
but  it  would 
1  the  presump- 
'cn  then  direct 
ive  evidence  is 
I  inferred  from 
;  expressly  tes- 

urt. 

tiicted  declares 
dcr  twentyrone 
larriage,"  shall 
alleged  to  have 
lie  offense,  and 
ally  averred  in 
realth  to  prove 
the  submission 
n  of  her  good 
that  purpose." 
to  defendant's 
monwealth  has 
)f  good  repute, 
the  same  con- 
of  good  repu- 
Qstructed,  inter 
pute,  or  what  is 
be  shown  "that 
le  "  had  always 
ither  of  these  is 
eneral  evidence 
iry  and  submit- 
think  there  was 
,  and  not  aoine- 
valent ' '  tnat  is 

cl.))Sec.  1757. 

.199;  1  Bisb.  Cr.  Pr. 


CARrENTEU    f.  PEOPLE. 


73: 


made  an  element  of  the  offense.     Tlieie  is  no  doubt  whatever  an  to  the 
meaning  of  that  expression  as  used  in  tlie  statute,  antl  neitlier  court  nor 
jury  has  a  riijht  to  determine  "  what  is  its  eciuivalont."     Tlie  testimony 
introduced  by  tiie  Cominonwcaltli  tended  to  prove  otlicr  ingredients  of 
the  offense;  but  it  was  not  offered  for  the  purpose  of  pri)ving  reputa- 
tion, nor  had  it  scarcely  the  sliglitest  tendency  in  tliat  direction.     Tiiere 
is  a  well  recognized  mode  of  proving  general  reputation  and  the  Com- 
monwealth should  not  be  permitted  to  ignore  it  without  cause,  especially 
incases  lil<c  the  present,  wherein  "good  repute"  is  an  essential  ele- 
ment of  the  offense.     If  the  general  reputation  of  the  prosecutrix  for 
chastity  in  the  neighborhood  in  which  she  lived  was  good,  —  and  there 
is  nothing  in  the  case  to  indicate  anything  to  the  contrary,  —  it  was  the 
duty  of  the  Commonwealth  to  call  witnesses  and  prove  the  fact  affirma- 
tively, as  every  other  ingredient  of  the  offense  was  required  to  be 
proved,  instead  of  aslving  the  jury  to  infer  the  fact  from  casual  expres- 
sions used  by  some  of  tiie  witnesses  in  the  course  of  their  testimony  on 
other  branches  of  the  case.     Every  person  accused  of  crime  is  entitled 
to  the  benefit  of  the  legal  presumption  in  favor  of  innocence  which,  in 
doubtful  cases,  is  always  to  turn  tlie  scales  in  his  favor.     Hence,  the 
rule  of  evidence  in  criminal  cases  is  that  the  guilt  of  the  accused  must 
be  fully  proved.     Neither  the  mere  preponderance  of  evidence,  nor  any 
weight  of  preponderant  evidence  is  sufficient  for  the  purpose  unless  it 
generates  full  belief  of  the  fact  to  the  exclusion  of  all  reasonable  doubt. 
The  general  evidence  referred  to  by  the  learned  judge  was  clearly  in- 
sufficient for  that  purpose,  and  did  not  justify  the  submission  to  the 
jury  of  a  material  fact  of  which  there  was  no  direct  evidence. 

There  was  nothing  in  the  circumstances  of  the  case  from  which  the 
general  good  reputation  of  the  prosecutrix  could  be  fairly  or  legiti- 
mately inferred.    The  several  assignments  of  error  are  sustained. 

Judgment  reversed. 


ABDUCTION -"PREVIOUS     CHASTE     CHARACTER "- PURPOSE    OF 

prostitution. 

Carpenter  v.  People. 

[8  Barb.  C03.] 

In  the  Supreme  Court  of  New  York,  1860. 

1  "  PravioM  OhMte  Character"  in  the  statute  against  abduction  means  actual  personal 
virtue  and  the  female  to  sustain  an  in.Uctmc.t  for  seducing  her  must  have  »>««»  chaste 
and  pure  In  conduct  aud  prinaiple.  up  to  the  time  of  the  commission  of  the  offense. 


73«) 


CUIMRH   AOAIN8T   THB   PEUSONS   OF   INDIVIDUALS. 


C„„„t,,u„c,cnuc  -;-!';; ;,„r:e7:C">  «...  «.»  .,e,cn„.nt 
passea  March  20,  1848      lue  i  unlawfully  ami  feloniously  in- 

lua,  on  the  20th  day  of  ^uj,-  t     H-  •)   unla         j  ^^_^^^.^^  ^^  ^  ^^^^^^^ 

veigle,  entice  and  *f -;yj;;,^  e'"  rLo«isa  M.  Sawyer,  from  the 
of  ill-fame,  assignation  or  elsewnere  o  ^^^     ^j^^ 

Uouse  of  JosephSawyer her  ^^;J^^  ^"^^^  chaste  charac- 

thesaid  Louisa  being  an  ""™*     f,~^^^^^  ^.^ainst  the  peace,  etc. 

ter,  and  under  the  -g'',^'.;!^"  ^^^  .^^^.gl.bstantially  tl.e  s^^ 

-:rt:d=r^^25^ 

^:ZZ:Z  ::r:^:S^:  - -need  to  t.o  .ar.  impris. 
onracnt  in  the  State  prison  at  Auburn.  ^^.^^  j^j 

Upon  the  trial  evidence  was  g.ven  to  show  t^^^^^  the  «       ^^^^^      ^^ 

Sawyer  left  her  father's  -^f^  ^^^^^^^^^^^  and  that 

June,  1849,  by  an  arrangement  ^^'^^^TLh  him,  first  at  the  house  of 
she  immediately  went  to  hve  and  cohabit  '''^h  him  ^^^^ 

one  Aviline  West,  in  the  town  of  >apl  s  -  ^^^^^'^^  ,,„y.  jt  .as 
afterwards  in  the  town  of  Hume  in  '«  ^^jy.^*^^  „=„di„g  and  co- 
proved  that  after  she  ^^f^^^^^t  .h^^^^  that  she  had 

habitingwith  the  defendant,  ^"*/j;.\7^  ^^j^^r  person  than  him.  It 
cohabited  or  had  illicit  if  ^^f  .^^^^  iX  habit  of  visiting  the  said 
appeared  that  the  defendant  »;;^dj>;  -J^;  ^^  ^^^  ,^,,  ^.^e  as  afore- 
Louisa  for  a  considerable  length  of  time  b^fore^  intercourse  with 

said,  and  that  up  to  the  time  «'  f ';^^^^^^^^  ,  but  the  witnesses 

the  defendant,  her  reputation  '^^jj^^  ^^^^^^^^^^         ^  the  time  she  left 
testified  that  her  reputation  after  that  and  ^ow  ^^  ^^^^.^^^  ^^^^ 

home  in  June,  1849,  was  not  good    J^e  «^™« J    ^^^^,.     ^.^      ealled 
they  never  knew  of  her  reputation  «r  ^^/f  ,^^^^^^^^^^  At  the  close  of 

in  question,  except  in  ^^^ Veo^l      ^^^^^^^^^^^^^  the  defendant 

the  evidence  on  the  part  of  the  ^^^i^^^^e  ^^^^^ 

.oved  for  his  f^^^'^^^'^^^^Zf^^^^^^^  ^^«  -^ 

there  was  no  evidence  that  at  the  ti™^  °;  *  ^  ^  ^1^^^  on  the  con- 

Louisa  was  in  fact  a  l^^  f  ^.^/^^^^^^^^^^^^  bad  at 

trary  there  was  evidence  tha  ^^^^J^  that  the  female  should  be 

rr^ay  ^^  r ::;« f -^^ -a?r  ir\:^^ 


l^rfM 


UALS. 

her  livliBcrtmlnale 

twliliintlioBtalute- 

sions  of  Ontario 
tion  as  ft  crime," 
I  tbe  defendant 
1  feloniously  in- 
ution  at  a  house 
awyer,  from  the 
ja  then  was ;  she 
us  chaste  charac- 
i  the  peace,  etc. 
antially  the  same 
)t  guilty,  and  the 
Id  in  May,  1850, 
wo  years'  impria- 

e  said  Louisa  M. 
ntario  County,  'n 
ifendant,  and  that 
•St  at  the  house  of 
ty  of  Ontario,  and 
illeghany.     It  waa 
,  boarding  and  co- 
lence  that  she  had 
srson  than  him.     It 
of  visiting  the  said 
left  home  as  afore- 
id  intercourse  with 
;  but  the  witnesses 
to  the  time  she  left 
nesses  testified  that 
jhastity  being  called 
nt.     At  the  close  of 
bI  for  the  defendant 
g  other  things,  that 
I  abducting,  the  said 
but  that  on  the  con- 
chastity  was  bad  at 
the  female  should  be 
a  house  of  ill  fame, 
hat  she  went  for  the 
at  did  not  sustain  the 


CARPENTEK   V.  PEOPLE. 


737 


requirement  of  the  statute  in  that  respect.  The  motion  was  denied, 
and  each  of  tiie  points  overruled  by  tlio  court,  and  the  defendant's 
counsel  excepted.  Evidence  was  then  givou  on  tiie  part  of  the  defend- 
ant for  the  purpose  of  showing  tiiat  in  the  ^-oar  IHKi,  and  before  her 
acquaintance  with  the  defendant,  the  said  Louisa  had  illicit  intercourse 
with  a  young  man,  and  also  that  she  had  repeated  acts  of  illicit  inter- 
course with  the  defendant  before  tlie  alleged  al)duction  in  June,  1849, 
and  during  the  year  1H48,  and  that  when  she  left  homo  in  June,  1849, 
she  went  voluntarily,  and  not  at  the  instance  or  request  of  the  defend- 
ant, and  that  she  had  since  lived  and  cohabited  with  him,  and  with  no 
one  else.  The  evidence  sho'^.'d  that  the  said  Louisa  was  about  twenty- 
three  years  of  ago  at  the  titi.cshe  left  home  in  June  1849.  After  the 
case  had  been  summed  up  bj'  the  counsel  for  the  defendant  imd  the  coun- 
sel for  the  People,  the  court  charged  the  jury  at  lenftu  upon  the 
various  questions  of  law  and  fact  in  the  cause ;  upon  which  charge 
the  defendant's  counsel  took  a  variety  of  exceptions.  Such  parts  of 
the  charge  excei)ted  as  are  material  to  be  stated  appear  in  the  following 
opinion. 

After  judgment  in  the  Sessions,  the  defendant  brought  error  to  this 
court. 

E.  G.  Lapham  and  H.  It.  Seldeti,  for  the  plaintiff  in  error. 

S.  V.  R.  Mallory  (District  Attorney  of  Ontario  County),  and  A. 
Warden  for  the  People. 

By  the  court,  Welles,  P.  J.  The  statute  under  which  the  defendant 
was  indicted  and  convicted,  declared  an  act  to  be  a  misdemeanor  and 
highly  penal,  Avhich  was  not  recognized  by  the  common  law  as  a  crime 
against  the  public.  By  all  rules  of  construing  statutes  of  that  charac- 
ter, it  should  not  be  held  to  extend  to  oases  which  are  not  clearly 
within  its  meaning  and  objects. 

The  statute  is  in  the  following  language :  — 

"  Any  person  who  shall  inveigle,  entice  or  take  away  any  unmarried 
female  of  previous  chaste  character,  under  the  age  of  twenty-five  yeani, 
from  her  father's  house  or  wherever  she  may  be,  for  the  purpose  of 
prostitution  at  a  house  of  ill-fame,  assignation  or  elsewhere,  and  everj' 
person  who  shall  aid  or  assist  In  such  abduction  for  such  purpose  shall 
be  guilty  of  i^  misdemeanor,  and  shall  upon  conviction  thereof  be  pun- 
ished by  imprisonment  in  a  State  prison,  not  exceeding  two  years,  or  by 
imprisonment  in  a  county  jail  not  exceeding  one  year.  Provided  tlat 
no  conviction  shall  be  had  under  the  provisions  of  this  act  on  the  tp  (i- 
mony  of  the  female  so  inveigled  or  enticed  away,  unsupported  by 
other  evidence,  nor  unless  an  indictment  shall  be  found  within  two 
years  after  the  commission  of  the  offense."  ^ 


3  Defences. 


I  Sesa.  Laws  of  1848,  ch,  106,  p.  118. 
47 


738 


CHIMES   A0AIN8T  THE   I'EKSONS   OF    IXUIVTDUAL8. 


Upon  the  foiuliision  of  the  evidence  the  court  be'  w  chargecl  the 
jury,  "  tliiit  tlio  term  '  take  away '  used  in  the  act  in  question  does  not 
mean  an  actual  manual  caption,  or  personal  assistance,  or  forcibly  ;  but 
it  must  be  construed  in  connection  with  the  other  parts  of  the  section 
and  with  reference  to  the  words  '  inveigle '  and  '  entice '  which  imme- 
diately precede  it,  that  a  person  may  come  within  tlie  act  who  in  any 
manner  aids  or  assists  the  female  in  going  away,  oven  if  slio  persuades 
him  to  assist,  and  he  does  so  for  the  purposi's  menti(jnc'd  in  the  a( 
is  within  the  meaning  of  tlie  term  '  take  away.'  " 

The  offense  described  in  the  statute  is  the  inveigling,  enticing  or  tak- 
ing away  of  an  unmarried  female,  etc. ,  or  aiding  or  assisting  therein. 
It  is  in  the  same  section  called  "  abduction."     In  the  legal  sense,  that 
word  signifies  the  act  of  taking  and  carrying  away  of  a  child,  ward,  or 
wife,  etc.,  either  by  fraud,  persuasion,  or  by  open  violence.     In  one 
view,  the  ftuse  would  be  within  the  statute,  where  the  party  accused 
aids  or  assists  in  the  abduction  of  the  female  for  the  purpose  of  her 
prostitution,  although  she  consents  thereto,  or  even  when  slu^  persuades 
him  to  take  her  away.     He  might  in  such  a  case,  aid  or  assist  in  the 
abduction  as  really  and  actually,  as  if  she  should  be  taken  away  against 
her  will ;  and  he  can  not  excuse  himself  by  the  plea  that  he  was  per- 
suaded to  commit  the  offense.     These  remarks,   however,   must  be 
understood  with  this  important  qualification ;  that  the  aid  or  assistance 
by  the  person  charged,  is  rendered  to  some  other,  who  is  guilty  r      'le 
same  offense,  the  very  words,  aid  and  assist,  imply  another  a( 
agent.     When  one  person  renders  aid  or  assistance,  it  is  to  some  o^.  -v. 
He  is  regarded  as  an  auxiliary,  acting  in  subordination  to  a  principal. 
Thus,  if  one  person  by  inveigling  or  persuadmg,  obtains  the  consent  of 
the  female  to  go  away  for  the  purpose  of  prostitution,  and  she  there- 
upon at  the  request  of,  or  by    uniting  with  her  seducer,   persuades 
another  person  to  take  her  away  for  the  same  person,  such  other  person 
is  guilty  of  aiding  and  assisting  in  her  abduction.     But  if  the  female  of 
her  own  accord,  decides  to  go  away  for  the  purpose  mentioned,  and  a 
person  at  ber  request  and  upon  her  persuasion  furnishes  her  with  the 
means  of  going,  or  carries  her  away,  it  can  not,  I  apprehend,  be  said 
that  he  is  guilty  of  aiding  or  assisting  in  her  abduction,  for  the  reason 
that  in  such  case  there  would  be  no  abduction  within  the  meaning  of 
the  act. 

It  does  not  appear  by  the  bill  of  exceptions,  that  any  one  besides  the 
defendant  and  the  female  in  question,  was  engaged  in  the  supposed 
abduction  in  this  case.  It  appears  that  evidence  was  given  on  the  part 
of  the  defendant,  to  show  that  when  she  left  her  father's  house  in  June, 
1849,  she  went  voluntarily,  and  not  at  the  instance  or  request  of  the 
defendant.     This  might  all  be,  and  the  defendant  be  guilty  of  her 


ArfM 


UAL8. 

w  charged  the 
cation  (toes  not 
)r  forcibly ;  but 
I  of  the  section 
! '  which  imme- 
act  who  in  nny 
f  siio  persuades 
d  in  tlie  a( 

enticing  or  tnk- 
isisting  therein, 
egal  sense,  that 

child,  ward,  or 
)lcnce.  In  one 
I  parly  accused 

purpose  of  her 
n  she  persuades 

or  assist  in  the 
en  away  against 
hat  he  was  per- 
'ever,  must  be 
lid  or  assistance 
is  guilty  r  'le 
nother  a( 
s  to  some  ov.  ./. 
n  to  a  principal. 
IS  the  consent  of 
1,  and  she  there- 
ucer,  persuades 
iich  other  person 

if  the  f  cmalo  of 
lentioned,  and  a 
hes  her  with  the 
irehend,  be  said 
Q,  for  the  reason 
1  the  meaning  of 

r  one  besides  the 
in  the  supposed 
;iven  on  the  part 
's  bouse  in  June, 
ir  request  of  the 
be  guilty  of  her 


CARPENTER   V.  I'EOri.E. 


f.'MJ 


abduction  by  hia  previous  acts  of  inveigling  and  enticing.  Evidence 
was  given  to  show,  that  when  she  left  her  father's  house,  nt  tiie  time 
mentioned,  it  was  by  arrangement  with  the  defendant.  If  the  jury  so 
heli.^vcd,  and  that  her  consent  to  go  was  procured  in  the  manner 
and  for  the  jturpose  mentioned,  the  indictment  was  sustained  in  rcs[)e(l 
to  tlie  defendant's  instrumentality  in  lier  abduction.  So  far  as  the 
charge  on  this  point  is  applicable  to  the  prouf  in  the  case,  1  tiiink  it 
unobjectional)lc.  If  the  language  was  unguarded,  or  tiie  views  of  the 
court  even  erroneous  upon  an  abstract  question,  it  can  not  be  a  ground 
for  reversing  the  judgment. 

With  respect  to  tlie  character  which  the  female  must  possess,  in  order 
to  constitute  the  statute  offense  by  the  individual  taking  her  away,  tlie 
court  below  advised  the  jury  that  the  t*. !.  '•  previous  cliaste  character," 
in  the  act,  did  not  relate  to  or  mean  actual  jersonal  virtue ;  that  if  the 
female  was  known  as  a  person  of  chaste  diameter  and  reputation  at  the 
time  of  tiio  abduction,  thougii  it  siiould  turn  out  on  tlie  trial  that  she 
had,  several  years  previous  to  the  alleged  abduction,  been  guilty  of  a 
single  instance  of  unchaste  intercourse,  it  would  constitute  no  defence. 
In  this  part  of  the  charge,  and  particularly  wherein  the  jury  were 
instructed  that  the  terms  "  previous  chaste  character  "  did  not  relate 
to  or  mean  actual  personal  virtue,  we  think  the  court  erred.  Character 
is  defined  by  Webster  to  be  "  tlie  peculiar  habits  iiuiircssed  by  nature 
or  habit  on  a  person,  which  distinguish  him  from  others ;  "  these  con- 
stitute real  character,  and  the  qualities  ho  is  supposed  to  possess,  con- 
stitute his  estimated  character  or  reputation.  Evidence  has  been 
givsn  to  show  that  the  female  in  question  had  illicit  intercourse  with  a 
j'oung  man  in  the  year  1846,  and  before  her  acquaintance  with  the 
defendant.  Under  the  charge  given  then  the  jury  would  have  been 
justified,  as  far  as  respects  this  particular  question,  in  convicting  the 
defendant,  although,  they  believed,  from  the  evidence,  that  the  female 
had  been  in  the  constant  habit  of  unchaste  intercourse,  without  the 
concurrence  of  the  defendant,  up  to  the  time  of  the  alleged  abduction  ; 
provided  it  had  not  become  sufficiently  known  to  affect  her  reputation. 
We  think  the  words  referred  to,  do  mean  actual  personal  virtue  —  that 
the  female  must  be  actually  chaste  and  pure  in  conduct  and  principle, 
up  to  the  time  of  the  commission  of  the  offense.  Not  that  this  must 
be  the  case  up  to  the  moment  of  taking  her  away  for  the  purpose  men- 
tioned, but  that  it  must  be  so  up  to  the  commencement  of  the  acts  of 
the  party  accused,  done  with  purpose  indicated,  and  which  result  in 
such  taking  away.  Tlie  process  of  inveigling  and  enticing  may  be  the 
work  of  time,  and  when  commenced,  the  female  must  be  of  chaste  char- 
acter in  the  sense  above  defined.  Tlio  word  "  previous,"  in  this  con- 
nection, must  be  understood  to  mean  immediately  previous,  or  to  refer 


»,,,«»ef»»*l,ia«a««- la  ,  .4  **  "  ^ 


-33 


740  CRIMES   AGAINST   THE   rEUSOXS   OF   INDIVIDUALS. 

to  a  period  terminating  immediately  previous,  to  the  commencement  of 
the  -uiltv  consent  of  the  defendant.     If  tiie  female  has  previously  fallen 
from  virtue,  but  has  subsequently  reformed  and  become  chaste,  there 
is  no  doubt  but  that  she  may  be  the  suV)ject  of  the  offense  declared  m 
the  statute.     If  the  charge  had  been  thus  qualified,  it  would  have  been 
unobjectionable  in  this  respect.     Tlie  evidence  tended  to  show  that  this 
female  had  thus  fallen,  and  the  charge  made  the  question  to  turn  upon 
the  fact,  not  of  her  repentance  and  reformation,  but  of  the  discovery 
by  the  community  of  her  sin.     The  statute  uses  the  expression  "  pre- 
vions  chaste  character,"  not  previous  cliaste  reputation.     The  charge 
substitutes  reputation  for  character.     Reputation  may  be  good  evidence 
of  character,  but  it  is  not  cliaracter  itself.     I  do  not  see  why  it  would 
not  be  a  consistent  and  logical  inference  from  the  ruling  of  the  court 
that  a  female  perfectly  pure  in  heart  and  life,  but  who   at  the  time  of 
the  abduction,  through  malice  and  falsehood,  sustained  a  bad  reputa- 
tion could  not  be  the  subject  of  the  abduction  punished  by  the  statute. 
Indeed,  this  would  seem  to  be  the  inevitable  consequence  of  the  doctrine 

of  the  charge.  ,         ^.i    *.  • 

The  court  below,  among  other  things,  instructed  the  jury  that  in 
recrard  to  the  purposes  for  which  the  female  must  be  taken  away,  the 
statute  means  the  same  as  though  the  words  -for  the  puipose  of  pros- 
titution "  only  had  been  used,  without  the  addition  of  the  wordb,  "  at  a 
house  of  ill-fame,  or  assignation,  or  elsewhere,"  the  term,  "or  else- 
where," neutralizing  the  effect  of  the  terms  "  at  a  house  of  lU-fame  or 
assignation,"  and  leaving  the  effect  of  the  law  the  same  as  though  the 
expression,  "  at  a  house  of  ill-fame,  assignation,  or  elsewhere,"  had  not 

been  used.  .  ,       ....      u-  u 

This  view,  as  to  the  interpretation  of  tliat  part  of  the  statute  to  which 
it  relates,  may  be  strictly  correct,  and  I  can  hardly  agree  with  the 
learned  court  by  whom  it  was  pronounced,  without  some  qualification 
and  explanation.  I  think  it  will  hardly  do  to  say  that  the  words,  "  or 
elsewhere"  have  the  effect  to  neutralize  entirely  the  previous  words, 
« '  at  a  house  of  ill-fame  or  assignation. "  I  think  the  latter  expression  has 
an  important  meaning,  and  serves  as  a  key  to  the  evils  against  which 
the  act  was  intended  to  operate.  It  may  be  that  the  act  should  receive 
the  same  interpretation  as  if  the  indication  as  to  where  the  purposed 
prostitution  was  to  take  place  had  been  omitted.  It  is  frequently  the 
case  that  certain  words  may  be  left  out  of  a  statute  without  changing 
its  meanin^r;  and  at  the  same  time  by  retaining  them,  the  meanmg  of 
the  Le-nsirture  is  more  easily  and  certainly  ascertained.  Such  is  usu. 
ally  the  object  and  use  of  recitals  to  statutes.  In  the  present  case,  I 
think  the  words  in  question  may  be  referred  to  as  indicating  the  kind  of 
prostitution  which  it  was  intended  to  prevent.    By  the  word  pros- 


^^i 


tVIDUALS. 

le  commencement  of 
has  previoHsl}-  fallen 
eoonie  chaste,  there 
3  offense  declared  in 
,  it  would  have  been 
led  to  show  that  this 
uestion  to  turn  upon 
but  of  the  discovery 
he  expression  ' '  pro- 
itation.     The  charge 
lay  be  good  evidence 
not  see  why  it  would 
c  ruling  of  the  cou^t 
t  who,  at  the  time  of 
tained  a  bad  reputa- 
lished  by  the  statute, 
[ueuce  of  the  doctrine 

ted  the  jury  that  in 
it  be  taken  away,  the 
the  puipose  of  pros- 
a  of  the  wordb,  "  at  a 
'  the  terra,  "or  else- 
a  house  of  ill-fame  or 
le  same  as  though  the 
)r  elsewhere,"  had  not 

)f  the  statute  to  which 
lardly  agree  with  the 
out  some  qualification 
y  that  the  words,  "  or 
y  the  previous  words, 
le  latter  expression  has 
le  evils  against  which 
the  act  should  receive 
;o  where  the  purposed 
.     It  is  frequently  the 
itute  without  changing 
them,  the  meaning  of 
srtained.     Such  is  usu. 
In  the  present  case,  I 
3  indicating  the  kind  of 
t.    By  the  word  pros- 


CARrKXTER  V.   TEOPLE. 


741 


titiition  in  its  most  general  sense,  it  is  the  act  of  setting  one's  self  to 
sale,  or  of  devoting  to  infamous  purposes  what  is  in  one's  power,  as  tlie 
prostitution  of  talents  or  abilities,  the  prostitution  of  tliij  press,  etc. 
In  a  more  restricted  sense,  the  word  means  tlio  act  or  practice  of  a 
female  offering  her  body  to  an  indiscriminate  intercourse  with  men  ;  the 
comnion  lewdness  of  a  female.  The  introduction  of  the  words,  "  at  a 
house  of  ill- fame  or  assignation,"  in  the  connection  where  they  are 
found  in  the  statute,  leaves  no  doubt  as  to  what  kind  of  probtiiution 
was  intended.  And  although,  as  before  suggested,  the  meaning  would 
have  been  sufficiently  plain  without  tliem,  yet  it  was  well  to  introduce 
them  in  order  to  prevent  cavil  or  doubt.  The  statute,  by  declaring 
that  in  order  to  constitute  the  offense,  the  female  must  be  taken  away, 
etc.,  for  the  purpose  of  jirostitution,  at  a  house  of  ill-fame,  assignation, 
or  elsewhere,  has  plainly  indicated  that  tiie  prostitution  which  the 
Legislature  had  in  view  was  that  of  the  female  to  the  lustful  appetites  of 
men  at  any  place  where  prostitution  of  the  character  common  at  houses 
of  ill-fame  or  assignation,  is  practiced. 

I  have  bestowed  more  attention  upon  this  branch  of  the  charge  than 
it  otherwi«r  'vould  have  demanded,  for  tlie  reason  that  I  regard  it  the 
starting  pui  III  of  error  in  the  court  below,  which  led  to  a  misconstruc- 
tion of  the  statute,  and  resulted  in  the  conviction  of  tlie  defendant. 
The  jury  were  instructed  that  the}'  were  to  judge  in  regard  to  the  mean- 
ing of  the  term  "  prostitution,"  and  ihat  they  were  to  give  to  the  ex- 
pression *'  for  the  purpose  of  prostitution,"  its  proper  signification.  In 
this,  the  court  casts  upon  the  jury  a  responsibility  which  does  not  ap- 
pertain to  them.  The  idea  which  has  become  somewhat  current  in 
some  places,  that  in  criminal  cases  the  jury  are  the  judges  of  the  law  as 
well  as  the  facts,  is  erroneous,  not  being  founded  upon  principle  or  sup- 
ported by  authority.  Courts  of  record  are  constituted  the  sole  judges 
of  the  law  in  all  cases  that  come  before  them. 

The  court  below,  so  far  as  they  intimated  an  opinion  as  to  the  mean- 
ing of  the  word  "prostitution,"  as  used  in  the  act,  gave  the  jury  to 
understand  that  it  was  not  necessarily  the  indiscriminate  intercourse  of 
the  female  with  men,  but  that  it  might  be  understood  as  equ.valent  to  a 
state  of  concubinage,  or  the  condition  of  a  kept  mistress.  These  terms 
are  not  employed  in  the  charge,  but  its  language  can  leave  no  otlier 
impression  upon  the  mind.  The  jury  was  left  at  liberty  to  understand 
the  word  in  that  sense.  This,  we  think,  was  the  great  eiTor  of  the 
court  below. 

All  lexicographers  agree  substantially  with  Mr.  AVebsterin  his  defini- 
tion of  the  word  prostitution,  as  heretofore  stated.  It  is  uniformly'  de- 
fined as  being  t'.ie  acts  or  practice  of  a  female  offering  her  body  to  an 
indiscriminate  intercourse  with  men.     A  prostitute  is  a  female  given  to 


742  CRIMES   AGAINST  THE  TEUSONS   OF   INDIVIDUALS. 

»f      A«  a  verb,  its  definition  is  to  offer 
IndUcrimiDate  lewdness, «  '"T '";'  .„f '  J,;^;!     As  m  adjective  It 

>"^^^;^  e*e,  cea.  u,at  .^^  ^:^::::^'Z  '^.2 
rt:r::rra":=^^^^^^ 

tlie  act.  .  ^      „„^  r.lia<ititv  liave  other  names  wliicli  are 

Ot.eroflen,es  '^-X^^Z:; :^t^L.Ur.o.,..  between  the 

well  understood.     It  is  not  eye  y  u  ^  ^^^^^  ^^ 

.e.es  that  counts  to  ^^'-^';^:;,^^;:Z^:2o'^  ^'^'"-'"'^  ^  ^'^■ 

r  :r>irrr;rt:tr"°th^  ,»„«  c  t^.  .w,  and  ..^. 
*^'^-t  n  :::*!::: :  rderint:::i'tha.  ^e  „.d  s,nce 

tarily  and  not  at  the  instance  oi  t  ^^  ^^^^  ^^.^^^ 

Uved  and  -babij^^  -^\'\"  ^f,^^^^^^^^^^^  And 

of  her  alleged  abduction  -^^  JJ  "^^^^j;^^^  °^,„ty to  convict  the  defend- 
yet  the  charge  of  the  court  left  the  ^""'l^^^^^J  i„  t^r  abduction. 
L,  although  that  -^-^^^"f;^:r^^^^^^^^ 

We  think  the  objects  of  he  ^^''^"f  """'  ^^^  ^^^  to  arrest,  as  far 
tect  females  of  the  «i-«"P^-^",^"^;\tse  a^s  oJ  iniqu^y  and  poUu- 

as  might  be,  the  evils  <^!^-^^^^  ^^''^nZ^  towns  are  infested. 

tion  with  which  our  cities  and  ^^^^  °*  ^T  '  „f..  _  ^ff  one  essential 

called  houses  of  ^-^^^^f^J^  in  its  nature. 

source  of  supply  of  victims    that  it  ^»  *  '*  .j    already  within 

designed  the  more  ^^^^'^^^''yj  ZZ'^^^^^^  a  private  char- 

its  vindictive  cognizance;  and  not  to  pumsn  ^ithaview 

acter  however  great  its  enormity  which  --^J^^^^^^^^^        ^^^  that  its 
to  promote  a  practice  previously  recognized  *«^ «'""«'  .  ^  ,^, 

principal  ultimate  aim  was  ^^^^^^^^^^^1    J^oUble.    We 

granted. 


•UAL8. 


ANDRE   V.  STATE. 


743 


nition  is  to  offer 
8  an  adjective  it 
ess  or  infamous 

jtion,  as  used  in 
tute  the  offense 
or  the  purpose  of 
That  such  must 
restitution  within 

■  names  which  are 
luise  between  the 
live  in  a  state  of 
becoming  a  pros- 
I  law,  and  without 

ven  to  show  that 
1819,  wentvolun- 
that  she  had  since 
:hat  was  the  object 
I  the  statute.     And 
convict  the  defend- 
e  in  her  abduction, 
itation  were  to  pro- 
ind  to  arrest,  as  far 
'  iniquity  and  pollu- 
towns  are  infested, 
[ig  off  one  essential 
lative  in  its  nature, 
evils  already  within 
;e  of  a  private  char- 
nmittcd  with  a  view 
I  crime ;  and  that  its 
ctic  -  which    "  e  law 
ind  indictable.    We 
rsed,  and  a  new  trial 


SEDUCTION  —  MEANING   OF    "PREVIOUSLY   CHASTE    CHARACTER." 

Andre  v.  State. 

[5  Iowa,  389;  68  Am.  Dec.  708.] 
In  the  Supreme  Court  of  Iowa,  1857, 

1.  "  Character  "  In  Seduction  statute  prescribing  that  woman  be  "  of  previously  chaste 

character  "  signillcs  that  whicli  tlie  person  really  is,  in  distinction  from  that  which  she 
may  be  reputed  to  bo.  To  est.iblish  unchaste  character  of  unmarried  female  on  trial  of 
indictment  for  seduction,  it  is  not  necessary  to  prove  that  she  has  been  guilty  of  prcvions 
sexual  intercourse,  it  Is  sufllcient  to  show  that  she  has  been  guilty  of  obscenity  of 
language,  indecency  of  conduct,  and  undue  familiarity  with  men  and  the  like. 

2.  "  Previous  Chastity  "  in  the  Seduction  statute  would  signify  mere  actual  chastity 

or  freedom  from  sexual  intercourse,  but "  previously  chaste  character"  does  not  signify 
merely  this,  but  also  purity  of  mind  and  innocence  of  heart. 

Indictment  for  seduction,  under  section  2.586  of  the  Iowa  Code 
which  reads:  "If  an  y  person  seduce  and  debauch  any  unmarried 
woman  of  previously  chaste  character  he  shall  be  punished  by,"  etc. 
Tlie  defendant  was  cpnvicted  and  now  appeals.  The  opinion  states  the 
case. 

Cook,  Dillon  and  Lindley,  for  the  appellant. 

Samuel  A.  Rice,  Attorney-General,  for  the  State. 

By  the  Court,  Woodward,  J.  The  first  error  assigned  relates  to  the 
instruction  that  "  unchaste  character,  as  understood  in  a  case  of  this 
kind  means  sexual  intercourse."  And  this  presents  the  principal  ques- 
tion in  the  cause.  In  the  cases  cited  by  counsel  and  to  which  we  shall 
have  occasion  to  refer,  there  is  considerable  inaccuracy  of  language 
and  a  confusion  of  terms,  which  it  is  desirable  to  avoid  as  far  as  pos- 
sible. Thus  the  words  "  character  "  and  "  reputation"  are  sometimes 
used  as  sj-nonymous.  There  is  a  real  difference  of  meaning  between 
them  and  in  it  case  of  this  kind  it  is  important  to  preserve  the  distinc- 
tion. According  to  Webster,  "  character  "  signifies  the  peculiar  quali- 
ties impressed  by  nature  or  habit  on  a  person,  which  distinguish  him 
from  others ;  these  constitute  real  character  and  the  qualities  which  he 
is  supposed  to  possess  constitute  his  estimated  character  or  ' '  reputa- 
tion." And  then  he  defines  reputation  to  be  good  name ;  the  credit, 
honor  or  character  which  is  derived  from  a  favorable  public  opinion  or 
esteem,  and  character  by  report.  It  is  very  true  that  the  word  "  char- 
acter" is  often  used  colloquially  in  the  same  sense  as  rep'itation;  and 
so  it  sometimes  is  by  writers  not  aiming  at  accuracy  of  expression,  but 
such  is  not  its  true  signification.  And  in  so  important  an  instrument 
as  a  statute  defining  a  crime,  it  must  be  presumed  the  Legislature  used 
the  term  in  its  true  sense,  unless  the  context  renders  another  necessary. 


h 


7-14  CRIMES   AOAINST   THE   I'EUSONS   OF   INDIVIDUALS. 

In  the  instance  of  the  present  statute,  the  consequence  might  be  too 
serious  to  allow  this  confusion  of  terms ;  since  one  who  had  done  another 
one  of  the  greatest  wronjis  might  escape  his  just  punishment  upon 
the  strength  of  a  mere  slander,  and  that,  too,  possibly  origmatmg  with 

^'wfthink  the  statute  intended  to  use  the  term  -  character "  in  its 
accurate  sense,  and  as  signifying  that  which  the  person  ready  is,  in  dis- 
tinction from  that  which  she  may  be  reported  to  be.     But  the  quest  on 
made  in  the  first  assignment  of  error  is  whether  this  word  mvolves  the 
Ttual  commission  of  the  unchaste  act.     There  are  dimculties  on  bo  h 
"des  of  the  question,  and  it  is  not  easy  to  find  a  satisf^vc-  ory  cone  usion 
But,  after  a  fair  examination  of  the  question,  we  are  of  the  opinion  that 
the  court  below  erred  in  holding  that  the  words  mean  "--^J  -;- 
course  "  -  by  which  the  court  meant  that  in  order  to  acquit  the  defend- 
ant the  jury  must  believe  that  Catherine  Falloon  had  previously  been 
guilty  of  the  unchaste  act  itself.     Besides  the  above  expressions  used 
I  gfve  definiteness  to  the  words,  the  court  said :  ''By  previous  chaste 
character  the  code  means  personal  chastity  -  actual  character.       Bu 
Z  the  use  of  the  expressions  "sexual  intercourse"  and  '  personal 
chastity"  it  might  have  been  doubtful  whether  the  court  intended  to 
carHe  definifion  so  far,  for  the  term  ''actual  character"  does  no 
Lithe  mind;  and  in  another  portion  of  ^be  instructions  t.e  court 
says:  "  The  general  reputation  of  persons  in  the  neighborhood  where 
they  reside  is  good  evidence  as  to  character,"  etc.     And  again:  "The 
defendant  may,  however,  show  that  the  prosecutrix  was  not  of  previ- 
o:X  Iste  cLacter,  either  by  proving  an  actual  want  of  chastity  o„ 
her  iart  or  by  showing  her  general  bad  reputation  for  chastity ;      and 
TZm  not  be  easy  t"o  suppose  that  the  court  means  that  reputation 
could  be  received  to  prove  the  criminal  act  Itself.  ^    ^.,    „ 

The  language  of  the  statute  is  not,  a  woman  of  "  previous  chastity 
but  such  we  should  suppose,  should  have  been  its  language  had  t^s 
been  the  meaning  intended.     We  suppose  the  word  "  character     was 
desfgned  to  have"  its  proper  force,  and  that  -«-^;°g  *V^  rthf^ 
nification.     If  the  statute  is  understood  to  require  actual  chastity,  then 
rwoml  guilty  of  lewd  conversation  and  manners  -  guilty  of  lascnn- 
ou9  acts  and  of  indecent  familiarity  with  men  -  is  an  object  of  its  pro- 
tection  equally  with  one  who  is  pure  in  mind  and  mannera  ;«°^)  blithe 
pilmptL  Arising  from  the  commission  of  the  act  would  aUach   o 
L  defendant  in  the  one   case  as  strongly  as  in  the  other.     We  can 
not  think  that  a  female  who  delights  in  lewdness- who  is  guilty  of 
every  indecency,  and  lost  to  all  sense  of  shame,  and  who  may  be  even 
themistress  of  a  brothel-is  equally  the  object  of  this  staUite  (if  she 
has  only  escaped  actual  sexual  intercourse)  with  an  innocent  and  pure 


JALS. 

!  rnigbt  be  too 
id  done  another 
nishment  upon 
originating  with 

liaracter ' '  in  its 
really  is,  in  dis- 
iiit  the  question 
n-d  involves  the 
Rculties  on  lioth 
;tory  conclusion, 
the  opinion  that 
1 ' '  sexual  inter- 
jquit  the  defend- 
previously  been 
expressions  used 
r  previous  chaste 
haracter."     But 
'  and  "  personal 
ourt  intended  to 
L-acter"  does  not 
ictions  the  court 
ghborhood  where 
^nd again:  "The 
vas  not  of  previ- 
mt  of  chastity  on 
r  chastity;  "  and 
IS  that  reputation 

revious  chastity" 
language  had  this 
' '  character ' '  was 
ing  to  its  true  sig- 
tual  cliastity,  then 

-  guilty  of  lascivi- 
i  object  of  its  pro- 
kuuers ;  and  all  the 
ct  would  attach  to 
le  other.     We  can 

—  who  is  guilty  of 
I  who  may  be  even 
this  statute  (if  she 
innocent  and  pure 


ANDRE    V.  STATE. 


745 


woman ;  and  that  a  man  is  equally  liable  under  the  law  as  well  in  the 
one  case  as  the  other.  The  statute  is  fur  the  protoL'tion  of  the  pure  in 
mind,  for  the  innocent  in  heart,  who  may  have  Ijeen  led  astray,  si'duced 
from  the  path  of  rectitude;  and  the  jury  are  the  sole  judges  iu  each 
case  wlio  comes  within  this  description.  Under  this  construction  of  the  " 
statute  obscenity  of  language,  indecency  of  conduct,  and  undue  famil- 
iarity with  men,  have  more  weight  thim  under  the  other  view.  They 
serve  to  indicate  the  true  character  ;  they  become  exponents  of  it ;  and 
a  defendant  is  not  punisheil  for  an  act  with  one  whose  conversation  and 
manners  may  even  have  suggested  the  thought  and  opened  the  way  to 
him,  as  he  would  be  for  the  same  act  with  one  innocent  in  mind  and 
manners. 

But  we  de.«Te  to  guard  against  a  conceivable  wrong  inference.  Whilst 
the  demeanor,  the  acts  and  conduct,  with  the  conversation  of  a  woman, 
may  be  sliown  and  considered  in  order  to  arrive  at  her  character,  and 
are  the  usual  means  where  she  is  not  sliown  to  have  committed  the  act 
of  unchastity,  still  the  jury  are  the  sole  judges  of  the  actual  cliaracter 
of  chasti.„ .  No  particular  amount  or  degree  of  such  manners  of  con- 
versation can  be  set  down  as  conclusive  evidence  of  an  unchaste  char- 
acter, but  the  jury  must  determine  whether,  uuder  the  facts  shown,  the 
real  character  be  thus.  It  is  not  every  act  of  impropriety,  nor  even 
indecency,  that  should  alQx  this  stain  upon  a  female  and  deprive  her  of 
the  protection  of  the  law.  Persons  differ  in  their  manners  and  tone  of 
conversation,  in  tlieir  education,  and  in  their  manifestation  of  character. 
Some  are  much  more  free  and  unrestrained  than  others,  whilst  we  have 
no  more  doubt  of  their  purity  in  the  one  case  than  in  the  other.  Some 
are  quite  free  with  their  acquaintances  and  intimates,  and  at  tlie  same 
time  are  above  suspicion  of  wrong.  It  becomes,  therefore,  one  of  the 
highest  and  most  solemn,  as  well  as  the  most  delicate,  duties  of  a  jury 
to  judge  of  the  proofs  of  sucli  acts  and  words  with  tlie  utnioit  intelli- 
gence, care,  and  freedom  from  bias,  that  a  female,  innocent  in  truth, 
and  of  actual  purity  of  mind,  may  not  suffer  as  a  guilty  one,  from  a  few 
light  and  inconsiderate  words  or  acts  which  may  be  consistent  with  an 
invincible  purity  and  integrity  of  heart.  And  it  will  not  be  improper  to 
cnjom  it  upon  the  juries  of  our  State  to  examine  with  extreme  caution 
into  q^uestions  of  this  nature  —  not  to  judge  hastily  nor  lightly,  but  to 
guard  with  ever  a  jealous  care  the  reputation  of  those  whose  reputation 
is  their  all. 

Finally,  it  seems  to  me  that  if  tlie  Legislature  intended  as  argued  by 
the  prosecution,  it  would  have  used  tlie  phrase  "  a  woman  previously 
chaste,"  or  "  of  previous  chastity,"  or  tlie  like,  which  are  the  directly 
natural  words  to  express  the  idea  of  actual  chastity,  or  chastity  in  fact. 
These  words  seem  to  us  very  simple  and  natural  for  the  purpose  and  to 


74(1 


CRIMES    AGAINST   THE   PERSONS   OP   INDIVIDUALS. 


be  free  from  ambiguity,  and  we  can  not  avoid  the  conclusion  that  the 
statute  intends  something  different  by  the  use  of  the  word  "  character." 
In  this  view  we  are  supported  as  we  think  by  the  case  of  Carpenter  v. 
People.^  The  case  of  Crosier  v.  People,'^  coincides  with  the  views  above 
'expressed,  insomuch  as  it  says :  "That  it  is  a  question  of  character,  not 
of  reputation."  But  it  appears  to  raalie  the  word  "character"  call 
for  actual  chastity ;  and  yet  it  cites  Carpenter  v.  People,^  as  supporting 
the  view  there  held.  This  case  of  Crozier  v.  People,*  is  at  the  best, 
ambiguous.  The  case  of  Sofford  v.  People,'^  so  confounds  tlie  meaning 
of  terms,  and  is  so  peculiar  in  its  reasoning  that  we  would  not  venture 
to  cite  it  as  an  authority  sustaining  either  view.  In  conclusion  upon 
this  point,  we  are  of  the  opinion  that  the  District  Court  erred  in  the 
meaning  given  to  the  expression  "  chaste  character." 

The  second  error  assigned  is  to  the  instruction  that  in  the  absence  of 
proof  chastity  will  be  presumed.     We  think  the  court  did  not  err  in 
this,  especially  in  view  of  the  sense  which  it  gave  to  the  foregoing 
words.     Neither  do  we  conceive  it  to  be  error  when  regarded  in  the 
sense  which  this  court  attaches  to  tlie  phrase,  "chaste  character."     To 
determine  this  question  of  presumption  it  becomes  necessary  to  choose 
between  two  rules  and  define  which  is  applicable  to  such  a  case  in  such 
a  state.     One  of  the  rules  referred  to  is  that  one  which  requires  the 
prosecution  to  prove  all  those  facts,  circumstances  and  qualities  which 
go  to  make  or  constitute  the  offense.     The  other  rule  is  that  which  calls 
for  a  presumption  of  innocence,  rectitude  and  gorr:         acter  generally. 
The  defendant  argues  that  to  presume  in  favor  A  *i.e  character  of  the 
woman  in  this  case  is  to  presume  against  his  innocence.     But,  to  our 
minds,  this  is  not  so.     He  will  be  presumed  innocent  of  the  fact  —  the 
act  charged  —  whilst  the  presumption  may  be  in  favor  of  the  rectitude 
of  her  character.     And  there  seems  to  us  no  inconsistency  in  applying 
these  presumptions  in  this  manner.     If  the  prosecution  were  held  to 
show  such  a  character  in  the  first  instance,  the  lightest  amount  of  evi- 
dence would  be  sufficient  to  make  a  prima  facie  case,  and  the  burden 
would  still  be  on  the  defendant ;  and  there  does  not  seem  to  be  much 
weight  in  the  argument  which  is  satisfied  with  this  merely  formal  com- 
pliance with  the  rule,  whilst  on  tlie  other  hand,  there  is  a  substance  in 
the  presumption  of  innocence  and  uprightness,  which  requires  a  force 
of  evidence  to  overcome.     The  above  cited  cases  from  New  York  are 
placed  upon  the  same  ground,  applying  the  assumption  to  chastity  in 
fact,  and  arguing  that  chastity  is  the  general  law  of  society,  and  a  want 
of  it  the  exception.*    And  the  same  argument  a,>plie8  with  equ     force 


1  8  Barb.  e03. 
a  1  Park.  Cr.  4S7. 
>  iupra. 


•  $upra. 

s  1  Park.  Cr.  474. 

•  See  Crozier  v.  People,  1  Park.  Cr.  497. 


[JALS. 

lusion  that  the 
1  "  character." 
)f  Carpenter  v. 
Ihe  views  above 
f  character,  not 
;haractcr"  call 
3  as  supporting 
is  at  the  best, 
ids  the  meaning 
uld  not  venture 
oncUision  upon 
irt  erred  in  the 

1  the  absence  of 
,  did  not  err  in 
)  the  foregoing 
regarded  in  the 
iliaracter."     To 
jssary  to  choose 
h  a  case  in  such 
ich  requires  the 
qualities  which 
that  which  calls 
acter  generallj-. 
character  of  the 
ce.     But,  to  our 
if  the  fact  —  the 
of  the  rectitude 
ency  in  applying 
ion  were  held  to 
;  amount  of  evi- 
,  and  the  burden 
seem  to  be  much 
rely  formal  corn- 
is  a  substance  in 
I  requires  a  force 
m  New  York  are 
ion  to  chastity  in 
ciety,  and  a  want 
with  equ     force 


)ple,  1  Park.  Cr.  457. 


ANDRE   V.  STATE. 


747 


to  chastity  of  character.  It  does  so,  of  course.  They  arc  the  same 
thing  in  substance  when  regarded  in  relation  to  this  rule.  It  is  our 
opinion  that  the  presumption  of  a  ''  chaste  character  "  extends  to  the 
woman  in  the  case,  anil  that  the  contrary  is  to  be  shown. 

The  third  error  alleged  in  the  instructions  "  that  the  corroborating 
evidence  contemplated  by  the  statute  ^  is  not  confined  solely  to  the  proof 
of  the  fact  of  illicit  intercourse,  but  extends  to  proof  of  other  mate- 
rial facts,  such  as  the  illegitimacy  of  her  child,  the  regular  and  frequent 
visits  of  defendant  to  the  female,  his  being  alone  with  her  at  late  hours 
of  the  night,  and  his  confessions  made  to  others  on  the  subject,"  etc. 
This  instruction  is  supported  directly  by  Crozier  v.  People,^  and  we  con- 
cur in  the  view  taken.  This  point  requires  no  enlargement.  Facts 
showing  intimacy,  opportunity  and  inducement  (if  we  so  say)  certainly 
tend  in  some  degree  to  corroborate  the  witness  just  as  truly,  though  it  may 
be,  not  in  the  same  degree  as  proving  an  alibi  at  the  time  sworn  to  would 
go  to  discredit  her.  The  weight  and  value  of  such  evidence  is  for  the  jury 
to  consider,  and  it  is  for  them  to  draw  their  conclusion  accordingly. 

The  matter  of  the  third  assignment  is  embraced  in  the  fourth  with  a 
possible  shade  of  difference.     The  court  declined  giving  the  second  in- 
struction precisely  as  asked  but  modified  it  somewhat.     That  requested 
to  be  given  related  to  section  2999  of  the  Code,  and  was  that—  "  this 
corroborating  evidence  should  be  of  a  character  that  goes  directly  to 
the  commission  of  the  offense."     The  court  struck  out  the  words  "  to 
the  commission  of  "  and  instead  thereof  inserted  these :  "  to  strengthen 
and  corroborate  the  testimony  of  the  injured  person  and  to  point  out 
the  defendant  as  having  committed  "  the  offense.    The  language  of  sec- 
tion 2999  on  this  point  is :  "  unless  she  be  corroborated  by  other  evidence 
tending  to  connect  the  defendant  with  the  commission  of  the  offense." 
The  aim  of  the  defendant's  counsel  undoubtedly  was  to  require  the  cor- 
roborating evidence  to  point  and  connect  with  the  commission  of  the 
precise  act  itself  — the  act  of   debauching  —  whilst  the  view  of    the 
court  seems  to  have  been  that  the  corroborating  evidence  need  not  point 
directly  to  the  act,  but  might  in  its  direct  aim  point  to  the  circumstances 
surrounding  the  parties,  as  to  the  intimacy,  the  opportunities,  and  to 
any  facts  which  "  tended  to  connect  the  defendant  with  the  commission 
of  the  offense ;"  which  last  is  the  language  of  the  statute.     We  should 
say  that  in  the  second  instruction  asked  the  counsel  looked  principally 
to  the  act  of  debauching,  whilst  the  court  looked  to  the  whole  offense, 
which  consists  of  both  seducing  and  debauching ;  and  the  latter  we 
think  the  more  correct  view  and  nore  consonant  with  the  intention  of 

the  statute. 

The  fifth  assignment  of  error  relates  to  the  refusal  of  the  court  to 
give  the  eighth  instruction  requested  by  the  defendant  which  so  far  as 


I  860.2999. 


8  1  Park.  Cr.  4M, 


748  CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

it  is  needful  to  refer  to  it  for  the  present  purposes  wns  that  "  no  chaste 
antl  virtuous  girl  would  allow  a  man  to  take  improper  liberties  with  her 
person  without  resenting  it  at  once  ;  where  an  unnmrricd  femnle  so  far 
forgets  what  is  due  to  her  sex  as  to  take  improper  liberties  with  a  man 
such  as  unbuttoning  his  i)antaIoons  and  tlirusting  her  hands  ir.io  and 
upon  his  privates,  or  allow  a  man  to  feel  of  her  breasts  and  legs,  she 
ceases  to  bo  chaste  and  virtuous,  in  contemplation  of  the  law  under 
wiiich  this  indictment  is  found."     The  instruction  then  proceeds  to  ask 
the  court  to  charge  the  jury  that  the  defendant  is  entitled  to  the  bencflt 
of  any  reasonable  doubt ;  and  therefore,  if  they  have  a  fair  doubt  of 
her  chastity  tliey  must  acquit.     There  are  two  objections  to  this  instruc- 
tion,    ( 1 )  It  takes  too  much  from  the  jury,  and  makes  it  matter  of  legal 
sequence;  and  (2)  It  unites  several  kinds  of  matter  in  one  charge  so 
that  it  i*  difficult  to  separate  them.     That  part  of  the  instruction 
which  relates  to  certain   supposed  instances  of  conduct  was  matter 
belonging  to  the  jury,  and  tlie  court  could  not  lay  down,  as  a  sequence 
of  law,  the  proposition  therein  contained.     That  part  of  the  instruc- 
tion which  refers  to  a  doubt  on  the  mind  of  a  jury  might  have  been 
given,  had  it  not  been  so  interwoven  with  other  and  objectionable  mat- 
ter. 

Therefore,  on  account  of  the  error  contained  in  the  first  instruction, 
the  judgment  of  the  District  Court  is  reversed,  and  a  venire  de  novo 
awarded 


seduction  — undep  promise  of  marriage  —  proof  necessary. 

People  v.  Eckert. 


[2  N.  Y.  Cr.  Rep.  470.] 
In  the  Supreme  Court  of  Netv  York,  November,  1884. 

,  The  Defendant  at  the  time  of  the  Alleged  Seduction  was  about  sixteen  years  of 
age,  and  the  prosecutrix  was  about  six  years  olUer,  anil  a  woman  of  very  considerable 
experience  with  men  of  lier  own  age,  and  had  known  defendant  from  his  boyhood.  It 
Bp|>eared  that  the  illicit  intercourse  was  not  confined  to  one  occasion,  but  was  deliber- 
ately permitted  from  time  to  time  till  within  two  months  of  the  biMh  of  the  child.  It 
also  appeared  that  prosecutrix  had  had  confidential  relations  with  many  men  to  whom 
she  had  permitted  unbecoming  familiarities,  and  had  conducted  herself  in  a  manner 
indicative  of  great  laxity  of  moral  obligation.  Btld,  on  the  whole  case,  that  as  the 
evidence  was  strongly  against  the  prol)ability  of  the  alleged  promise  to  marry,  and 
against  the  purity  of  character  of  the  prosecutrix,  a  new  trial  must  be  granted. 

.  Upon  the  Trial  of  an  Indictment  for  seduction  under  promise  of  marriage,  the 
defendant,  who  lias  testified  In  liis  own  behalf,  may  be  asked  on  cross-examination,  for 
the  purpose  of  affecting  his  credibility,  if  ho  has  had  sexual  Intercourse  with  a  person 
other  than  the  prosecutrix,  and  in  no  way  connected  with  the  action. 


Km'iiMW.imHtirrinirfc-  ifv    ■  '■■' 


i^^k 


/VLS. 

at  "no  chaste 
?rti(>s  with  her 

fenifllu  so  far 
OS  with  a  man 
ands  ii:io  and 

ami  legs,  she 
the  law  under 
rocecds  to  ask 
1  to  the  bencflt 

fair  doubt  of 
o  thisinstruc- 
iiiatter  of  legal 

one  charge  so 
le  instruction 
jt  was  matter 

as  a  sequence 
)f  the  instruc- 
ght  have  been 
ictionable  mat- 

'st  instruction, 
venire  de  novo 


F  N£C£SSARY. 


1884. 

It  sixteen  years  of 
t  very  considerable 
m  liis  boyhood.  It 
>n,  but  was  deliber- 
til  of  the  child.  It 
many  men  to  whom 
lersclf  in  a  manner 
a  case,  that  as  the 
lise  to  marry,  and 
le  granted, 
se  o(  marriage,  the 
iSB-esamination,  for 
>ar8e  with  a  person 


TEOPLK   V.  ECKEUT. 


749 


3,  Defendant  on  Crosa-examinatlon,  on  the  trial  of  nn  indictment  for  Reduction,  was, 
ill  »ub«tiiiicc,  nskt'cl  if  III!  Iiud  not  sniit  tn  tlio  fiitliur  of  tlio  prdxccutrix  that  his  own  father 
hud  uiilruthfully  ^uid  thiit  he  (tlio  dufeiidant)  would  rut  in  ]nil  licfore  lie  would  marry 
proHucutrlx,  aiicl  liu  deuied  having  so  said.  Held,  that  evideueu  m  coiitritdictiou  of  said 
denial  wx  coinpeleut. 

Appeal  bj'  defendant,  George  Eelvcrt,  from  a  judgment  i-oiivicting 
biin  of  the  oriiiiu  of  seducing  an  unmarried  female  of  pievioiis  chaste 
character,  under  promise  of  marriage. 

Tlie  defendant  was  indicted  in  tlie  Coui't  of  Oyer  and  Terminer  of 
Ulster  County,  November  24,  1882,  the  indictment  charging  the  com- 
mission of  said  crime  on  Ma\'  13,  1881.  The  indictment  was  tiled  in 
the  Court  of  Sessions  of  said  county  at  the  June  Term,  1883,  before 
Hon.  William  Lawton,  county  judge,  with  associates,  inula  jury,  and 
defendant  was  found  guilty  and  sentenced  to  pay  a  fine  of  $425,  and  to 
imprisonment  in  the  county  jail  till  said  fine  was  paid,  imt  for  a  period 
not  to  exceed  one  year. 

The  following  is  tlie  substance  of  the  testimony  taken  at  the  trial :  — 

Sarah  Osterhoudt,  the  prosecutrix,  sworn  for  the  People,  testified:  I 
live  in  the  town  of  Marbletown.  Have  known  defendant  fourteen  yeai-s. 
I  will  be  twenty-three  years  old  the  24th  of  October  next.  Eckert,  the 
defendant,  will  be  nineteen  this  fall.  He  visited  me  at  my  father's 
house.  Began  to  come  and  see  me  two  years  ago  last  March  and  came 
to  see  me  until  a  j'earngo  July.  He  asked  me  if  I  thought  enough  of 
him  to  marry  him.  I  told  him  I  thought  he  was  too  young.  He  <)aid 
no  he  was  not.  He  said  he  was  very  nearly  as  old  as  his  father  and 
and  mother  were  at  the  time  of  their  marriage.  I  said  I  would  marry 
him  if  be  thought  enough  of  mc.  After  that  he  asked  me  to  have  con- 
nection  with  him.  It  was  in  May,  two  years  ago  last  May,  I  had  con- 
nection with  him.  He  said  he  did  not  believe  he  could.  I  said  I  did 
not  want  him  to.  He  said  he  would.  He  asked  me  more  than  once  to 
have  connection  with  him  bef oie  ^ I  did  have.  It  was  after  midnight. 
Between  the  time  he  came  to  see  me  and  the  time  the  connection  took 
place  he  was  trying  to  overcome  me.  He  asked  me  if  I  would  have  con- 
nection with  him.  I  said  I  did  not  want  to.  He  said  he  would ;  that 
he  would  marry  me  and  never  go  back  on  me.  That  is  all  he  said.  He 
had  connection  with  me  that  night,  and  after  that,  up  to  until  two 
months  before  the  baby  was  born,  which  was  a  year  ago  last  July  24th. 
Told  him  I  was  pregnant  and  asked  him  to  marry  me.  He  went  away. 
He  has  never  married  me.  I  never  had  sexual  intercourse  with  any 
other  man.  The  child  I  had  hereto-day  is  Eckert' a  child.  Cross-ex- 
amined :  I  was  born  in  October,  1860.  I  was  close  to  twenty-one  and 
he  to  seventeen  when  he  first  came  to  see  me.  I  had  kept  company 
there  with  gentlemen  four  or  five  years.  I  had  beaux  that  paid  atten- 
tion to  me  and  took  me  out  evenings.     Would  spend  evenings  with  me 


•^a^s^^m^^m^^m&:;9^m^ssm^^^^^s^sm:^^^ 


.a 


7.^0  CRIMES    AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

::,„  Victor  Chamber.,  «'-■  l'^'''""-,; '''^^  lit  Iue"om 
k„„.„  Eokerfince  he  "-''"'' ^  .Ire  ^i^  lie  »rst  erne 
Um.    Went  in  company  »  f™'  "J^'  ^^^'^^'J,'"  „„  „ay.<l  until  micl- 

lug.     **>-       J  arounfl  me   and  1  nau  mine 

■"t,;.,  Lr^laia"Le";,,o,.rt..»t  night.    Then  be 
.ronn.1  him.    f"""-'  »  „  ,„„  ,„e  ,„„,■  times  before  he  began 

ra:trrn.''-rtt i^Ai.,,.  «•«......-.' »^^--- 1 

was  a  bed  n  t  « »«°^-  j^  ^  .ji  he  had  been  trying  to 

rcor;ie;:rr.na;to„'e  vi^n.  .^-rr-xr:.: 

„.,c,.  .-J,;::^'^  -  :t;X:  .-  o?;;:m'hrMsU  me  ana  haa 
on  some  of  the  "'''" Z"^'    /^^^  „„,,  foited  to  me  .l>out  tliinlting  . 

'■'"'VZl  7mf    He  G»  ge  Ilea  me  if  1  thought  enough  of  Inm 
Tmnr^;     l"ia  him  he  L  too  young ;  tijat  i,i.  father  a^i  mother 

trZ  about  it,  ana  he  saia  it  m^e  ^J^^;'^^i:ZT^Zl: 

:rre^:.^igrra-L-J^i^-^^^ 

""  r  r«ta:  rCa^mT  her:  ulTa.'*..     •  ».>a  .he 

"'"•-r^S™i:^^^s:m^:fra-^^^^^ 

riia":.t^.."HrarrS;nbri/.^eof  .-year  th^^^^^^^^ 


-  "*- 


UALS. 

iny  ft  few  times 
r ;  once  ft  little 
n  Vleet.  They 
any  a  few  times 
if  a  boy.  Have 
»out  a  mile  from 

He  first  came 
tayed  until  mid- 
ina  connection, 
a  kissed  me.     I 
lin  in  the  middle 
id   about  marry- 
thfc  next  Sunday 
and  I  had  mine 
night.     Then  he 
i  before  he  began 
ly  person  and  un- 
m  come  after  he 
tried  to  force  me 
»n  with  me  first  in 
!ry  low,  and  there 
e  had  talked  about 
ad  been  trying  to 
•ce  me.    Only  one 
bcrs.     I  have  sat 
kissed  me  and  had 
16  about  thinking  a 
Tht enough  of  him 
father  and  mother 
e  about  them.    He 
to  have  connection 
hatever.     I  did  not 
r  not.     He  said  he 
t  night.     I  said  the 
my  mind  to  marry 
me  that  night.    The 
uil  he  got  me  nearly 
ten  o'clock  until  af- 
was  just  overpower- 
of  hours  afterwards. 
1  year  that  I  was  in 

♦    Re-direct :  The 
he  would  marry  me, 


PEOPLE    V.  ECKERT. 


7')1 


and  never  go  back  on  me,  before  he  hftd  connection  witii  me.  I  believed 
him.  Have  never  been  married.  After  I  became  pregnant  he  brought 
me  medicine  to  take,  and  I  took  five  drops  of  it.  Be-crosa :  I  said  I 
wa.H  afraid  he  would  not  marry  me.  Didn't  know  whether  he  would  or 
not.  I  was  afraid  first  and  then  believed  he  would.  I  did  consent  to 
have  connection  with  him  in  words.  George  went  to  school  a  few  weeks 
the  next  winter  after  he  came  to  see  me. 

Joseph  Osterhoudt,  sworn  for  the  People,  testified:  "Am  Sarah's 
brother.  •  •  •  After  I  was  informed  she  was  pregnant  George 
asked  me  about  it.  Told  him  I  didn't  know;  hadn't  seen  iier  in  quite 
a  wlille.  He  told  me  if  it  was,  he  would  marry  her.  I  found  out  it  was 
so,  and  called  him  one  side  and  asked  him  if  he  was  going  to  marry 
her.     He  said  he  would  not,  unless  he  had  to. 

It  further  appeared  in  behalf  of  the  prosecution  by  the  testimony  of 
the  parents  and  brothers  of  the  prosecutrix,  and  otlicrs,  that  defendant 
had  visited  prosecutrix  at  her  parents'  house,  and  elsewhere,  very  often 
during  the  period  referred  to  by  her  —  as  often  as  once  a  week  —  asking 
for  her  personally,  and  that  upon  such  occasions  he  was  generally  alone 
with  her.  It  also  appeared  that  his  visits  ceased  shortly  before  the 
birth  of  the  child.  Prosecutrix's  father  testified:  "John  Pk'kert, 
George's  father,  in  October,  1881,  came  there  (witness'  house)  and 
told  the  boy  he  would  take  him  out  of  the  house,  dead  or  alive.  He 
said  it  was  time  to  break  up  the  match ;  th.it  is  the  first  I  beard  him 
say  anything  about  his  opposition  to  his  coming  tiiere." 

A  witness  for  the  prosecutiou  '•'s  <  testified  that  defendant,  prior  to 
his  indictment,  left  his  place  of  residence  and  went  to  Pennsylvania, 
through  fear  of  arrest  for  seduction ;  that  he  returned  in  a  few  weeks. 
Defendant's  refusal  to  marry  the  prosecutrix  was  also  proved. 

Rufus  Palen,  sworn  for  the  defendant,  testified:  "Lire  in  Rosen- 
dale  ;  am  a  quarryman.  Have  known  Sarah  Osterhoudt  about  six  years. 
Knew  Victor  Chambers ;  was  with  him  and  Sarah  at  McMullen's  house ; 
the  girls  and  their  brothers  keep  the  house.  I  think  it  was  in  1876  ;  it 
was  in  the  night  time ;  we  got  there  between  nine  and  ten  in  the  even- 
ing; staj'ed  until  towards  morning.  Tlie  fore  part  of  the  evening 
Dhambers  and  Sarah  sat  on  chairs.  After  that,  they  laid  down  on  the 
bed  in  the  same  room.  They  lay  there  two  hours,  I  should  think. 
This  was  in  the  sitting  room.  The  light  was  turned  very  dim.  Do  not 
know  that  she  had  any  of  her  clothing  off.  Think  he  had  his  shoes,  off. 
May  have  had  his  coat  off.  I  don't  know  whether  he  did  or  not. 
Have  seen  him  go  with  her  from  church  different  times.  I  don't  know 
as  I  ever  saw  them  go  together  except  on  thct  occasion.  Cross-ex- 
amined: I  was  there  with  a  young  lady.  She  was,  as  I  supposed,  a 
friend  of  Miss  Osterhoudt' s.     Supposed  this  was  an  ordinary  case  of 


'i<«^^0Siii^it^»im^i'i^- 


752  CKIMK8   AOAIX!*T  THE    I'EUSOXS   OF    INDIVIDUALS. 

country  c-ourtins.     I  »lon't  know  as  it  struck  uie  that  there  was  anything 
harmful  about  it.     Wiieu  I  wan  a  youn^'  man  1  courted  tJmt  way.     I 
saw  no  impropriety,  more  thai.  that.     The  other  young  la.ly  and  I  were 
in  the  room  at  that  time.     In  that  regi.m  of  tlie  co.uitry  I  have  ofion 
turned  down  the  li-ht  myself.     Tlic  other  hxdy  and  I  lay  on  the  sofa. 
George  Eckert,  sworn  in  his  own  bclialf,  testified  :— 
"  I  am  the  defendant.     My  father  and  mother  are  living.     I  live  at 
home  with  them  and  always  have.     I  was  eighteen  years  old  the  30th 
of  last  December.     In  March,  18^1,  I  wa^  sixteen.     Was  attendmg 
the  district  school  that  year  and  the  next.     Have  known  Sarah  since  I 
can  remember.     She  told  me  she  was  twenty-two  when  I  was  sixteen. 
Knew  Victor  Chambers.     I  knew  of  his  paying   attention  to  Sarah. 
Saw  them  together  in  bed,  at  my  father's  house.     Chambers  and   I 
slept  to<rother,  and  Sarah  came  uj)  stairs  and  opened  the  door    and 
walked  in  the  room,  and  said,  "  Now  get  up,"  and  Chambers  grabbed 
hold  of  her,  an<l  pulle.l  her  in  the  bed  with  him,  and  says  to  me,  "  \ou 
act  out  of  hero,"  and  locked  the  door,  and  they  were  in  there  about  an 
hour.     She  was  dressed.     I  was  eleven  or  twelve  years  old.     I  didn  t 
know  what  it  meant.     I  know  of  Millard  and  Denton  Wdklow,  John 
Tanner  and  Lucas  Barley  paying  her  attention  P"f  ,JoJMa'*^';;.^^f  ^• 
They  would  spend  the  evening  with  her.     Know  of  Millard  Wicklow 
spending  the  evening  with  her  about  March,  1881.     He  came  and  called 
me  out  of  my  father's  house.     Went  with  him  to  Hornbeck  s.     Sarah 
was  there.     He  wanted  me  to  call  the  dog  and  keep  him  by  me  while 
he  got  in      I  did  so.     He  went  in.     I  never  had  anything  to  do  with 
her  before.     The  Hornbecks  were  relations  of  mine.     I  saw  Sarah  there 
a  couple  of  weeks  afterwards.     I  spent  the  evening  with  her.     Stayed 
until  about  three  o'clock.     Did  not  sit  up  all  the  time  we  were  there 
Lav  down  on  the  bed.     She  said  she  was  tired  sitting  up  and  wanted 
me  to  lie  down.     That  was  the  first  night  I  stayed  with  her,  or  had 
.hown  her  any  attention.     We  lay  on  the  bed  about  four  hoiirs.     When 
I  went  away  she  said  I  must  come  on  the  sly  so  my  folks  didn  t  know 
it      She  said  if  they  found  it  out  they  would  think  I  was  too  young. 
Went  to  see  her  again  in  the  same  way,  went  to  bed  again.     I  never 
asked  her  in  any  form  to  marry  me.     I  never  promised  or  told  her  I 
would  marry  her,  nor  asked  her  if  she  thought  enough  of  me  to  marry 
me      There  was  nothing  mentioned  about  marrying.     Sh.    uevei 
she  would  marry  me ;  nor  was  *\m  subject  of  marri.  discussed 

between  us  at  all.     I  never  asked  her  to  have  con  wuli  me  ;  no- 

did  I  say  I  would  marry  her,  or  stand  by  her,  oi         ds  to  that  effec 
I  was  at  Van  Leuven's  about  three  weeks.     Part  oi    i  lie  tinu  I  was  in 
Port  Jervis.     Came  back  to  my  father's  and  stayed  there.     I  was  ad- 
vised  to  go ;  did  not  go  of  my  own  accord ;  came  back  of  own  accord. 


^^m 


UALS. 


PEOPLK   V.  FXKEIIT. 


753 


re  was  anything 
■cl  that  way.  I 
lady  and  I  were 
y  I  liavc  oflon 
ly  on  tlie  aofa." 

iving.  I  live  at 
irs  old  the  30th 

Was  attending 
wn  Sarah  since  I 
n  I  was  sixteen, 
ution  to  Sarah. 
Jhambers  and  I 
\  the  door  and 
lanibera  grabbed 
lys  to  me,  "You 
in  there  about  an 
Ts  old.  I  didn't 
n  Wilklow,  John 

to  March,  1881. 
Millard  Wicklow 
!  came  and  called 
rnbeck's.     Sarah 
liira  by  me  while 
•thing  to  do  with 
I  saw  Sarah  there 
rith  her.     Stayed 
ne  we  were  there, 
g  up  and  wanted 
with  her,  or  had 
)ur  hours.     When 
folks  didn't  know 
I  was  too  young. 
i\  again.     I  never 
lised  or  told  her  I 
5h  of  me  to  marry 
r.     Shr   uevei 

discussed 
Willi  me ;  no- 
ds to  that  effet 

tlie  timi  I  was  in 

there.     I  was  ad- 
Eick  of  own  accord. 


Was  never  arrested  on  the  indictment.  Came  down  here  of  my  own 
accord  and  gave  bail.  Cross -examined;  The  way  Chambers  came  to 
stay  at  our  house  all  night,  my  father  had  gone  off ;  Saraii  come  to  stay 
witli  motiier  and  CMiauilters  to  stay  with  me.  My  father  was  keeper  of 
Sing  Sing  prison  and  was  away  from  home  a  good  deal.  Cliambcrs 
was  there  four  or  five  nights.  Had  not  had  breakfast  wlicn  Sarali  came 
up.  She  came  to  call  us  down  to  breakfast.  I  told  my  mother.  She 
did  not  go  up  Htairs.  I  ate  breakfast.  Tliey  were  up  there  an  hour, 
about.  Tills  was  in  187(5 ;  I  was  tiien  twelve  years  old.  The  day  I 
held  the  dog  for  Millard  Wilklow  was  tiie  day  my  grandmother  wa« 
buried.  My  grandmother  lived  at  Jacob  Hornbeck's.  Sarah  was 
there.  They  had  a  funeral  in  the  afternoon,  and  I  held  the  dog  so  that 
Millard  Wilklow  could  go  and  court  Sarah  in  the  evening.  *  •  ♦ 
I  have  had  sexual  intercourse  with  Sarah.  I  could  not  tell  how  often ; 
I  have  forgotten. '  I  am  not  the  father  of  this  child.  I  know  Emma 
Schoonmaker;  don't  know  where  she  is.  Q.  You  have  been  having 
sexual  intercourse  with  Emma  Schoonmaker,  have  you  not?  Defend- 
ant's counsel  objected  on  the  ground  that  the  question  was  irrelevant, 
improper  and  incompetent,  and  the  witness  is  not  bound  to  answer. 
Objection  overruled.  Defendant  excepted.  A.  Yes.  My  father  and 
Simon  Lyons  advised  me  to  go  to  Matamoras.  They  told  me  there  was 
going  to  be  a  trap  laid  against  me.  I  ceased  going  to  school  in  1882. 
I  worked  some  in  tiie  garden  and  tend  bar.  My  father  is  a  tavern- 
keeper  In  this  nelgliborhood.  I  can't  say  how  many  times  I  went  to 
see  Sarah.  Thomas  Osterhoudt  did  not  say  to  me  tliat  my  father  had 
said  to  hinf  that  I  would  not  marry  Sarah,  and  I  did  not  say  to  him 
that  it  was  a  damned  lie.  Re-direct :  I  first  had  sexual  intercourse  with 
Sarah  the  first  time  I  staj'ed  with  her.  There  had  not  been  a  word  said 
about  marrying.  There  was  no  objection  on  her  part  to  the  intercourse, 
nor  solicitation  nor  effort  on  mine. 

Millard  Wilklow,  sworn  for  defendant,  testified :  Live  in  Marble- 
town.  Know  defendant  and  Sarah  Osterhoudt.  Live  about  a  mile 
from  her.  Have  kept  company  with  her.  Been  to  see  her  at  her 
father's  house  a  few  times,  and  at  Jacob  Hornbeck's.  Recollect 
George  going  over  with  me.  Don't  know  whether  he  held  the  dog  or 
not.  Stayed  with  her  until  twelve  o'clock.  I  never  had  sexual  inter- 
course with  her  that  I  know  of.  That  is  as  strong  as  I  am  willing  to 
put  it.  Gross-examined.  She  has  always  conducted  herself  like  a  lady 
in  my  presence.  I  have  lived  in  the  neighborhood  with  her  ten  or 
twelve  years,  and  so  far  as  my  observation  has  extended,  she  has  always 
conducted  herself  like  a  lady.  Re-direct :  I  have  been  on  the  bed  with 
her  twice  at  her  father's  house.  Possibly  two  hours.  In  the  night 
3  Defences.  48 


*.**«(•**' 


764  CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

t^e.     No  one  else  in  the  room.     I  don't  say  whether  1  had  connection 

rX^rron  being  subsequently  recalled  by  the  prosecution,  denied 
having  had  sexual  intercourse  wUhprosecut^^^^^^  ^^^^^^_ 

L«  it  :;:p:r;-tL  <or  a  yo„„g  ..n  to  a...=r  under  .„y  cr- 

T'hTTtmer     ,wo,n  tor  defendant,  testified,  Kno,  Sarah.     Have 
Johnlaimer,    ™orn  i         p|,._,u„,    „„d  I    have    been    together 

kept    compaay    7''   /'^  „  ^^    tL^  „«''  =»«''  «■">»■"«»«  °'"' 

::rra:?u:^:-/5'~^^^^ 

"=SeH'r  ra^=.e  • 
kept  her  co,npany  after  Ch»nbe«we^t       J    ^  ^_^^  ^  ^^  ^^^^ 

about  uiidrnght.  /»"%"°°\J^i^d,„  the  room.    Never  took 
We  didn't  got  on  the  bed.    There  was  a  Deo  „„„„ection 

any  liberties  with  he^  «  -|  f -'•  ..^f, »  ^'d  herself  liUe  a 
with  her      Crojs-e™.™....^-  f«'';'^„'™;3„„„ewhere  about  twelve 

''^j'^r  :%!■,  w; w;„.  toThX^^^^  ^-■«-'--  -f"' «"; 

"^' iTa/arne  w^K  her  I  fooled  ,1th  her  to  have  Intercourse  „th 

""nannnh  M.  Hornbeok,  sworn  for  defendant,  testifled:  I  am  a  sister 
.T^brLkert  Sarah  has  worked  for  me  at  different  t,mes.  Millard 
%^r^  to  see  her  once,  until  «-  -^Jf-f;;  J^?: 
f^rm^rrXl.T.ri^uTe'rmelehadgotrldo. 
it  •  that  she  was  two  montl  ;  ^one. 

??St^r^far»s:rrh.;^i 

,atbe%.fh.  would  rotL  ,all  before  ^' ^".^^^^ 'f^'^^J^f^ 
^  .,  fViot  liw  father  was  a  damned  liar :"  i^ounsei  lur 
S.:ro"erdr.hrgrr;;th.t .  U  a  oonater.,  ma„er  and  .». 
material,  and  'the  People  a-e  concluded  by  the  answer  of  „eorg..  Ob- 
Lotion  overruled.    Defendant  eicepte.       A.  He  did. 


)IV11)UAL8. 

iher  1  had  connection 

5  prosecution,  denied 

d:  Live  in  Marble- 
on  lier.  I  decline  to 
Cross-examined:  I 
,  lady  in  my  prasence. 
because  I  didn't  con- 
answer  under  atjy  cir- 

Know  Sarah.  Have 
have  been  together 
each  one  sitting  on  a 
remained  in  the  room 
together.  There  were 
)eople.  Nothing  more 
brace  her  as  I  saw  and 
een  alone  together.  I 
[  staid  until  somewhere 

sat  alongside  of  her. 
the  room.    Never  took 

never  had  connection 
)ehaved  herself  like  a 
somewhere  about  twelve 
r.  Be-direct :  The  first 
to  have  intercourse  with 

testified :  I  am  a  sister 
[ifferent  times.  Millard 
fter  midnigb*.  George 
larab  told  me  she  was  in 
Id  me  she  had  got  rid  of 

•pie,  testified:  •  •  * 
said  that  he  had  told  his 
lid  marry  Sarah,  and  did 
nedliar?"  Counsel  for 
collateral  matter  and  im- 
answer  of  George.  Ob- 
He  did." 


PEOPLE   V.  ECKERT. 


755 


Witnesses  \;ere  offered  by  the  district  attorney  to  prove  the  previous 
character  and  reputation  for  chastity  of  Sarah  Osterhoudt,  in  her  neigh- 
borhood, and  the  evidence  was  excluded,  under  exception. 

Ann  Osterlioudt,  re-called  for  the  People,  testified:  Sarah  lived  at 
home  in  spring  J  881.  She  was  under  my  eye  all  the  while.  There 
were  no  indications  of  pregnancy.  I  did  be  washing.  There  was  no 
discoloration  of  underclothing  that  would  indicate  miscarriage  or  abor- 
tion. 

Schoonmaker  &  Linson,  for  the  prisoner,  appellant.  T.  The  con- 
viction is  an  absurdity.  There  was  plainly  such  prejudice  as  should 
nullify  the  verdict.  The  testimony  to  which  attention  has  been  called 
shows  the  character  of  t'le  complainant.  Sha  had  been  receiving  for 
years  the  attentions  of  men  much  older  than  the  defendant,  some  of 
whom,  at  least,  had  attempted  to  take  undue  liberties  with  her,  and 
three  of  whom  refused  on  oath  to  say  whether  or  not  they  had  sexual 
intercourse  with  her.  She  had  known  the  defendant  ever  since  he  was 
a  baby.  He  was  a  mere  boy  at  the  time  she  says  he  committed  '  3 
Clime  charged  in  the  indictment.  It  seems  impossible  that  any  canc-id 
person  can  read  the  evidence  and  resist  the  conviction  that  she  was 
the  seducer.  The  jury  convicted ;  but  they  convicted  the  prisoner  of 
being  a  bad  boy,  and  not  of  the  statutory  offense.  The  former  im- 
peachment he  did  not  deny,  and  that  was  enough  for  the  jury.  They 
did  not  propose  to  sanction  such  irregularities  within  the  boundaries  of 
the  virtuous  county  of  Ulster.  The  fact  that  tiie  sexual  intercourse 
was  not  the  crime,  they  never  cared  a  whit  for.  They  would  have 
rv'ndered  the  same  verdict  had  the  charge  been  rape  or  incest. 

II.  Both  the  statute  in  force  at  the  time  of  the  alleged  seduction,^ 
and  that  which  obtained  at  the  time  of  the  trial,®  provide  that  there 
shall  be  no  conviction  upon  the  testimony  of  the  female  complaining, 
not  supported  by  other  evidence.  The  Court  of  Appeals  has  held  that 
the  corroboration  to  which  it  lofers,  is  as  to  the  promise  of  marriage, 
and  the  carnal  connection.  It  is  respectfully  submitted  that  in  no  case 
has  a  conviction  been  sustained  in  such  testimony  as  was  given  in  tbia 
case.  3 

A.  T.  Clearioater,  District  Attorn'  y,  for  the  People. 

The  prosecutrix  was  corroborated  upon  the  questions  of  promise 
of  marriage  by  all  the  testimony,  and  as  to  the  intercourse  by  the  de- 
fendant himself,  who  testified  on  bis  cross-examination  that  he  had  had 
sexual  intercourse  with  her.  This  was  all  the  corroboration  required 
by  the  statute,  it  not  being  necessary  that  she  should  be  corroborated 


1  L.  1848,  ch.  111. 

i  Penal  Code.  sec.  286. 


8  Armstrong  ».  People,  70  N.  Y.  44. 


CHI 


misjix 


766  CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

either  as  to  chastity  or  as  to  being  uumarried.i  it  was  not  necessary 
the  corroborative  testimony  should  be  positive  in  its  character ;  circum- 
stantial evidence  of  corroboration  was  sufficient.  2 

B...KKS  J.     The  defendant  was  charged  by  indictment  with  the 
crime  of  seducing  one  Saraa  Osterhoudt    an  '''^^^'''f^^''^f;;;^^JZ 
vious  chaste  character,  under  promise  of  marriage.3    On  tl  e  trial  the 
prosecutrix    testified  to   the  material   facts    constituting  the   offense 
charged,  and  that  she  became  enceinte  because  of  the  ^^^^'^^onvso  he- 
twee^  herself  and  the  defendant.     The  fact  of  the  birth  of  the  child 
was  undisputed.     Evidence  was  also  given  of  opportunity  and  proba- 
bility, such  as  the  frequent  meeting  of  the  parties,  when  they  wou  d  be 
alone  together,  and  generally  of  the  seeking  by  the  defendant  of  pr- 
vate  interviews,  anl  also  of  the  besto.al  by  both  of  personal  attention  . 
Th^defenlantgave  evidence  in  his  own  behalf ,  directly  in  conflic, 
on  all  material  points,  with  that  of  the  prosecutrix.     His  evidence     f 
credited,  would  establish  his  innocence  of  the  offense  charged.     Thus 
his  credibility  became  a  subject  of  groat,  if  not  of  controlling  signifi- 
cance      On  his  cross-examination,  and  with  a  view  to  this  point,  he 
was  asked  the  question  whether  he  had  "been  having  sexual  inter- 
course  with  Emma  Sclioonmaker,"-a  person  i'\  ""^r^^y/^^^f^^.^^^ 
with  tlie    case.     The  question  was  objected  to   by   the  defendant  s 
counsel,  and  the  objection  being  overruled  by  ihe  court,  he  answered 

"Yes  " 

It  is  urged  that  such  ruling  was  erroneous.  But  according  to  the 
very  late  decision  by  the  Court  of  Appeals  in  People  v.  Irvmg  it 
affords  no  just  ground  of  complaint.^  The  question  here  presented  was 
carefully  and  fully  considered  in  Irving' s  Case  in  the  light  of  the  previous 
decisions  in  this  State,  and  the  evidence  under  the  circumstances  then 
and  here  existing,  was  held  to  be  admissible  within  the  discretion  of 
the  trial  court.  We  need  therefore  only  to  refer  to  that  case  as  decisive 
of  the  point  there  urged  as  ground  of  error.  .        ^  ^  ,    , 

On  further  cross-examination  the  defendant  was,  in  substance,  asked 
if  he  had  not  said  to  the  father  of  the  prosecutrix,  on  a  certain  specified 
occasion,  that  his  own  father  had  untruthfully  said,  that  he,  the  defend- 
ant,  would  rot  in  jail  before  he  would  marry  the  prosecutrix;  and  he 
denied  having  so  s.id.  Proof  in  contradiction  of  such  denial  by  he 
defendant  was  offered  on  behalf  of  the  prosecution,  and  was  admitted 
against  objection.  In  this,  we  think  there  was  no  substaiitial  error^ 
The  evidence  had  a  bearing  upon  matters  in  issue,  in  this :  it  bore  upon 

3  Law8  ol  188*.  ch.  Ill;  Penal  Code,  »ec. 


1  Kenyon  *.  People,  18  N.  Y.  203 ;  Crozler 
V.  People,  I  Ptrk.  463 ;  Armstiong  v.  People, 

70  N.  Y.  S8. 

a  Kenyon  ».  People.  26  N.  Y.  203 ;  Boyce  v. 

Faople,  6fi  N.  Y.  014. 


284 


4  9S  N.  Y^.  Ml ;  2  N.  Y.  Crlni.  Bep.  171. 
6  See  aUo  People  v.  Hooghkerk.  96  N.  T 
150 ;  2  N.  Y.  Crlm.  Bep.  204. 


M«a 


DUAL.8. 

ras  not  necessary 
laracter ;  circum- 

ictment  with  the 
id  femtileof  pre- 

On  tlie  trial  the 
utiiig  the  offense 
le  intercourse  be- 
birth  of  the  child 
tunity  and  proba- 
hen  they  would  be 

defendant  of  pvi- 
lersonal  attentions, 
iirfcctly  in  conflict, 
His  evidence,  if 
36  charged.     Thus 
controlling  signifi- 
'  to  this  point,  he 
,ving  sexual  inter- 
no  way  connected 
y   the  defendant's 
court,  he  answered 

it  according  to  the 
eople  V.  Irving,*  it 

here  presented  was 
light  of  tlie  previous 

circumstances  then 
in  the  discretion  of 
that  case  as  decisive 

in  substance,  asked 
in  a  certain  specified 

that  he,  the  defend- 
prosecutrix ;  and  he 
'  such  denial  by  the 
n,  and  was  admitted 
10  substantial  error, 
in  this :  it  bore  upon 

ch.  Ill ;  Penal  Code,  sec. 

!  N.  y.  Crlrn.  Bep.  171. 
pie  V.  Hooghkerk,  96  M.  T 
Im.  Rep.  iiM. 


PEOPLE    V.  ECKEKT. 


757 


the  question  whetlier  the  defendant  had  made  to  the  prosecutrix  a  prom- 
ise of  marri.nge.  It  was,  it  is  true,  somewhat  remote,  but  not  entirely 
remote  and  disconnected  with  the  issue  and  irrelevant  to  the  offense 
charged  as  to  preclude  its  contradiction. 

But  the  case  is  not,  as  wc  think,  without  serious  difficulty  on  the  proof 
submitted.  It  is  certainly  a  very  peculiar  one  in  some  of  its  leading 
features.  The  facts,  taken  as  a  whole,  must,  to  say  the  least,  admit  of 
strong  suspicion  as  to  the  real  existence  of  the  imputed  crime.  Tlicy 
invite  well-grounded  criticism.  The  defendant  was  at  the  time  of  the 
alleged  seduction  under  promise  of  marriage,  a  mere  lad,  a  stripling,  a 
schoolboy,  but  little  more  than  sixteen  years  of  age.  The  prosecutrix 
was  nearly  six  years  his  senior,  a  woman  of  cumparativcly  mature 
years,  and  according  to  the  proof,  of  very  considerable  experience  with 
men  of  about  her  own  age.  It  can  but  be  observed  that  seduction  of 
the  lad  migiit  probably  be  quite  as  readily  accomplished  as  could  be 
the  seduction  of  the  mature,  reflecting,  experienced  woman.  She  had 
known  the  young  man  almost,  or  quite  from  his  infancy ;  must  have 
known  and  appreciated  the  fact  that  any  proposition  of  marriage  from 
him  or  agreement  with  him  to  marry  was  of  questionable  propriety.  She 
was  not  entirely  untutored  in  the  ways  of  the  world,  for,  as  she  states, 
she  had  accepted  the  attentions  of  men  while  he  was  yet  a  "  htlle  bit  of 
a  boy."  She  was  certainly  qualified  to  give  him  good  advice  against 
wrong-doing,  and  well  able  in  her  maturity  to  resist  vicious  importunity, 
even  under  circumstances  of  stronger  temptation.  And  this  would  be 
naturally  expected,  rather  than  that  she  should  accept  from  one  so 
young  a  proposal  of  marriage,  and  under  a  protestation  of  faithfulness 
to  his  promise  to  join  him  in  the  commission  of  crime.  Nor  was  the 
illicit  intercourse  confined  to  a  single  occurrence  under  stress  of  circum- 
stances, but  was  deliberately  permitted  from  time  to  time,  even  con- 
tinued, as  she  testifies,  from  "  that  night  and  after  that,  up  to  until  two 
months  before  the  baby  was  born." 

Is  the  case  free  from  well  grounded  suspicion  as  to  the  integrity  of  the 
charge?  If  a  seduction,  it  seems  to  have  been  a  seduction  with  contin- 
unndo  —  a  seduction  regularly  effected,  in  view  of  her  maturity  and  of 
his  immaturity;  and  most  strange  i,  continued.  The  line  of  conduct 
as  testified  to  by  her,  beginning  witii  the  alleged  promise  of  marriage, 
followed  by  continual  intercourse  for  a  considerable  time,  and  indeed 
permitted  long  after  pregnancy  had  ensued,  seems  inconsistent  with  any 
idea  of  the  woman's  seduction,  holding  in  mind  the  provisions  of  the  stat- 
ute which  makes  seduction  a  punishable  offense. '  The  crime  denounced 
by  the  law  is  the  seduction  of  a  female  of  chaste  character  under  piom- 

1  See  Penal  Code,  eec.  284. 


768  CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

ise  of  raariiare.  The  law  contemplates  infraction  of  purity  in  thought 
and  conduct.  Now  in  tlie  outset  we  are  confronted  with  the  unusual  cir- 
cumstances of  persons  contracting  marriage  under  an  almost  ludicrous 
disparity  of  acre,  having  in  mind  the  nature  of  the  offense  cliarged ;  the 
male  just  turning  the  period  of  pubescense,  and  the  female  ,i  woman, 
as  has  been  stated,  of  mature  years  and  very  considerable  experience  in 
the  ways  of  the  world,  with  knowledge,  as  we  must  infer,  of  usual 
moral  and  social  observances,  and  of  what  are  universaUy  regarded  aa 
the  proprieties  attending  a  matrimonial  alliance. 

Besides  these  considerations,  how  stands  the  further  and  other  proof 
bearing  on  the  alleged  contract  of  marriage,  and  purity  of  character 
both  of  which  are  necessary  to  the  establishment  of  the  crime  charged 
in  the  indictment?    It  is  in  proof  that  the  prosecutrix  accepted  atten- 
tions from  and  had  confidential  relations  with  various  men ;  not  with 
one  or  two  only,  but  with  many.     She  permitted  them  unbecoming 
familiarities.     Beyond  dispute,  she  was  free  and  easy  with  them  to  an 
extent  indicative  of  great  laxity  of  moral  obligation.     These  statements 
as  to  the  proof  leave  out  of  view  the  testimony  of  the  defendant,  and 
also  that  of  the  witness,  Chambers,  who  was  undoubtedly  effectually 
impeached.     But  it  may  be  noted,  as  it  was  proved  by  several  witnesses, 
that  the  plaintiff  w.as  particularly  and  peculiarly  intimate  with  this  man 
who  was  shown  to  be  lecherous  and  vile.     The  case  on  the  reliable  evi- 
dence bears  hard  on  the  probability  of  the  alleged  promise  to  marry, 
and  of  the  purity  of  character  of  the  prosecutrix.     Before  the  defend- 
ant could  be  legally  convicted,  a  case  should  be  made  against  him  on  al 
material  points  beyond  a  reasonable  doubt.     We  are  of  the  opinion  that 
no  fair  minded  man  can  carefully  and  thoughtfully  read  the  evidence 
here  submitted  without  entertaining  great  doubt  as  to  the  defendan   s 
guilt  of  the  offense  charged.     We  are  dissatisfied  with  the  verdict  of  the 
Turv      We  must  conclude  that  they  either  misunderstood  the  provisions 
and  requirements  of  the  law  applicable  to  the  case,  or  that  they  gave 
the  evidence  undue  force  through    inattention  or  misapprehension. 
We   can  not  in  conscience  permit  the  conviction  and  judgment  to 

** Conviction  and  judgment  reversed;  new  trial  granted,  and  case  re- 
mitted to  the  Ulster  Sessions. 

Learned  and  Landon,  JJ.  .concur. 


'"fJWW 


DUALS. 


RICE   V.  COMMONWEALTH. 


759 


lurity  in  thouglit 
h  the  unusual  cir- 

almost  luilicrous 
use  charged ;  the 

female  .i  woman, 
ible  experience  in 
t  infer,  of  usual 
sally  regarded  as 

2r  and  otlier  proof 
iritv  of  character, 
the  crime  charged 
is  accepted  atteu- 
119  men ;  not  with 
them  unbecoming 
jy  with  them  to  an 

These  statements 
ihe  defendant,  and 
ibtcdly  effectually 
'  several  witnesses, 
nate  with  this  man 
)n  the  reliable  evi- 

promise  to  marry, 
Before  the  defend- 
}  against  him  on  all 

of  tlie  opinion  that 

read  the  evidence 
,  to  the  defendant's 
h  the  verdict  of  the 
jtood  the  provisions 
J,  or  that  they  gave 
r  misapprehension. 
1  and  judgment  to 

ranted,  and  case  re- 


seduction  —  corroborative  evidence  of  woman's  story  — 

insufficient  proof. 

Rice  v.  Uommonwealth. 

[100  Pa.  St.  28.] 

In  the  Supreme  Court  of  Pennsylvania,  1882. 

1.  In  Order  to  Warrant  a  Conviction  for  seduction  under  a  promise  of  marriage  In 

accordanco  with  the  provisions  of  the  act  of  March  31, 1860,>  there  must  be  evidence  to 
corroborate  the  prosecutrix,  in  regard  to  the  promise  of  marriage. 

2.  The  Fact  that  a  Defendant  charged  with  seduction  is  now  allowed  to  testify  in  hit 

own  behalf,  docs  not  alter  the  law,  in  regard  to  the  necessity  of  evidence  corroborative 
of  that  of  the  prosecutrix,  as  to  the  promise  of  marriage. 

3.  What  Ciroumatancee  do  and  what  do  not  constitute  sufficient  corroborative  evidence 

to  warrant  a  conviction  in  such  case,  considered. 

4.  Where  In  such  Oaae  there  is  some  proof  that  the  defendant  admitted  the  promise  to 

marry,  it  Is  not  error  for  the  court  to  refuse  to  withdraw  the  question  of  seduction 
from  the  Jury. 

5.  Where  the  Court  in  ita  Charse  to  the  Jury  states  the  same  proposition  of  law  twice, 

the  first  time  correctly,  the  second  time  Incorrectly,  it  will  be  inferred  that  the  latter 
statement  is  likely  to  have  made  a  lodgment  with  the  Jury  and,  in  some  instances,  the 
judgment  will  be  reversed  on  this  ground. 

Before  Sharsvvood,  C.  J.,  Gokdon,  Paxson,  Stekkett  and  Gueen, 
J.J.,  Mercur  and  Trunkey,  J.  J.,  absent. 

Error  to  the  Quarter  Sessions  of  Lackawanna  County ;  of  January 
term  1882. 

Indictment  against  Frederick  Rice,  for  the  seduction  under  an  al- 
leged promise  of  marriage  of  Margaret  Robertson,  under  twenty-one 
years  of  age. 

On  the  trial  before  Handley,  J.,  Margaret  Robertson  testified,  on 
behalf  of  the  Commonwealth  that  she  was  twenty  years  of  age  and  had 
always  resided  with  her  parents  in  the  village  of  Dunmore ;  that  she 
became  acquainted  with  the  defendant  in  1878,  and  that  for  more  than  a 
year  thereafter  he  "  kept  company,"  with  her,  generally  meeting  her  at 
church  on  Sunday  evenings  and  walking  home,  and  remaining  with  her 
afterwards  until  after  ten  o'clock.  That  on  three  occasions  the  defend- 
ant went  into  the  house  and  saw  Mrs.  Robertson,  but  they  gener- 
erally  remained  outside  near  the  gate.  That  in  September,  1880, 
defendant  invited  her  to  take  a  walk,  about  nine  o'clock  in  the  evening, 
which  they  did,  and  that  during  their  absence  they  had  sexual  inter- 
course, and  that  this  was  repeated  about  four  weeks  later.  She  gave 
birth  to  a  child  May  28th,  1881. 

Her  testimony  in  relation  to  the  alleged  promise  of  marriage,  prior 
to  the  seduction  was  that  on  both  the  occasions  referred  to  the  de- 

1  sec.  41,  Fampb.  L.  394. 


mm 


mmmm 


imummmi 


M:- 


760  CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

fencHnt  "  went  clown  upon  his  knees  and  promised  to  marry  her  if  she 
wo^d  let  him  do  what \e  did  do ,  "  and  that  she  would  uo^hav.  i^er- 
lutPd  it  otherwise.     This  testimony  was  not  corroborated.     Thei  e  was 

"Tber'o'w.,  no  evidence  indicative  of  an  intenlion  of  ■"«"i»8=  °"  */ 
,Jt  of  tT,e  defendant  other  than  the  fact  that  he  would  meet  her  onceor 
?:LI  "rekand  wallc  with  her,  etc.,  witl,  herparcntB^  Itnowledgc  and 

"r":tcUrSed,    Q.  Te.,wh.  the  repn«,.n  of  ...  ,.r.  U 

r;i:  rirof^oor  :L"r;,r;t:;rnro.  th. 

"  regnUr  '  ,n  Dunnore ;  I  don't  believe  .1  went  wita  her  over  two  or 
''^f^rS  Mirr..=-(the  prosecutor,,  on  cros.e..u>iua. 

"TZZ'^'^^'  «  yo"'  ^-^r  «-,r  t,T  I  hate 
.•re^lar"  iuDunmore?    A.  No,  >ir i  I  never  did.    ^«;  "' '  J  »''° 

hea^tk  but  have  no  certainty  of  it,  and  thc«  «e  the  ch.r«=tera 

"  AtCcll  of  the  Commonwealth's  ease  defendant's  counsel  moved 
the  0^  to^ke  "on.  the  jury  the  question  of  seduction  and  submU  to 
*em  no  other  question  but  that  of  fornication  and  bastardy.    Motion 

"Tcourt'cSlTthe  jury,  i,ue.alia.    "The  prosecutor  aU^» 
.hr;rl  a  U- of^Lrla,"  made  to  -  a.u^.  -  t 

r:rt;rifi;'prri^.thi.y.n.^^^^^^^ 
r:r;^.r:trorr.tiy::-™.:-^^ 

^  ?r«  to  h!  found  bv  you  from  th«  evidence  in  this  case,  before 
requisites  to  be  '°«°^jy /    •    *    *    That  therefore  leaves  but  two 

nectiou  take  place  because  of  the  promise  «'  "^"""fS;?^^       ,     ^  ^y^^ 
-  It  is  contended  that  this  case  requires  the  essentials  so  far  as  tne 


„*.l^S>«>,.>^"».«-K'»5»-««l~l*«>«'»«*""^'^"*'**"- 


QALS. 

larry  her  if  sbe 
lI  not  have  per- 
!(1.  There  was 
■(Is  said  to  Mrs 
it  he  had  done  ; 
jroriiisod  to  be 
mt  denied  such 

marriage  on  the 
meet  her  once  or 
'  knowledge  and 

on  of  this  girl  is 

\.  I  heard  said 

the  name  of  the 

her  over  two  or 

1  cro88-examiua- 

the  name  of  the 
Yes,  sir ;  I  have 
re  the  characters 

t*8  counsel  moved 
ion  and  submit  to 
lastardy.    Motion 

jrosecutor  alleges 
lughter  before  this 
dant  says  that  he 
ly,  but  admits  that 
nee  of  course  con- 
isecutor.    Now  the 
a  case  of  this  na- 
taining  the  promise 
!  made  out  by  posi- 
ne  of  the  essential 
in  this  case,  before 
fore  leaves  but  two 
presented  to  you: 
,  did  the  illicit  con- 
kge? 
entials  so  far  as  the 


RICE   V.  COMMONWEALTH. 


761 


making  of  presents,  writing  of  love  letters  and  all  of  such  things  tliat 
pass  between  young  people,  to  make  out  this  case.  But  we  liavo  long 
passed  that  d.ay,  so  far  as  courtship  is  concerned.  There  is  no  doubt 
but  that  in  the  early  history  of  these  cases  when  the  defendant  was  not 
permitted  to  go  upon  the  witness  stand  and  not  allowed  to  testify,  that 
there  should  be  corroborative  evidence  to  sustain  the  charge  made  by 
the  young  lady  of  the  promise  of  marriage ;  but  in  our  day  and  gener- 
ation when  a  defendant  may  go  upon  the  witness  stand  and  testify 
equally  as  well  as  the  prosecutor,  tlien  of  course  these  essentials  are  not 
absolutoly  necessary,  although  they  may  yet  appear  in  the  case.  The 
proper  way  to  dispose  of  cases  of  this  kind  is  to  take  each  case  as  it 
stands  on  its  own  four  legs,  take  the  case  as  the  parties  built  it  up, 
keeping  in  mind  their  standing  in  society  and  their  immediate  manner 
of  courtship. 

"  One  man  may  desire  to  court  the  girl  he  desires  to  make  his  wife  in 
a  secluded  place  or  he  may  desire  to  keep  it  quiet ;  another  may  be  in 
the  habit  of  keeping  company  with  a  young  lady  and  appear  upon  the 
public  highway  from  time  to  time  so  that  uU  may  see  him  ;  hence  there 
is  no  standard,  each  case  must  stand  on  its  own  four  legs  as  the  parties 
built  it  up. 

"  Now,  in  this  case  it  is  for  you  to  say  whether  the  meetings  of  these 
parties,  which  continued  for  over  a  year,  was  merely  for  the  purpose  of 
having  illicit  connection,  or  whether  it  was  for  an  honorable  purpose 
on  the  part  of  the  defendant  —  that  is,  for  tlie  purpose  of  making  the 
young  lady  his  wife. 

"  Now  it  is  for  you  to  say  from  all  of  the  evidence,  and  the  surround- 
ing circumstances  of  this  case,  whether  the  original  meeting  was  honora- 
ble, or  whether,  if  he  made  a  promise  of  marriage,  it  was  made  for  an 
honorable  purpose,  and  not  for  the  purpose  of  deceiving  the  young  lady, 
and  gaining  her  affection,  so  tliat  he  might  have  illicit  connection  with 
her." 

Verdict,  guilty  in  manner  and  form,  etc.  The  defendant  was  sen- 
tenced to  pay  the  costs  of  prosecution,  and  a  fine  of  $500,  and  to  sepa- 
rate and  solitary  confinement  in  the  Eastern  penitentiary  for  one  year 
and  six  months. 

The  defendant  having  v,btained  a  special  <iUocatur,  took  this  writ,  as- 
signing for  error  the  refusal  by  the  court  of  his  motion  to  withdraw  the 
quviStion  of  seduction  from  the  jury  and  the  portions  of  the  charge  above 
quoted. 

Cornelius  Smith,  for  the  plaintiff  in  error,  cited  Commonwealth  v. 
Walton.^ 

1  7  BreWBt.  489. 


\ 


762 


CRIMES   AGAINST  THE   PERSONS   OF    INDIVIDUALS. 


J.  F.  Connolly  (with  him  E.  W.  Simrell,  district-attorney,  and  H. 
M.  Hannah),  for  tlie  defendant  in  error. 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  convicted  in  the  court  below  of  tlic  offense 
of  seduction.  The  record  having  been  lirought  into  this  court  for 
review,  several  errors  have  been  assigned  to  the  rulings  of  the  learned 
judge,  tl»e  most  material  of  wliich  are  the  second  and  third. 

It  was  palpable  error  to  instruct  the  jury  that  evidence  to  corroborate 
the  prosecutrix  in  regard  to  the  promise  of  marriage  is  no  longer  neces- 
saay.  Upon  this  point  the  learned  judge  charged :  ' '  There  is  no  doubt 
but  that  in  the  early  history  of  these  cases,  when  the  defendant  was  not 
permitted  to  go  upon  the  witness  stand,  and  not  allowed  to  testify, 
that  there  sliould  be  corroborative  evidence  to  sustain  the  charge  made 
by  the  young  lady  of  the  promise  of  marriage.  But  in  our  day  and  gen- 
eration when  a  defendant  may  go  upon  the  witness  stand  and  testify 
equally  as  well  as  the  prosecutor,  then,  of  course  these  essentials  are 
not  absolutely  necessary,  although  they  may  yet  appear  in  the  case. 
The  proper  way  to  dispose  of  cases  of  this  kind  is  to  take  each  case  as 
it  stands  on  its  own  four  legs,  take  the  case  as  the  parties  built  it  up, 
keeping  in  mind  their  standing  in  society,  and  their  immediate  manner 
of  courtship." 

The  forty-first  section  of  the  act  of  the  31st  of  March,  1860,^  which 
defines  the  offense  of  seduction,  expressly  provides,  "  that  the  promise 
of  marriage  shall  not  be  deemed  established,  unless  the  testimony  of  the 
female  seduced  is  corroborated  by  other  evidence,  either  circumstatial 

or  positive." 

The  fact  that  a  defendant  charged  with  seduction  is  now  allowed  to 
testify  on  his  own  behalf,  does  not  repeal  this  provision  of  the  act  of 
1860.  It  is  urged,  however,  that  this  error  was  cured  by  the  previous 
portion  of  the  charge  in  which  the  law  upon  this  subject  was  correctly 
ruled.  If  we  take  the  charge  as  a  whole,  we  find  this  point  ruled  both 
ways.  Unfortunately  the  erroneous  ruling  was  the  last,  and,  therefore, 
likely  to  have  made  lodgment  with  the  jury.  We  can  not  say  it  did  no 
harm  in  view  of  the  connection  of  the  plaintiff  in  error,  and  the  very 
feeble  corroboration  of  the  prosecutrix  upon  the  question  of  the  promise 

of  marriage. 

The  learned  judge  also  c-rred  in  charging:  "  It  is  contended  that  this 
case  requires  the  essentials  so  far  as  the  making  of  presents,  writing  of 
love  letters  and  all  of  such  things  that  pass  between  young  people,  to 
make  out  this  case.    But  we  have  long  passed  that  day  so  far  as  court- 


1  F.  L.  < 


iiiiaiiil<ii'i**»  ir  »*  ifltw 


UALS. 

torney,  and  H. 

30urt. 

!>•  of  the  offense 
>  this  court  for 
:9  of  the  learned 
liird. 

je  to  corroborate 
no  longer  neces- 
'here  is  no  doubt 
efendantwas  not 
lowed  to  testify, 
the  cbarge  made 
our  day  and  gen- 
tand  and  testify 
se  essentials  are 
car  in  the  case, 
alvc  each  case  as 
rties  built  it  up, 
imediate  manner 

rch,  1860,1  which 

that  the  promise 

!  testimony  of  the 

her  circumstatial 

}  now  allowed  to 
ion  of  the  act  of 

by  the  previous 
ject  was  correctly 
point  ruled  both 
it,  and,  therefore, 

not  say  it  did  no 
•ror,  and  the  very 
on  of  the  promise 

intended  that  this 

•esents,  writing  of 

young  people,  to 

ly  so  far  as  court- 


RICK    V.  COJIMONWEALTH. 


768 


ship  is  concerned.  •  »  •  One  man  ma}-  desire  to  court  the  yirl  he 
desires  to  inal<e  his  wife  in  a  secluded  place  as  he  may  desire  to  kei'p  it 
quiet ;  another  may  be  in  the  habit  of  keeping  company  with  a  young 
lady  and  appear  upon  the  public  highway  from  time  to  time,  so  that  all 
may  see  him;  hence  there  is  no  standard,  each  case  must  stand  on  its 
own  four  legs  as  tlio  parties  built  it  up." 

This  instruction  was  not  calculated  to  aid  the  jury  in  arriving  at  a  cor- 
rect conclusion.  In  view  of  the  cliaracter  of  the  e^'idence  it  was  not 
only  inadequate,  but  misleading  and  erroneous.  The  attentions  from 
which  the  jury  were  permitted  to  infer  a  promise  of  marriage  were  of 
an  equivocal  character.  The  plaintiff  in  error  had  been  in  the  house  oV 
the  prosecutrix  but  four  times,  according  to  her  own  statement,  and  that 
of  her  mother,  and  then  only  for  a  short  time.  He  met  lier  out  in  the 
evenings,  sometimes  at  church,  walked  home  with  her  and  kept  her  at 
the  gate.  This  is  not  the  kind  of  intercourse  that  usually  takes  place 
between  persons  engaged  to  be  married.  It  may  tend  to  matrimony,  but 
is  quite  as  likelj'  to  lead  to  something  else.  Circumstantial  evidence  of 
an  engagement  of  marriage  is  to  be  found  in  the  proof  of  such  facts  as 
usually  accompany  that  relation.  Among  them  may  be  mentioned  let- 
ters, presents,  social  attentions  of  various  kinds,  visiting  together  in 
company,  preparations  for  housekeeping  and  the  like.  These  and  simi- 
lar circumstances,  especially  when  the  attentions  are  exclusive  and  con- 
tinued a  long  time,  may  well  justify  a  jury  in  finding  a  promise  of 
marriage.  But  the  court  below  ignored  all  these  matters  as  being  no 
longer  essential,  or  rather  as  belonging  to  a  past  age,  and  virtually  in- 
structed the  jury  that  attentions  paid  to  a  woman  "  ina  secluded  place" 
are  quite  as  satisfactory  evidence  of  such  promise. 

We  can  not  assent  to  this  proposition.  The  circumstances  which  will 
warrant  a  jury  in  finding  an  intention  to  marry  must  be  of  those  pure 
acts  which  mark  an  honorable  purpose,  and  not  attentions  which  are 
consistent  only  with  the  pursuit  of  lust. 

The  instruction  complained  of  in  the  fourth  assignment,  while  not 
positive  error,  was  well  calculated  to  mislead  the  jury  in  the  absence  of 
any  adequate  instruction  upon  the  law  of  the  case. 

The  fifth  assignment  does  not  appear  to  be  sustained  by  an  exception 
and  moreover  is  immaterial. 

We  can  not  say  it  was  error  to  refuse  to  withdraw  the  question  of 
seduction  from  the  jury.  There  was  some  proof  that  plaintiff  in  error 
admitted  the  promise  to  marry.  The  mere  evidence  of  his  attentions  to 
the  j'oung  woman  was  not  sufficient  to  carry  the  case  to  the  jury. 

Judgment  reversed. 


764  CRIMES   AGAINST  TUB   PEKSON8   OF   INDIVIDUALS. 


SEDUCTION -UNDER  PROMISE  OF  MARRIAGE -INSUFFICIENT 

TKOOF. 

ElCE   V.  COSIMONWEALTH. 

[102  Pa.  St.  408.J 
In  the.Supreme  Court  of  Penntylvania,  1883. 

X.  On  a  Trial  for  fitoduotlon  XTnder  Proml.e  of  marrlngo  mere  .ocial  nttcntions  on  tho 
p^i,  t  odho  UufonUant  to  tho  prosecutrix  are  not  «ufflcient  to  corroborate  her  testimony 
of  u  prumiso  of  marriage. 

2.  Evidence  that  the  Defendant  confeBso.)  to  the  seduction  and  declared  an  Intention  to 
make  amends  by  marrying  the  prosecutr.x  does  not  raUe  an  Inference  of  a  previous 
promise  of  marriaBo;  nor  does  proof  that  he  wished  to  settle  the  case  by  payment  of 
money. 

Error  to  the  Court  of  Quarter  Sessions  of  Lackawanna  County. 

CornelivLS  Smith,  for  the  plaintiff  in  error, 

H.  M.  Hannah,  with  J.  F.  Connolly,  for  the  defendant  in  error. 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court. 

When  this  case  was  here  upon  a  former  writ  of  error,  we  said  positively 
that,  "  the  mere  evidence  of  liis  (plaintiffs')  attentions  was  not  sufficient 
to  carry  the  case  to  the  jury."     In  other  words  they  were  not  such 
attentions  as  would  justify  a  jury  in  presuming  a  promise  of  marriage, 
or  would  amount  to  such  corroboration  of  the  prosecutrix  as  the  act  of 
Assembly  requires  in  cases  of  seduction.     Upon  a  state  of  facts  in  no 
essential  features  differing  from  those  of  the  former,  the  learned  j  udge  be- 
low charged  the  jury  (see  seventh  assignment):  "But  there  is  evi- 
dence of  social  attention  of  various  kinds,  if  you  believe  it.     If  it  is 
true  that  this  young  man  did  accompany  this  young  lady  from  church 
and  waited  upon  her  home,  and  called  at  the  house  of  her  parents  and 
then  waited  upon  her  now  and  then  for  two  years,  that  is  such  social  at- 
tentions, within  the  meaning  of  our  Supreme  Court,  as  would  warrant  you 
in  finding  that  fact  in  the  affirmative."     The  fact  to  which  the  learned 
judge  referred  was  the  promise  of  marriage.     He  has  entirely  mistaken 
our  language  and  meaning.     We  repeat  now  what  he  said  then,  that  the 
evidenc°e  of  attentions  on  the  part  of  the  plaintiff  to  the  prosecutrix  was 
not  sufficient  to  submit  to  the  jury  upon  the  question  of  corroboration. 
And  the  jury  should  be  so  instructed  in  the  future  if  necessary  upon 
the  same  or  a  similar  state  of  facts. 

But  one  other  matter  remains.  We  said  before  with  some  reluc- 
tance that  we  "  can  not  say  it  was  error  to  refuse  to  withdraw  the  ques- 
tion It  seduction  from  the  jury.     There  was  some  proof  that  plaintiff  in 

error  admitted  the  promise  to  marry."     The  evidence  was  exceedingly 

weak,  but  as  the  case  had  to  go  back  for  other  reasons,  we  thought  best 


—siwiiia* 


/VLS. 


RICE   V.  COMMONWEALTH. 


765 


UFFICIENT 


nttciitions  on  the 
■ate  her  testimony 

red  an  Intention  to 
jnce  of  a  previous 
ase  by  payraonl  of 


County. 

Qt  in  error. 

5  said  positively 
as  not  sufficient 

were  not  such 
se  of  marriage, 
ix  as  tlie  act  of 
e  of  facts  in  no 
larned  judge  be- 
ut  tliere  is  evi- 
ieve  it.     If  it  is 
dy  from  claurch 
her  parents  and 
3  sucli  social  at- 
uld  warrant  you 
hich  the  learned 
itirely  mistaken 
id  then,  that  the 
prosecutrix  was 
F  corroboration. 

necessary  upon 

ith  some  reluc- 
hdraw  the  ques- 
'.  that  plaintifl  in 
was  exceedingly 
we  thought  best 


to  allow  this  question  to  be  again  submitted  to  the  jury.  It  has  not 
been  strengthened  upon  the  second  trial.  The  mother  of  the  prosecu- 
trix sent  for  tlie  plaintiff  in  error,  after  site  learned  her  daughter  was  in 
trouble.  lie  came  to  her  house  and  had  an  interview  with  her  in  the 
presence  of  her  husband  and  her  daughter.  Mrs.  Robertson  thus  re- 
lates wiiat  occurred: — 
Q.  What  did  you  say  to  him  (plaintiff) ;  what  were  the  words? 
A.  I  told  him  this  was  a  nice  jol)  ho  hiia  done ;  I  tolil  liini  he  must 
fulfill  his  promise,  and  not  to  bring  the  rest  of  the  family  to  sliame. 
Cross-examined :  Q.  I  want  you  to  tell  the  first  thing  said ;  who  said 
it  and  the  answer? 

A.  He  bid  good  evening  with  mo  and  said  he  was  sorry  for  what  be 
had  done. 

Q.  Told  you  he  was  sory  for  what  he  had  done ;  who  spoke  next? 
A.  Himself ;  he  said  lie  would  marry  if  I  waited  two  weeks,  because 
he  said  he  owed  his  sister  some  money ;  I  told  him  to  fulllll  his  prom- 
ise and  not  bring  my  family  to  shame. 

There  is  nothing  here  from  which  a  jury  could  safely  find  a  previous 
promise  to  marry.  This  view  is  strengthened  by  what  followed.  Upon 
her  redirect  examination  the  same  witness  related  what  occurred  as 
follows: — 

Q.  Tell  us  what  took  place  at  the  time  Rice  came  to  your  house  when 
you  sent  for  him  ? 

A.  He  came  to  talk  to  me. 
Q.  What  was  the  first  thing  said? 

A.  We  bid  good  evening  together,  and  he  told  me  he  was  so»ry  for 
what  he  had  done,  and  if  I  should  leave  it  for  two  weeks,  he  would 
marry  her ;  I  told  him  I  would  not  leave  it  two  days ;  I  said  I  had  a 
small  family  coming  up  and  did  not  want  to  bring  them  to  shame ;  he 
said  he  hadn't  money  enough  to  get  married  now,  he  owed  his  sister 
board.  I  said  he  could  get  married  and  have'  her  home  there  and  not 
to  bring  my  little  family  to  shame. 

Cross-examined :  Q.  Then,  if  I  understand  it  now,  it  was  this  way : 
Rice  said  he  owed  some  money  for  board  and  could  not  marry  short  of 
two  weeks? 
A.  Yes,  sir. 
Q.  And  then  you  went  on  and  said  he  could  fulfill  his  promise,  that 

he  would  have  a  home  there.    - 

A.  I  said  if  he  would  fulfill  his  promise  and  let  her  come  home  as  he 
promised,  that  her  home  was  there  for  her,  and  not  bring  my  family  to 
shame,  as  I  told  you  before. 

As  the  case  now  stands  it  is  our  duty  to  express  a  decided  opinion  upon 
this  evidence.    The  implication  which  might  be  gathered  from  the  ex- 


f    I 


-•'^"-liWiMBiBtfrf*''^"*''"'*'^'"" '    ^■■""""'■"^i"'*' 


(iiiriiiMiiiiWrnniiwriiiimmfniimttif'irr-r'-'"-"--"'"™'''''^""' '""''"'-" 


7fi<; 


CKIMES   AGAINST  TIIK    I'ERSONS   OP   INDIVIDUALS. 


amination  in  chief,  that  the  plaintiff  leferrcd  to  a  previous  promise  to 
marry,  Ih  entirely  removed  by  the  cruss-exaraiimtion,  which  shows  that 
the  plaintiff  was  merely  expressing  a  regret  for  what  he  had  done  and  a 
willingni'ss  to  re[)air  tlio  wrong  by  marrying  the  girl.  And  when  we 
examine  the  subsequent  re-examination  and  recross-examination  there 
fan  not  be  a  doubt  u[)on  this  matter.  There  is  nothing  here  upon 
which  this  verdict  can  stand.  Tlic  evidence  was  almost  a  scintilla,  and 
it  will  not  do  to  send  a  man  to  tho  penitentiary  u[)on  a  scintilla. 

It  was  said,  however,  that  the  case  was  strengthened  by  the  testi- 
mony of  Ody  Biglin,  who  stated  that  he  had  a  conversation  with  the 
plaintiff,  in  which  the  latter  said,  "  lie  would  give  8200  to  settle  it,  and 
wouldn't  give  no  more  ;  that  he  was  guilty  of  the  crime."  It  would  be 
straining  the  language  to  say  that  the  plaintiff  referred  to  the  promise 
of  marriage.  The  crime  of  which  he  admitted  his  guilt  was  evidently 
the  illicit  intercourse.  Tliat  was  not  seriously  denied;  indeed,  the 
plaintiff  acknowledged  it  on  his  former  trial. 

There  was  one  feature  of  the  trial  below  that  we  can  not  pass  with- 
out comment.  It  was  the  failure  of  the  Commonwealth  to  call  the 
father  of  the  prosecutrix  in  regard  to  the  conversation  we  have  referred 
to  between  the  mother  of  the  prosecutrix  and  the  plaintiff.  The  prose- 
cutrix and  her  father  were  present  at  that  interview.  Neither  was 
called.  It  matters  little  about  the  prosecutrix,  as  her  evidence  in  re- 
gard to  the  promise  of  marriage  could  not  be  aided  by  placing  her  upon 
the  stand  again.  But  under  the  circumstances  of  tlie  case,  It  was  the 
plain  duty  of  the  Commonwealth  to  have  called  her  father.  This  was 
the  mt>re  necessary  by  reason  of  the  equivocal  character  of  Mrs.  Rob- 
ertson's testimony  as  well  as  that  of  her  daughter.  The  Commonwealth 
demands  justice,  not  victims.  This  belongs  to  a  class  of  cases  where 
the  whole  truth  should  be  brought  out,  if  possible.  Upon  so  vital  a 
question  as  whether  at  the  interview  referred  the  plaintiff  admitted  a 
promise  of  marriage  prior  to  the  seduction,  the  neglect  by  the  Common- 
wealth to  call  the  father  of  the  girl,  who  was  presi.  -.^  at  the  interview 
and  heard  all  that  was  said,  would  have  justified  the  jury  in  drawing  an 
inference  seriously  unfavorable  to  the  prosecution,  and  the  court  below 
would  have  been  at  least  justified  in  saying  so. 

If  the  plaintiff  in  error  has  been  guilty  of  fornication,  of  which  there 
seema  little  doubt,  he  may  be  convicted  of  that  offense  under  this  bill. 
•     The  judgment  is  reversed,  and  it  is  ordered  that  the  record,  with 
this  opinion,  setting  forth  the  causes  of  the  reversal,  be  remanded  to 
the  court  below  for  further  proceedings. 


■•r^.:^^''«'-'^-^-:Vh-^i^^l'-Ji^*'.^'y.'^:t^^'<' 


»JS-^^l^Vi-rt."-o 


;i*S!«!i«H(t»-.i-E 


[Ai^ 


^itm^m 


CROOUAN   V  STATE. 


767 


AL8. 

US  protniae  to 
Ich  shows  that 
ad  (lone  nnd  a 
And  wlien  we 
[uination  thcru 
ng  here  upon 
I  scintilla,  and 
ntilla. 

1  by  the  testi- 
ation  with  the 
)  settle  it,  and 
'  It  would  be 
to  the  promise 
was  evidently 
;    indeed,  the 

not  pass  wlth- 
th  to  call  the 
I  have  referred 
r.  The  prose- 
Neither  was 
evidence  in  re- 
atiug  her  upon 
ase,  it  was  the 
icr.  This  was 
'  of  Mrs.  Rob- 
Doramonwealth 
of  cases  where 
Ipoii  so  vital  a 
tiff  admitted  a 
r  the  Common- 
t  the  interview 
'  in  drawing  an 
he  court  below 

of  which  there 
ider  this  bill, 
e  record,  with 
e  remanded  to 


SEDUCTION— WHEN  WOMAN   DOES  NOT  CONSENT,  NOT  SEDUCTION. 

Croghan  V.  State. 

[22  Wis.  444.] 
7)1  the  Supreme  Court  of  Wiaconain,  1868. 

1.  Where  the  Woman  does  not  Conaent  to  the  intercourae  the  crime  ii  not  ledactlon, 

2.  The  Court  OharKed  the  Jury  tliiit "  If  the  wonmii  ultlmattily  conRontod  to  the  illicit 

iDteruourso  tlio  crlmu  wan  F>LMliirtion,  thoiiKh  eho  consented  partly  'Urougb  fear  and 
parUy  becau«e  the  defeudunt  hurt  her."    Held,  error. 

FiRRon  to  the  Circuit  Court  of  Marathon  County. 

S.  U.  Pinney  and  E.  R.  Chase,  for  plaintiff  in  error,  cited  Wright 
v.  State,^  State  v.  BierceJ  • 

The  Attorney-Oeiipral  and  W.  C.  SUverthorny  for  the  State,  cited 
Revised  Statutes, ^  Wliarton's  Criminal  Law,'*  15  Greenleaf's  Evidence,'"' 
5  Sneed,"  3  Zabriakie,''  29  Connecticut,^  1  Halstead,'  Commonwealth 
v.  Parr.^^ 

Cole,  J.  This  was  an  indictment  under  section  5,"  for  seduction. 
The  prosecutrix  in  her  testimony  states  the  circumstances  under  whicii 
the  sexual  intercourse  took  place.  It  appears  that  she  was  between 
fifteen  and  sixteen  years  of  age  at  the  time,  and  was  living  with  the 
defendant,  who  had  married  her  aunt.  The  girl's  parents  lived  in  Min- 
nesota, and  the  defendant  in  Marathon  County.  The  girl  states  that 
one  night  the  defendant,  during  the  absence  of  his  wife,  came  into  her 
room  after  she  had  gone  to  bed  and  insisted  upon  getting  into  bed  with 
her — that  she  resisted  and  he  choked  her  —  that  he  finally  had  inter- 
course with  her,  and  threatened  to  kill  her  if  she  told  of  it ;  that  at 
another  time,  in  April,  18G5,  in  his  own  house,  he  seized  her  —  said  he 
would  have  what  he  wanted,  or  he  would  choke  her  —  that  he  threw  her 
across  the  bed-rail,  and  had  intercourse  with  her.  The  girl  said  that 
she  yielded  to  him,  partly  on  account  of  his  threats,  and  partly  because 
he  hurt  her.  The  court  charged  that  there  was  but  one  offense  charged 
in  the  indictment,  which  was  that  of  seduction ;  that  it  was  necessary 
he  should  define  the  difference  between  seduction  and  rape ;  that  if 
they  found  that  the  woman  ultimately  consented  to  the  illicit  inter- 
course, the  crime  was  seduction,  although  she  consented  partly  through 


1  4Hnmph.  m. 

2  27  Conn.  320. 

3  eh.  164,  sec.  89. 
*  1>.  1141. 

'  p.  210. 
«  p.  881. 


'p.  80. 
»  p.23i. 
>  p.  829. 

10  6  W.  &  S.  349. 

11  ch.  170,  B.  I. 


^jggjjailjBIBtaiW^bitili<iiM8M>t;.W»ata^^ 


tWJy  ■  J  flltiWJ  ..'J  K*.!^ 


768 


CRIMES    AGAINST   THE   PERSONS    OF   INDIVIDUALS. 


fear  and  partly  because  the  defendant  hurt  her ;  but  that  if  she  did  not 
consent,  and  the  offense  was  commuted  by  force,  it  would  be  rape, 
and  the  defendant  should  be  acquitted.  The  counsel  for  the  defendant 
excepted  to  that  part  of  the  charge  which  defined  the  offense  of  seduc- 
tion ;  and  the  correc^tness  of  the  i  nin«  on  that  point  is  the  0T.ly  ques- 
tion we  have  to  consider. 

The  crime  of  seduction  is  not  to  be  confounded  with  the  higher  and 
more  atrocious  crime  of  rape.     Tue  latter  crime  is  defined  to  be  the 
carnal  knowledge  of  a  woman  by  a  man  forcibly  and  unlawfully, 
against  her  will.^    The  element   of    force    forms  a  material   ingre- 
dient  of  the  offense,   by  which   the   resistance  of  the  woman  vio- 
lated is    overcome,   or  her  consent  induced  by  threats  of   personal 
violence,  duress  or  fraud.     For,  unless  the  consent  of  the  woman  to  the 
unlawful  intercourse  is  freely  and  voluntarily  given,  the  offense  of  rape 
is  complete.     But  the  word  "  seduction  "  when  applied  to  the  conduct 
of  a  man  towards  a  female,  is  generally  understood  to  mean  the  use  of 
some  influence,   promise,  acts,  or  means  on  his  part,   by  which  he 
induces  the  woman  to  surrender  her  chastity  and  virtue  to  his  embraces. 
But  we  do  not  suppose  that  it  must  appear  that  any  distinct  promise 
was  made  to  the  femalfr,  or  any  subtle  art  or  device  employed.     It  is 
sufficient  that  means  were  used  to  accomplish  the  seduction  and  induce 
the  female  to  consent  to  the  sexual  intercourse.     Perhaps  the  motive 
of  fear  on  the  mind  of  the  female  is  not  to  be  excluded  —  not  the  fear 
of  personal  violence  and  injury  unless  she  consents  to  the  connection, 
but  a  fear  that  the  mar  may  in  some  way  injure  her  reputation  or 
standing    in  society,   unless  she    yields    to  his  importunities.     But 
the  woman  must  be  tempted,  allured,  and  led  astray  from  the  path 
of  virtue,  through  the  influence  of  some  means  or  persuasion  employed 
by  the  man,  until  she  freely  consents  to  the  sexual  connection.     But  if 
the  circumstances  show  that  this  consent  was  obtainea  by  the  use  of 
force,  and  the  woman's  will  was  overcome  by  fear  of  personal  injury, 
then  the  crine  becomes  one  of  a  higher  grade.     Now  it  appears  to  us 
•    that  the  ;  rror  in  the  charge  of  the  court  consists  in  holding  t'at  if  the 
woman  ultimately  consented  to  the  illicit  intercourse,  the  crime  was 
seduction,  although  such  consent  was  obtained  partly  through  fear,  and 
partly  ttecause  the  defendant  hurt  her.     The  ultimate  consent  of  the 
girl  might  have  been  gained  solely  because  the  defendant  hurt  her,  and 
through  threats  of  further  personal  violenr  \     And  if  this  were  so, 
then  it  is  very  manifest  that  the  crime  is  not  seduction,  but  one  of 
greater  atrocity.     But  notwithstanding  the  defendant  treated  the  girl 
roughly  at  first,  and  actually  threatened  to  kill  her,  yet  if  she  after- 

1  2  Bouv.  L.  Die, "  Rape." 


fiijiiiiiiliiiJiiMWMirl 


■WWMiW 


[V1DUAL6. 

;  that  if  she  did  not 
!,  it  woulJ  be  rape, 
el  for  the  defendant 
le  offense  of  seduc- 
int  is  the  OT.ly  quea- 

with  the  higher  and 
is  defined  to  be  the 
ly  and  unlawfully, 

a  material  ingre- 
of  the  woman  vio- 
tbreats  of  personal 
of  the  woman  to  the 
I,  the  offense  of  rape 
plied  to  the  conduct 
d  to  mean  the  use  of 
part,  by  which  he 
irtue  to  his  embraces, 
any  distinct  promise 
'ice  employed.  It  is 
seduction  and  induce 

Perhaps  the  motive 
iluded  —  not  the  fear 
its  to  the  connection, 
re  her  reputation  or 

importunities.  But 
istray  from  the  path 
persuasion  employed 
1  connection.  But  if 
itainea  by  the  use  of 
ir  of  personal  injury. 
Now  it  appears  to  us 
in  holding  t'at  if  the 
ourse,  the  crime  was 
rtly  through  fear,  and 
timate  consent  of  the 
fendant  hurt  her,  and 
And  if  this  were  so, 
seduction,  but  one  of 
idant  treated  the  girl 
her,  yet  if  she  after- 


ABDUCTION. 


769 


wards  freely  consented  to  the  sexual  intercourse,  being  enticed  and 
persuaded  to  surrender  her  chastity  by  menas  employed  by  him,  then 
the  offense  is  seduction.  There  are  circumstances  attending  this  case, 
as  presented  upon  the  record,  which  are  well  calculated  to  excite  feel- 
ings of  the  liveliest  indignation  towards  the  defendant ;  but  we  for- 
bear to  comment  on  them  at  this  time.  The  case  must  go  back  for  a 
new  trial  on  account  of  the  error  in  the  charge  before  alUulcd  to.  For 
it  is  probably  as  important  for  the  protection  of  female  character  that 
the  true  distinction  between  the  crime  of  seduction  and  rai)e  should  be 
maintained,  as  that  criminal  justice  should  be  properly  administered 
in  th'  8  case. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  a  vinire  de  novo 
awarded. 


NOTES. 

§  606.  At)  otlcTi  not  a  Crime  at  Common  Law. — Abduction  is  not  a 
crime  in  tlie  a.      nee  of  a  statute,  i.e.,  at  common  law.i 

§  607.  Abduction  —  Man  not  Bound  to  Return  Girl.  —  A  man  is  not  bound 
to  return  to  her  parent's  custody  a  girl  wlio  witliout  any  inducement  on  iiis  part 
has  left  home  and  come  to  him.^ 

§  608.  Abduction — Olrl  must  ba  In  Cbarge  of  Parents.  —  In  R.  v.  Miller,'* 
the  prisoner  was  indicted  for  talving  Sarah  Ann  Buckley,  a  girl  fourteen  years 
old,  out  of  the  possession  and  against  the  will  of  her  fatlier.  The  girl  testified 
as  follows:  "  I  am  unman ;ed  and  am  fourteen  years  and  nine  months  old,  and 
am  the  daughter  of  George  Buckley,  who  lives  at  Seven  Oaks,  Cheshire.  On 
Sunday,  October  10, 1875, 1  was  in  service  at  Mr.  Edgesley's,  Budworth.  I  linow 
the  prisoner.  On  the  Thursday  before  the  10th  Octol)er  I  saw  him,  and  told  him 
I  was  going  to  see  my  father  on  the  Sunday.  Prisoner  used  to  come  to  see  me 
at  Edgesley's,  but  rny  mistress  told  him  not  to  do  so.  I  u>^d,  however,  to  see 
him  when  he  came.  On  Sunday,  the  10th,  I  left  about  half-pcTr,  eight  in  the 
morning  to  go  and  see  my  father.  I  passed  the  prisoner's  housb  "^nd  called  in 
and  waited  for  hira.  We  went  tostether  in  the  direction  c  uiy  father's  house, 
eight  miles  off,  but  prisoner  left  me  about  a  mile  or  so  ijtiore  we  got  tl  ere.  I 
had  leave  to  stay  with  my  father  till  the  next  night,  and  prisoner  knew  this. 
I  stayed  at  my  father's  till  the  Sunday  afternoon,  and  then  told  him  I  was  going 
back  to  Edgesley's  that  night  — he  did  not  know  that  I  had  li'ave  to  stay  till  the 
Monday.  My  father  let  me  go,  and  I  then  went  to  meet  the  prisoner,  as  we  had 
arranged  before  ho  left  me  in  the  morning.  We  walked  afxiut,  and  then  went 
to  my  master's  at  Ebern  at  night,  but  did  not  go  in;  and  prisoner  said  "  Uon't 


1  state  V.  Sullivan,  85  X.  C.  806  (1881). 
3  B.  v.Ollfler,10Cox,402  (1866). 
3  DEFENCEd. 


3  13CoJl,179  (1876). 


48 


muiwilltii 


HJMMWlWWIMliiBwrlliW 


770  CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 

go  In,  it's  too  late ;  come  with  me."  I  therefore  went  with  him,  and  we  passed 
the  nlghv,  together  in  an  out-house  near  his  father's.  Next  morning  he  told  me 
to  go  to  his  parents'  house,  and  I  did  so.  I  started  to  go  back  to  my  master's 
In  the  afternoon,  and  prisoner  went  with  me,  but  I  did  not  like  to  go  In,  and 
prisoner  again  Induced  me  to  return  with  him,  and  I  remained  at  his  father  and 
mother's  till  Thursday,  when  I  accidentally  met  my  father,  and  he  took  me  back 
to  Mr.  Edgesley.  I  only  passed  the  Sunday  alone  with  the  prisoner.  I  might 
have  gone  back  to  my  master's  any  time  I  liked  after  the  Monday  night.  Though 
I  had  leave  to  stay  away  till  the  Monday  night,  I  never  intended  doing  so.  Pris- 
oner used  to  come  with  his  concertina  to  see  me  In  my  master's  garden." 

Dunn,  for  the  prisoner,  contended  that  there  had  been  no  abduction  In  the 
case  — no  taking  the  girl  away  from  her  master,  as  contemplated  by  the  Act  of 
Parliament,  and  that  the  girl  had  permission  to  be  away  at  the  time  the  offense 
(if  any),  was  committed;  and  further  that  there  was  no  attempt  to  keep  her 
away  from  her  service  on  the  following  day.i 

Williams,  further  submitted  that  the  girl  might  have  been  taken  froD.  her 
lather's  possession  as  she  was  on  >  visit  to  him,  and  he  in  effect  only  let  her  i 
to  return  to  her  master. 

Dunn,  on  the  other  hand,  cited  Terrj  v.  Hutchinson,^  and  Begina  v.  Mycock,^  as 
showing  that  the  girl  was  in  the  constructive  care  or  charge  of  her  master,  as 
she  had  the  intention  of  returning  to  him. 

Lush,  J.,  said  that  the  present  was  not  such  a  case  as  the  statute  was  in- 
tended to  meet,  and  the  cases  cited  by  the  prisoner's  counsel  were  in  point. 
He  should,  therefore,  direct  the  jury  that  there  was  no  evidence  of  the  prisoner 
having  taken  the  girl  out  of  her  father's  or  her  master's  possession,  and  there 
was  no  abduction ;  that  is,  no  taking  and  keeping  the  girl  away,  such  as  the  law 
required  to  sustain  a  conviction  under  the  statute. 

Verdict,  not  guilty. 

§  609.  Abduction  — Taltlnfir  out  of  Poaaesslon  of  Father.  — In  B.  v.  Ghreen,* 
Green  and  Bates  were  indicted  that  tliey  did  take  one  Susannah  Robinson, 
an  unmarried  girl,  being  under  the  age  of  sixteen  years,  out  of  the  possession 
and  against  the  will  of  her  father. 

The  girl  was  under  fourteen,  and  lived  with  her  father,  a  fisherman,  at 
Southend.  On  the  23d  of  June,  the  prisoners  saw  her  In  the  streets  of  that 
place,  by  herself,  and  invited  her  to  go  with  them,  giving  her  drink  to  induce 
her,  which  made  her  dizzy  and  sick.  They  took  her  to  a  lonely  house  which  was 
undergoing  repair,  and  then  Green  had  criminal  Intercourse  with  her,  keeping 
her  there  all  night.  Next  morning  the  child  was  found  there  crying,  and  this 
charge  was  preferred. 

On  the  opening  of  the  case,  — 

Martin,  B.,  said  there  must  be  a  taking  out  of  the  possession  of  the  father. 
Here,  the  prisoners  picked  up  th<»  girl  in  the  streets,  and  for  anything  that  ap- 
peared, they  might  not  have  known  that  the  girl  had  a  father.  The  essence  of 
the  offense  was  taking  the  girl  out  of  the  possession  of  the  father.  The  girl  was 
not  taken  out  of  the  possession  of  any  one.  The  prisoners,  no  doubt,  had  done  a 
very  Immoml  act,  'lut  the  queiJtlon  was  whether  they  had  committed  an  illegal 
act.    The  criminal  law  ought  not  to  be  strained  to  meet  a  case  which  did  not 


1  Reg.  V.  OUlfer,  10  Cox,  V.  C.  402. 
•  18L.T.  Rep.  (N.  8.)  621,  B97. 


3  UCox.C.U.  28. 

4  8  F.  ft  7.374  (1862). 


UALS. 

n,  and  we  passed 
irning  he  told  me 
k  to  my  master's 
like  to  go  in,  aud 
at  his  father  and 
:  he  took  me  back 
risoner.  I  might 
y  night.  Thongh 
1  doing  80.  Prls- 
'9  garden." 
I  abduction  in  the 
ited  by  the  Act  of 
a  time  the  ofiense 
tempt  to  keep  her 

n  taken  f  rooi  her 
!ct  only  let  her  /. 

Una  V.  Mycock,^  as 
of  her  master,  as 

he  statute  was  in- 
3el  were  in  point, 
ce  of  the  prisoner 
session,  and  there 
,y,  such  as  the  law 

rdict,  not  guilty. 

—  In  B.  V.  Cheen,* 

jannah  Robinson, 

of  the  possession 

!r,  a  fisherman,  at 
:he  streets  of  that 
ir  drink  to  induce 
y  house  whict  was 
I  with  her,  keeping 
ire  crying,  and  this 


ision  of  the  father, 
r  anything  that  ap- 
ir.  The  essence  of 
thev.  The  girl  was 
>  doubt,  had  done  a 
mmitted  an  iUogal 
;ase  which  did  not 


ABDUCTION — "PURPOSE   OF   PROSTITUTION. 


771 


come  within  it.  The  act  of  the  prisoners  was  scandalous,  but  It  was  not  any 
lejriil  offense.  He  had  told  the  grand  jury  so,  and  advised  them  to  throw  out  the 
bill.    He  should  direct  the  jury  to  acquit  the  prisoners. 

The  formal  verdict  of  not  gu'.it.  was  then  taken,  and  the  prisoners  were  dis- 
charged. 

§609a.  Abduction  — Intent  to  Marry.  — To  take  a  girl  under  eighteen  from 
the  custody  of  her  parents  with  the  intention  of  marrying  her  is  not  within  the 
California  statute. > 

§  610.  Abduction  — "TalElntf  or  Caualngr  to  be  Taken  "  — Fraudulent  De- 
coying rot  Within  the  Phrase.  — In  li.  \.  Meadows,^  M.  was  indicted  under  a 
stati'te  for  fraudulently  "  taking  or  causing  to  be  taken  au  unmarried  girl 
under  sixteen  out  of  the  possession  aud  against  the  will  of  her  father."  It  ap- 
peared that  a  girl  who  was  In  service  as  she  was  returning  from  an  errand  was 
asked  by  M.  If  she  would  go  to  London  as  his  mother  wanted  a  servant  and 
would  give  her  £5  wages.  The  girl  and  M.  went  together  to  London  where  they 
were  arrested.    It  was  held  that  this  was  not  within  the  statute. 

§  ';il.  Abduction  — "Taklnsr"  for  Purpose  of  "Prostitution"  or  "Oon- 
cublua'.  .■."—  lu  People  v.  Parshall,^  the  court.  In  reversing  the  conviction,  say : 
•  I J  eviilence  of  the  girl  fell  short  in  several  respects  of  being  s  ifflcient  to 
produce  a  conviction  under  that  count;  and  first,  as  to  the  taking  away.  The 
evidence  of  the  girl  in  question  does  not  show  that  she  was  taken  away  from 
any  one  according  to  her  testimony.  The  first  she  ever  saw  of  the  defendant 
was  on  Clinton  Street,  in  the  city  of  Rochester;  that  a  little  girl,  Mary  Broch, 
was  with  her  after  Christmas,  18G1,  In  the  morning,  eight  or  nine  o'clock  or  at 
noon;  they  had  no  conversation.  She  states,  «we  girls  laughed  at  his  long 
beard.'  He  turned  round;  the  next  time  the  said  Hannah  Naughton  saw  him 
was  on  Buffalo  Street  about  a  month  after  that;  she  w.->8  alone;  defendant 
passed  by  her  and  then  came  back  and  said  to  her  he  thought  he  knew  her. 
She  told  him  he  was  mistaken  In  the  person.  He  told  her  he  had  seen  her  be- 
fore; she  then  said  to  him  she  had  seen  him  in  Clinton  Street.  Then  follows  a 
long  statement  of  conversations  and  meetings  between  her  and  the  defendant, 
and  transactions  between  them  tending  to  show  a  brutal  desire  on  the  part  of 
the  defendant  to  have  carnal  Intercourse  with  the  girl,  and  a  gradual  yielding 
on  her  part,  which  resulted  in  his  attempt  to  consummate  his  design,  but  which, 
according  to  her  account,  failed  of  success.  In  all  of  which  there  was  no  com- 
pulsion on  his  part,  nothing  but  coaxinfe  and  persuasion,  to  which  she  appears 
to  have  voluntorlly  yielded;  she  was  during  thosf  transactions  living  with  her 
sister,  Mrs.  Quine.  It  does  not  appear  that  the  defendant  was  ever  at  Mrs 
Qulne's;  all  the  meetings  he  had  with  her  were  in  the  streets.  His  conduit 
shows  an  attempt  to  seduce  her,  and  the  testimony  of  the  girl  does  not  tend  '.o 
show  that  there  was  any  taking  of  her  In  the  sense  of  the  statute,  which  coo- 
templates  some  positive  act  to  get  the  female  away  from  the  person  having  the 
legal  charge  of  her;  nothing  of  that  kind  appears. 

"  Second.  There  is  an  entire  absence  of  evidence  tending  to  show  either  of  the 
purposes  mentioned  In  the  act  to  characterize  the  taking,  If  there  had  been  one. 


1  People  V.  Marshall,  59  Cal.  386 
3  1  C.  .4  K.  398  (1844). 


»  6  Park.  139  (1864). 


-ovf^nsnaoMKH 


772 


Cn?MES   AGAINST   THE   PERSONS    OF   INDIVIDUALS. 


It  l8  impossible  to  believe  from  the  testimony  of  the  girl,  that  there  was  a  pur- 
pose of  her  prostitution,  as  that  term  is  to  be  understood  in  the  statute.  In 
Carpenter  v.  People,^  we  had  occasion  to  consider  carefully  the  sense  in  which 
the  same  word  was  used  in  a  cognate  statute,  and  we  then  held  that  it  meant 
the  practice  of  a  female  offering  her  body  to  the  indiscriminate  intercourse 
with  men;  the  common  lewdness  of  a  female  — we  think  the  word  was  used  In 
the  same  sense  lu  the  statute  under  which  the  defendant  was  convicted. 

"  Was  there  a  purpose  of  concubinage?  a  purpose  to  malce  her  his  concubine? 
Such  an  inference  from  the  girl's  testimony  it  seems  to  me  is  preposterous. 
The  defendant  was  a  married  man,  living  with  his  wife,  and  keeping  house  In 
the  city  of  Rochester,  and  the  girl  under  fourteen  years  of  age,  too  young  and 
physically  too  uudevelopod,  as  her  evidence  shows,  to  'ie  able  to  afford  him  any 
of  that  gratification  which  the  presumed  motive  for  such  a  relation  implies ; 
and,  when  finally,  he  discovered  this  fact,  in  an  attempt  .o  have  sexual  Inter- 
cours-e  with  her,  and  failed  for  that  reason,  he  abandoned  Lis  pursuit,  as  it  does 
not  appear  that  he  met  or  saw  her  afterwards. 

«'  Third  and  last.  W.s  there  a  purpose  of  marriage?  This  question  is  too 
plain  for  argument.  There  is  not  a  syllable  of  evidence  to  warrant  the  ex- 
istence of  such  a  purpose  " 

§  612.  Abduction  — "Purpoae  of  Prostitution."  — ''Purpose  of  i.rostltu- 
tion"  does  not  mean  iu.ercourse  with  one  man,  but  means  for  the  purpose  o* 
common  indiscriminate  intercouriSe.i' 

This  was  held  In  State  v.  Stoyell,^  following  Commonwealth  v.  Cook.  In 
Commonwealth  v.  Cook,*'  the  defendant  was  inUcted  under  the  Massachusetts 
statute  of  1845,°  which  enacts  that  "  any  persou  vvlio  shall  fraudulently  and  de- 
ceitfully entice  or  take  away  any  unmarried  woman,  of  a  chaste  life  and  conver- 
sation, froru  ho;-  father's  house  or  wherever  else  she  may  be  found,  for  the 
purpose  of  prostitution,  at  a  house  of  ill-fame,  assignation  or  elsewhere,"  etc., 
"  sliall  be  punished,"  etc.  The  trial  was  In  the  Court  of  Common  Pleas,  before 
Wells,  C.  J.,  wliose  report  thereof  was  in  substance  as  follows:  — 

The  evidence  tended  to  prove,  among  other  things,  that  from  November, 
1844,  to  September,  1845,  the  defendant  and  Emily  Forest  (the  female  whom  the 
indictment  charged  the  defendant  with  enticing  away),  lived  In  the  same  house, 
she  being  seventeen  years  old,  and  residing  in  her  father's  family,  and  the  de- 
fendant occupying  another  part  of  the  house ;  that  Emily,  during  this  period, 
lived  sometimes  in  the  family  of  the  defendant,  assisting  in  the  work  of  the 
family  when  the  defendant's  wife  was  sick;  that  while  she  was  bo  in  his  family 
and  afterwards,  he  attempted  to  seduce  her,  and  persuade  her  to  go  away  with 
him;  that  he  endeavored  to  make  her  discontented  with  her  parents  and  dissat- 
isfied with  being  under  their  charge;  that  she  flnal'y  consented  to  go  off 
and  live  with  him  under  a  promise  that  she  should  not  live  with  him  as 
his  wife,  and  that  her  chastity  should  never  be  violated  without  her  con- 
sen::  that  she  left  home  voluntarily,  and  that  the  defendant  never  exercised 
ovei  her  any  coercion  or  restraint;  that  they  went  to  Philadelphia,  vhere 
he  hired  a  single  room  with  only  one  bed  in  It,  and  that  they  rem«ined  there 
nine  days,  sleeping  in  the  sfime  bed;  that  he  repeatedly  solicited  her  chasi  ty, 


1  8 Barb.  603. 

•  State  V.  Ruhl,  8  Iowa,  447  (18S9). 

*  M  Me.  24. 


«  12  Mete.  93  (1846). 
'  ch.  216,  tec.  1. 


^f^^-s^M-^ 


tjgS^$SSli^SSS^i^^i^ti^^iA^i'ttJ&ai^ik 


>UALS. 


ABDUCTION  —  "PURPOSE   OF   PROSTITUTION. 


773 


It  there  was  a  pur- 
lu  the  statute.  In 
the  sense  in  which 
held  that  it  meant 
ninute  intercourse 
word  was  used  in 
1  convicted, 
her  his  concubine? 
li  is  preposterous, 
i  Iceeping  house  in 
age,  too  young  and 
e  to  afford  him  any 
a  relation  implies ; 
I  have  sexual  inter- 
)  pursuit,  as  it  does 

lis  question  is  too 
to  warrant  the  ex- 

rpose  of  i.rostitu- 
i  for  the  purpose  o^ 

wealth  V.  Cook.  In 
the  Massachusetts 
•audulently  and  de- 
iste  life  and  conver- 
T  be  found,  for  the 
)r  elsewhere,"  etc., 
ramon  Pleas,  before 
ws:  — 

at  from  November, 
:ie  female  whom  the 
1  in  the  same  house, 
family,  and  the  de- 
during  this  period, 
in  the  work  of  the 
ivas  so  in  his  family 
her  to  go  away  with 
■  parents  and  dissat- 
onsented  to  go  off 
it  live  with  him  as 
1  without  her  con- 
mt  never  exercised 
Philadelphia,  vhere 
they  remained  there 
liclted  her  chasi  ty^ 


iSi:&^£ltiii^JtJ&6t^i 


was  angry  at  her  for  not  yielding,  and  twice  pushed  her  out  of  bed,  and  once 
pinched  her  arm  to  punish  her  for  not  complying. 

The  counsel  for  the  defendant  contended  that  by  the  term  "prostitution," 
in  the  statute  1845,'  was  meant  not  only  illicit  iutercor,ise  and  cohabitation  with 
a  single  individual,  but  an  intercourse  on  the  part  of  the  female  abducted  with 
many  individuals,  or  common  prostitntion ;  that  the  statute  offense  could  not 
be  committed  l)y  an  individual's  fraudulently  and  dcce'.tf ully  enticing  or  taking 
away  a  female,  for  the  purpose  of  living  with  him  in  a  state  of  illicit  Inter- 
course; such  being  merely  a  purpose  of  seduction,  and  not  the  purpose  con- 
templated by  the  statute.  But  the  court  ruled,  among  other  things,  "that  If 
the  design  of  the  defendant  was  to  take  the  person  abducted  to  some  plnco  for 
the  purpose  of  there  living  with  her  in  a  state  of  illicit  intercourse,  sticli  con- 
duct was  a  violation  of  the  statute,  although  he  had  no  purpose  of  causing  or 
inducing  her  to  have  Illicit  Intercourse  with  any  one  else."  The  jury  found  the 
defendant  guilty,  and  he  alleged  exceptions  to  the  ruling  of  the  court. 

Dewky,  .T.  Wp  are  called  upon  to  give  a  legal  construction  to  the  statute 
of  1845,3  upon  questions  reserved  in  a  case  presenting  painful  details  of  grossly 
immoral  acts,  and  pen  violations  of  the  divine  law.  Such  cases  are  not  the 
most  favorable  for  a  dispassionate  consultation  of  questions  of  law,  the  decis- 
iou  of  which  Involves  the  question  whether  the  party  shall  be  punished,  or  be 
discharged  as  not  guilty  of  any  offense  cognizable  by  our  laws.  But  cases  of 
gross  Immorality  do  fror:,  time  to  time,  oocur,  in  which  the  court  feel  cod- 
Etrainel  to  say  tliat  the  acts  complained  of  are  not  punishable  criminally  by 
any  "statute  law  of  the  Commonwealth;  and  the  Inquiry  which  meets  us  in  the 
present  case,  involves  precisely  that  point.  Are  the  acts  of  the  defendant  pun- 
ishable by  the  statmo  above  mentioned?  Dealing  with  the  present  case  lu  It* 
most  agsravated  <ispect,  supposing  it  may  be  properly  inferred,  from  the  evi- 
dence, that  the  defendant,  by  any  artful  means  enticed  Emily  Forest  voluntarily  to 
leave  her  father's  dwelling,  to  accompany  the  defendant  to  another  State,  and 
to  take  up  a  temporary  residence  in  such  State,  and  the  parties  there  to  cohabit 
as  husband  and  wife.  Yet  all  these  facts,  however  offensive  to  our  feelings,  as 
Christian  moralists,  if  they  had  occurred  prior  to  March  25th,  1846,  tho  date  of 
the  act  "  to  punish  abduction  "  would  not  have  subjected  the  defendant  to  a 
conviction  In  Massachusetts,  for  the  simple  reason  that  the  jurisdiction  of  the 
offense  attaches  elsewhere;  the  crime  would  have  been  committed  in  the  State 
where  tho  parties  cohabited  as  husband  and  wife,  and  would  be  punishable 
under  the  laws  of  such  State.  The  question,  therefore,  in  the  present  case,  Is 
not  one  to  aching  the  guilt  of  the  defendant  In  NawYorkor  Pennsylvania,  where 
he  cohabited  with  the  female,  or  whether  he  may  not  be  iiulicttd  and  convicted 
there  for  the  crime  of  adultery ;  but  simply  whether  his  acts  within  the  Common- 
wealth are  of  such  a  character  '.s  subject  him  to  punishment  here.  The  de- 
fendant is  not  charged  with  any  acts  of  adultery  witli  Emily  Forest  within  this 
Commonwealth.  The  extent  of  the  charge  is  that  he  fraudulently  and  deceit- 
fully enticed  her  away  from  her  father's  house,  for  the  purpose  of  illicit  inter- 
course with  her  In  another  State;  and  the  extent  of  tho  tinding  of  the  jury 
under  the  ruling  of  the  court,  must  be  taken  to  be,  that  tho  defendant  fraud- 
ulently and  deceitfully  enticed  her  away  from  her  father's  house  for  the  purpose 
of  having  personal  sexual  intercourse  with  her  in  such  other  State.  This  brings 
n.s  to  the  great  question  in  this  case,  that  of  the  construction  of  the  statute  of 

"  ch  216,  _ 


774  CRIMES   AGAINST  THE   PERSONS   OF  INDIVIDUALS. 

1845  1  Was  it  intended  to  embrace  the  offense  of  entkiug  away  an  unmarried 
Ln  ale  for  the  .ole  purpose  of  illicit  intercourse  with  the  Individual  thus  en- 
t  CLcr  awav  •,  or  Is  the  offense,  which  is  made  punishable  by  this  statu  e  the 
Jraudulent  enticing  away  of  females  for  the  more  gross  and  aggravated  crime  of 
con  morpros  i  utfon,  and  espccluliy  the  procuring  of  females  for  Jo--  "  J"" 
JaT  or  acting  as  ag^nt  and  servant  of  others  in  enticing  females  to  rne.tmch 
othe  persons  It  houses  of  assignation?  The  cases  nre  certainly  '^^-f^^f^ 
Ttlie  character  and  degree  of  moral  turpitude.  Whether  the  Legislature  In- 
tentdt  embrLe  all  these  classes  of  oilenses,  including  cases  of  mere  seduc 
tion.  Is  a  question  certdinly  not  free  from  difficulty. 

We  are  aware  of  the  strong  and  deep  feeling  which  has  pervaded  this  com- 
mull  y  upon  the  general  subject,  asmanifested  by  the  numerous  Pe^it  ons  w^J^h 
have  from  time  to  time,  been  presented  to  the  Legislature,  prnylng  for  further 
Lgislatlou  to  punish  the  crime  of  seduction.    We  know  from  the  journals  of  the 
les  s  a   ve  I^ranches,  that  bills  have  been  introduced,  punishing  with  heavy  pcn- 
alSe    th^o^       of  seduction.    But  such  bills  have  not  as  yet  been  sane  ioned 
by  le-Watlve  adoption,  so  far  as  to  have  become  statute  enactments.    D.fflcul- 
tTe    h  rsusgestld  themselves  in  the  attempt  to  legislate  upon  the  subjec    o 
8eduai^3n,  wMch  have  induced  the  Legislature  to  postpone  the  enactment  of 
fiudS     and  the  re.ult  has  been,  that  our  Legislature  has  gone  no  further 
than  the  enactment  of  theBa-uleof  1845,^nowthe  subject  of  consideration 
"hat^yneed  be  .aid  that  in  construing  a  statute  creating  a  "-vcrlmnal 
.  o«  ns.   and  enacting  heavy  penalties  by  way  of  punishment,  a  sir ic    construc- 
tio  ^h^uid  be  adopted.    The  court  can  go  no  further  than  the  Legislature  have 
gone     l"  in  the  use  of  terms  detining  an  offense,  the  Legislature  have  used 
fau^unge  indicating  a  particular  species  of  immorality,  the  court  can  only  pi^-e 
a  ilk    eftVct  to  such  words.    The  offense  created  by  the  statute  is  that  of  fraud, 
^leutlv  and  deceitfully  enticing  aud  taking  away  an  unmarried  woman  from  her 
JatcN  house  "  for  the  purpose  of  prostitution  at  a  house  of  ill-fame,  assignation 
or    Ne  vi^e  "•    Whati   the  meaning  of  the  term  "  prostitution !  "    We  can  not 
hei'    alin  n  any  other  cases  where  crimes  are  made  punishable  by  statute,  and 
;     /eft  uudCined  by  such  statut ,  have  recourse  to  the  well  l^--  -mmo„-la^^^ 
deflnitions  of  such  crimes  for  the  exposition  of  the  character  of  the  o«e°se 
thu s     ade  punishaDle  by  a  le^nslative  act.    No  such  legal  definitions  of  the  term 
C  tiU^l'on  "  are  to  be  found .  offenses  of  this  nature  not  being  the  ^uo.ec 
of  punishment  by  the  common-law  tribunals.    We  must,  there  ore,  resort   otb. 
definitions  of  lexicographers  of  the  best  authority  as  our  f "';'«;    "^.^^^^^  *° 
Walker's  Dictionary,  we  find  prostitution  defined  "the  act  of  setting  to  sa  t, 
^ti  e  1  fe  o    a  pubf.;  strumpet."    A  prostitute  is  defined  "  a  hireling;  a  mer- 
cenary ,  one  wl!o  is  set  to  sale ;  a  public  strumpet."    Johnson  defines  a  pros    - 
me  .'a  public  strumpet,  a  hireling."    To  prostitute  "to  expose  upon  vile 
terms  "    In  Webster's  Dictionary,  prostitution  is  "  tii«  act  or  Pract.ce  of  offer- 
ing  the  body  to  an  indiscriminate  intercourse  with  men."    Prostitute  is     a 
efnale  given  to  indiscriminate  lewdness ;  a  strumpet."    Prostituting   s  •'  offer- 
ing to  indiscriminate  lewdness."    These  definitions,  it  will  be  seen  all  apijy  to 
prostitution,  the  act  of  permitting  illicit  intercourse  for  hire,  an  indiscriminate 
InTeTcourse,  or  what  is  deemed  public  prostitutiou.    That  such  is  the  meaning 
of  the  term  "  prostitution  "  is  strongly  confirmed  by  the  case  of  Commomceam 
V  Harrington:^    In  that  case  an  Indictment  was  sustained  against  a  party  who 


_cli.  216. 


2  ch.  216. 


3  3  Pick.  26. 


joMMfijliimUi'  iiniimniiii 


>UAL8. 

tray  an  unmarried 
idlvldual  thus  en- 
)y  this  statute,  the 
;c;ravated  crime  of 
a  for  houses  of  ill- 
nalcs  to  meet  such 
alyf'istinguishable 
the  Legislature  in- 
sea  of  mere  seduc- 

)ervaded  this  com- 
3us  petitions  which 
prnylng  for  further 
the  journals  of  the 
lug  with  Ilea vypcn- 
et  been  aanctioned 
ictmenta.    Difflcul- 
apon  the  subject  of 
e  the  enactment  of 
Eis  gone  no  further 
;t  of  consideration, 
ting  a  new  criminal 
t,  a  strict  construc- 
he  Legislature  have 
;l8lature  have  used 
court  can  only  give 
ute  is  that  of  fraud- 
ied  woman  from  her 
ill-fume,  assignation 
tiou!"    We  can  not 
lable  by  statute,  and 
Itnown  common-law 
acter  of  the  offense 
jfluitious  of  the  term 
jt  being  the  subject 
jrefore,  resort  'o  the 
uiile.    If  we  re.er  to 
of  setting  to  sa'e ;  " 
"a  hireling;  a  mer- 
son  defines  a  prosti- 
to  expose  upon  vile 
t  or  practice  of  offer- 
."    Prostitute  is  "a 
rostitutiug  is  "  offer- 
1  be  seen,  all  apply  to 
Te,  an  Indiscriminate 
i  such  is  the  meaning 
ase  of  Commonwealth 
1  against  a  party  who 

3  3  Pick.  26. 


ABDUCTION  —  «*  CHASTE   CHARACTER. 


775 


was  alleged  to  have  leased  a  house  to  one  B.,  with  the  Intent  that  the  business 
of  prostitution  should  be  carried  on  there.  The  case  throughout  assumes  that 
prostitution  means  common  indiscriminate  sexual  Intercourse  In  distinction 
from  sexual  intercourse  confined  exclusively  to  one  individual.  It  la  true,  aa 
stated  by  the  counsel  for  the  government,  that  th«  terra  "prostitution"  has 
been  sometimes  used  lu  a  more  loose  and  general  sense,  and  that  Instances  of 
such  use  of  the  word  may  be  found  in  reports  of  judicial  decisions.^  But  we 
are  rather  to  Inquire  what  is  the  appropriate  and  well  authorized  meaning  of 
the  term,  and  to  assume  that  the  Legislature,  in  using  the  terms  in  describing 
the  offense  created  by  the  statute.  Intended  to  use  the  word  In  its  proper  accep- 
tation. We  can  not,  therefore,  give  to  the  word  "  prostitution  "  the  broad  and 
extensive  application  contended  for  on  the  part  of  the  government.  Such  a 
construction  of  the  statute  would,  to  some  considerable  extent,  make  it  applica- 
ble to  cases  where  the  real  offense  is  seduction. 

The  court  are  of  the  opinion  that  the  offense  made  punishable  by  this  statute  is 
something  beyond  that  of  merely  procuring  a  female  to  leave  her  father's  house 
for  the  sole  purpose  of  illicit  intercourse  with  the  individual  thus  soliciting  her 
to  accompany  him;  that  she  must  be  enticed  away  with  the  view,  and  for  the 
purpose,  of  placing  her  in  a  house  of  ill-fame,  place  of  assignation,  or  else- 
where, to  become  a  prostitute.  In  the  more  full  and  exact  sense  of  that  term; 
that  she  must  be  placed  there  for  common  and  Indiscriminate  sexual  Inter- 
course with  men;  or,  at  least,  that  she  must  be  enticed  away  for  the  purpose 
of  sexual  Intercourse  by  others  than  the  party  who  thus  entices  her;  and  that 
a  mere  enticing  away  of  a  female,  for  a  personal  sexual  intercourse,  will  not 
subject  the  offender  to  the  penalties  of  this  statute. 

This  decision,  while  in  one  respect  it  narrows  the  application  of  the  statute, 
and  excludes  cases  of  mere  seduction,  or  illicit  Intercourse  with  the  individual 
enticing,  leaves  a  large  application  of  It  to  cases  of  a  more  aggravated  charac- 
ter, and  will  embrace  all  of  either  sex  who  shall  fraudulently  entice  away 
females  for  the  purpose  of  supplying  brothels  and  houses  of  ill-fame,  or  with  a 
view  to  induce  them  to  prostitute  their  persons  for  money  or  hire.  As  the 
view  we  have  taken  of  this  statute  differs  from  that  taken  at  the  trial,  the 
exceptions  are  sustained,  and  the  verdict  set  aside. 

In  Osbom  v.  State,^  the  Supreme  Court  of  Indiana  held  that  the  offense  of 
abduction  for  "the  purpose  of  prostitution"  meant  for  tlie  purpose  of  common 
Indiscriminate  intercourse  with  men,  and  not  with  one  man  only  citing  the 
earlier  cases  of  Comwnnimlth  v.  Cook,"  Carpenter  v.  People,*  State  v.  Buhl,* 
and  Slate  v.  Stoyellfi 

§  613.  Abduction  — "Previous  Ohaate  Character."  —  The  statute  as  to 
abduction  of  females  of  '•  previous  chaste  character  "  means  of  actual  personal 
virtue  as  distinguished  from  a  good  reputation  and  a  single  previous  act  of 
illicit  intercourse  on  the  part  of  the  female  Is  a  defence.' 

§614.  Seduction  — "Previous  Chaste  Character." —" Previous  chaste 
character  "  means  actual  personal  chastity « as  in  the  statutes  as  to  abduction. 


1  1  W.  Bl.  619;  3  Burr.  1589;  13  8.  A  B.  82. 

a  S2  Ind.  6-26  (1876). 

3  12  Mete.  9r>. 

*  3  Barb.  d03. 

>  3  Iowa,  447. 

<  M  Me.  24. 


\ 


I  Lyons  v.  State,  52  Ind.  428.  See  People 
V.  UodcrigaB,49Cal.  9  (1874). 

«  Croiler  v.  People,  1  Park.  C.  C.  4S3 
(1853) ;  Safford  v.  People,  1  Park.  C.  0.  474 
(1864) ;  People  v.  Kenyon,  6  Park.  C.  C.  254 
(1862) ;  Carpenter  ».  People,  8  Barb.  00% 
(1S60) ;  Andre  v.  State,  6  Iowa,  389  (1857). 


776  CRIMES  AGAINST  THE  PERSONS  OP   INDIVIDUALS. 

§  616.  Seduction  —  "  Purpose  of  Proetltutlon."  —  And  as  In  the  statutes  as 
to  abduction  "  purpose  of  prostitution  "  means  for  the  purpose  of  cohabiting 
with  men  generally.* 

§  616.  Seduction  —Woman  Mtist  be  Ohaate  to  Time  of  Seduction.  —  The 
woman  must  be  of  '•  chaste  character  "  up  to  the  time  of  the  seduction  —  It  will 
not  do  that  she  was  chaste  before  the  promise  to  marry  or  previous  to  the  day 
on  which  the  seduction  took  place.^ 

§  617.  Seduction  —  Promise  of  Marriage  Necessary.  —  The  promise  of 
marriage  is  an  essential  element  under  the  statutes .»  And  the  promise  must 
be  clearly  proved.*  And  It  must  be  shown  that  some  artifice,  promise  or 
deception  was  resorted  to  by  the  defendant  to  induce  the  girl  to  have  connec- 
tion with  him.' 

In  People  v.  Clark,^  the  court,  in  defining  and  describing  the  statutory  crime 
of  seduction,  said :  "  Illicit  intercourse  alone  would  not  constitute  the  offense 
charged.    lu  addition  to  this  the  complainant,  relying  upon  some  sufficient 
promise  or  Inducement,  and  without  which  she  would  not  have  yielded,  must 
have  been  drawn  aside  from  the  path  of  virtue  she  was  honestly  pursuing  at 
the  time  the  offense  charged  was  committed.    Now,  from  her  own  testimony  it 
would  seem  that  the  parties  had  illicit  intercourse  as  opportunity  offered. 
« Such  is  the  force  and  ungovernable  nature  of  this  passion,  and  so  likely  Is  its 
indulgence  to  be  continued  between  the  same  parties,  when  once  yielded  to, 
that  the  constitution  of  the  human  mind  must  be  entirely  changed  before  any 
man's  judgment  can  resist  the  conclusion,'  that  where  parties  thus  Indulge 
their  criminal  desires,  it  shows  a  willingness  upon  her  part  that  a  person  of 
chaste  character  would  not  be  guilty  of,  and  that  although  a  promise  of  mar- 
riage may  have  been  made  at  each  time  as  an  Inducement,  It  would  be  but  a 
mere  matter  of  form,  and  could  not  alone  safely  be  relied  upon  to  establish  the 
fact  that  she  would  not  have  yielded,  had  such  a  promise  not  been  made.    We 
do  not  wish  to  be  understood  as  saying  that,  even  as  between  the  same  parties, 
there  could  not  be  a  second  or  even  third  act  of  seduction;  but  where  the  sub- 
sequent alleged  acts  follow  the  first  so  closely,  they  destroy  the  presumption  of 
chastity  which  would  otherwise  prevail,  and  there  should  be  clear  and  satisfac- 
tory proof  that  the  complainant  had  in  truth  and  fact  reformed,  otherwise  there 
could  be  no  seduction.    The  object  of  this  statute  was  not  to  punish  illicit  co- 
habitation.   Its  object  was  to  punish  the  seducer,  who,  by  his  arts  and  persua 
sion  prevails  over  the  chastity  of  an  unmarried  woman,  and  who  thus  draws 
her  aside  from  the  path  of  duty  and  rectitude  she  was  pursuing.    If,  however, 
she  had  already  fallen,  and  was  not  at  the  time  pursuing  this  path,  but  willingly 
submitted  to  his  embraces  as  opportunity  offered,  the  mere  fact  of  a  promise 
made  at  the  time  would  not  make  the  act  seduction.    Nor  will  Illicit  Intercourse 
which  takes  place  In  consequence  of,  and  In  reliance  upon  a  promise  made, 
make  th«  act  seduction.    If  this  were  so,  then  the  common  prostitute,  who  is 
willing  to  sell  her  person  to  any  miin,  mlgl.t  afterwards  make  the  act  seduction, 
by  proving  that  she  yielded  relying  upon  the  promise  of  compensation  made  her 
by  the  man,  and  without  which  she  would  not  have  submitted  to  his  embraces. 


1  Carpenter  ©.People, 8  Barb  603  (1880). 
a  State  v.  Gates,  27  Minn.  &3  (18S0). 
3  Cole  V.  State,  40  Tex.  147  (1874). 


•  Elce  V.  Com.,  102  Pa.  81. 408  (1883) ;  Uico 
Com.,  100  Pa.  St.  28(1882). 
s  Stater.  Crawford, 34  Iowa, 40  (1871). 
e  33  Mich.  112. 


inmimniriitiiwmi 


JALS. 

n  the  statutes  as 
>8e  of  cohabiting 


leductlon.  —  The 
•auction  —  it  will 
evious  to  the  day 

The  promise  of 

le  promise  must 

iflce,  promise  or 

to  have  counec- 

e  statutory  crime 
titute  the  ofleuse 
a  some  sufficieul 
ave  yielded,  must 
lestly  pursuing  at 
own  testimony  it 
lort unity  offered, 
ind  so  likely  is  Its 
1  once  yielded  to, 
langed  before  any 
ties  thus  Indulge 
c  that  a  person  of 
a,  promise  of  mar- 
It  would  be  but  a 
in  to  establiisb  the 
;  been  made.    Wo 
I  the  same  parties, 
lut  where  the  sub- 
he  presumption  of 
clear  and  satisf  ac- 
id, otherwise  there 
a  punish  illicit  co- 
is  arts  and  persua 
id  who  thus  draws 
ling.    If,  however, 
path,  but  willingly 
i  fact  of  a  promise 
1  illicit  intercourse 
t  a  promise  made, 
prostitute,  who  is 
I  the  act  seduction) 
peusation  made  her 
id  to  his  embraces. 

Pa.  St.  408  (1883) ;  Rice 

(1882). 

,U  Iowa,  40  (1871). 


SEDUCTION — "PROMISE   OF   MARRIAGE. 


777 


Illicit  intercourse,  in  reliance  upon  a  promise  made,  is  not  sufficient,  therefore, 
to  make  the  act  seduction.  The  nature  of  the  promise,  and  the  previous  char- 
acter of  the  woman  as  to  chastity,  must  be  considered.  And  although  the 
female  may  have  previously  left  the  path  of  virtue  on  account  of  the  seductive 
arts  and  persuasions  of  the  accused  or  some  other  person,  yet  if  she  has  re- 
pented of  that  act  and  reformed,  she  may  again  be  seduced.  We  do  not  say 
that  there  may  not  have  been  a  reformation  in  this  case;  Indeed,  there  may 
have  been  many,  but  they  were  unfortunately  fleeting.  Had  a  reasonable 
time  elapsed  between  the  different  acts,  a  presumption  in  favor  of  a  reformation 
might  arise,  but  we  think  no  such  presumption  could  arise  In  this  case,  and 
that  the  burden  of  proving  such  would  be  upon  the  prosecution." 

§  61 8.  Seduction  —  Promlso  of  Marrlsse  —  Married  Man.  —  A  married  man, 
known  to  be  such  by  the  woman,  can  not  be  guilty  of  seducing  her  under 
"promise  of  marriage."  In  Wood  v.  State,^  the  court  cay:  "The  statute  says 
by  persuasion  and  promise  of  marriage  or  other  false  and  fraudulent  means.  In 
this  is  implied  that  the  promise  must  also  be  a  fraud,  one  calculated  to  deceive, 
one  that  may  win  the  conildence  and  allay  the  suspicion  of  an  artless  and  un- 
suspecting maiden.  Can  a  promise  of  marriage  made  by  a  man  having  already 
a  'vlfe,  with  whom  he  is  at  the  time  living,  and  this  well  known  to  the  woman 
receiving  the  pledge,  have  such  an  effect?  Can  a  woman  of  ordinary  sense,  who 
has  allowed  such  a  promise  to  win  her  confidence,  claim  to  have  been  seduced 
by  acts  and  persuasions  into  the  sin  oi  foraication.  Can  she  be  said  to  be  a 
victim  if  she  has  trusted  to  the  vows  of  a  married  man  that  he  would  marry  her, 
knowing  as  she  does  that  he  can  not  and  will  not  marry  her?  We  think  not. 
The  woman  who  listens  to  such  a  promise  is  either  a  fool  or  she  is  a  bad  woman 
already.  The  confidence  of  no  good  woman  could  be  acquired  by  any  such 
promise.  It  could  not  be  the  means  of  seduction.  It  is  upon  its  very  face  a 
warning  to  beware.  It  is  a  promise  so  improper  in  Itself,  so  contrary  to  all 
notions  of  delicacy,  true  virtue  and  good  morals  that  any  girl  of  even  ordinary 
chastity  must  Instead  of  confiding  In,  be  shocked  by  it.  No  reasonable  human 
being  could  confide  in  such  a  promise  or  be  betray  ad  by  it  Into  confidence  In  the 
man  who  made  it.  The  girl  who  listens  to  such  a  promise  is  not  betrayed,  and 
such  an  excuse  as  that  she  toys  and  is  finally  a  criminal,  she  is  not  seduced,  but 
has  run,  of  her  own  lusts,  into  sin. 

In  People  v.  Alger,*  it  was  held  that  where  the  prisoner  was  a  married  man  at 
the  time  of  tho  promise  of  marriage,  tlie  woman  who  was  seduced  knowing  this 
fact  he  could  not  be  indicted.  The  Indictment  contained  three  counts.  The 
first  count  charged  that  the  defendant  under  promise  of  marriage  seduced  and 
had  illicit  intercourse  with  the  female,  she  being  unmarried  and  of  previously 
chaste  character,  following  the  language  of  tlie  act,  without  setting  out  the 
promise  or  averring  any  mutual  promise  on  her  part.  The  second  count  alleged 
that  the  defendant  promised  to  marry  the  female,  and  under  such  promise  of 
marriage  seduced,  etc.,  as  in  the  first  count  without  alleging  any  mutual  prom. 
ise  on  her  part.  The  third  count  was  substantially  like  the  first.  The  defend- 
ant pleaded  not  guilty  and  also  a  special  pica,  which  alleged  that  at  the  lime  of 
committing  the  acts  charged  in  the  indictment,  he  was,  and  for  five  years  pre- 
vious had  been,  a  married  man,  having  a  living  wife  and  family,  with  which  wife 
ana  family  he  was  then  living,  all  of  which  at  the  time  of  the  alleged  promise 


1  4S  Ga.  192  (1873). 


a  1  Park.  C.  C.  1333  (1851). 


778  CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 


and  seduction  was  well  known  to  the  Bald  female.  To  this  spec  al  pea  a 
demurrer  was  Interposed.  By  request  of  the  defendant's  counsel  and  with  the 
consent  of  the  counsel  for  the  People,  the  defendant's  plea  of  not  pul Ity  wa. 
stricken  out,  and  the  law  was  argued  upon  the  demurrer  to  the  special  plea. 

Johnson,  J.,  delivered  the  opinion  of  the  court. 

The  special  plea  admits  the  matters  alleged  In  the  Indictment  to  be  true,  as 
the  demurrer  does  those  set  up  In  the  cpeclal  plea.  ,       ,  ^  -  „„„ 

If  the  indictment  can  strictly  be  n-gardcd  as  setth.g  out  the  existence  of  any 
promise  of  marriage  as  a  matter  of  fact,  It  must  be  held  to  impart  an  absolute 
unconditional  one,  as  contradistinguished  from  a  promise  depending  upon  some 

condition  or  contingency. 

The  case  presented  by  the  pleadings  therefore,  Is  that  of  a  married  man  cohab- 
ItluK  with  a  lawful  wife,  promlslna  unquallfledly  and  unconditionally  to  marry 
an  unmarried  female,  she  knowing  and  understanding  his  situation,  and  under 
such  a  promise,  seducing  and  having  Illicit  Intercourse  with  her. 

Is  this  the  kind  of  promise  of  marriage  contemplated  by  the  act  for  the  pun- 
ishment of  seduction  as  a  crime?  .      „  ,  a 

However  criminal  and  offensive  the  act  may  be  In  the  light  of  religion  and 
morality  It  is  the  statute  alone  which  gives  It  a  criminal  character  in  the  eye  of 
the  law.  It  is  to  be  observed  that  the  act  Is  not,  as  Its  title  might  seem  to 
impart,  an  act  to  punish  seduction  generally  as  a  crime,  but  only  when  t  is 
accomplished  under  certain  circumstances,  when  the  parties  stand  in  a  particular 

relation  to  each  other. 

Three  facts  must  concur  to  render  the  seduction  a  crime  under  the  act. 

The  female  must  be  unmarried,  .he  must  b^  or  must  at  all  times  previously 
have  been,  of  chaste  character,  and  there  wudtbe  a  subsisting  promise  of  mar- 

""'Tall  these  concur,  then  the  seduction,  by  whatever  means  accomplished.  Is 
a  crime  and  punishable  as  such,  but  in  no  other  case  and  under  "ootl^r  cir- 
cumstances. It  is  not  necessary  that  the  promise  of  marriage  should  be  made 
or  used  as  the  Inducement  to  the  consent  of  the  female,  It  Is  enough  If  the 
parties  are  under  promise. 

The  framing  of  the  act  seems  to  have  assumed  that  under  such  circumstances 
th«  consent  of  the  female  might  be  much  more  readily  obtained.  That  she,  con- 
flding  in  the  promise  of  future  marriage,  and  relying  upon  it,  ^ould  be  more 
liable  to  yield  to  the  solicitations  and  temptations  of  the  man  under  this  obll- 
gallon  to  her,  than  otherwise.  Hence  the  statute  was  confined  to  this  partlcu- 
far  class  of  cases.  It  was  to  protect  females  really  standing  In  such  a  relation 
to  a  man,  and  confiding  in  his  promise,  from  the  employment  of  f ''"««ve  acts 
aUnst  them  by  the  man,  and  to  punish  him  who,  under  such  circumstances, 
sSuTd  be  guilty  of  violating  and  betraying  and  disappointing  tjat  confidence 
to  the  disgrace  and  ruin  of  the  female,  and  the  Injury  and  scandal  of  society, 
that  the  statute  was  chiefly  enacted. 

But  must  the  promise  of  marriage  be  mutual  to  bring  the  case  within  the 
statute?  It  is  clear  that  to  constitute  any  valid  promise  of  marriage  the  prom- 
ise  must  be  mutual.  Unless  the  obligation  be  reciprocal  it  Is  a  nullity.  It  is 
contended  by  the  counsel  for  the  People,  that  the  statute  does  not  require  this, 
that  if  the  man  Is  under  promise  to  the  female  It  is  immaterial  whether  suo  has 
ever  consented  or  ever  expects  to  marry  him  or  not.  The  statute,  it  s  true, 
taken  literally,  is  broad  enough  to  admit  of  this  Interpretation.  And  U  might 
be  carried  still  farther.  Because,  taken  literally.  It  is  not  necessary  that  the 
man  should  be  under  promise  of  marriage  to  the  woman  he  seduces.    Accord- 


WSfSBBP? 


S-W-yjftKtilLlila'^lwS 


hSjVlfi'B  j*?^K.r¥£.<; 


',\fSii^.x.):Xf_% ; 


'IDUALS. 

J  this  special  plea  a 
counsel  and  with  the 
ea  ot  not  guilty  was 
)  the  special  plea. 

ctment  to  be  true,  as 

t  the  existence  of  any 
to  Impart  an  absolute 
depending  upon  some 

a  married  man  cohab- 
londitlonally  to  marry 
i  situation,  and  under 
1th  her. 
)y  the  act  for  the  pun- 

e  light  of  religion  and 
character  in  the  eye  of 
ts  title  might  seem  to 
B,  but  only  when  It  is 
les  stand  in  a  particular 

ne  under  the  act. 

at  all  times  previously 

sting  promise  of  mar- 

neans  accomplished,  is 
ind  under  no  other  clr- 
irrlage  should  be  made 
lie,  it  is  enough  if  the 

der  such  circumstances 
talned.  That  she,  con- 
ipon  It,  would  be  more 
he  man  under  this  obll- 
onflned  to  this  particu- 
Qdlng  in  such  a  relation 
ymcnt  of  seductive  acts 
acr  such  circumstances, 
>ointlng  that  confidence 
and  scandal  of  society, 

ring  the  case  within  the 
e  of  marriage  the  prom- 
)cal  it  Is  a  nullity.  It  is 
te  does  not  require  this, 
aaterlal  whether  sua  has 
The  statute,  It  Is  truei 
pretatlon.  And  it  might 
i  not  necessary  that  the 
an  he  seduces.    Accord- 


8EDUCTION  —  "  MARRIED  MAN. 


779 


Ing  to  this,  every  man  who  was  under  promise  of  marriage  to  any  woman.  If  he 
should  seduce  an  yunniarrled  female,  would  fall  within  the  act.  But  this  obvl- 
ou»ly  is  not  the  spirit  and  meaning  of  tlie  statute.  It  must  have  a  reasonable 
construction,  so  as  to  meet  the  mUchlef  it  was  intended  to  remedy  If  suscepti- 
ble of  it.  Tlie  promise  nlUi^t  not  only  bo  to  the  female  seduced,  but  there  must 
be  a  correspoiullug  one  from  htr  Unill  the  obligation  Is  mutual  his  declara- 
tion that  ho  would  marry  the  female,  or  was  willing  to  marry  her,  is  a  mere 
declaration,  or  offer  and  no  promise,  in  any  legal  sense. 

The  statute  is  to  be  taken  as  Intending  a  promise  in  its  legal  signification, 
and  not  a  mere  declaration  or  offer  by  way  of  temptation  or  allurement.  This 
Is  apparent  from  the  language  employed  "  under  promise  of  marriage."  That  ts, 
after  having  entered  into  and  while  under  engagement  to  marry. 

Again,  must  it  be  a  promise  of  n  lawful  marriage  to  bring  the  case  within  the 
act?  It  Is  contended  on  behalt  oi  the  People  that  this  Is  not  necessary.  It 
may  be  that  In  a  case  where  a  married  man  represented  himself  to  the  female 
as  unmarried,  and  under  such  circumstances  under  promise  of  marriage  should 
seduce  her,  the  case  would  come  wlthli>  the  act,  although  the  marriage,  should 
It  be  consummated,  would  be  void.  I  have  no  ^oubt  that  it  would,  if  the  female 
was  Ignorant  o!  the  fact  of  his  marriage,  and  was  under  a  mutual  engagement 
to  hlra.  Even  a  marriage  under  such  circumstances,  although  it  would  be  void, 
would  not  be  criminal  on  her  part. 

But  take  the  promise  presented  by  the  pleadings,  an  agreement  between  a 
married  man  and  an  unmarried  female  to  marry  forthwith,  at  any  time,  without 
reference  to  the  present  marriage  of  the  man,  she  knowing  him  to  be  at  the 
same  time  lawfully  married.  Is  this  the  kind  of  promise  the  Legislature  had  In 
view!  It  can  not  be.  It  was  an  undertaking  which,  If  carried  out,  would  sub- 
ject  both  parties  to  punishment  In  the  State  prison.  The  law.  Instead  of  up- 
holding it  as  a  marriage,  would  treat  it  as  an  infamous  crime.  To  call  such  an 
engagement  a  promise  of  marriage  would  be  a  flagrant  perversion  of  all  legal 
sense  and  reasoning. 

The  promise,  I  apprehend,  required  by  the  act,  if  It  be  not  a  promise  of  a 
marriage  in  all  respects  legal  and  valid,  when  It  shall  be  consummated  according 
to  the  Intention,  must  at  least  be  such  a  promise  as  the  law  would  presume  the 
female,  from  the  facts  within  her  knowledge,  to  regard,  and  rely  upon  as  a  valid 
marriage.    Females,  as  well  as  males,  are  presumed  to  know  the  law. 

It  is,  therefore,  impossible  to  hold  or  to  admit  from  the  facts  here  presented 
that  this  female  regarded  this  as  any  promise  of  marriage,  or  could  have  relied 
upon  it  as  such.  The  law  presumes  that  every  person  intends  the  necessary  and 
natural  consequences  of  his  or  her  acts  and  agreements. 

But  it  is  urged  that  this  may  have  been  a  conditional  promise  on  the  part  of 
the  d  .*endant  to  marry  the  female  seduced,  -when  he  should  obtain  a  divorce,  or 
upon  the  death  of  his  wife.  That  such  a  promise  would  be  void  as  against 
public  policy  I  have  no  doubt  whatever. 

But  it  is  sufficient  for  the  purposes  of  this  case  to  remark  that  no  such  ques- 
tion arises  here.  No  such  promise  could  be  proved  under  this  indictment. 
The  promise  set  out  is  absolute  and  unq'ualifled. 

The  facts,  therefore,  set  up  in  the  special  plea,  and  which  are  admitted  by  the 
demurrer  to  be  true,  iu  my  judgment  take  the  seduction  entirely  out  ot  the 
statute,  however  much  they  may  deepen  the  shades  of  its  moral  turpitude.  It 
is  not  a  question  whether  such  an  offense  as  here  stands  confessed  ought  to  be 
uunishable  by  law,  but  whether  the  Legislature  In  the  act  before  us  made  It  so. 


780 


CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 


CourtH  are  to  expound  and  administer,  and  not  mulie  laws.  I  am  inclined  to 
tlic  opinion  that  a  inutuai  promise  of  marriage  should  be  alleged  in  tlie  indic-t 
ment,  and  that  it  should  bo  substantially  set  out,  so  that  the  court  can  see  that 
It  is  a  valid  promise.  The  promise  of  marriage  is  somewhat  in  the  nature  of  a 
condition  precedent  to  the  existence  uf  the  offense.  It  is  clearly  matter  of  sub- 
stance. I  have  preferred,  however,  placing  the  decision  In  this  case  upon  the 
interpretation  of  the  statute,  rather  than  the  construction  of  the  pleadings. 

And  I  am  clearly  of  the  opinion,  upon  the  substantial  facts  admitted,  that  no 
offense  under  the  act  has  been  committed  by  the  defendant. 

Judgment  for  the  defendant  on  the  demurrer, 

§  G19. No  Seduction  Where  Force  la  Uaed.  —  Where  the  woman  does 

not  consent  it  is  nut  seductiou.i  In  State  v.  Lewis,"  the  court  say:  The  com- 
plaining witness  testified  that  the  defendant  had  sexual  intercourse  with  her  on 
two  occasions,  once  on  thu  nlglit  of  the  7th  of  October,  1876,  and  again  in  two 
vieeka  after  that  time.  She  stated  that  on  both  occasions  she  resisted  the  de* 
fendunt  all  dhe  could  and  he  overpowered  her. 

The  defendant  asked  the  court  to  instruct  the  jury  as  follows :  "  If  the  inter- 
course  was  against  the  will  of  complainant  and  accomplished  by  force,  then  the 
offense  charged  is  not  established,  and  you  must  acquit."  The  instruction  was 
refused.  We  think  it  siiould  have  been  given.  If  the  intercourse  was  accom- 
plished by  force  and  against  the  will  of  the  prosecutrix,  the  crime  was  rape,  and 
not  seduction.  It  is  true  the  witness,  in  other  parts  of  her  testimony,  stated 
that  she  let  defendant  have  connection  with  her  because  he  teased  her,  and  she 
loved  him,  and  they  were  engaged.  But  her  last  utterance  while  on  the  witness 
St:  id  upon  this  suliject  was  that  she  resisted  all  hhe  could  and  was  overpowered. 
When  the  witness  made  two  statements  as  to  the  manner  of  the  criminal  con- 
nection so  utterly  at  variance,  it  was  the  right  of  the  defendant  to  have  the 
jury  iustructed  upon  the  effect  of  that  statement  which  was  iavorablo  to  him. 
We  find  nothing  in  the  instructions  given  liy  the  court  which  covers  this  point. 
It  is  true  the  jury  were  instructed  as  to  the  necessary  evidence  to  constitute 
seduction,  but  we  think  as  there  was  evidence  wlilch  showed  that  the  act  was 
not  seduction,  but  rape,  the  instruction  asked  should  have  been  given. 

Reversed. 

So  a  guardian  is  not  guilty  of  tbu  statutory  crime  of  defiling  his  female  ward 
where  it  was  done  by  force.* 

§  620.  —  Marriage  of  Parties.  —  Marriage  of  the  prisoner  and  the  woman 
is  a  bar  to  the  prosecution,  though  the  husband  Immediately  after  the  ceremony 
desert  her.* 

§  621.  JeduotlonbyOuardlanot  Female — Who  nota  "Ouardlan." — On  at 
indictment  under  a  statiUe  punishing  the  defiling  of  a  ward  by  a  guardian,  in 
appeared  that  the  father  telling  the  girl  to  go  and  help  the  defendant  plant  corn 
did  not  render  the  latter  punishable  under  the  statute  —  he  havmg  had  carnal 
knowledge  with  her  while  she  was  so  assisting  him.*  "  Allowing  the  girl,"  said 
the  court,  "  to  go  and  work  for  the  defendant  in  helping  him  to  plant  corn,  wos 
not  confiding  her  to  his  care  and  protection,  within  the  meaning  of  the  statute. 


1  Croghan  t'.  State,  23  Wis.  444  (186S). 

a  48  Iowa,  578  (1878). 

3  State  V.  WoolaTer.  77  Mo.  1(C  (1>  . , 


*  Com.  V.  Elchar,  4  Clark  (Pa.),  326. 
<•  State  V.  Arnold,  53  Mo.  90  (1874.) 


IMAGE  EVALUATION 
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33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)872-4503 


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Microfiche 

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i^^ 


SEDUCTION "  INSUFFICIENT   PROOF' 


781 


The  statute  declares,  that  11  any  guardian  of  a  female  or  c  her  pfivson,  to  whose 
care  and  protection  phe  tihall  have  been  coutided,  shall  co..:nilt  the  offense,  he 
shall  bo  punished,  etc.  The  guardian  is  specitlcally  named,  and  then  any  other 
person  to  whose  care  and  protection  the  female  is  confided  Is  mentioned.  The 
statute  here  certainly  contemplated,  that  the  other  person  alluded  to,  should 
occupy  a  position  similar  to  that  of  guardian,  or  stand  In  some  attitude  In 
which  a  peculiar  or  confidential  trust  was  reproved.  It  would  not  be  necessary 
that  he  should  be  the  legal  protector  of  the  female,  but  It  would  be  necessary 
that  she  should  have  been  committed  to  his  especial  care,  with  the  expectation 
that  he  should  exercise  a  supervision  over  her.  The  defendant  stood  in  no  such 
attitude.  The  female  was  allowed  to  go  and  assist  him  In  laboring  for  one 
day,  but  there  is  no  evidence  that  she  was  specially  confided  to  his  protection 
and  care,  as  designed  by  the  statute,  however  reprehensible  his  conduct  may 
hare  been,  there  was  no  evidence  to  convict  him  according  to  the  provisions 
of  the  statute,  under  which  he  was  Indicted. 

§622.  Seduction  —  Evidence  held  InsufQolent  to  Convict.  —  In  State  V. 
Hawea,^  the  court  reversed  a  conviction  on  the  ground  tliat  the  evidence  was 
insuflJcient,  Seevers,  C.J. ,  delivering  the  following  opinion:  "A  reversal  of 
the  judgment  of  the  court  below  is  sought,  for  the  reason,  as  claimed,  that  the 
verdict  is  not  supported  by  sufficient  evidence.  The  defendant  and  the  prose- 
cutrix were  both  unmarried,  and  the  latter  at  the  time  of  the  alleged  seduction 
and  for  some  time  previous  thereto,  made  her  home  at  the  house  of  the  parents 
of  defendant,  but  in  what  capacity  does  not  appear.  The  prosecutrix  is  about 
twenty-two  years  old,  and  the  defendant  is  presumed  to  have  been  several  years 
older.  If  any  false  promises  were  m.ide,  or  seductive  arts  or  influences  used 
amounting  to  seduction,  it  will  be  found  In  the  following  portion  of  the  testi- 
mouy  of  the  prosecutrix:  'When  we  were  returning  from  meeting  defendant 
said  he  heard  me  remark  that  I  never  intended  to  get  married,  and  he  wanted 
me  to  promise  to  marry  him,  if  anybody.  I  had  a  proposal  from  a  widower;  de- 
fendant wanted  me  to  promise  not  to  marry  him,  and  I  told  him  I  did  not  intend 
to  marry  any  way.  •  ♦  •  There  were  a'.out  three  evenings  we  sat  and 
talked  after  the  family  went  to  bed.  In  November,  1870,  he  came  to  my  room 
door  and  said  he  wanted  to  kiss  me;  I  told  him  it  was  no  time  for  him  to  say 
anything  to  me,  that  It  was  midnight,  and  for  him  to  leave  my  room;  I  got  up 
and  dressed.  ♦  *  •  He  took  nie  home  one  time  from  the  cars,  and  on  the 
way  said  his  mother  thought  I  would  make  as  good  a  companion  as  Webster 
Haven's  wife.  He  used  to  say  to  me  I  was  the  only  one  he  ever  met  he  cared 
anything  for,  and  he  Intended  some  day  to  get  married,  and  when  he  did  he 
wanted  I  should  be  his  wife.  February  16th,  1871,  my  birthday,  we  had  our 
pictures  taken  together,  he  and  I  and  an  acquaintance  of  ours,  in  one 
group.  •  *  •  On  the  night  of  the  7th  of  July,  1871,  he  came  to  my  room, 
and  as  I  woke  up  he  was  in  bed.  He  grabbed  me  as  I  turned  over;  I  said,  •  O, 
my  Lord,  Norman,i  am  a  ruined  girl.*  He  said  to  keep  still  or  I  would  be 
hurt.  1  said,  '  0,  Lord.'  He  said  I  ought  to  know  him  well  enough  that  he 
would  not  deceive  me.  He  put  his  hand  on  my  face  and  kissed  me,  and  said 
for  me  to  keep  quiet.  I  had  Intercourse  with  him  that  time.  He  was  not  there 
but  a  few  moments.    I  told  him  to  leave;  he  said  he  would  hardly.    •    •    * 


1  43  Iowa,  181.    And  see  People  v.  Eckert, 
SN.Y.Cr.  Rep.  470(1884). 


782  CRIMEA  AGAINST  THE  PERSONS   OF  INDIVIDUALS. 

He  ^as  In  bed  but  a  few  minutes,  about  five  or  ten.  I  recollect  his  telling  me  I 
need  not  be  uneasy,  that  he  would  not  forsake  me,  that  I  ought  to  know  him. 
1  did  not  tell  him  I  was  not  afraid  at  all;  only  a  few  words  passed.  It  was 
about  midnight.  When  he  took  hold  of  me  he  grabbed  me  In  his  arras;  I  dldn  t 
mean  that  he  hurt  me.  I  tried  to  puU  away  from  him.  The  second  time  he  was 
in  my  room  about  midnight.  The  night  of  July  7th  he  did  not  promise  to  marrv 
me;  no  promise  was  made,  because  I  never  came  out  a"^^*"'*^/'™ 'J.^^*; 
marry  him  until  I  wrote  that  letter  from  mother's.  I  told  hmi  at  first  I  didn't 
intend  to  marry  anybody;  afterwards  I  told  him  I  should  never  rnrrry  any  one 
but  him;  since  this  happened,  but  not  before,  I  told  him  I  would  marry  him. 
It  is  perfectly  natural,  and  to  be  expected,  that  the  prosecutrix  should  as  far  as 
possible,  shield  herself,  and  cast  the  blame,  if  any  there  was,  on  the  defendant. 
There  should  not,  therefore,  be  any  strained  construction  put  on  her  language, 
in  order  to  sustain  the  verdict.  On  the  contrary,  as  the  defendant  is  entitled 
to  the  benefit  of  all  reasonable  doubts  there  may  be  as  to  his  guilt,  the  language 
of  the  witness  shoula  receive  no  other  construction  than  its  fair  and  natural 
meaning  should  entitle  it  to.  The  material  inquiry  is,  was  there  a  promise  of 
marricge  existing  between  the  prosecutrix  and  the  defendant,  or  did  the  latter 
use  any  arts,  false  promises,  or  seductive  influences,  whereby  or  by  reason 
whereof  the  prosecutrix  was  induced  to  yield  herself  to  the  embraces  of  the  Je- 
endant?  We  think  the  fair  and  reasonable  construction  of  the  evidence  is  there 
was  not  To  make  such  out,  a  strained  or  unnatural  construction  must  be 
placed  on  the  language  of  the  witness.  This  the  jury  were  not  warranted  in 
doing  In  order  to  convict.    The  verdict  is  not,  therefore,  supported  by  sufficient 

evidence. 

"  Reserved." 


^* 


DUALS. 

lect  bis  telling  me  I 
ught  to  know  him. 
•ds  passed.  It  was 
1  his  arras;  I  didn't 
second  time  he  was 
)t  promise  to  marrv 
1  told  him  I  would 
him  at  first  I  didn't 
lever  mrrry  auy  one 
would  marry  him.' 
rlx  should,  as  far  as 
i,  on  the  defendant, 
ut  on  her  language, 
elendant  is  entitled 
1  guilt,  the  language 
its  fair  and  natural 
I  there  a  promise  of 
nt,  or  did  the  latter 
ereby  or  by  reason 
embraces  of  the  de- 
;he  evidence  is  there 
Qstruction  must  be 
e  not  warranted  in 
;)ported  by  sulBcient 

"  Beserved.'' 


PEOPLE  V.  LILLEY. 

Part  II. 
ASSAULT  AND  BATTERY. 


783 


ASSAULT  — ELEMENTS  OF  THE  CRIME. 

People  v.  Lilley. 

[43  Mich.  521.  J 
In  the  Supreme  Court  of  Michigan,  1880. 

1.  An  A«ault  is  an  Inchoate  Violence  to  the  person  of  another,  with  the  present 
meaTTof  carrying  Iho  Intent  Into  effect.  Tltreat*  are  not  sufficient;  there  mnst  be 
proof  of  violence  actually  offered,  and  this  within  sach  a  distance  as  that  harm  might 
ensue  if  the  party  was  not  prevented.  ,       ...        »  -k  .- 

2  miere  ia  no  .uch  OfTen.e  as  an  assault  with  intent  to  commit  raanslaaghter.  Sunh  an 
offense  requires  a  specific  intent;  a  specific  intent  requires  deliberation,  and  in  man- 
slaughter there  can  be  no  deliberation. 

For  the  plaintiff,  Otto  Kirchner. 

For  the  defendant,  F.  J,  Atwell  and  J.  J.  Van  Riper. 

Marston,  C.  J.  The  respondeat  wa3  tried  upon  an  information 
which  charged  him  with  having  made  an  assault  upon  one  Horace  Mc- 
Kenzie,  with  intent,  then  and  there,  etc.,  to  kill  and  murder  him.  Ufl- 
der  instructions  the  respondent  was  found  guilty  of  an  assault  with 
intent  to  commit  manslaughter.  The  case  comes  here  on  exceptions 
before  judgment,  and  while  quite  a  large  number  of  exceptions  were 
taken,  and  have  been  presented  in  this  court,  but  few  will  be  consid- 
ered,  as  they  reach  the  merits. 

A  difficulty  had  arisen,  between  the  person  claimed  to  have  been 
assaulted  and  the  father  of  respondent,  as  to  the  proper  division  of  cer- 
tain wheat,  then  being  threshed,  and  which  led  to  blows.  It  appears 
the  respondent  was  struck  on  the  head  by  McKenzie,  and  he  thereupon 
"retreated"  or  walked  toward  the  straw  stack,  some  ten  or  twelve  feet 

distant.  , 

There  is  some  conflict  in  the  evidence  as  to  what  thereupon  took 
place,  but  as  respondent  was  entitled,  as  a  matter  of  right,  to  have  the 
case  submitted  to  the  jury  under  instructions  applicable  to  the  evidence, 
favorable  as  well  as  unfavorable  to  him,  we  mast,  for  the  present  pur- 
pose,  consider  the  charge  as  given,  and  the  refusals,  in  view  of  the  evi- 
dence, most  favorable  to  the  accused.  After  respondent  reached  the 
straw  stack  he  turned  around,  took  a  knife  out  of  his  pockets,  made 


784  CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

80me  threat,  and  advanced  towards  McKenzie.  After  he  had  advanced 
one  or  two  steps  he  was  caught  by  a  liystander,  and  there  is  some  ques- 
tion a^  to  whether  the  knife,  at  this  time,  was  open  or  not,  and  wit- 
nesses testified  that  he  was  then  ten  or  fifteen  feet  distant  from 
McKenzie  —  the  person  assaulted  —  and  that  respondent  '.hen  put  the 
knife  in  Lis  poclcet.     Tliis  practically  ended  the  matter. 

The  court,  as  requested  by  the  prosecuting  attorney,  instructed  the 
jurj-:  "An  assault  is  an  attempt  or  offer  with  violence  to  do  a  corporal 
hurt  to  anotlier;  an  offer  to  inflict  bodily  injury,  by  one  who  is  rushing 
upon  another,  is  an  assault.  Although  the  assailant  be  not  near  enough 
to  reach  his  adversary,  if  the  distance  be  such  as  to  induce  a  man  of  or- 
dinary firmness  to  believe  tiidt  he  is  in  immediate  danger  of  receiving 
such  threatened  injury,  any  intent  to  commit  violence,  accompanied  by 
acts  which,  if  not  interrupted,  will  be  followed  by  bodily  injury,  is 
sufficient  to  constitute  an  assault,  although  the  assailant  may  not  be  at 
any  time  within  striking  distance.  And,  in  this  case,  if  Lilley,  being 
within  ten,  fifteen,  or  twenty  feet  of  McKenzie,  drew  his  knife  from  his 
pocket  and  commenced  to  open  the  same,  and  started  towards  McKen- 
zie in  a  violent  manner,  threatening  that  he  would  do  him  bodily  injury, 
and  after  advancing  towards  him  a  f  •  steps,  and  while  rushing  towards 
McKenzie,  he  was  stopped  by  DillL.  n,  Lilley  would  then  be  guilty  of 
an  assault." 

The  court  declined  to  charge  — 

Sixth.  *'An  assault  in  law  is  an  offer  to  strike  or  cut  within  striking 
distance,  and  if  the  prisoner  started  to  strike  or  cut  McKenzie,  and  be- 
fore he  got  within  striking  or  cutting  distance  stopped  and  voluntarily 
abandoned  his  purpose ;  or  if,  before  coming  within  striking  or  cutting 
distance,  was  stopped  by  others  and  then  abandoned  bis  purpose,  it 
would  not  constitute  an  assault  in  law." 

Sevejith.  '*  In  order  to  constitute  the  crime  of  assault  with  intent  to 
murder,  the  attempt  to  strike  or  cut  must  be  within  striking  or  cutting 
distance ;  and  if  the  prisoner  started  to  strike  or  cut  McKenzie,  and  be- 
fore he  got  within  striking  or  cutting  distance  was  stopped  by  others, 
and  then  abandoned  his  purpose,  it  would  not  constitute  an  assault  in 
law." 

Eighth.  '•  In  order  to  constitute  the  crime  of  assault  with  intent  to 
murder,  the  attempt  to  strike  or  cut  must  be  within  striking  or  cutting 
distance ;  and  if  the  prisoner  started  to  strike  or  cut  McKenzie,  and 
before  he  got  within  striking  or  cutting  distance  stopped  and  volunta- 
rily abandoned  his  purpose,  or  before  coming  within  striking  or  cutting 
distance  was  stopped  by  others,  and  then  voluntarily  abandoned  his 
purpose,  it  would  not  at  law  constitute  an  assault  with  intent  to  mur- 
der, as  charged  in  th<e  first  and  becond  counts  in  the  information." 


^itm 


IVIDUAL8. 

ter  he  had  advanced 
1  there  is  some  ques- 
)en  or  not,  and  wit- 
feet  distant  from 
londent  '.hen  put  the 
Iter. 

rney,  instructed  the 
lice  to  do  a  corporal 
r  one  who  is  rusliing 
b  be  not  near  enough 
induce  a  man  of  or- 
danger  of  receiving 
ice,  accompanied  by 
by  bodily  injury,  is 
lilant  may  not  be  at 
lase,  if  Lilley,  being 
w  his  knife  from  his 
;ed  towards  McKen- 
lo  him  bodily  injury, 
hile  rushing  towards 
Id  then  be  guilty  of 


cut  within  striking 
t  McEenzie,  and  be- 
)ped  and  voluntarily 
II  striking  or  cutting 
oued  bis  purpose,  it 

ssault  with  intent  to 
n  striking  or  cutting 
t  McKenzie,  and  be- 
stopped  by  others, 
istitute  an  assault  in 

isault  with  intent  to 
n  striking  or  cutting 
*  cut  McKenzie,  and 
topped  and  volunta- 
:n  striking  or  cutting 
barily  abandoned  his 
;  with  intent  to  mur- 
>he  information." 


PEOPLE    V.  LIT^LEY. 


785 


Ninth.  "If  the  jury  find  that  the  prisoner  took  out  his  knife,  but 
did  not  open  it,  or,  if  opened  l)y  him,  lie  did  not  attempt  to  cut 
McKenzie  with  it ;  or  if  they  find  that  tlie  prisoner,  before  coming 
within  striking  distance,  voluntarily  closed  the  knife,  or  surrendered  it 
toDillman,  there  was  no  assault,  and  the  offenses  charged  in  the  infoitn- 
ation  were  not  committed." 

The  instructions  given,  and  those  refused,  raise  the  question  as  to 
what  in  law  constitutes  a<i  assault.  Beyond  this  it  may  be  very  ques- 
tionable whether,  under  any  authority,  the  instruction  as  given  could  be 
fully  sustained,  even  if  applied  to  any  facts  in  thia  case ;  and,  irre- 
spective of  what  may  be  found  to  constitute  an  assault,  it  maj'  also  be  a 
matter  of  some  question  whether  the  requests  should  not  have  been  given. 

The  instruction  as  given  would  seem  to  lay  down  the  general  propo- 
rj  sition,  "  that  any  attempt  to  commit  violence,  accompanied  by  acts 
whi'ih,  if  not  interrupted,  will  be  followed  by  bodily  injury,  is  suffi- 
cient to  constitute  an  assault,  although  the  assailant  may  not  be  at  any 
time  within  striking  distance."  Now,  there  may  be  an  intent  to  com- 
mit violence,  and  this  accompanied  by  acts  preparatory  thereto,  which, 
if  followed  up,  would  clearly  constitute  an  assault ;  yet,  owipg  to  the 
distance  and  surrounding  circumstances,  no  possible  assault  would  have 
been  committed.  Thus,  one  with  a  direct  intent  to  do  grievous  bodily 
harm  may  purchase  a  deadly  weapon,  or  having  one  he  may,  with  like 
intent,  put  it  in  a  condition  to  use  with  deadly  effect.  Yet,  if  the  act 
stop  here,  it  may,  as  a  general  proposition,  be  said  that  the  party  could 
ndt  be  convicted  of  an  assault,  and  this  irrespective  of  what  may  have 
caused  the  party  to  proceed  no  further  in  the  attempt. 

Other  facts  must  be  added,  and  this  we  shall  see  must  be  a 
present  ability  to  carry  out  the  intent.  The  act  done  must  have  been 
sufficiently  proximate  to  the  thing  intended.  It  may  be  so  remote,  al- 
though a  distinct  and  essential  act,  coupled  with  the  intent,  as  to  fall 
far  short  of  constituting  an  assault.  The  act  done  mr.st  not  only  be 
criminal,  but  it  must  have  proceeded  far  enough  towards  a  consumma- 
tion thereof,  and  this  must  necessarily  be  a  question  for  the  jury  under 
proper  instructions.^  So,  clearly,  where  the  intent  is  "formed  and  some 
act  done  in  performance  thereof,  but  the  party  voluntarily  abandons 
his  purpose,  or  is  prevented  from  proceeding  further,  and  this  while  at 
a  distance  too  great  to  make  an  actual  assault,  he  could  not  be  con- 
victed of  an  assault. 

What,  then,  constitutes  an  assault  in  law?  It  might  be  somewhat 
difficult  to  reconcile  all  the  authorities  upon  this  subject,  and  we  shall 
not  attempt  it.     Some  of  the  tests,  as  putting  the  person  assaulted  la 


3  Dkfences. 


1  1  BUh.  C.  L.,  ch.  26  ;  also  sec.  323. 
60 


786 


CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 


fear,  can  not  be  relied  upon,  as  evidentl}'  an  assault  maj'  be  made  upon 
a  person,  even  although  he  had  no  knowledge  of  the  fact  at  the  time. 
An  assault  is  defined  to  be  an  inchoate  violence  to  the  person  of  another, 
with  the  present  n:.eans  of  carrying  the  intent  into  effect.  Threats  are  not 
sufBcient ;  there  must  be  proof  of  violence  actually  offered,  -vud  this  within 
such  a  distant  as  that  harm  might  ensue  if  the  party  was  not  prevented.' 

Wo  are  of  opinion,  therefore,  that  the  charge  of  the  court  as  to  what 
would  constitute  an  assault  was  not  sufficiently  guarded,  and  had  a 
tendency  to  mislead  the  jury.  And,  in  view  of  all  the  evidence  in  this 
case,  we  are  also  of  opinion  that  the  sixth,  seventh  and  eighth  requests 
should  have  been  given,  and  this  in  view  of  the  conflict  as  to  the  dis- 
tance which  respondent  was  from  McKenzie,  when  stopped,  and  of  the 
nature  and  cbiracter  of  the  alleged  assault.  There  may  have  been  evi- 
dence in  the  case  tending  to  sliow  that  when  respondent  was  stopped, 
although  not  then  within  striking  distance,  yet  he  was  so  near  as  to 
cause  immediate  danger  if  not  stopped,  so  that  a  jury  would  have  been 
at  liberty  to  have  found  that  an  assault  was  committed ;  yet  there  was 
evidence  tending  to  show  that  none  was  committed,  and  in  view  thereof 
these  requests  should  have  been  given. 

The  next  important  question  is  whether,  in  this  State,  there  is  such 
an  offense  known  to  the  law  as  an  assault  with  intent  to  commit  man- 
slaughter. If  such  an  offense  can  be  committed,  two  things  are  neces- 
sary to  the  commission  thereof  —  an  actual  assault,  coupled  with  an 
intent  to  take  life,  and  this  under  such  circumstances  that  the  ac- 
cused would  not  be  guilty  of  murder  if  death  should  ensue.  The 
specific  intent  is  necessary  to  complete  the  offense,  and  raise  it  above 
the  grade  of  a  mere  assault.^  While  the  intent  must  be  o£>tabnshed,  it 
need  not  be  by  direct  evidence,  as  of  threats.  It  may  be  drawn  as  an 
inference  from  all  the  facts. 3 

In  a  case  of  this  character  we  have  only  to  deal  with  voluutoiy  man- 
slaughter. This  "  often  involves  a  direct  intent  to  kill,  but  the  law 
reduces  the  grade  of  the  offense,  because,  looking  at  the  frailty  of 
human  nature,  it  considers  great  provocations  sufficient  to  excite  the 
passions  beyond  the  control  of  reason."^  "Manslaughter,  when  vol- 
untary, arises  from  the  sudden  heat  of  the  passions ;  murder,  from  the 
wickedness  of  the  heart."  Manslaughter  is  "the  unlawful  killing  of 
another  without  malice,  either  expressed  or  implied,"  ^  The  offense  is 
one  that  is  committed  without  malice  and  without  premeditation ;  the 
"  result  of  temporary  excitement,  by  which  the  control  of  the  reason 


1  3  Green).  Et.,  see.  83;  S  Greenl.  Et., 
see.  59;  1  Biah.  C.  L.,  see.  419;  3  Bia.  Com. 
iao,  nota  S. 

3  WUfon  V.  People,  24  Mich.  410. 


3  People  V.Scott, 6  Mich.  296;  Potter  «. 
People,  6  iiioh.  7. 

*  People  V.  Scott,  «tipra. 

>  t  BU.  Com.  191;  3  Greenl.  Et.,  eec.  11% 


. ^ 


niVIDUALS. 

lit  ma}'  be  made  upon 
the  fact  nt  the  time. 
;hc  person  of  another, 
[feet.  Threats  are  not 
•ffered,  snd  this  within 
ty  was  not  prevented.' 
f  the  court  as  to  what 
guarded,  and  had  a 
ill  the  evidence  in  this 
li  and  eighth  requests 
conflict  as  to  the  dis- 
1  stopped,  and  of  the 
re  may  have  been  evi- 
pondent  was  stopped, 
he  was  bo  near  as  to 
jury  would  have  been 
naitted ;  yet  there  was 
d,  and  in  view  thereof 

s  State,  there  is  such 
ntent  to  commit  man- 
two  things  are  neces- 
ault,  coupled  with  an 
nstances  that  the  ac- 
1  should  ensue.  The 
se,  and  raise  it  above 
Qust  be  o£>tabnsbed,  it 
t  may  be  drawn  as  an 

1  with  voluutory  man- 
t,  to  kill,  but  the  law 
king  at  the  frailty  of 
ufficient  to  excite  the 
inslaughter,  when  vol- 
ins ;  murder,  from  the 
he  unlawful  killing  of 
ed,"  5  The  offense  is 
ut  premeditation;  the 
control  of  the  reason 


BOtt,  6  Mich.  296;  Potter  v. 

7. 

BOtt,«tipra. 

,  191;  3  Greenl.  Ev.,  Bee.  11% 


PEOPLE    V.  LILLEY. 


787 


was  disturbed,  rather  than  of  any  wickedness  of  heart,  or  cruelty  or 
recklessness  of  disposition."  The  true  general  rule  is,  "  that  reason 
should,  at  the  time  of  the  act,  be  disturbed  or  obscured  by  passion  to 
an  extent  which  might  render  ordinary  men,  of  fair  avernge  disposition, 
liable  to  act  rashly,  or  witiiout  due  deliberation  or  reflection,  and  from 
passion  r:ither  than  judgment."  * 

Where  tiie  provocation  falls  short  of  this ;  or  if  tiierc  was  time  for 
the  passion  to  subside  and  blood  to  cool ;  or  if  there  is  evidenee  of 
actual  malice ;  or  if  the  provocation  be  resented  in  a  brutal  and  ftrocious 
manner,  evincing  a  malignant  disposition ;  in  all  such  cases,  if  death 
ensue,  tlie  offense  would  be  murder.  To  reduce  the  offense  to  man- 
slaughter all  tliese  things  must  be  wanting,  and  the  act  must  be  done 
while  reason  is  obscured  by  passion,  so  that  the  party  f»ets  rashly  and 
without  reflection.  As  was  said  in  Xije  v.  People,-  it  would  be  a  "  per- 
version of  terms  to  apply  tl»e  terra  '  deliberate  '  to  any  act  which  is 
done  on  a  sudden  impulse,"  under  such  circumstances.  Is,  then,  an 
intent  thus  formed,  without  malice,  deliberation  or  reflection,  but  rashly, 
and  while  the  reason  is  obscured  by  passion,  caused  by  a  sufficient 
provocation,  such  as  the  law  contemplates  in  cases  of  assault  with  intent 
to  commit  a  felony? 

An  examination  of  our  statutes  will  show  that  a  punishment  is  pro- 
vided for  those  who  shall  maim  or  disfigure  another  in  a  certain  man- 
ner, as  well  as  those  privy  to  such  intent.^  Also  any  person  wlio  shall 
assault  another  with  intent  to  maim  or  disfigure  in  any  of  the  ways 
mentioned.'*  Attempts  to  commit  the  crime  of  murder  and  assaults  with 
like  intent  are  provided  for.^  Assaults  made  in  connection  with  rob- 
bing, stealing  and  taking  from  the  person,  such  robber  being  armed 
with  a  dangerous  weapon,  witii  intent,  if  resisted,,  to  kill  or  maim,  or 
being  so  armed  shall  assault  another  with  intent  to  rob.  So  assaults 
with  like  intent,  where  not  so  armed,  are  provided  for  by  sections 
7524-5-7.  Malicious  threats,  with  intent  to  extort  money,  or  any 
pecuniary  advantage,  or  with  intent  to  compel  the  person  threatened  to 
do  any  act  against  his  will ;  assaults,  with  intent  to  commit  the  crime 
of  rape ;  kidnapping,  witli  intent  to  sell,  etc. ;  poisoning  food,  with  in- 
tent to  kill  or  injure  any  person,  or  willfully  placing  poison  in  a  well, 
etc.,  with  like  intent;  enticing  away  a  cliild,  with  intent  to  detain  or 
conceal ;  administering  medicines  to  any  woman  pregnant  with  a  quick 
child,  with  intent  thereby  to  destroy  such  child ;  administering  stupe- 
fying drugs,  with  intent,  while  such  person  is  under  the  influence  thereof, 
to  induce  him  to  enlist — are  all  provided  for  in  the  same  chapter  — 
244  of  the  Compiled  Laws. 


'  Maher  t>.  People,  10  Mlcli.  220. 
i  35  Mich.  19. 
■■  lec.  7S20. 


*  sec.  TS21. 

5  Bec«.  7522, 7523. 


788 


CHIMES   AGAINST   THE    PEK80N8   OV    INDIVIDUALS. 


In  each  aiul  any  of  these  cases  it  will  be  seen  the  intent  is  a  deliber- 
ate one.  K(»  in  section  7^)o7,  uniler  which  it  is  claimed  this  case  comes, 
"  if  any  peison  shall  assault  anotlicr,  with  intent  to  commit  any  bur- 
glary, or  any  othe  felony,"  here  the  assault  being  with  tlie  intent  to 
commit  the  buiglary,  the  intent  is  a  deliberate  one.  In  uone  of  these 
eases  can  tlie  intent  be  one  formed  under  such  circumstances  as  would 
reduce  a  voluntary  homicide  to  manslaugliter.  When,  therefore,  in  a 
chapter  and  section  devoted  entirely,  in  so  far  as  it  speaks  of  offenses 
committed  with  a  particular  intent,  such  intent  is  a  deliberate  one, 
must  not  the  general  language,  refering  to  assaults  with  intent  to  com- 
mit any  other  felony,  in  like  manner  have  reference  to  cases  of  deliber- 
ate intent.^ 

Had  the  assault  been  committed  in  this  case  and  death  had  ensued, 
the  intent  miglit  have  been  inferred  from  all  the  circumstances ;  the 
liomicido,  if  not  excusable,  would  have  furnished  evidence  of  the  in- 
tent. In  eases  of  assault  wiili  intent  to  commit  a  felony,  a  speciflc 
intent  must  be  found  to  exist,  aiid  it  is  very  difficult  to  imagine  how 
such  a  specific  intent  can  be  found  to  exist  in  the  absence  of  reflection 
and  deliberation.  When  once  it  appears  that  the  assault  was  made  with 
intent  to  take  life,  under  circumstances  where  the  killing  would  not  be 
lawful  or  excusable,  then,  if  under  such  circumstances  death  should 
ensue,  tlie  party  would  be  guilty  of  murder.  It  seems  like  a  eonti**- 
diction  of  terms  to  say  that  a  person  can  assault  another  with  intent  to 
commit  manslaughter.'^ 

As  this  case  now  stands  the  respondent  may  be  convicted  of  an  as- 
sault, and  a  new  trial  must  therefore  be  ordered. 
The  other  justices  concurred. 


assault  — elements  of  the  crime  —  shooting  at  window 
of  person's  house  — law  of  nations  — house  of  foreign 
minister. 

United  States  v.  Hand. 

[2  Wash.  C.  C.  435.] 
In  the  United  States  Circuit  Court  of  Pennsylvania,  1810. 

1.  An  Assault  is  an  Offer  or  an  Attempt  to  do  a  corporal  injury  to  another,  as  by  strik- 
ing liira  with  llie  hand  or  witli  a  stick  or  ehaking  the  flst  at  him  or  presenting  a  weapon 
within  such  distance  as  thut  a  liurt  iniglit  be  given  or  brandishing  it  in  a  menacing 
manner,  with  intent  to  do  some  corporal  huit  to  another. 


1  McDade  v.  People,  29  Mich.  SO. 


2  See,  also  Wright  v.  People,  33  Mich.  SOI. 


^1* 


)IVIDUALS. 

le  intent  is  a  deliber- 

med  tliis  caae  comes, 

to  corarait  any  bur- 

[]g  with  tlie  intent  to 

e.     In  iione  of  these 

•cumstanccs  as  would 

iVhen,  therefore,  in  a 

it  spealo  of  offenses 

is  a  deliberate  one, 

ts  with  intent  to  com- 

e  to  cases  of  deliber- 

nd  death  had  ensued, 
e  circumstances;  the 
1  evidence  of  the  in- 
i  a  felony,  a  specitlc 
Hcult  to  imagine  how 
absence  of  reflection 
assault  was  made  with 
Q  killing  would  not  be 
istanccs  death  should 
t  seems  like  a  conti'a- 
anoiher  with  intent  to 

DC  convicted  of  an  as- 


OTING  AT  WINDOW 
lOUSE  OF  FOREIGN 


sylvania,  1810. 

njury  to  another,  as  by  strik- 
liim  or  presenting  a  weapon 
randishlng  it  in  a  menacing 


rright  V.  People,  33  Micl>.  SOI. 


UNITED   STATES    V.  HVN'I). 


789 


2.  Firing  a  Pistol  at  a  Tranaparenoy  exhibited  at  a  windnw  of  a  person's  house  1»  no 

an  assault  on  such  person. 

3.  By  the  Law  of  Nations  an  attacic  on  the  property  of  a  foreign  minister  is  an  nssnult 

on  him.    But  to  <;on<tituto  an  offense  of  tliis  tiiud  tlie  prisoner  must  have  Itnowii  tluit 
the  houie  was  the  Uoinlcil  of  a  f.  reign  m.nlstcr. 

The  first  count  contains  a  cliar;jo  of  nn  assault  upon  Uio  [h  rson  of 
Mr.  Dasclikoff,  the  Russian  chanje  d'ffaires;  and  tlio  second,  fur  in- 
fracting the  law  of  nations,  by  offering  violence  to  tlie  person  of  the 
said  minister.     Tiie  defendant  pleaded  not  guilty. 

The  evidence  was,  that  on  the  night  of  the  2Gth  of  March,  the  min- 
ister, witli  a  view  to  celebrate  the  coronation  of  his  sovereign,  invited  a 
large  party  to  his  house  ;  and  from  a  desire  to  complimi'iit  the  persons 
without,  and  to  evidence  tlie  friendship  between  his  governineiit  and 
this,  placed  at  one  of  the  windows  of  his  drawing-room  on  the  second 
floor,  a  transparent  painting,  which  represented  a  vessel  under  the 
American  flag  entering  a  port  of  Russia,  above  which  was  placed  a 
crown.  The  people  without,  misunderstanding  the  design  of  the  paint- 
ing, and  the  intention  of  the  minister  in  exhibiting  it,  took  offense  at 
the  crown,  and  particularly  at  its  position  over  the  Amerieau  flag.  A 
large  crowd  collected,  many  threj  ^d  to  pull  it  down  were  clamourou'.'.y 
made,  and  some  bricks  and  stones  were  thrown  at  the  house.  Some  of 
the  gentlemen  from  the  house  went  out  to  explain  the  matter  to  the  mob, 
and  endeavored  to  pacify  them,  but  in  vain.  Tliey  promised,  howevei-, 
that  they  would  bo  satisfied  if  the  minister  would  take  down  the  crown, 
and  agreed  to  give  a  certain  number  of  minutes  for  this  to  be  done.  In 
the  meantime,  the  defendant,  with  a  Mr.  Henderson,  having  left  the 
theatre  between  11  and  12  o'clock,  attracted  by  the  illumination,  went 
to  see  wliat  it  was.  Hand  and  Henderson  soon  sepai-ated  in  the  crowd, 
the  latter  exerting  himself  to  pacify  the  people.  Some  short  time  after- 
wards, the  defendant,  who  lived  in  Fifth  street  between  Market  and 
Arch,  was  seen  coming  from  Seventh  street,  in  Chestnut,  to  the  crowd 
opposite  the  minister's  house,  between  Seventh  and  Eighth  streets.  He 
carried  in  each  hand  a  large  pistol,  and,  coming  opposite  to  the  liouse, 
in  less  than  two  minutes  fired  one  pistol  at  the  illuminated  window,  and 
immediately  after,  the  second.  At  this  time,  tlie  minister  and  one  of 
his  domestics  were  in  the  window,  extinguishing  the  liglits,  in  compli- 
ance with  the  wishes  of  the  mob;  and  the  bullet  from  the  pistol  first 
fired,  passed  into  the  room,  through  the  window,  over  their  heads. 
The  company  fortunately  was  below  stairs,  at  supper,  when  the  pistols 
were  fired.  Tlie  defendant  wis  proved  to  have  been  considerably  in- 
toxicated, and  was  taken,  by  his  friends,  to  a  friend's  house,  where, 
being  informed  of  the  insult  dona  to  the  Russian  embassador,  he  de- 
clared be  did  not  know  it  was  his  house,  which  he  afterwaads  repeated. 
No  proof  was  given  that  he  had  this  knowledge. 


790 


CRIMES   AGAINST  THE   PER80D8   OF   INDIVIDUALS. 


Wasuinoton,  J.  The  indictment  coutains  two  counts,  or  charges, 
upon  which  the  Jury  must  pass;  ami  I  shall  therefore  consider  them 
distinctly. 

The  first  is  for  an  insult  upon  the  Russian  minister,  against  the  pro- 
visions of  the  Act  of  Congress.  The  definition  of  an  assault, i  is  an 
offer  or  attempt  by  force  to  do  a  corporal  injury  to  another;  as  if  one 
person  strilve  at  another  with  his  hands,  orwitli  a  stick,  and  misses  him  ; 
for,  if  the  other  be  striclien,  it  is  a  battery,  which  is  an  offense  of  a 
higher  grade.  Or  if  he  sliake  his  fist  at  another,  or  present  a  gun,  or 
other  weapon,  within  such  distance  as  that  u  hurt  might  be  given ;  or 
drawing  a  sword,  and  brandislung  it  in  a  menacing  manner.  But  it  is 
essential  to  constitute  an  assault,  that  an  intent  to  do  some  injury 
should  be  coupled  with  the  act ;  and  that  intent  should  be  to  do  a  cor- 
poral hurt  to  another.  Apply  these  principles  to  tlie  evidence  in  the 
cause.  The  intention  of  the  defendant  most  clearly  was,  to  destroy,  or, 
as  he  termed  it,  to  take  down  the  crown,  which  his  heated  mind  had  con- 
strued into  an  insult  to  the  service  of  which  he  was  a  member.  His 
whole  conduct  showed  that  his  intention  was  not  to  do  a  personal 
injury  to  any  one,  and  certainly  no  act  was  done  in  the  smallest  degree 
indicative  of  such  intention.  The  outrage  of  which  he  was  guilty,  must 
be  reprobated  by  all  good  men,  and  deserves  to  be  punished ;  but  it 
did  not  amount  to  an  assault  upon  the  Russian  minister,  which  is  the 
offense  charged  in  the  first  count  of  the  indictment.  Upon  this  count, 
ttsrefore,  the  jury  ought  to  find  him  not  guilty. 

(2.)  The  second  count  charges  him  with  infracting  the  law  of  nations, 
i>y  offering  violence  to  the  person  of  the  minister.  Here  again,  the 
difficulty  recurs,  which  has  been  noticed  under  the  first  count.  How 
can  an  attack  upon  the  house  of  the  minister,  without  an  intention  to 
injure  the  person  of  the  minister,  be  an  offer  of  violence  to  his  person? 
Upon  common  law  principles,  such  evidence  would  seem  inapplicable 
to  such  a  charge.  But  the  act  of  Congress  refers  us  to  the  law  of  na- 
tions for  our  test ;  and  if  the  act  amount  to  the  offer  of  personal  vio- 
lence, by  that  law,  the  charge  is  supported.  That  law,  with  respect  to 
offenses  committed  against  ambassadors,  etc. ,  identifies  the  property  of 
the  minister,  attached  to  his  person  or  in  his  use,  with  the  person  of  the 
minister.  The  expressions  of  Vattel  are  very  strong:  "His  house, 
carriage,  equipage,  family,  etc.,  are  so  connected  with  his  person,  as  to 
partake  of  the  same  fate  with  it.  To  insult  them,  is  an  attack  on  the 
minister  himself,  and  upon  his  sovereign.  It  is  an  insult  to  both."  * 
All  this  is  a  legal  fiction,  for  the  purpose  1)f  rendering  the  protection  to 
which  the  minister  is  entitled  full  and  complete,  and  to  guard  him  as 


1 1  Bac.  Ab.  tit.  AsBattlt,  242. 


2  Vattel,  618, 716, 719,  etc. 


^^i 


DIVIDUALS. 

counts,  or  charges, 
refore  consider  them 

jter,  against  the  pro- 
of an  assault,^  is  an 

0  another ;  as  if  one 
Lick,  and  misses  him  ; 
oh  is  an  offense  of  a 

1  or  present  a  gun,  or 
t  miglit  be  given ;  or 
tg  manner.  But  it  is 
t  to  do  some  injury 
hould  be  to  do  a  cor- 
I  the  evidence  in  the 
y  was,  to  destroy,  or, 
lieated  mind  had  con- 
was  a  member.  His 
not  to  do  a  personal 
n  the  smallest  degree 
ill  he  was  guilty,  must 

be  punished ;  but  it 
minister,  which  is  the 
nt.    Upon  this  count, 

ing  the  law  of  nations, 
ter.  Here  again,  the 
ihe  first  count.  How 
ithout  an  intention  to 
■iolence  to  his  person  ? 
uld  seem  inapplicable 
's  us  to  the  law  of  na- 
offer  of  personal  vio- 
it  law,  with  respect  to 
ntiftes  the  property  of 
with  the  person  of  the 
strong:  "His  house, 
with  his  person,  as  to 
u,  is  an  attack  on  the 
I  an  insult  to  both."  * 
jring  the  protection  to 
and  to  guard  him  as 

716, 719,  etc. 


UNITED   STATES   V.  HAND. 


791 


well  against  insults,  as  real  personal  injury.  It  is  not  more  extrava- 
gant than  the  fiction  which  considers  tlie  minister,  his  house  and  prop- 
erty, out  of  the  country,  for  the  purpose  of  ousting  tlio  jurisdiction  of 
the  tribunals  of  tlie  country  over  him.  Nor  is  it  more  strange  than 
that  which  once  prevailed  in  our  law,  though  long  since  overruled,  that 
provoking  words  alone  would  amount  to  an  assault.  Moreover,  it  sccma 
pretty  clear,  that  offenses  of  this  sort  were  intended  to  be  covered  by 
the  general  expressions  of  the  twenty-seventh  section  of  tlie  law  to  pun- 
ish crimes.  The  preceding  part  of  the  section  had  specified  four  dis- 
tinct offenses,  the  lowest  of  whicli  is  an  assault ;  and  it  is  difficult  to 
imagine  any  directly  against  the  person  of  the  minister,  which  ran  be 
lower.  But  cougress  knew  that  there  are  many  other  injuries  which 
might  be  offered  to  a  puljlic  minister,  and  wliich  the  law  of  nations  con- 
sidered as  being  indirectly  attacks  upon  his  persoi  ,  f\ad,  wltliout  at- 
tempting a  further  specification,  covered  under  gcnerul  expressions  all 
such  as  were  deemed  by  the  law  of  nations  to  be  offenses  against  the 
minister.  Witliout  such  a  construction,  it  wr-'d  be  liffloult,  •■<"  not 
impossible,  to  imagine  cases  of  violence  asraiust  the  porson,  to  satisfy 
the  gi.  1  ral  words,  which  are  not  included  in  those  that  .  e  specified  in 
this  and  the  two  preceding  sections. 

But  to  constitute  this  an  offense  against  the  law  of  nations,  the  de- 
fendant must  have  known  that  the  house  upon  which  the  violence  was 
committed  was  the  domicil  of  the  minister;  or  otlierwise,  it  is  mcioly 
an  offense  against  the  municipal  laws  of  Pennsylvania ;  and  this  is  the 
only  point  of  consequence  for  you  to  decide.  Without  giving  any 
opinion  upon  the  evidence,  I  shall  content  myself  with  presenting  it 
fairly  to  your  view. 

It  is  always  difficult,  and  frequently  impossible,  to  bring  home  to  any 
man  the  knowledge  of  the  fact  by  positive  proof ;  and  therefore,  it  may 
fairly  be  collected  from  circumstances.  But  these  circumstances  sliould 
be  legally  proved,  and  should  be  sutflciently  strong  to  satisfy  the  mind 
that  the  fact  was  known.  In  favor  of  the  defendant,  his  declaration, 
immediately  after  the  outrage  was  perpetrated,  that  he  did  not  know 
that  it  was  the  house  of  the  minister,  made  in  a  state  of  mind  when 
caution  and  reflection  were  not  to  be  expected,  and  that,  at  diflcient 
times  afterwards,  confirmed  by  similar  declarations,  have  been  much 
relied  upon  by  his  counsel.  The  denial  of  the  accused  is  certainly  the 
lowest  species  of  proof ;  but  it  may  be  sufficient  to  repel  slight  evidence 
to  fix  him  with  a  knowledge  of  the  fact.  On  the  other  side,  the  defend- 
ant lived  in  Philadelphia ;  and  if  he  had  not  obtained  by  this  means  a 
previous  knowledge  of  the  residence  of  the  minister,  the  occasion  which 
drew  him  to  the  spot,  the  novelty  of  the  sight,  the  appearance  of  a 
crown,  the  general  irritation  of  the  crowd,  and  the  defendant  in  particu- 


792 


CRIMES   AGAINST   THE   PEUSOX8   OF   INDIVIDUALS. 


lar,  at  its  position,  were  all  calculated  to  excite  inquiries,  which  it  ;s 
prov-'d  by  the  witnesses  could  at  once  have  been  answered.  It  appears 
that  some  of  those  who  went  there  ignorant  that  this  was  the  house 
of  the  minister,  sooned  gained  information  of  the  fact.  One  of  the 
gentlemen  from  the  house  had  addressed  the  crowd,  and  explained  to 
them  the  occasion  of  the  illumination,  and  the  impropriety  of  their  con- 
duct upon  the  occasion.  If  it  had  been  proved  that  the  defendant  was 
one  of  tiie  crowd  at  this  time,  the  evidence  against  him  would  be  com- 
plete. But  it  seems  very  probable  that  soon  after  his  first  coming  to  the 
place,  and  possibly  before  tbis  explanation  was  given,  he  had  gone  away 
in  pursuit  of  his  pistols;  and  it  is  in  proof  that  almost  immediately 
upon  his  return  he  fired  them.  It  is  possible,  also,  from  the  state  of 
intoxication  in  which  he  was,  that  he  did  not  wait  to  make  inquiries. 

As  to  this  fact,  upon  which  the  cause  turns,  the  jury  must  judge.  II 
they  arc  satisfied,  upon  tlie  evidence,  that  he  knew  this  to  be  the  resi- 
dence of  the  minister,  they  ought  to  acquit  him  under  the  first  count, 
and  find  him  guilty  under  the  second.  If  otherwise,  find  him  not 
guilty,  geneia  y.  Verdict  not  guilty. 


ASSAULT  AND  BATTERY- 


-ASSAULT  MUST  BE   ON  PERSON  OF  PRO. 
SECUTOR. 


KiRLAND  V.  State. 

[43  Ind.  146;  13  Am.  Rep.  387.  ] 
In  the  Supreme  Court  of  Indiana,  1873. 

Xb  a  Prosecution  for  Assault  and  battery,  the  court  instructed  the  jury  that  il  snder  cir 
cumstances  mentioned  in  the  charge,"  the  defendant  struck  or  beat  the  prosecutini 
witnesB  while  he  was  gathering  corn  in  the  field;  or,  while  he  wag  driving  his  team  ii 
the  ileld,  in  the  ac*,  ol  gathering  corn,  the  defendant  struck  and  beat  the  horses  of  th 
prosecuting  witness  in  a  rude  and  angry  manner  with  a  stick,  the  defendant  is  guilty  o 
•n  astanlt  and  battei-y."  mid  that  as  there  was  evidence  tending  to  prove  that  th 
defendant  did  strike  the  horses  when  being  dri-'sn,  the  instruction  was  calculated  t 
mislead  the  jury  to  the  conviction  that  such  striking  the  horses  was  an  assault  an 
battery  upon  the  driver,  which  it  was  not  in  any  legal  or  logical  sense,  the  driver  him 
self  not  having  been  touched  directly  or  indirectly,  and  hence  such  instruction  wa 
erroneous. 

From  the  Marion  Criminal  Circuit  Court. 

J.  W.  Gordon,  T.  M.  Broton,  B.  N.  Lamb,  and  J.  N.  Kimball,  fo 
appellant. 

J.  C.  Denny,  Attorney-General,  for  the  State. 

BcsKiRK,  J.  This  was  a  prosecution  for  an  assault  and  battery  con 
meoced  before  a  justice  of  the  peace.     The  affidavit  charges  the  appel 


^att 


INDIVIDUALS. 

cite  inquiries,  wiiich  it  ;s 
en  answered.  It  appears 
;  tliat  this  was  the  liouse 
of  the  fact.  One  of  the 
!  crowd,  and  explained  to 

impropriety  of  their  con- 
ed that  the  defendant  was 
;ainst  him  would  be  com- 
fter  his  first  coming  to  the 
i  given,  he  had  gone  away 

that  almost  immediately 
le,  also,  from  the  state  of 
wait  to  make  inquiries. 
,  the  jury  must  judge.  If 
knew  this  to  be  the  resi- 
lim  under  the  first  count, 

otherwise,  find  him  not 

Verdict  not  guilty. 


3E   ON  PERSON  OF  PRO- 


187.  ] 
ina,  1873. 

itructed  the  jury  tbat  if  «ndercir. 
I;  struck  or  beat  the  prosecuting 
while  he  was  driving  bis  team  in 
[truck  and  beat  the  horses  of  the 
a  stick,  the  defendant  is  guilty  of 
idence  tending  to  prove  that  the 
the  instruction  was  calculated  to 
g  the  horses  was  an  assault  and 
I  or  logical  sense,  the  driver  him- 
and  hence  such  instruction  was 


,b,  and  /.  K.  Kimball,  for 

ate. 

,n  assault  and  battery  com- 

affldavit  charges  the  appel- 


KIRLAND    V.  STATE. 


793 


lant  with  having  at  Marion  County,  on  the  28th  day  of  February,  1873, 
unlawfully,  and  in  a  rude,  insolent,  and  an^i-y  manner,  touched,  etc., 
Cliarles  Bien. 

The  appellant  was  tried  and  found  guilty  by  the  justice.  The  case 
was  appealed.  It  was  tried  on  appeal  in  the  Marion  Criminal  Court, 
where  the  State  again  obtained  a  verdict.  The  appellant  moved  for  a 
new  trial,  which  was  overruled,  and  the  judgment  was  rendered  on  the 

verdict. 

The  error  assigned  is  the  overruling  of  the  motion  for  a  new  trial.  A 
reversal  of  the  judgment  is  asked  mainly  on  the  ground  that  the  court 
gave  an  erroneous  instruction  to  the  jury. 

The  instruction  complained  of  as  erroneous  is  as  follows :  — 
"  2.  To  constitute  a  battery,  tie  touching  need  not  be  of  great  force ; 
a  mere  touching  is  sufficient  if  it  be  unlawful,  and  be  done  in  a  rude, 
or  an  insolent,  or  an  angry  manner.     But  this  touching  must  be  unlaw- 
ful.    A  man  may  defend'the  possession  of  his  estate  and  of  his  chattels 
by  such  reasonable  force  as  may  be  necessary  to  that  end ;  and  if  in 
this  case  you  believe  from  the  evidence  that  at  the  time  of  the  alleged 
assault  and  battery,  Charles  Bien  was  trespassing  upon  the  lands  of 
the  defendant,  and  engaged  in  carrying  away  without  right  the  corn  ol 
the  defendant,  the  defendant  had  the  right,  after  requesting  Bien  to  de 
part,  and  a  refusal  on  his  part  to  leave  the  property  and  premises,  to 
use  such  reasonable  force  as  was  necessary  to  eject  him  from  the  prem- 
ises and  protect  his  personal  property ;  and  if  the  defendant,  in  thus 
protecting  his  property  and  possessions,  touched  Bien,  or  assaulted 
him  only  so  much  as  was  reasonably  necessary  to  secure  the  object 
aforesaid,  he  is  not  guilty  and  you  should  so  find.     But  if  the  jury  be- 
lieve from  the  evidence  that  the  defendant  rented  the  field  referred  to 
in  the  evidence,  no  certain  time  being  fixed  for  the  termination  of  the 
lease  to  Charley  Bien,  to  be  cultivated  in  corn,  upon  the  shares,  to  be 
gathered  by  Bien,  one-half  to  be  delivered  to  defendant,  and  the  other 
to  be  retained  b>  the  renter  or  tenant  for  his  share.     The  mere  fact  that 
an  agreement  was  made  in  the  fall  after,  by  which  it  was  agreed  that 
the  tenant  (Bien)  take  for  his  share  of  the  corn  the  south  field,  and 
the  defendant  the  north  field  as  his  share,  except  three  acres  in  the 
south  field,  this  would  not  terminate  the  lease  of  itself,  unless  it  was 
agreed  between  the  parties  that  the  lease  should  terminate.     Nor  would 
such  facts  authorize  the  defendant  to  forcibly  eject  Bien  from  the  field 
because  he  was  gathering  more  corn  for  his  own  use  than  he  was  enti- 
tled to  by  such  agreement ;  and  if,  under  such  circumstances,  the  de- 
fendant struck  or  beat  Bien  while  he  was  gathering  corn  in  the  field,  or 
while  Bien  was  driving  his  team  in  the  field  in  the  act  of  gathering 
the  corn,  the  defendant  struck  and  beat  his  horses  in   a  rude  and 


794  CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

angry  manner  with  a  stick,  the  defendant  is  guilty  of  an  assault  and 

battery." 

The  statute  says:  "  Every  person  who,  in  a  rude,  insolent,  or  angry 
manner,  shall  unlawfully  touch  another,  shall  be  deemed  guilty  of  an 
assault  and  battery,"  etc.* 

It  is  quite  clear,  therefore,  that  no  assault  and  battery  can  be  committed 
unless  one  person  touches  another  person  unlawfully,  and  in  a  rude,  or 
insolent,  or  angry  manner.  The  affidavit  charges  that  the  appellant  thus 
touched  Charles  Bien.  To  sustain  this  charge  the  evidence  must  show 
the  unlawful  touching,  etc. ,  of  Charles  Bien.  The  charge  excepted  to, 
however,  instructs  the  jury  that  if  the  defendant  struck  Charles  Bien's 
horses  with  a  club,  in  a  rude  and  angry  manner,  while  Bien  was  driving 
his  team,  in  the  act  of  gathering  corn,  etc.,  the  defendant  is  guilty  of 
an  assault  and  battery.  In  this  instruction  the  court  deems  the  touch- 
ing of  Bien  wholly  immaterial  and  unimportant ;  to  strike  Bien's  horses 
is  "to  strike  him,  that  is,  if  they  were  struck  with  a  club,  and  it  was  done 
while  he  was  driving  his  team  in  the  field,  in  the  act  of  gathering  corn. 
True,  if  the  blow  touched  both  Bien  and  his  horse,  the  touching 
would  be  an  assault  and  battery  on  Bien ;  not  because  of  the  touch- 
ing of  his  horse,  however,  but  for  tlie  reason  that  it  touched  him. 
And  if  the  appellant  struck  and  drove  Bien's  horse,  or  any  other  horse, 
against  him,  violently,  unlawfully,  and  in  a  rude,  etc.,  then  he  would 
be  guilty,  not  because  he  struck  the  horse,  but  for  the  reason  that  he 
struck  Bien  by  running  or  pushing  the  horse  against  him.  If  Bien  was 
so  connected  with  his  horses  when  they  were  struck  that  the  blow  took 
effect  on  his  person  as  well  as  that  oi  the  horses,  then  the  person  strik- 
ing the  blow  would  be  guilty. 

Bishop,  in  his  work  on  Criminal  Law,  in  section  72,^  says:  "The 
slightest  unlawful  touching  of  another,  especially  if  don?  in  anger,  is 
sufficient  to  constitute  a  battery.  For  example,  spitting  in  a  man' s  face, 
or  on  his  body,  or  throwing  water  on  him,  is  such.  And  the  in\  iolability 
of  the  person,  in  this  respect,  extends  to  everything  attached  to  it." 
Russell  on  Crimes,^  says:  "The  injury  need  not  be  effected  directly 
by  the  hands  of  the  party.  Thus,  there  may  be  an  assault  by  encour- 
aging a  dog  to  bite.  *  «  *  And  it  seems  that  it  is  not  necessary 
that  the  assault  should  be  immediate,  as  where  the  defendant  threw  a 
lighted  squib  into  the  market-place,  which,  being  tossed  from  hand  to 
•  hand  by  different  persons,  at  last  hit  the  plaintiff  in  the  face  and  put 
out  his  eye ;  it  was  adjudged  that  this  was  actionable  as  an  assault  and 
battery.  And  the  same  has  been  said  where  a  person  pushed  a  drunken 
man  against  another." 


1  2  O.  ft  H.  459. 
S  TOl.  2. 


•  vol.  X,  p.  161. 


^t^ 


IVIDUAL8. 

y  of  an  assault  and 

!,  insolent,  or  angry 
leemed  guilty  of  an 

ry  can  be  committed 
y,  and  in  a  rude,  or 
at  the  appellant  thus 
evidence  must  show 

charge  excepted  to, 
truck  Charles  Bien's 
lile  Bien  was  driving 
jf  endant  is  guilty  of 
irt  deems  the  touch- 
I  strike  Bien's  horses 
lub,  and  it  was  done 
it  of  gathering  corn, 
horse,  the  touching 
icause  of  the  touch- 
iiat  it  touched  him. 
,  or  any  other  horse, 

etc.,  then  he  would 
r  the  reason  that  he 
5t  him.  If  Bien  was 
jk  that  the  blow  took 
hen  the  person  strik- 
en 72,*  says:   "The 

if  don^  in  anger,  is 
ttingin  a  man's  face, 
And  the  inviolability 
liing  attached  to  it." 
t  be  effected  directly 
Ein  assault  by  encour- 
it  it  is  not  necessary 
le  defendant  threw  a 
tossed  from  hand  to 

in  the  face  and  put 
ble  as  an  assault  and 
ion  pushed  a  drunken 


KIRLAND   V.  STATE. 


795 


Greenleaf  on  Evidence,  in  discussing  the  question  of  battery,  says : 
"A  battery  is  the  actual  infliction  of  violence  on  the  jyjrson.  This 
averment  will  be  proved  by  evidence  of  any  unlawful  touching  of  the 
person  of  tlie  plaintiff,  whether  by  the  defendant  himself,  or  by  any  sub- 
stance put  in  motion  by  him.  The  degree  of  violence  is  not  regarded 
in  the  law,  it  is  only  considered  by  the  jury  in  assessing  the  damages 
in  a  civil  action,  or  by  the  judge  in  passing  sentence  upon  indictment. 
Thus  any  touching  of  the  person  in  an  angry,  revengeful,  rude  or  inso- 
lent manner ;  spitting  upon  the  person ;  jostling  him  out  of  the  way ; 
pushing  another  against  him;  throwing  a  squib,  or  any  missile,  or 
water  upon  him;  striking  the  horse  he  is  riding,  whereby  he  is 
thrown ;  taking  hold  of  his  clothes  in  an  angry  or  insolent  mauner, 
to  detain  him  is  a  battery.  So,  striking  the  skirt  of  liis  coat  or  tlie  cane 
in  his  hand  is  a  battery.  For  any  thing  attached  to  his  person  partakes 
of  its  inviolability." 

Blackstone  defines  a  battery  as  follows:  "3.  By  battery,  which  is 
the  unlawful  beating  of  another.  T^ie  least  touching  of  another  per- 
son willfully  or  in  anger,  is  a  battery ;  for  tlie  law  can  not  draw  the  line 
between  different  degrees  of  violence,  and  therefore  totally  prohibits 
the  first  and  lowest  stage  of  it ;  every  man's  person  being  sacred,  and 
no  other  having  a  right  to  meddle  with  it,  in  any  the  slightest  manner."  i 

Note  four,  by  Judge  Cooley,  on  same  page,  reads  as  follows :  "A  bat- 
tery is  the  u  awful  touching  the  person  of  an  )ther  by  the  aggressor 
liimself,  or  any  substance  put  in  motion  by  him.*  Taking  a  hat  off 
the  head  of  another  is  no  battery.^  It  must  be  either  willfully  com- 
mitted, or  proceed  from  want  of  due  care ;  ■*  otherwise  it  is  damnum 
absque  injuria,  and  the  party  aggrieved  is  without  remedy ;  '  but  the 
absence  of  intention  to  commit  the  injury  constitutes  no  excuse,  where 
there  has  been  a  want  of  due  care.^  But  if  a  person  unintentionally  push 
against  another  in  tlie  street,  or  if,  without  any  default  in  the  rider,  a 
horse  runs  away  and  goes  against  another,  no  action  lies.'  Every  bat- 
tery includes  an  assault ;  ^  and  plaintiff  may  recover  for  the  assault 
only,  though  he  declares  for  an  assault  and  battery."  ^ 

Counsel  for  appellee  have  referred  us  to  the  following  adjudged  cases 
as  supporting  the  instruction  under  examination:  Bespublica  v.  De 
Longchamps,^^  State  v.  Davia,^^  Marentille  v.  Oliver,^^  United  StcUes  v. 
Ortega.^^ 


B. 


1  3  Cooley'i  Blackstone. 

2  1  Saund.  296,  n.  1 ;  lb,  13  and  14,  n.  S. 

>  1  Saund.  U. 

«  Stra.  S96;  Hob.  134;  Plowd.  19. 

>  8  Will.  303 ;  Bac.  Abr.  Aisault  &  BaKery 

«  Stra.  696;  Hob.  131;  Plowd.  19. 


T  4  Mod.  405. 
•  Co.  Litt.  283. 
»  4  Mod.  40S. 

10  1  DaU.  111. 

11  limi  (S.  C.),46. 
H  2  N.  J.  (L.)  379. 

V  4  Wash.  0. 0.  Sal. 


796  CKIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

The  case  referred  to  in  Dallas  was  a  prosecution  under  the  law  of  nations, 
for  an  assault  and  battery  upon  the  Minister  of  the  French  government, 
resident  iu  this  country.     It  was  proved,  upon  the  trial,  tl^atthe  de- 
f endant  struck  with  a  cane  the  cane  of  the  French  Minister.     1  he  court 
sav   "As  to  the  assault,  this  is,  perhaps,  one  of  the  kin.l  .n  which  the 
insult  is  more  to  be  considered  than  tlie  actual  damage ;  for,  though  no 
^reat  bodily  pain  is  suffered  by  a  blow  on  the  palm  of  the  han.l,  or  the 
skirt  of  the  coat,  yet  these  are  clearly  within  the  legal  ddnnt.on  of 
an  assault  and  battery,  and,  among  gentlemen,  loo  often  mducc  duel- 
in-  and  terminate  in  murder.     As,  therefore,  anything  attached  to  the 
pe"rson  partakes  of  its  inviolability,  De  Longchamp's   striking  Mon- 
sieurMarbois'  cane  i.  a  sufficient  justification  of  that  gentleman  s  sub- 
sequent conduct." 

The  case  referred  to  in  Pennington,i  ^^^  a  civil  action  for  a  trespass 
committed  by  the  defendant  on  the  property  of  the  plaintiff,  by  strik- 
ing with  a  large  club  the  plaintiff's  horse,  which  was  before  a  carriage 
in  which  the  plaintiff  was  riding.     The  court  say:  "To  attack  and 
strike  with  a  club,  with  violence,  the  horse  before  a  carriage  in  which 
a  person  is  riding,  strikes  me  as  an  assault  upon  the  person;  and  if  so, 
the  justice  had  no  jurisdiction  of  the  action.     But  if  this  is  to  be  con- 
sidered as  a  trespass  on  property,  unconnected  with  an  assault  on  the 
person  I  think  it  was  incumbent  on  the  plaintiff  below  to  state  an  in- 
urv  done  to  the   horse  whereby  the  plaintiff  suffered  damages;  that 
he  was  in  consequence  of  the  blow,  bruised  or  wounded,  and  unable  to 
perform  service ;  or  that  the  plaintiff  had  been  put  .  ^  expense  in  cur- 
ing him,  or  the  like."  , 

The  above  case,  being  an  action  of  trespass  for  an  injury  to  the  horse 
of  the  plaintiff,  and  not  a  prosecution  for  an  assault,  or  an  assault  and 
battery  upon  the  person  of  the  plaintiff,  we  think  that  but  little  impor- 
tance should  be  attached,  or  weight  given,  to  the  loose  remark  of  the 
ludge,  that  the  striking  of  a  horse  attached  to  a  carriage  was  an  assault 
upon  the  person  riding  in  the  carriage.     Tlie  case  of   State  y.  DavW 
was  a  prosecution  for  an  assault  upon  an  officer  in  releasing  from  his 
custody  a  ne.rro.     The  facts  will  sufficiently  appear  from  the  quotation 
which  we  make  from  the  opinion  of  the  court.    The  court  say:  "  The 
general  rule  is  that  any  attempt  to  do  violence  to  the  person  of  another 
in  a  rude,  angry,  or  resentful  manner,  is  an  assault;  and  raising  a  stick 
or  fist  within  striking  distance,  pointing  a  gun  within  the  distance  it 
will  carry,  spitting  in  one's  face,  and  the  like,  are  instances  usually  put 
bv  way  of  illustration.     No  actual  violence  is  done  to  the  person  m 
any  one  of  these   instances ;  and  I  take  it  as  very  clear  that  that  is  not 


J  fupra. 


i  lupra. 


V^IDUALS. 

!r  the  law  of  nations, 
rench  goveriimont, 
e  trial,  that  the  de- 
iuistcr.     The  court 
e  kiivl  In  which  the 
uge ;  for,  though  no 
of  the  liand,  or  the 
!  h'gal  definition  of 
)  often  induce  duel- 
ing attached  to  the 
op's   striking  Mon- 
it  gentleman's  sub- 

iction  for  a  trespass 
e  plaintiff,  by  strik- 
,'as  before  a  carriage 
r:   "To   attack  and 
a  carriage  in  which 
e  person ;  and  if  so, 
t  if  this  is  to  be  con- 
•ith  an  assault  on  the 
below  to  state  an  in- 
fered  damages ;  that 
inded,  and  unable  to 
it  \  >  expense  incur- 
in  injury  to  the  horse 
lit,  or  an  assault  and 
that  but  little  impor- 

loose  remark  of  the 
irriage  was  an  assault 

of   State  V.  Davis,^ 

in  releasing  from  his 
ar  from  the  quotation 
rhe  court  say:  "The 
the  person  of  another 
It ;  and  raising  a  stick 
within  the  distance  it 

instances  usually  put 
lone  to  the  person  in 

clear  that  that  is  not 


KIRLAND   V.  STATE. 


71*7 


necessary  to  be  an  assault.  It  has,  therefore,  been  held  that  beat- 
ing a  horse  on  which  one  is,  striking  violently  a  stick  which  he  holds  in 
his  han.l,  or  the  horse  on  whi^'h  he  rides,  is  an  assault,  —the  thing  in 
these  instances  partaking  of  the  personal  inviolability.^  What  was  the 
case  here?  Laving  the  right  of  proi)erty  in  the  negro  out  of  the  ques- 
tion,  the  prosecutor  was  in  possession,  and,  legally  speaking,  the  de- 
fendant had  no  right  to  take  him  with  force.  As  far  as  words  could 
<ro,  their  conduct  was  rude  and  violent  in  the  extreme.  They  broke 
the  chain  with  which  the  negro  was  confined  to  the  bedpost,  in  which 
the  prosecutor  slept,  and  cut  the  rope  by  which  he  was  confined  to  his 
prison,  and  are  clearly  within  the  rule.  The  rope  was  as  much  iden- 
tified with  bis  person  "as  the  l.at  or  coat  which  he  wore,  or  the  stick 
which  he  held  in  his  hand.     The  conviction  was,  therefore,  right." 

We  are  inclined  to  the  opinion  that  the  chain  and  rope  so  connected 
the  prosecutor  and  nesrro  as  to  make  identification  as  complete  as  the 
hat  or  coat  on  the  person,  or  the  stick  in  the  hand.    The  ruling  in  the  above 
case  was  based  upon  the  close  and  intimate  connection  which  existed  be- 
tween  the  prosecutor  and  the  negro ;  but  no  such  identity  or  connection 
between  the  prosecutor  and  his  horses  in  the  case  in  judgment  is  shown. 
The  case  of  United  States  v.  Ortega,''  was  a  prosecution  instituted  by 
the  United  States  for  the  purpose  of  vindicating  the  law  of  nations  and 
of  the  United  States,  offended,  as  was  allege.!,  in  thep.-rsonof  a  foreign 
Minister,  by  an  assault  committed  on  him  by  the  defendant.     The  proof 
was,  that  the  defendant  seized  hold  of  the  breast  of  the  coat  of  Mr. 
Salmon,  the  prosecuting  witness,  and  retained  his  hold  while  he  com- 
municated his  cause  of  grievance,  and  until  a  third  person  came  up  and 
compelled  him  to  release  his  hold. 

The  court  said:  "It  was  agreed  by  the  counsel  for  the  defendant 
that,  to  constitute  an  assault,  it  must  be  accompanied  by  some  act  of 
violence.  The  mere  taking  hold  of  the  coat,  or  laying  the  hand  gently 
upon  the  person  of  another,  it  is  said,  does  not  amount  to  this  offense ; 
and  that  nothing  more  is  proved  in  this  case,  even  by  Mr.  Salmon.  It 
is  very  true  that  these  acts  may  be  done  very  innocently,  without 
offendin.r  the  law.  If  done  in  friendship,  for  a  benevolent  purpose, 
and  the  "like,  the  act  would  certainly  not  amount  to  an  assault.  But 
these  acts,  if  done  in  anger,  or  a  rude  and  insolent  manner,  or  with  a 
view  to  hostility,  amount  not  only  to  an  assault,  but  to  a  battery.  Even 
8trikin<r  at  a  person,  though  no  blow  be  inflicted,  or  raising  the  arm  to 
strike  "or  holding  up  one's  fist  at  him,  if  done  in  anger,  or  m  a  menac- 
ing manner,  are  considered  by  the  law  as  assaults." 


1  Respublica  v.  De  Longchamps,  1  Dall. 
114;  Wambough  v.  Shank,  Pen.  229,  cited  In 
9d  part  Eip.  Dig.  173. 


2 lupra. 


798 


CRIMES   AGAINST  THE  PERSONS   OF  INDIVIDUALS. 


It  is  very  obvious  that  the  above  cases  do  not  support  the  position 
assumed  by  the  counsel  for  appellee,  but  are  in  entire  accord  with  the 
elementary  writers  from  whom  we  have  quoted. 

The  most  accurate  and  complete  definition  of  a  battery  that  we  hare 
met  with  is  that  given  by  Saunders,  and  which,  has  been  adopted  by  most 
subsequent  writers,  and  that  is:  "A  battery  is  an  unlawful  touching 
the  person  of  another  by  the  oiipressor  himself,  or  any  other  substance 
put  in  motion  by  him."  By  this  definition  it  is  an  essential  prerequisite 
that  the  person  must  either  be  touched  by  the  aggressor  himself,  or  any 
other  substance  put  in  motion  by  him.  There  must  be  a  touching  of  the 
person.  One's  wearing  apparel  is  so  intimately  connected  with  the 
person  as  in  law  to  be  regarded,  in  case  of  battery,  as  part  of  the  per- 
son.    So  is  a  cane  when  in  the  hands  of  the  person  assaulted. 

But  in  the  case  under  consideration  the  court  ignores  all  these  things, 
and  instructs  the  jury  to  convict  on  proof  alone  of  the  striking  of  the 
horses  of  the  prosecuting  witness.  It  is  not  even  necessary,  according 
to  tins  charge,  that  the  prosecuting  witness  should  have  been  in  the 
wagon,  or  holding  the  lines,  or  connected  with,  or  attached  to  the  horses 
in  any  way.  That  Bien  was  driving  kis  team  and  gathering  his  corn 
does  not  necessarily  so  connect  him  with  the  horses  that  the  touching  of 
the  horses  would  be  an  assault  and  battery  on  him.  He  may  have  been, 
as  is  frequently  done,  driving  his  horses  from  one  pile  of  corn  to  an- 
other by  words  of  command,  without  being  in  the  wagon  or  having  hold 
of  the  lines. 

The  law  was  correctly  stated  by  the  court  in  the  first  charge  given  to 
the  jury.  It  was  as  follows :  "Before  you  will  be  justified  in  finding 
the  defendant  guilty,  the  evidence  must  satisf  j  you  beyond  a  reasonable 
doubt  that  the  defendant,  at,  etc.,  •  •  •  in  a  rude,  or  an  insolent, 
or  an  angry  manner  touched  Charles  Bien." 

In  placing  a  construction  upon  the  instruction  complained  of,  it  is  our 
duty  to  look  at  all  the  instructions  given  on  the  same  subject;  and  if 
the  instructions  taken  together  present  the  law  correctly,  and  are  not 
calculated  to  mislead  the  jury,  we  should  afiirm  the  judgment.  On  the 
other  hand,  if  the  two  charges  are  inconsistent  with  ea.ch  other ;  if  they 
were  calculated  to  confuse  and  mislead  the  jury;  or  if  th<^y must  have 
left  the  jury  in  doubt  or  uncertainty  as  to  what  was  <.hc  :  "-  ^i  applica- 
ble to  the  facts  of  the  case,  then  the  judgment  nho  J  :  ;-  ;?\,",r8ed.^ 
The  above  rules  have  been  applied  by  Ijliis  court  in  .;iv'  -.iwes.  The 
rule  laid  down  in  criminal  causes  is  as  follows:  "  Anc*  ::ou>3 instruc- 
tion to  the  jury  in  a  criminal  case  can  not  be  corrected  bj  another  in- 
struction which  states  the  law  accurately,  unless  the  erroneous  instruction 
be  thereby  plainly  withdrawn  from  the  jury.''  " 


1  Soman  v.  Fampbrey,  S4  Ind.  231. 


2  Bradley  *.  SUte,  SI  Ind.  491. 


^rfi 


[VIDUAL8. 

mpport  the  position 
itire  accord  with  the 

(attery  that  we  haTe 
Jen  adopted  by  most 
I  unlawful  touohing 
any  other  substance 
sscntial  prerequisite 
ssor  himself,  or  any 
be  a  touching  of  the 
connected  with  the 
,  as  part  of  the  per- 

assaulted. 

>rcs  all  these  things, 
!  the  striking  of  the 
lecessary,  according 
d  have  been  in  the 
^tached  to  the  horses 
I  gathering  his  corn 
that  the  touching  of 

He  may  have  been, 
}  pile  of  corn  to  an- 
agon  or  having  hold 

first  charge  given  to 
!  justified  in  finding 
beyond  a  reasonable 
rude,  or  an  insolent, 

nplained  of,  it  is  our 
ime  subject;  and  if 
irrectly,  and  are  not 
judgment.  On  the 
ea.ch  other ;  if  they 
ir  if  thi^y  must  have 
i  <,hc  :  ^-  ••'»  Rpplica- 
iho:;'  r  :■■■•  vJN.irsod.* 
in  .;i',"  -.iwes.  The 
Lnt!"  iousinatruc- 
ectcd  bj  (mother  in- 
irroneous  instruction 


ite,SlInd.49a. 


KIRLAND   V.  STATE. 


799 


Construing  these  charges  together,  how  do  they  stand?  The  jury  are 
first  told  that,  to  justify  a  finding  of  guilty,  they  must  be  satisfied  beyond  a 
reasonable  doubt  that  tlie  defendant  touched  Charles  Bien ;  and  then, 
in  the  second  charge,  the  court  continues,  "that the  defendant  might 
lawfully  employ  reasonable  force,"  etc.,  in  defence  of  his  possession 
or  property  but  that  under  circumstances  hypothetically  put  by  the 
court,  Charles  Bien  had  the  right  to  be  on  the  defendant's  premises 
gathering  corn,  "and  if  under  such  circumstances,  etc.,  while  Bien 
was  driving  his  team  in  the  field  in  the  act  of  gathering  the  corn,  the 
defendant  struck  and  beat  his  horses  in  a  rude  and  angry  manner,  with 
a  stick,  the  defendant  is  guilty  of  assault  aud  battrery." 

Plainly,  then  the  charge  is,  that  the  evidence  must  show  the  touching 
of  Charles  Bien  by  the  defendant,  but  that  if  Bien  is  driving  his  team, 
etc.,  and  the  defendant  strikes  his  horses  (tliat  is  Bien's  horses)  with 
a  stick  in  a  rude  and  angry  manner,  then  such  touching  of  the  horses 
is,  in  law,  a  touching  of  Bien,  and  the  defendant  is  guilty  of  an  assault 
and  battery.  LCgically  the  cliarge  states  the  law  thus :  Generally,  to 
sustain  a  charge  of  assault  and  battery  on  A.,  it  is  essential  to  prove  a 
touching  of  A.  by  the  defendant ;  but  under  certain  circumstances, 
such  as  if  A.  is  driving  his  team,  etc.,  and  the  defendant  touches  the 
horses  of  A. ,  then  in  that  case,  such  toueliing  of  the  horses  is  a  touch- 
ing of  A.,  and  if  such  touching  of  the  horses  is  imlawfully  done,  and 
was  made,  etc.,  then  the  defendant  may  be  found  guilty  of  an  assault 
and  battery  on  A. 

There  was  evidence  tending  to  prove  that  the  defendant  struck 
Charles  Brien.  He  and  his  two  sons,  Edward  and  Frank,  so  swear. 
The  defendant  swears  he  did  not. 

The  following  is  briefly  the  evidence  tending  to  prove  the  assault 
and  battery  upon  the  horses.  Charles  Green  testified:  "He  hit  my 
horses  on  the  head  with  a  big  club  about  three  feet  long.  *  *  *  He 
struck  my  horses  two  or  three  times.  *  *  *  He  was  mad.  *  «  • 
I  was  loading  corn  out  of  the  piles ;  was  loading  up  corn  when  he 
struck  the  horses. ' ' 

Same  witness,  on  cross-examination  testifies:  "When  he  struck  the 
horses,  he  struck  them  on  the  head,  and  they  stopped,  etc.  Don't 
know  who  held  the  lines.  Maybe  my  little  boy  held  one  and  me  the 
other.  *  *  *  He  struck  the  horse  next  to  me.  «  »  «  The 
team  was  made  to  stand  when  defendant  struck  the  horses.  *  *  • 
I  was  in  the  wagon  when  he  struck  them." 

Edward  Bien  testified:  "Kirland  hit  the  horses  on  the  head  and 
they  stopped.  We  were  just  going  to  drive  out.  My  father  was  then 
standing  on  the  ground  near  the  wagon.  Defendant  put  his  hands  on 
the  horses  to  unhitch  them  from  the  wagon ;  tried  to  unhitch  the  traces. 


800 


CRIMES   AGAINST  THE   PEUSOXS   OF   INDIVIDUALS. 


Ju8t  before  tlmt  he  struck  the  horses,  when  father  was  standing  on  the 
other  aide  of  the  wagon." 

Frank  Bien  testified:  "At  the  time  the  horses  wore  struck  fatlier 
was  in  tlie  wagon."  The  defendant  tostidod  tliat  he  "didn't  touth 
the  liorses,  except  tliat  he  attempted  to  unliitch  them  from  t)'e  wagon." 
It  is  apparent  that  there  was  evidence  in  tlie  case  to  wliich  the  second 
instruction  was  applicable.  Tlie  verdict  being  general,  we  are  unable 
to  determine  whether  he  was  convicted  for  touclilug  the  person  of  Bien 
or  for  striking  his  horses.  It  may  be  that  the  jury  found  tlie  defendant 
guilty  of  striking  the  horses  of  Biun,  for  the  defendant  admitted  that 
he  attempted  to  unhitch  the  horses  from  the  wagon,  and,  consequently 
must  have  touched  them,  while  he  positively  denies  that  he  touched 
the  person  of  the  prosecuting  witness.  Besides  this,  there  was  evidence 
tending  to  impeach  the  character  of  Bien.  The  jury  may,  therefore, 
have  doubted,  reasonably,  the  guilt  of  the  defendant  in  the  striking  of 
Bien,  nnd  found  him  guilty  only  of  having  "  in  a  rude  and  angry  man- 
ner struck  the  horses  of  Bien  with  a  stick,"  while  "  he  was  driving  his 
team  in  the  act  of  gathering  corn." 

The  second  instruction  was  inapphcable  to  the  evidence,  and  was 
calculated  to  mislead  the  jury,  and  being  erroneous,  the  judgment 
should  be  reversed. 

The  judgment  is  reversed ;  and  the  cause  is  remanded  for  a  new  trial, 

in  accordance  with  this  opinion. 


ASSAULT -ACTION  EXPLAINED   RY  WORDS -RESISTING  TRESPASS. 

Commonwealth  v.  Eyre. 

[1  S.  &  R.  347.] 
In  the  Supreme  Court  of  Pennsylvania,  1815. 

1  If  a  Man  Balse  bi«  hand  Against  another,  within  striking  di»tance,  and  at  tlie  same 

time  say, "  If  it  were  not  for  your  gray  hairs,  etc.,"  it  U  no  assault;  because  the  words 
explain  the  action,  and  take  away  the  idea  of  nn  intention  to  iirikc. 

2  A  Justice  of  the  Peace,  who  has  an  imperfect  view  of  persons  nt  work  on  Sunday,  can 

not  forcibly  enter  the  premises  of  another,  for  the  pun)08e  of  getting  a  better  view,  In 
order  to  convict  the  offenders.i 

This  case,  which  came  before  the  court  on  a  motion  of  the  defendant 
for  a  new  tilal,  was  an  indictment  against  Franklin  Eyre,  containing 
two  counts.  The  first  charged  him  with  an  assault  and  battery  upon 
Joseph  Grice,  Esq.,  as  a  justice  of  the  peace,  in  execution  of  his  office. 

1  See  Commonwealth  v.  tilUam,  8  S.  &  B.  SO. 


tmm^ 


^^m 


riUUALS. 


COMMONWEALTH   V.  EYRE. 


801 


as  standing  on  the 

[vcrc  struck  fatlier 
he  "  didn't  toufh 
I  from  t)>e  wagon." 
to  which  the  second 
:rnl,  we  are  unal)le 
the  person  of  Bien 
ound  llie  defendant 
lant  admitted  that 

and,  consequently 
!8  tliat  he  touched 

there  was  evidence 
ry  may,  therefore, 
it  in  tlie  striiiing  of 
ide  and  angry  nian- 
'  he  was  driving  his 

evidence,  and   was 
ous,  the  judgment 

ided  for  a  new  trial, 


5ISTING  TRESPASS. 


,  1815. 

distance,  and  at  the  same 

ssault ;  because  the  words 

iirikc. 

ns  nt  work  on  Sundaj-,  can 

of  getting  a  better  view,  In 


ion  of  the  defendant 
lin  Eyre,  containing 
lit  and  battery  upon 
ecution  of  his  office. 

50. 


The  second,  with  an  assault  and  battery  upon  Grice,  without  regard  to 
his  olUcial  condition.  The  material  facts,  reported  by  the  judge  be- 
fore whom  the  indictment  was  tried,  were  as  follows:  — 

Tlie  defendant  was  a  shipbuilder,  and  some  workmen  In  his  employ- 
ment were  at  work  in  his  yard  on  Sunday.  5Ir.  Gricc,  who  was  a  jus- 
tice of  the  peace  in  the  Northern  Lil)ertics,  in  company  with  two  other 
justices,  went  to  the  yard,  and  remonstrated  with  the  defendant  on  the 
impropriety  of  his  conduct.  Warm  language  ensued  between  Eyre  and 
(Jrice,  during  which  Eyre  raised  his  hand,  and  said,  "If  it  were  .-"Ot 
for  your  gray  hairs  I  would  tear  your  eyes  out,"  but  did  not  strike. 
(Irice,  with  the  two  justices  who  accompanied  him,  went  away,  intend- 
ing to  proceed  against  the  defendant  the  next  day  for  a  breach  of  the 
Sabbath.  Soon  after,  however,  Grice  returned,  thinking  it  is  his  duty 
to  interfere  further.  An  altercation  again  took  place  bi-tween  him  and 
tlie  defendant,  whose  yard  he  attempted  to  enter  in  0|)position  to  the 
will  of  the  owner. 

The  cause  was  tried  the  2.'5d  of  January,  1815,  at  nisi  priiis  before 
Judge  Yeates,  wL  j  charged  the  jury  that  Mr.  Grice,  as  a  justice  of  the 
l)eace,  had  no  right  to  force  an  entry  into  the  defendant's  yard,  in  pur- 
suit of  testimony ;  that,  therefore,  the  opposition  was  lawful,  and  was 
not  an  assault  and  battery.  As  to  what  occurred  when  Grice  first  went 
to  Eyre's  yard,  the  evidence  was  contradictory,  and  the  judge  left  it  to 
the  jury  to  decide  whether  an  assault  and  battery  had  been  proved.  As 
the  opinion  of  the  court  turned  principally  on  the  first  point,  a  detail  of 
the  evidence  in  relation  to  the  last  is  unnecessary.  The  jury  convicted 
the  defendant. 

TiujiiMAN,  C.  J.,  after  briefly  reviewing  the  facts,  proceeded  thus: 
The  right  of  the  justice  to  enter  on  the  defendant's  land,  against  his 
will,  was  the  point  principally  contested  on  the  trial,  as  it  has  been  in 
the  argument  here.  I  shall,  therefore,  confine  my  opinion  to  that  point, 
barely  remarking,  as  to  the  rest,  that  if  the  jury  founded  their  verdict 
on  the  circumstances  of  the  defendant's  raising  his  arm  at  the  first  en- 
trance, they  were  wrong,  because,  according  to  the  evidence  as 
reported  by  the  judge,  the  action  of  raising  the  arm  was  accompanied 
with  words  which  showed  that  the  defendant  was  determined  not  to 
strike. 

It  has  been  contended  on  the  part  of  the  Commonwealth,  that  the 
justice  had  a  right  to  enter  the  defeneant's  yard  for  two  reasons:  1. 
Because  there  was  a  breach  of  the  peace.  2.  Because  the  justice  had 
a  right  to  convict  those  persons  who  were  breaking  the  Sabbath  on  his 
own  view.  To  prove  that  there  was  a  breach  of  the  peace,  it  is  said, 
that  by  the  constitution  of  Pennsylvania,  all  indictments  must  conclude 
against  the  peace  and  dignity  of  the  commonwealth.  But  this  is  mere 
3  Defbncbs.  51 


mmmiimmsmi 


mm iiiJWiS 


802  CRIMES   AOAIN8T  THE   I'EKSONS   OP   INDIVIDUALS. 

matter  of  form.     Before  the  revolution,  the  conclusion  was  against  the 
peace  of  tlie  king,  his  crown  and  dignity.     Under  a  change  of  circum- 
stances, it  was  necessary  to  have  a  change  of  form,  but  not  a  cliange 
of  substance.     There  was  no  necessity  for  enlarging  the  circ'e  of  cases, 
in  which  it  is  lawful  to  break  the  doors  of  a  man's  house;  for  where 
there  la  a  breach  of  the  peace,  doors  may  be  broken.     At  first  view,  it 
may  seem  extraordinary,  that  a  man  should  be  protected  in  his  own 
house  against  legal   process  of  any  kind.     But  long  habit  has  at- 
tributed a  sanctity  to  this  domestic  asylum,  which  ought  not  to  be  vio- 
lated without  good  cause.     It  is  a  privilege  which  is  dear  to  the  people, 
perhaps  it  tends  to  make  them  more  attached  to  their  homes,  and  if  so, 
it  is  a  feeling  which  deserves  to  be  cherished,  because  It  is  in  the  nar- 
row circle  of  home,  that  the  foundation  of  morals  is  laid.     The  viola- 
tion of  the  Sabbath  is  a  crime  which  deserves  punishment.     But  when 
the  violation  consists  of  work,  without  noise  or  disorder,  there  is  nothing 
in  it  like  an  actual  breach  of  the  peace,  mthing  of  so  pressing  a  nature 
as  to  require  an  immediate  and  forcible  remedy.    The  serving  of  legal 
process  on  Sunday,  tends  to  disturb  the  quiet  of  that  day,  which  it  is 
the  object  of  the  law  on  which  this  proclamation  is  founded  to  protect.^ 
Tlierefore,  it  is  that  the  serving  of  all  legal  process,  is  forbidden  by 
another  act,^  except  in  cases  of  treason,  felony,  or  breach  of  the  peace. 
And  there  is  as  much  reason  to  apprehend  disturbance  from  an  entry 
for  the  purpose  of  making  a  conviction,  as  from  the  serving  of  process. 
It  is  on  the  ground  of  a  conviction,  on  the  view  of  a  justice,  that 
the  attorney-general  rests  one  of  his  arguments.     The  act  of  Assembly, 
says  he,  authorizes  a  conviction  on  view,  and  therefore,  it  authorizes  all 
the  means  of  conviction,  one  of  which  is,  an  entry  into  the  place  where 
the  breach  of  the  law  is  committed.     If  the  premises  be  true,  the  con- 
clusion is  fairly  drawn.     But  I  do  not  perceive,  that  where  the  justice 
views  the  offense,  an  entrance  is  necessary.     What  he  sees,  he  may  re- 
cord, and  convict  the  offender  on  the  evidence  of  his  own  senses.     But 
the  argument  for  the  Commonwealth  goes  to  prove  that  what  he  does 
not  see  with  sufficient  certainty,  he  may  remedy  by  an  entry  for  the 
purpose  of  getting  a  better  sight ;  but  that  is  outrunning  the  act  of 
Assembly  which  provides  for  two  modes  of  conviction,  one  on  view  of 
the  justice,  the  other  in  the  usual  way  by  proof  of  witnesses.     The  jus- 
tice may  take  his  choice ;  if  his  view  afford  sufficient  evidence  to  satisfy 
his  conscience,  he  may  convict  without  further  proof,  but  if  not,  he 
must  prove  the  fact  by  witnesses.     In  the  present  instance,  his  view 
was  in  his  own  opinion,  not  sufficient,  and  therefore  he  wished  to  enter. 
In  that  he  was  wrong ;  he  should  have  summoned  the  offenders  next 


1  Act  of  22d  April.  1794,  3  Snn.  Laws,  177.  »  1  Sun.  L.  25,  Act  of  1705. 


A^ 


VIDUAL8. 


COMMONWEALTH    V.  EYRE. 


803 


on  wofl  np^ainst  the 
change  of  circum- 
I,  but  not  a  change 
the  circ'e  of  cases, 
i  house ;  for  where 
1.     At  first  view,  it 
otectcd  in  his  own 
ong  habit  has  at- 
ught  not  to  be  vio- 
dear  to  the  people, 
r  homes,  antl  if  so, 
use  it  is  in  tlic  nar- 
is  laid.     The  viola- 
shment.     But  when 
ler,  there  is  nothing 
lo  pressing  a  nature 
'he  serving  of  legal 
hat  day,  which  it  is 
'ounded  to  protect.  ^ 
!ss,  is  forbidden  by 
ireach  of  the  peace. 
)ance  from  an  entry 
serving  of  process. 
?  of  a  justice,  that 
lie  act  of  Assembly, 
are,  it  authorizes  all 
into  tlie  place  where 
ies  be  true,  the  con- 
it  where  the  justice 
he  sees,  he  may  re- 
is  own  senses.     But 
re  that  what  he  does 
)y  an  entry  for  the 
trunning  the  act  of 
tion,  one  on  view  of 
(ritnesses.     The  jus- 
fa  evidence  to  satisfy 
roof,  but  if  not,  he 
it  instance,  his  view 
)  he  wished  to  enter, 
d  the  offenders  next 

Ct  of  1705. 


day,  and  proceeded  against  them  in  the  usual  manner.  But  it  is  said, 
he  did  not  know  them.  If  ho  did  not  Ivuow  tliem  liimstlf  he  should 
have  resorted  to  those  who  did  know  tliem.  Not  many  offenders  will 
escape  for  want  of  being  known.  It  is  jiossible  that  a  few  may,  and  if 
it  should  so  Inippen,  it  will  be  ijetter  tlian  that  an  important  privilege 
should  be  broken  down  in  order  to  get  at  them.  I  am  of  opinion,  tliat 
the  verdict  was  against  law,  and  therefore  there  sliculd  bo  a  new  trial. 

Yeates,  J.  The  question  which  was  agitated  upon  the  trial  of  this 
indictment,  before  me,  is  of  great  impctance  to  the  community.  It 
was  strenuously  contended  on  tlie  part  oi  the  Commonwealth,  that  the 
prosecutor,  Joseph  Grice,  Esq.,  as  a  jistije  of  the  peace,  had  a  legal 
right  to  force  his  entry  into  the  defendants  premises  against  his  will, 
under  tlie  circumstances  of  the  case  as  disclosed  iu  the  evidence.  Two 
men  were  seen  working  on  shore,  in  the  defendant's  ship-yard  upon 
Sunday.  Nine  or  ten  others  were  seen  working  on  board  a  vessel, 
which  was  then  building.  In  order  to  ascertain  who  the  persons  were 
who  were  guilty  of  a  breach  of  the  Sabbath,  Mr.  Grice  deemed  it  his 
duty  to  enter  the  shi[)-yard,  wiiich  was  enclosed  by  a  fence,  although 
opposed  therein  by  tiie  defendant.  Independently  of  the  defendant's 
resisting  the  force  attempted  by  Grice,  at  that  time,  the  great  bulk  of 
the  testimony  did  not  show  any  breach  of  tlie  peace  committed  by  the 
defendant.  So  tliat  the  question  on  this  part  of  tlie  case  was  narrowed 
to  a  single  point,  whether  the  forcible  entry  of  Grice  was  justifiable  or 
not?  I  gave  it  in  charge  to  the  jury,  that  a  justice  of  the  peace  had  na 
right  to  force  himself  into  the  possessions  of  another  in  quest  of  testi- 
mony against  the  will  of  the  owner ;  that  in  ce/tain  specified  cases,  as 
treason,  felony,  pending  an  affray,  where  a  dangerous  wound  had  been 
given,  for  breaches  of  the  peace,  or  for  surety  of  the  peace,  a  house 
might  be  broke  open,  with  or  without  a  warrant,  but  I  knew  of  no  prin- 
ciple of  the  common  law,  or  any  injunction  by  act  of  assembly,  extend- 
ing this  power.  Although  Sabbath  breaking  was  the  violation  of  a 
divine  as  well  as  a  human  law,  I  did  not  consider  it  as  an  actual  breach 
of  the  peace.  If  such  compulsory  domiciliary  visits,  to  search  for 
offenders,  or  testimony  to  convict  them,  might  be  made,  a  man's  house 
would  soon  cet  ^e  to  be  his  castle  of  defence,  and  the  greatest  disorders 
must  arise  therefrom.  I,  therefore  instructed  the  jury,  that  the  entry 
of  Mr.  Grice,  was  not  justifiable,  and  that  it  was  of  no  moment, 
whether  the  yard  gate  was  open  or  shut,  if  the  defendant  opposed  his 
entry.  I  see  no  reason  whatever,  for  changing  the  opinion  I  delivered 
to  the  jury. 

But  it  has  been  urged,  that  the  defendant  might  well  be  convicted  of 
an  assault  on  Grice  in  the  execution  of  his  office,  from  what  passed  at 
the  first  interview,  when  the  two  other  justices  were  present.     That 


804 


CHIMKH   AGAINST  TIIK   PERSONS  OF   INDIVIDUALS. 


matter  wiis  n..t  much  urged  ot  tbo  trial,  nor  do  I  think  tlio  ovidcnco 
warranti-a  the  vt-rdict,  and  more  particularly  when  it  in  considered,  that 
tliouKli  the  words  of  the  defendaut  were  rude  and  imi)r()i.er  at  the  time, 
yet  they  were  iiccomi)anied  by  cxuressioUH  explanatory  of  his  intentioUH, 
Which,  altlioujjli  (irice  eonii)lained  of,  ho  Uid  not  suggest  to  the  other 
justices,  that  an  assault  had  been  committed  on  him.  1  concur  in  set- 
ting aside  tiie  venlict  and  awarding  a  new  trial. 

BKACKKNuiixiK,  J.,  delivered  an  opinion  to  the  same  effect,  which  the 

reporter  has  not  been  able  to  procure. 

Xew  triul  granted. 


ASSAULT -TAKING  HOLD  OF  PERSON  WITHOUT  INTENT  TO  INJURE 

NOT. 

People  v.  Hale. 

[I  N.  Y.  Crim.  Rep.  633.] 
In  the  Supreme  Court  of  New  York,  1883. 

1  The  Taking  hold  of  a  Person',  arm  in  the  Oonadenoe  of  exlHtlng  Jrlendshlp.  tmit- 
^•i7ri^'..o  «.,uirca  by  H  su,.,.o«c.l  mutual  kind  feeling,  doing  no  injury,  and  with 
no  wrongful  intent,  is  not  a  criminal  act. 

a.  Woon  the  Trial  of  a  Charge  of  Assault  and  Battery,  it  appeared  that  the  defendant 
^,'na  tie  ,^ecut;ix.«l>o  were  acquaintanc-  -"nd  on  friendly  relat.ons,  were  walk  ng 
ogether  upon  the  .treet.  when  the  defendant  tool,  nold  ot  prosecutrix'*  arm.  the  testi- 
mony for  the  pro.ecution  being  that  thi-  wa.  done  with  violence,  and  for  the  defenso. 
r«t  It  was  done  without  violence,  and  with  no  intent  to  injure  or  '7"'' ••^^^""f' 
The  act  remained  uncomplained  of  for  four  months.  The  Jury  returned  »»  t^elr  verdic  . 
..tlm*  while  we  find  the  prisoner  guilty  of  an  assault,  we  do  not  deem  hln,  B"  'ty  of 
crimina  assault  or  intent  to  Injure."  The  court  refused  to  entertain  the  verdict  and 
S  jTy  tl  ereupon  found  a  verdict  of  guilty  with  a  recommendation  to  mercy ;  where- 
upon uL  defendant  was  sentenced.  Held,  error;  that  the  first  verdict  was.  in  legal 
•Sect,  an  acquittal,  and  should  have  been  entertained. 

Appeal  from  judgment  of  the  Court  of  Sessions  of  Rensselaer  County, 
Hon  J.  Forsyth,  County  Judge,  presiding,  affirming  the  judgment  of 
the  Police  Court  of  the  city  of  Troy,  wherein  the  defendant  was  convicted 
of  the  crime  of  assault  and  battery,  and  sentenced  to  pay  a  fine  of  $^0, 
or  in  default  thereof,  to  be  confined  at  hard  labor  in  the  Rensselaer 
county  jail,  for  the  period  of  sixty  days. 

The  alleged  offense  was  committed  on  June  24,  1882 ;  the  complaint 
was  made,  and  the  trial  had,  four  months  thereafter.  The  trial  was  by 
jury  and  on  the  rendition  of  the  verdict,  the  following  proceedings 
were  had-  "The  jury  retired  and  after  deliberating,  returned  into 
court  with  the  following  verdict:  'That  wliile  we  find  the  prisoner 
guilty  of  assault,  we  do  not  deem  him  guilty  of  a  criminal  assault,  or 


Alia 


»IVIDUAL8. 


I'EOrLE   V.  4IALE. 


805 


[  think  tlic  ovidi'Dco 
it  in  cunsitli.'ii"l,  tlmt 
itupropt-T  at  tlie  time, 
ory  of  Ills  iutt'iitioUH, 
suggest  to  the  other 
im.     1  concur  in  set- 

ime  effect,  which  the 

jVcjo  triiil  granted. 


INTENT  TO  INJURE 


,  1883. 

il  existing  trlendahip,  tmit- 
{,  doing  no  Injury ,  and  with 

kppeared  that  the  defendant 
idly  relations,  were  walking 
prosecutrix's  arm,  the  testi- 
lolence,  and  for  the  defensu, 
njure  or  Insult  prosecutrix, 
iry  returned  as  their  verdict, 
lo  not  deem  lilni  guilty  of  ii 
1)  entertain  the  Tcrdict,  and 
nondation  to  mercy;  where - 
e  first  verdict  was,  In  legal 


of  Rensselaer  County, 
ning  the  judgment  of 
gfendant  was  convicted 
id  to  pay  a  fine  of  $30, 
ibor  in  the  Rensselaer 

I,  1882 ;  the  complaint 
fter.  The  trial  was  by 
following  proceedings 
jerating,  returned  into 
we  find  the  prisoner 
a  criminal  assault,  or 


Intent  to   injure.'     The  court  refused  to  entertain  the  verdict,  and 
directed  the  jury  to  again  retire.     Tlie  jury  again  returned  li.to  court, 
and  reml.red  a  verdict  of  guilty,  and  recommended  tlie  prisoner  to  the 
nieicy  of  the  court."    Thereupon  the  court  pronounced  judgment  as 
above  stated. 
Furtlier  facts  appear  in  the  opinion. 
William  H.  Hale,  defendant  and  appellant  in  person. 
L.  W.  Rhodes,  District  Attorney,  and  Lewis  E.  Orifflth  (assistant), 
for  the  People,  respondent.     Tlie  magistrate  did  not  err  in  refusing  to 
entertain  the  verdict  as  first  presented  by  the  jury. 

There  are  only  two  forms  of  verdict  known  to  criniinal  practice :  a 
fjeneral  verdict,  which  must  be  either  guilty  or  not  guilty,  or  a  special 
verdict  by  which  the  jury  finds  the  facts  alone  and  leaves  the  judgment 
to  the  court.' 

The  magistrate  did  not  err  in  directing  the  jury  to  reconsider  their 
verdict,  as  it  was  neither  a  general  or  special  one.* 

BocKES,  J.  The  point  is  taken  that  the  first  verdict  was,  in  legal 
effect,  a  verdict  of  acquittal,  and  this,  whether  it  be  <'.eemed  to 
he  a  general  or  a  special  verdict;  that  in  either  case,  there  was  an 
express  finding  against  the  commission  of  a  crime,  which  in  as- 
sault and  battery,  necessarily  involves  a  criminal  intent,  an  in- 
tent to  commit  an  act  of  violence  upon  another,  by  way  of 
injury  and  insult,  one  or  both,  productive  of  a  breach  of  the 
peace.  The  act  complained  of  was  the  taking  hold  of  the  arm 
of  a  young  woman,  Miss  Dewar,  when  walking  in  the  street  with  others, 
her  associates,  male  and  female.  The  defendant  and  Miss  Dewar  were 
acquaintances,  and  to  the  time  of  the  occurence,  held  friendly  relations 
with  each  other.  Miss  Dewar  and  Mr.  Crutchley,  with  whom  she  was 
walking,  and  who  it  seems  was  not  on  friendly  terms  with  the  defendant, 
testified  that  the  defendant  violently  seized  hold  of  her  arm ;  whereas 
two  others,  disinterested  witnesses,  who  were  present,  put  the  act  more 
mildly,  saying  that  they  saw  him  take  hold  of  Miss  Dewar's  arm ; 
and  the  defendant,  not  denying  that  he  tooli  hold  of  Miss  Dewar's  arm, 
testified  that  "  it  was  not  with  the  intent  to  assault  or  insult  her,"  on 
this  proof ,  the  jury  rendered  theJr  verdict;  and  it  was  for  the  jury  to 
say  which  version  of  the  transaction  should  be  adopted  as  the  true  one. 
The  jury  had  the  right  to  conclude,  especially  in  view  of  the  former 
friendly  relations  which  had  existed  between  the  defendant  and  Miss 
Dewar,  undisturbed  until  Mr.  Crutchley  came  between  them,  that  the 
defendant  simply  took  hold  of  Miss  Dewar's  arm,  with  no  "intent  to  in- 
sult her;"  and  the  jury  did  so   find  that  the  taking  held  of  Miss 


J 


1  Code  Cr.  Pr.,  »ece.  437, 438. 

a  i6. ,  sec.  448  i  People  v.  Bush,  3  Park.  W2 ; 


People  V.  Graves,  6  lb.  134 ;  Nelson  v.  People, 
S  lb.  39. 


806 


CRIMES   AGAINST   THE    PERSONS    OF   INDIVIDUALS. 


Dewar's  arm  was  not  a  "  criminal  assault  "  or  with  "  intent  to  injure." 
Was  not  this  verdict  a  perfect  acquittal?    If  the  assault  was  not  crimi- 
nal, there  was  no  crime.     The  jury  found  the  defendant  not  guilty  of 
a  criminal  assault ;  that  is  they  found  that  the  defendant  took  hold  of  Miss 
Dewar's  arm,  but  with  no  criminal  intent.     This  was  good  as  a  special 
verdict,  which  need  not  be  in  any  particular  form,  if  it  presents  intelli- 
gently the  facts  found  by  the  jury.^    It  was  a  finding  of  the  facts.     It 
presented  the  conclusions  of  fact  as  established  by  the  evidence,  as  con- 
strued by  the  jury.^     It  was  not  an  imperfect  or  defective  verdict,  but 
covered  the  entire  case ;  nor  did  it  contain  &o.y  suggestion  of  mistalie,  so 
People  V.  Bush,^  Nelson  v.  People,*  and  People  v.  Graves,^  have  no 
application.     The  defendant  was  charged  with  a  criminal  act.     The 
jury  found  that  the  act  on  which  crime  was  predicated,  was  not  crimi- 
nal ;  and  they  might  so  find,  if  they  found  the  facts  to  be  as  claimed 
and  proved  on  the  part  of  the  defendant.     What  are  the  constituents  of 
the  crime  of  assault  and  battery?    It  has  been  tersely  laid  down  as 
follows:  "An  act  done,  with  criminal  intent  and  injury  to  the  public 
or  disturbance  of  the  public  peace. "     It  should  be  held  in  mind  that  wc 
are  considering  the  case  of  an  alleged  crime,  not  the  right  of  private 
action  for  damages  because  of  a  trespass  upon  the  person,  in  which  case 
intention  is  not  m-terial  except  on  the  question  of  damages.     Here  w( 
are  treating  with  the  subject  of  crime ;  so  to  make  the  act  criminal,  ii 
must  be  committed  with  criminal  intent ;  an  act  —  an  assault— withoul 
such  intent,  does  not  constitute  a  crime,     Greenleaf  says,  the  Inten. 
tlon  to  do  harm  is  of  the  essence  of  an  assault ;  and  again,  in  the  cas( 
of  a  mere  assault,  the  quo  animo  is  material ;  and  again,  it  is  said,  th( 
law  judges  not  only  of  the  act  done,  but  of  the  intent  with  which  it  ii 
done ;  thus,  to  make  an  act  criminal,  there  must  be  vicious  intentioi 
and  criminal  design.     Infants,  idiots,  and  persons  of  unsound  mind 
are  held  to  be  irresponsible  for  their  acts,  otherwise  criminal,  becaus( 
Incapable  of  felonious  or  criminal  intent.     Lord  Kenyon,  speaking  upoi 
this  subject,  says  the  intention  and  the  act  must  both  concur  to  const! 
tute  the  crime.     In  Hays  v.  People,^  the  intent  was  looked  upon  a 
necessary  to  the  offense;  so  it  is  said  in  Russell  on  Crimes,  tha 
whether  the  act  shall  amount  to  an  assault,  must  in  every  case  be  col 
lected  from  the  intention,  citing  the  remark  approvingly  that  it  is  th 
quo  animo  which  constituted  an  assault,  which  was  a  matter  to  be  lei 
to  the  jury,  as  above  suggested.     We  are  here  considering  the  subjec 
in  its  criminal  aspect,  not  as  in  personal  actions  of  trespass  vi  et  ormii 
Then  has  a  crime  been  committed?    Was  there  culpability,   viciou 


Code  Crlm.  Proc,  sec.  4 10 
a  Code  Crim.  Pro.,  sec.  438. 
3  3  Park.  BR2. 


*  B  lb.  39. 
»  B  lb.  134. 

•  1  Hill,  331. 


INDIVIDUALS. 

with  "  intent  to  injure." 
he  assault  was  not  crimi- 
!  defendant  not  guilty  of 
f  endant  took  hold  of  Miss 
lis  was  good  as  a  special 
arm,  if  it  presents  intelli- 
,  finding  of  the  facts.     It 
:1  by  the  evidence,  as  Con- 
or defective  verdict,  but 
suggestion  of  mistake,  so 
jple  V.  Graves,^  have  no 
ith  a  criminal  act.     The 
)redicated,  was  not  crimi- 
lie  facts  to  be  as  claimed 
lat  are  the  constituents  of 
)een  tersely  laid  down  as 
and  injury  to  the  public 
d  be  held  in  mind  that  we 
,  not  the  right  of  private 
the  person,  in  which  case 
on  of  damages.     Here  we 
)  make  the  act  criminal,  it 
ict  —  an  assault —  without 
Jreenleaf  says,  the  Inten- 
It ;  and  again,  in  the  case 

and  again,  it  is  said,  the 
he  intent  with  which  it  is 
must  be  vicious  intention 
(ersons  of  unsouud  mind, 
herwise  criminal,  because 
rd  Kenyon,  speaking  upon 
lust  both  concur  to  consti- 
tent  was  looked  upon  as 
Russell  on  Crimes,  that 
must  in  every  case  be  col- 

approvingly  that  it  is  the 
ich  was  a  matter  to  be  left 
?re  considering  the  subject 
)ns  of  trespass  vi  et  nrmis. 
there  culpability,   vicious 


PEOPLE   V.  HALE. 


807 


intention,  criminal  design,  designed  disturbance  of  the  public  peace? 
The  jury  found,  and  so  rendered  their  verdict,  that  the  defendant  was 
not  guilty  in  this  regard  —  that  the  act  complained  of  was  not  a  crimi- 
nal act,  did  not  involved  any  element  essential  to  crime.  They  had  the 
right  to  find,  if  they  deemed  the  facts  proved  to  justify  the  finding,  that 
the  taking  hold  a  person's  arm,  in  the  con.idence  of  existing  friendship, 
trusting  to  a  license  acquired  by  a  supposed  mutual  kind  feeling,  doing 
no.njury,  with  no  intent  to  do  a  wrong,  bj,  insult  or  otlierwiae,  is  not  a 
criminal  act.  Such  an  act  is  an  innocent  one,  in  the  sense  that  it  does 
not  constitute  a  crime.  It  is,  too,  of  some  significance,  as  bearing  on 
the  legal  views  above  expressed,  that  the  act  remained  uncomplained  of 
for  four  months,  and,  as  counsel  stated  on  the  argument —  and  this  was 
not  disputed,  —  until  after  trouble  had  arisen  between  the  defendant 
and  Crutcliley,  with  whom  Miss  Dewar  was  walking  at  the  time  of  the 
occurrence. 

Again,  the  record,  as  it  now  stands,  presents  a  strange  anomaly.  It 
contains  two  verdicts,  one  not  guilty;  the  other,  guilty.  The  first 
verdict  was  not  taken  back  by  the  jury ;  nor  was  the  second  one  an 
amendment  of  the  first.  Each  was  perfect  of  itself,  not  defective  or 
suggestive  of  mistake ;  the  first,  being  complete  of  itself,  and  declaring 
that  tliC  act  complained  of  was  not  criminal,  that  the  defendant  was 
not  guilty  of  crime  in  doing  it,  — should  have  been  accepted  as  final. 
It  follows  tha'.  the  judgment  pronounced  by  the  Police  Court  was  errone- 
ous. This  conclusion  renders  it  unnecessary  to  examine  other  ques- 
tions raised  on  the  appeal. 

The  judgment  of  the  Rensselaer  Sessions  and  of  the  Police  Court 
should  be  reversed,  and  the  defendant  discharged. 

Learned,  J.  [concurring].  Simply  to  find  the  prisoner  guilty  of 
assault,  was  to  find  him  guilty  of  a  criminal  intent,  simply  to  find  him 
not  guilty  of  a  criminal  assault  was  to  acquit  him.  The  difficulty  ia  to 
say  what  the  jury  meant  by  their  verdict,  inconsistent  on  its  face.  If 
they  iceant  to  acquit,  then  it  was  error  not  to  entertain  the  verdict,  and 
to  direct  the  jury  agai  o  retire.  If  it  had  been  explained  to  them 
that,  on  this  criminal  prosecution,  there  could  be  no  assault  without  an 
intent  to  injure,  then  they  might  have  stated  what  they  intended ;  ^  but 
this  was  not  done,  so  far  as  appears,  as  they  distinctly  found  that  there 
was  no  criminal  assault  and  no  intent  to  injure.  I  am,  on  the  whole, 
of  the  opinion  that  by  the  words  "  guilty  of  assault,"  they  must  have 
meant  sim;<ly  that  tlie  defendant,  as  he  himself  stated,  took  hold  of 
the  prosecutrix.  I  tiiink  that  they  must  have  believed  that  any  such 
taking  hold  of  another  person,  without  regard  to  the  intent,  was  an 


w. 

134. 
,331. 


1  3  Greenl.  Et.  361. 


808 


CRIMES   AGAINST   TUB   PERSONS   OF   INDIVIDUALS. 


assault.  There  it,  much  in  this  case  which  renders  this  view  tenable,  as 
is  shown  in  the  preceding  opinion  of  my  brother  Bockes.  The  evidence 
fully  justified  the  conclusion  that  there  was  no  assault;  and  if  the  jury 
so  found,  their  verdict  appears  to  be  just  and  proper. 

Although  the  matter  is  not  xree  from  doubt,  I  conclude  that  the  ver- 
dict first  rendered  was  practically  a  verdict  of  acquittal,  and  I  concur 
in  the  foregoing  opinion. 

BoARDMAN,  J. ,  concurred  in  the  result. 


ASSAULT  — NEGLIGENT  DRIVING  IN  VIOLATION  OF  CITY 

ordinance. 
Commonwealth  v.  Adams. 

[lU  Mass.  323;  19  Am.  Rep.  362.] 
In  the  Supreme  Judicial  Court  of  Massachusetts,  November  Term,  1873. 

One  who  NeBUgently  drives  over  another  is  not  guilty  ot  a  criminal  aseanlt  and  battery, 
although  he  docs  it  while  violating  a  city  ordinance  against  fast  driving. 

Action  for  assault.  At  the  trial  in  the  Supreme  Court  before  Bacon, 
J.,  it  appeared  that  the  defendant  was  driving  in  a  sleigh,  down  Beacon 
Street,  and  was  approaching  the  intersection  of  Charles  Street,  when  a 
team  o  ccupied  the  crossing.  The  defendant  endeavored  to  pass  the 
team  while  driving  at  a  rate  prohibited  by  an  ordinance  of  the  city  of 
Boston.  In  so  doing  he  ran  against  and  knocked  down  a  boy  who  was 
crossing  Beacon  Street.  No  special  intent  on  the  part  of  the  defend- 
ant to  injure  the  boy  was  shown.  The  defendant  had  pleaded  guilty 
to  a  complaint  for  fast  driving,  in  violation  of  the  city  ordinance.  The 
Commonwealth  asked  for  a  verdict  upon  the  ground  tliat  the  intent  to 
violate  the  city  ordinance  supplied  the  intent  necessary  to  sustain  the 
charge  of  assuault  and  ,battery.  The  court  so  ruled  and  thereupon 
the  defendant  submitted  to  a  verdict  of  guilty  and  the  judge  at  the  de- 
fendant's request,  reported  the  case  for  the  determination  of  this  court. 

A.  Riiss,  for  defendant. 

C.  R.  Train,  Attorney-General,  for  Commonwealth. 

Endicott,  J.  We  are  of  opinion  that  the  ruling  in  this  case  can  not 
be  sustained.  It  is  true  that  one  in  the  pursuitof  an  unlawful  act  may 
sometimes  be  punished  tor  another  act  done  without  design  and  by 
mistake,  if  'he  act  done  was  one  for  which  he  could  have  been  pun- 
ished if  done  willfully.  But  the  act  to  be  unlawful  in  this  sense  must 
be  an  act  bad  in  itself  and  done  with  an  evil  intent ;  and  the  law  has 


HVIDUALS. 


SHOVLIN    V.  COMMONWEALTH. 


809 


this  view  tenable,  as 

iCKEs.     Tlie  evidence 

lult ;  and  if  the  jury 

er. 

oncliule  that  the  ver- 

quiitnl,  und  I  concur 


TION  OF  CITY 


] 

bvember  Term,  1873. 

iminal  aseanlt  and  battery^ 
ast  driving. 

Court  before  Bacon, 
%  sleigh,  down  Beacon 
iharlea  Street,  when  a 
deavored  to  pass  the 
linance  of  the  city  of 

down  a  boy  who  was 
le  part  of  the  defend- 
,nt  had  pleaded  guilty 
city  ordinance.  The 
und  that  the  intent  to 
cessary  to  sustain  the 
ruled  and  thereupon 
\  the  judge  at  the  de- 
lination  of  this  court. 

ialth. 

ig  in  this  case  can  not 
[  an  unlawful  act  mny 
without  design  and  by 
could  have  been  pun- 
f  ul  in  tliis  sense  must 
iitent ;  and  the  law  h&a 


always  made  this  distinction ;  that  if  the  act  the  party  was  doing  was 
merely  ^luiJum  prohibitum,  be  shall  not  be  punished  for  the  act  arising 
from  misfortune  or  mistake,  but  if  malum  in  se,  it  is  otherwise.*  Acts 
miila  ill  ae  include,  in  addition  to  felonies,  all  breaches  of  public  or- 
der, injuries  to  persons  or  property,  outrages  upon  public  decency  or 
good  morals,  and  breaches  of  official  duty  when  done  willfully  or  cor- 
ruptly. Acts  mala  proJiibitn  include  any  matter  forbidden  or  com- 
manded by  statute,  but  not  otherwise  wrong. '^  It  is  within  the  la^t  class 
that  the  city  ordinance  of  Boston  falls,  orohibiting  driving  more  than 
six  miles  an  hour  in  the  streets. 

Besides,  to  prove  the  violation  of  sucIj  an  ordinance  it  is  not  necessary 
to  show  that  it  was  done  willfully  or  corruptly.  The  ordinance  de- 
clares a  certain  thing  to  be  illegal ;  it  therefore  becomes  illegal  to  do  it, 
without  a  wrong  motive  charged  or  necessary  to  be  proved ;  and  the 
court  is  bound  to  administer  the  penalty,  although  there  is  an  entire 
want  of  design. 3  It  was  hell  in  Commonwealth  v.  Worcester ,*  iV&X, 
proof  only  of  the  fact  that  the  party  was  driving  faster  than  the  ordin- 
ance allowed  was  sufficient  for  a  conviction.-^  It  is  therefore  imma- 
terial whether  a  party  violates  the  ordinance  willfully  or  not,  the  of- 
fense consists  not  in  the  intent  with  which  the  act  is  done,  but  in  doing 
the  act  prohibited,  but  not  otherwise  wrong.  It  is  obvious,  therefore, 
that  the  violation  of  the  ordinance  does  not  in  itself  supply  the  intent 
to  do  another  act  which  requires  a  cinminal  intent  to  be  proved.  Tlie 
learned  judge  erred  in  ruling  that  the  intent  to  violate  the  ordinance  in 
itself  supplied  the  intent  to  sustain  the  charge  of  assault  and  battery. 

The  verdict  must,  therefore,  be  set  aside  and  a 

New  trial  granted. 


ASSAULT— ARREST  BY  OFFICER  WITHOUT  WARRANT  — WHEN 
NOTICE  NOT  ESSENTIAL. 

Shovlin  V.  Commonwealth. 

[106  Pa.  St.  369.] 
In  the  Supreme  Court  of  Pennsylvania,  1884. 

!•  Where  an  OiBoer  Is  empowered  by  law  to  arrest  without  warrant,  he  is  not  in  every  case 
bound  before  making  the  arrest  to  give  the  party  to  be  arrested  clear  and  distinct  notice 
of  his  purpose  to  make  the  arrest,  and  also  of  the  fact  that  be  is  legally  quiUifled  to 
make  it. 


1  7  Hale's  P.  C.  39 ;  Foster's  C.  L.  259. 

3  3  Grcenl.  Ev.  sect.  1. 

3  King  V.  SaiDsbury,  7  T.  R.  4SI,  4S7. 


4  3  Pick.  402. 

'  See  Com.  v.  Lairen,  9  Allen,  S89;  Com. 
V.  Waite,  U  Id.  201. 


810  CRIMES   AGAINST  THE  PEK80NS  OF  INDIVIDUALS. 

2  Where  the  Offender  in  question  Is  openly  and  notoriously  engaged  In  breaking  tholaw. 
as  for  oKanS  where  he  is  maintaining, h  gambling  table  in  a  public  pla.c  .t  .s  suffi- 
ce ,t  for  tie  o.  iccr  to  announce  his  oilioal  position  and  dcn.an.l  a  ^on-e-lc  •  "^« 
?.  refused  t„e  oiUcer  U  not  liable  to  indictment  for  assault  by  reason  of  tl.e  fact  tl.at  he 
used  force  to  secure  his  prisoner. 

April  17,  1884.  Before  Mebccu,  C.  J.,  Goudon,  Paxsox.  Trunket, 
Stehuett,  Green  and  Clauk,  J.T. 

Error  to  the  Court  of  Quarter  Sessions  of  Luzerne  County.     Uf 

January  Term,  1884. 

Indictment  against  Cliarles  Shovlin,  Charles  W.  Tammany,  and 
Hiram  Rhodes,  conlaining  two  counts,  viz.:  (1)  aggravated  assault 
and  battery ;  (2)  assault  and  l)attery  on  one  T.  E.  Bowser. 

On  the  trial,  before  Woodward,  J.,  the  following  facts  appeared: 
At  a  meeting  of  the  Lee  Tark  Trotting  Association,  held  in  June,  1883, 
one  Bowser  secured  the  privilege  of  putting  up  a  gambling  apparatus 
in  the  park.     Complaint  of  this  fact  was  made  to  some  of  the  con- 
stables   of    Wilkesbarre,   amon^    others    to    C.  W.  Tammany,  who 
requested  the  officers  of  tlie  park  to  have  the  gambling  stopped,  and 
subsequently  upon  learning  that  nothing  had  been  done,  applied  to  an 
alderman  for  a  warrant  for  the  arrest  of  Bowser,  and  was  informed  by 
said  alderman,  that  the  statute  authorized  his  arrest  without  a  waiTant. 
He  then  secured  the  assistance  of  two  other  constables,  Shovlin  and 
Rlioades,   and    they    went    to    the   gambling  tables,   and  Tammany 
announced  himself  as  a  constable,  showed  his  star,  and  told  Bowser  to 
surrender  his  machinery,  and  consider  himself  a  prisoner.     Bowser 
refused,  and  upon  Tammany's  attempting  to  put  handcuffs  upon  him, 
a  fiaht  ensued,  in  which  Bowser  was  severely  bruised  by  a  billy,  and  the 
butt  of  a  revolver  in  the  hands  of  one  of  the  constables,  and  some  of 
the  money  from  the  tables  was  taken  by  constables.     Bowser  escaped. 
The  constables  were  arrested  upon  information  of  one  W.  J.  Harvey, 
the  superintendent  of  the  park,  charged  with  an  aggravated  assault 
and  batterv,  and  the  prosecutor  further  alleged  that  the  only  purpose 
of  the  constables  in  making  the  raid  was  to  secure  gain  for  themselves. 
The  court  charged  the  jury,  inter  alia,  as  follows :  [If  you  believe  the 
witnesses  for  the  Commonwealth,  there  was  here  an  attack  made  upon 
this  injured  man  which  would  seem  to  have  been  unnecessarily  violent, 
althouc^h  made  bv  officers  of  the  law,  and  the  defendants  may  be  con- 
victed"]    (First  assignment  of  error).     If,  on  the  contrary,  you  believe 
the  evidence  of  the  defendants  and  their  witnesses,  that  they  exercised 
no  more  force  than  was  necessary  to  vindicate  the  law  and  protect  them- 
selves  from  injurv,  they  should  be  acquitted.     Or  if  after  a  calm,  con- 
scientious  and  full  review  of  all  the  evidence  on  both  sides,  you  still 
feel  a  reasonable  doubt  in  regard  to  the  subject,  the  defendants  are 
entitled  to  the  benefit  of  that  and  should  be  acquitted.     •    •     * 


^A 


IVIDUALS. 


SnOOL'N   V.  COMMONWEALTH. 


811 


raged  In  breaking  the  law, 
a  public  jilacc,  it  is  suffl- 
iianil  a  Burreiulcr.  If  this 
reason  of  tlie  fact  that  be 


I,  Paxsok.  Trunket, 
uzcrnc  County.     Of 

W.  Tammany,  and 
)  aggravated  assault 
.  Bowser. 

dng  facts  appeared: 
1,  held  in  June,  1883, 
I  gambling  apparatus 

to  some  of  the  con- 

W.  Tammany,  who 
imbling  stopped,  and 
n  done,  applied  to  an 
and  was  informed  by 
ist  without  a  waiTant. 
astables,  Shovlin  and 
tbles,  and  Tammany 
ir,  and  told  Bowser  to 

a  prisoner.  Bowser 
t  handcuffs  upon  him, 
scd  by  a  billy,  and  the 
jHstables,  and  some  of 
les.     Bowser  escaped. 

of  one  W.  J.  Harvey, 
an  aggravated  assault 
.  that  the  only  purpose 
re  gain  for  themselves. 
rs :  [If  you  believe  the 
3  an  attack  made  upon 
I  unnecessarily  violent, 
iefendants  may  be  con- 
e  contrary,  you  believe 
les,  that  they  exercised 
e  law  and  protect  them- 
>r  if  after  a  calm,  con- 
)n  both  sides,  you  still 
ect,  the  defendants  are 
uitted.     •    •     • 


[If  an  offlcer  proceeds  to  '.aalce  an  uriest  for  an  offense  committed 
iindcr  his  eye,  without  a  wf.rrant,  he  is  bound  to  give  to  the  party 
arrested,  clear  and  distinct  notice  of  his  purpose  of  malving  the  arrest, 
and  also  of  the  fact  that  he  is  legally  qualified  to  maice  it,  or  is  an 
ofl3cer  of  the  law ;  and  failure  to  do  this  on  the  part  'of  tlie  officer,  may 
make  him  guilty  of  an  assault  upon  the  i)erson  arrested,  while  under 
other  circumstances  —  if  pi'oper  notice  liad  been  given  —  he  would  not 
be  guilty  of  an  assault,  and  in  tliis  connection  we  may  say  to  you 
further,  that  something  more  is  necessary  than  merely  to  show  a  star, 
or  badge,  insignia  of  office.]     (Second  assignment  of  error. ) 

Verdict,  guilty  on  the  second  count.  The  court  sentenced  Shovlin  to 
pay  $50  and  costs,  and  Tammany  and  Rhoades  each  to  pay  8100  and 
costs.  The  defendants  took  this  writ,  assigning  for  error  the  portions 
of  the  charge  above  inclosed  in  brackets. 

T.  It.  Manin,  John  T.  Lenahan  and  Q.  A.  Oates,  for  plaintiff  in 
error.  Bowser  was  engaged  in  the  commission  of  an  offense  which 
rendered  him  liable  to  arrest  on  view  of  an  officer,  and  hence,  no  notice 
was  necessary."^  But  conceding  that  a  criminal  detected  by  a  constable 
in  the  actual  and  flagrant  violation  of  our  laws  against  certain  kinds  of 
gambling,  can  not  be  legauy  arrested  without  having  clear  and  distinct 
notice  from  the  officer  of  his  intention  to  arrest  him,  it  is  not  necessary, 
as  stated  by  the  learned  judge,  that  something  more  in  the  way  of  giving 
notice  to  the  party  to  be  arrested  should  be  done,  than  by  showing  a 
badge  or  star,  insignia  of  offices.* 

Jolm  McGahren,  District  Attorney  {Henry  W.  Palmer  with  him), 
for  the  Commonwealth,  defendant  in  error.  The  authorities  relied  on 
by  the  plaintiff  in  error  only  affirm  the  principle  that  a  known  officer  of 
the  law,  acting  in  his  own  district,  need  not  show  his  authorit}'. 

A  party  has  the  right  to  resist,  unless  the  officer  and  cause  of  arrest 
are  known  to  the  offender.  ^  But  an  officer,  if  resisted,  is  not  bound 
to  exhibit  his  warrant.  If  not  resisted,  and  there  is  no  well  grounded 
reason  to  expect  resistance  or  escape,  he  should,  on  request,  exhibit  the 
warrant.* 

Mr.  Justice  Sterrett,  delivered  the  opinion  of  the  court. 

After  prohibiting  various  forms  of  gambling,  prescribing  penalties 

therefor,  etc.,  our  crimes  act  of  March  Slst,    1860,   declares:  "It 

shall  or  may  be  lawful  for  any  sheriff,  constable,  or  other  officer  of 

justice,  with  or  without  warrant,  to  seize  upon,  secure,  and  remove  any 


1  People  V.  Pool,  27  Oal.  B78;  3  Whar.  Or. 
L., sec.  29-24;  Rex  v.  Davis,  7  C.  A  P.  7S7: 
Act  March  3, 1860,  sec.  60 ;  Cora.  v.  Cooley,  0 
Gray,  360;  Stale  v.  Townseud,  5  Har.  (Del.) 
487,  438;  Arnold  v.  Steeves,  10  Wend.  314. 


S  IBlBh.  Cr.  Pr.,  sec.  192;  3  Whar.  Cr. 
L.,  sec.  2924. 

3  Wolf  f.  State,  19  Ohio  St.  248;  Com. 
f.  Hewcs,  I  Brews.  348. 

*  Com.  V.  Hewes,  1  Brews.  348. 


812  CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

device  or  machinery  of  any  kind,  character  or  description  wliatsoever, 
used  and  employed  for  tlie  purpose  of  unlawful  gaming  as  aforesaid, 
and  to  arrest,  with  or  without  warrant,  any  person  setting  up  the  same." 
It  is  not  seriously  questioned  that  Bowser,  the  person  on  whom  the 
alleged  assault  and  battery  wjs  committed,  was  openly  engaged  in 
violating  both  the  letter  and  spirit  of  the  act ;  indeed,  it  is  very  evident 
from  the  testimony  that  plaintiffs  in  error  were  as  fully  authorized,  by 
the  section  above  quoted,  to  seize  the  gambling  apparatus  and  arrest 
the  proprietor  thereof,  as  if  they  had  been  armed  with  a  warrant  for 
that  purpose.  The  question,  therefore,  was  not  whether  they  were 
guilty  of  an  assault  and  battery  in  making  the  arrest,  but  whether  they 
were  guilty  of  the  offense  for  which  they  were  indicted  by  reason  of 
their  having  used  more  force  tlian  was  reasonably  necessary  under  the 
circumstances;  and,  in  the  main,  that  question  was  fairly  submitted  to 

the  jury. 

The  first  assignment  of  error  is  not  sustained .  In  charging,  as  therein 
specified,  the  learned  judge  expressed  a  decided  opinion,  as  to  the 
effect  of  the  Commonwealth's  testimony;  but,  the  jury  could  not  have 
been  unduly  influenced  thereby,  for  the  reason  that  in  the  very  next 
sentence  he  said  to  them:  "If,  on  the  other  hand,  you  believe  the 
evidence  of  the  defendants  and  their  witnesses,  that  they  exercised  no 
more  force  than  was  necessary  to  vindicate  the  law  and  protect  them- 
selves from  injury,  they  should  be  acquitted."  The  question  of  fact 
was  thus  left  to  the  jury  without  anything  more  than  a  mere  expression 
of  opinion  as  to  the  effect  of  the  testimony  if  believed. 

One  of  the  questions  involved  in  the  second  specification  is,  whether 
an  officer,  authorized  to  arrest  without  warrant,  is  bound,  before  doing 
so  •'  to  give  the  party  to  be  arrested  clear  and  distinct  notice  of  his  pur- 
pose to  make  the  arrest,  and  also  of  the  fact  that  he  is  legally  qualified 
to  make  it;  "  in  other  words,  may  the  officer  be  convicted  of  assault 
and  battery,  for  making  the  arrest,  without  first  g  ving  such  notice? 
While  in  most  cases  it  may  be  prudent  for  the  officer  to  give  the  notice 
before  making  the  arrest,  it  is  going  too  far  to  say,  in  effect,  that  he  is 
required  to  do  so ;  and,  therefore,  wo  think  that  the  learned  judge  erred 
in  charging  the  jury  as  he  did  on  that  subject.  In  considering  the 
question,  as  presented  by  the  undisputed  facts  of  this  case,  it  is  fair  to 
assume  the  constable  and  his  assistants,  plaintiffs  in  error,  were 
authorized  to  make  the  arredt;  that  the  authority  with  which  the  con- 
stable was  expressly  clothed  by  the  act,  was  at  least  equivalent  to  a 
warrant.  It  is  doubtless  the  duty  of  an  officer,  who  executes  a  warrant 
of  arrest,  to  state  the  nature  and  substance  of  the  process,  which  gives 
him  the  authority  he  professes  to  exercise,  and  if  it  is  demanded,  to 
exhibit  his  warrant,  that  the  party  arrested  may  have  no  excuse  for 


A^i 


)IV1DUAL9. 

scription  whatsoever, 
ffaminff  as  aforesaid, 
setting  up  the  same. ' ' 
person  on  whom  the 
»  openly  engaged  in 
ed,  it  is  very  evident 
I  fully  authorized,  by 
apparatus  and  arrest 
i  with  a  warrant  for 
b  whether  they  were 
Bst,  but  whether  they 
indicted  by  reason  of 
'  necessary  under  the 
18  fairly  submitted  to 

;n  charging,  as  therein 
d  opinion,  as  to  the 
e  jury  could  not  have 
that  in  the  very  next 
and,  you  believe  the 
;hat  they  exercised  no 
law  and  protect  them- 
The  question  of  fact 
lan  a  mere  expression 
ieved. 

(ecification  is,  whether 
s  bound,  before  doing 
tinct  notice  of  his  pur- 
he  is  legally  qualified 
5  convicted  of  assault 
t  g  ving  such  notice? 
leer  to  give  the  notice 
ly,  in  effect,  that  he  is 
;he  learned  judge  erred 
t.  In  considering  the 
[  this  case,  it  is  fair  to 
intiffs  in  error,  were 
ty  with  which  the  con- 
least  equivalent  to  a 
rho  executes  a  warrant 
le  process,  which  gives 
if  it  is  demanded,  to 
ly  have  no  excuse  for 


PEOPLE   V.  CAUYL. 


813 


resistance.!  On  the  other  hand,  as  is  said  in  Commonwealth  v.  Cooley 
et  ill.,-  '•  the  accused  is  required  to  submit  to  the  arrest,  to  yield  him- 
self immediately  and  peaceably  into  the  custody  of  the  officer,  who 
can  liave  no  opportunity,  until  he  has  brought  his  prisoner  into  safe 
custody,  to  make  him  acquainted  with  the  cause  of  his  arrest,  and  the 
nature,  substance  and  contents  of  the  warrant  under  which  it  is  made. 
There  are  obviously  successive  steps.  They  can  not  all  occur  at  the 
same  instant  of  time.  The  explanation  must  follow  the  arrest ;  and 
the  exhibition  and  perusal  of  the  warrant  must  come  after  the  authority 
of  the  officer  has  been  acknowledged,  and  his  power  over  his  prisoner 
has  been  acquiesced  in."  The  general  principle,  thus  stated,  is  equally 
applicable  to  arrests,  withot  warrant,  under  authority  of  the  statute. 
The  second  assignment  of  error  is  sustained. 

Judgment  reversed,  and  it  is  ordered  that  the  record,  with  copy  of 
the  foregoing  opinion,  setting  forth  the  cause  of  reversal,  be  remitted 
to  the  Court  of  Quarter  Sessions,  of  Luzerne  County,  for  further  pro- 
ceeding. 


ass^iult  and  battery  — common  carrier-  ejecting 

passenger- 
People  V.  Caryl. 

[3  Park.  C.  C.  326.] 
In  the  Supreme  Court  of  New  York,  1857. 

1.  A  Oonduotor  on  a  Bailroad  Is  ju«tlfled  In  ejecting  a  paesenger  from  a  c»r  who  uiet 

grossly  profane  and  indecent  language  on  tlie  car. 

2.  So  also  on  the  Bafoaal  of  the  passenger  to  obey  the  reasonable  regulations  of  the 

company. 

Certiorari  to  the  Court  of  Sessions  of  Westchester  County. 

The  defendant  was  indicted  for  an  assault  and  battery,  alleged  to 
have  been  committed  on  one  Thomas  Elliott,  and  pleaded  not  guilty. 
The  indictment  was  tried  at  the  Westchester  Sessions,  where  the  de- 
fendant wa«  convicted. 

On  the  trial  Thomas  Elliott  was  called  as  a  witness,  and  proved  that 
he  took  passage  on  the  New  York  and  Harlem  Railroad  at  the  city  of 
New  York,  for  Tuckahoe,  Westchester  County,  and  purchased  a  ticket 
for  that  place;  and  that  he  was  violently  ejected  from  the  cars  at 


1  1  Chit.  Cr.  L.  81. 


a  6  Gray,  360, 366 


814 


CRIMES   AGAINST  THE   PERSONS   OP   INDIVIDUALS. 


Hunt' 9  Bridge,  before  reaching  Tuckahoe,  and  nearly  four  miles  distant 
therefrom ;  that  just  after  leaving  William's  Bridge,  a  station  three 
miles  from  Hunt's  Bridge,  the  conductor  called  on  Elliott  for  his  ticket, 
which  he  refused  to  surrender  up  to  him. 

The  defendant's  counsel  offered  to  show  that  Elliott's  conduct 
throughout  the  whole  trip  was  noisy,  disgraceful  and  disorderly,  and 
such  as  to  annoy  the  passengers  in  the  cars,  and  to  interfere  with  their 
repose  and  comfort. 

This  testimony  was  objected  to  by  the  district  attorney,  and  excluded 
by  the  court  so  far  as  it  tended  to  show  disorderly  conduct  before  the 
arrival  at  Williams'  Bridge,  on  the  ground  that  conduct  below  that 
point  could  furnish  no  pretense  to  defendant  to  put  EUoitt  out  of  the 
cars  at  Hunt's  Bridge ;  to  this  decision  the  defendant  excepted. 

James  Dusenbury,  a  witness  for  the  prosecution,  was  asked  by  the 
district  attorney  what  was  Elliott' s  general  character  for  sobriety.  This 
was  objected  to  by  the  defendant's  counsel ;  but  the  objection  was  over- 
ruled, and  an  exception  taken.  The  witness  then  testified  that  Elliott 
was  a  sober,  quiet  and  inoffensive  man. 

The  defendant  offered  to  prove  that  the  regulation  and  custom  of  the 
New  York  and  Harlem  Railroad  had  always  been  for  the  conductors  to 
collect  tickets  for  all  stations  up  to  Tuckalioe,  immediately  after  leav- 
ing Williams'  Bridge.  This  was  objected  to  by  the  district  attorney, 
who  claimed  that  such  usage,  if  it  existed,  did  not  affect  the  complain- 
ant, nor  deprive  passengers,  who  insist  on  their  legal  right  to  a  ticket, 
from  retaining  it  until  they  reach  the  station  next  before  leaving  the 
cars.  The  court  sustained  the  objection  and  excluded  the  evidence, 
and  the  defendant  excepted. 

The  court,  among  other  things,  charged  the  jury  that  a  conductor  on 
a  railroad  had  no  authority  to  eject  a  passenger  from  the  car  for  mis- 
conduct, except  when  the  conduct  of  the  passenger  was  such  as  to  dis- 
turb the  peace  and  safety  of  the  other  passengers  in  the  car,  to  which 
the  defendant  also  excepted. 

The  defendant  made  a  bill  of  exceptions  on  which  the  writ  of  cer- 
tiorari was  issued. 

Robert  Cochran,  for  the  defendant,  cited  6  Cowen,*  1  Starkie  on  Evi- 
dence,2  5  Cowen,^  Angell  on  Carriers,''  Jenks  v.  Coleman,^  Common- 
wealth v.  Power,^  1  American  Railroad  Cases,^  Statutes  of  1850,8  TFt7- 
leta  v.  Buffalo  and  Niagra  Railway  Company.^ 
Edward  Wills,  District  Attorney,  for  the  People,  cited  Holliater  v. 


1  p.  670. 

•  p.  186. 
S  p.  320. 

«  Bees.  629,  630  b 

*  2  Snmn.  22. 


•  7  Mete.  601. 
'  p.  380. 

8  cb.  140,  sec.  8S. 

•  U  Barb.  688. 


I^Kte 


VIDUALS. 

y  four  miles  distant 
ge,  a  station  tliree 
i^lliott  for  his  ticket, 

b  Elliott's  conduct 
and  disorderl}',  and 
interfere  with  their 

)mey,  and  excluded 
conduct  before  the 
conduct  below  that 
at  EUoitt  out  of  the 
,nt  excepted. 
1,  was  asked  by  the 
•  for  sobriety.  This 
;  objection  was  over- 
testified  that  Elliott 

•n  and  custom  of  the 
'or  the  conductors  to 
nediately  after  leav- 
]e  district  attorney, 
affect  the  complain- 
igal  right  to  a  ticket, 
t  before  leaving  the 
eluded  the  evidence, 

r  that  a  conductor  on 
'rom  the  car  for  mis- 
r  was  such  as  to  dis- 
in  the  car,  to  which 

lich  the  writ  of  cer- 

en,*  1  Starkie  on  Evi- 

Coleman,^  Common- 

atutes  of  1850,8  Wil- 

lie,  cited  Holliater  v. 


PEOl'LE   V.  CARYL. 


815 


Nowhn,^  Cole  v.  Goodwin,^  Roscoe's  Criminal  Evidence,'' General  Rail- 
road Act,'*  Wharton's  Criminal  Law."' 

By  the  Court,  S.  B.  Strono,  P.  J.  Whatever  may  be  our  opinion, 
from  the  evidence,  as  to  the  guilt  or  innocence  of  the  defendant,  we  are 
bound  to  award  hira  a  new  trial,  if  improper  evidence  was  admitted 
against  him,  or  competent  evidence  offereil  by  him  was  rejected,  or  the 
court  incorrectly  ruled  any  question  of  law  against  him,  at  any  rate  in  a 
matter  material  to  his  defence.  The  defendant  based  his  defence  for 
forcibly  ejecting  the  witness  Elliott  from  the  car  upon  two  allegations : 
First,  tliat  he  had  conducted  himself  during  the  passage,  and  up  to  the 
time  of  ills  removal,  in  a  violent  and  disorderly  manner,  so  as  to  seri- 
ously disquiet  the  other  passengers ;  and,  secondly,  that  he  improperly 
refused  to  surrender  his  ticket  when  reasonably  requested  to  do  so. 

As  to  the  first  ground  of  defence,  the  defendant's  counsel  offered  to 
show  that  Elliott's  conduct  throughout  the  whole  trip,  was  noisy,  dis- 
graceful and  disorderly,  and  such  as  to  annoy  the  passengers  in  the 
cars,  and  to  interfere  with  their  repose  and  comfort.  Tlie  court  refused 
to  receive  evidence'  of  such  misconduct  antecedently  to  the  arrival  at 
Williams'  Bridge,  distant  about  three  miles  from  Hunt's  Station,  where 
Elliott  was  ejected.  Why  this  place  was  assumed  as  the  limit  does  not 
appear.  At  any  rate,  it  was  improperly  adopted.  It  was  competent 
for  the  defendant  to  give  evidence  of  misconduct  during  the  entire 
passage,  as  it  was  a  short  one,  if  it  was  apparent  that  the  disposition 
and  feeling  which  prompted  it  continued  and  influenced  Elliott's  con- 
duct up  to  the  time  of  his  removal.  A  slight  ebullition  of  passion,  or  a 
trivial  irregularity  at  the  moment,  might  not  have  justified  the  expul- 
sion. But  if  it  was  indicative  of  a  continuance  of  previously  outrageous 
conduct,  justice  to  the  other  passengers,  as  well  as  to  the  railroad  com- 
pany, might  have  called  for  such  a  remedial  measure. 

The  charge  of  the  court,  upon  this  point,  was  also  too  strong.  It 
was  that  the  conductor  had  no  authority  to  eject  a  passenger  from  the 
car  for  misconduct,  except  when  it  is  such  as  to  disturb  the  peace  and 
safety  of  the  other  passengers.  According  to  this,  a  passenger  can  not 
be  removed  for  profane  or  indecent  language,  however  gross  it  may  be, 
or  however  it  may  offend  the  delicacy  or  sense  of  propriety  of  the 
other,  and  especially  female  passengers.  That  is  not  reasonable  nor 
can  it  be  law. 

The  court  improperly  rejected  evidence  to  prove  that  the  regulation 
and  custom  of  the  company  had  always  been  for  the  conductor  to  col- 
lect tickets,  for  all  stations  up  to  Tuckahoe  (which  was  to  be  the  ter- 


86. 


1  9  Wend.  837. 
i  Id.  204. 
>96,ed.  0I18M. 


«  sec.  S4. 
'  pp.  8U,  812. 


■i  v<a?fev*^"w(i^>i  HH 


81fi 


CRIMES   AGAINST  THE  PEHSONS   OP   INDIVIDUALS. 


mioRtion  of  Elliott 's  passage),  immediately  after  leaving  WilHama' 
Bridge.  Tliat  would  have  shown  that  the  defendant  was  not  influenced 
by  any  hostile  motives  when  the  ticket  was  demanded,  and  would, 
unless  undue  violence  had  been  used,  have  justified  his  conduct,  if  the 
regulation  had  been  a  reason.-vble  one ;  and  whether  it  was  or  was  not 
would  have  been  a  [jroper  consideration  for  the  Jury. 

If  the  regulation  for  the  collection  of  the  tickets  is  a  reasonable  one, 
and  essential  for  the  interests  of  the  cop  ,iany,  and  a  passenger  refuses 
to  comply  with  it,  he  may,  I  think  be  required  to  leave  the  car,  and  if 
he  refuses  to  go,  be  ejected  without  unnecessary  violence.  He  has  no 
right  to  a  seat  in  the  cars,  whQe  refusing  a  compliance  with  a  reasonable 
regulation  of  the  proprietors.  The  charge  of  the  court  to  the  contrary 
was,  I  think,  erroneous.  It  was  wrong,  too,  for  the  court  to  receive 
evidence  of  the  general  temperance  and  sobriety  of  the  witness.  His 
conduct  on  the  pasage  in  question  was  alone  in  issue. 

The  conviction  should  be  set  aside  and  a  new  trial  granted. 


ASSAULT  AND  BATTERY  —  SUPERINTENDENT  OF  POOR-HOUSE. 

State  v.  Neff. 

[68  Ind.  616.] 
In  the  Supreme  Court  of  Indiana,  1877. 

Th«  Saparlntendent  of  »  County  Poor-HouM  has  a  right  to  u«e  genUe  and  moJerate 
phyBioal  coercion  toward  the  inmates  so  far  as  may  be  necessary  lor  the  purpose  ol 
preserving  quiet  and  subordination  among  the  inmatei,  and  is  not  guUty  ol  assault  and 
battery  in  so  doing. 

NiBLACK,  J.  This  was  an  indictment  for  an  assault  and  battery. 

The  substantial  part  of -the  indictment  says :  — 

"The  grand  jurors  for  Boone  County,  in  the  State  of  Indiana, 
•  •  *  present,  that  John  Neff,  on  the  1st  day  of  January,  A.  D. 
1877,  at  the  county  and  State  aforesaid,  did  then  and  there  in  a  rude, 
insolent  and  angry  manner,  unlawfully  touch,  strike,  beat;  braise  and 
wound  one  Elizabeth  Wyatt." 

The  defendant  pleaded  specially  to  the  indictment,  as  follows :  ^— 

"  Comes  now  the  defendant,  and  for  special  plea  herein  says  actio  non, 
l)ecause,  he  says,  that  at  tlie  time  and  place  of  the  alleged  assault  and 
battery  mentioned  in  the  indictment,  he  was  the  legally  appointed  cus- 
todian and  superintendent  of  the  county  asylum  for  the  indigent  and 


^rfta 


NDIVIDUALS. 

ftcr  leaving  WilHams' 
ilant  wa»  not  influenced 
demanded,  and  would, 
fled  his  conduct,  if  tbe 
lether  it  was  or  was  not 
jury. 

ets  is  a  reasonable  one, 
ind  a  passenger  refuses 
to  leavo  the  car,  and  if 
Y  violence.  He  has  no 
liance  with  a  reasonable 
»e  court  to  the  contrary 
or  the  court  to  receive 
sty  of  the  witness.  His 
issue, 
trial  granted. 


STATE    ?'.  NEKF. 


817 


ST  OF  POOR-HOUSE. 


to,  1877. 

;bt  to  aae  gentle  and  moderate 
I  neecBsary  for  the  purpose  ol 
and  la  not  guUty  ol  assault  and 


issault  and  battery. 

1  the  State  of  Indiana, 

;  day  of  January,  A.  D. 

then  and  there  in  a  rude, 

strike,  beat^  braise  and 

tment,  as  follows :  - — 
)lea  herein  says  actio  non, 
t  the  alleged  assault  and 
le  legally  appointed  cus- 
lum  for  the  indigent  and 


poor  of  said  county  of  Boone,  and  that  tlie  said  Elizabeth  Wyatt,  the 
person  upon  whom  said  pretended  assault  and  battery  is  ciiaigcd  to 
have  been  perpetrated,  was,  at  the  time  and  place  uuntioned,  a  pauper 
and  an  inmate  at  the  aforesaid  county  asylum,  duly  and  lejjally  admitted 
therein,  and  under  the  care  and  custody  of  the  dtfendant,  and  as  such 
custodian  and  superintendent  of  said  county  asylum ;  that  the  said 
Elizabetli  Wyatt,  at  the  time  of  the  alleged  perpetration  of  the  assault 
and  battery  charged  in  the  indictment,  was  cross,  stul)born,  ill,  dis- 
obedient and  ungovernalde,   and  was  fighting    and    scolding    other 
paupers  and  inmates  of  said  asylum,  and  tliat  the  lieating  and  striking 
alleged  in  tlie  complaint  was  simply  moderate  and  gentle  coercion, 
adminislercd  to  and  upon  her  by  the  defendant,  as  the  custodian  and 
8Ui)erintendent  of  the  county  asylum  aforesaid,  without  anger,  inso- 
lence or  rudeness  upon  the  part  of  tlie  defendant,  but  for  the  purpose 
of  preserving  quiet  and  subordination  among  the  inmates  of  said 
asylum,  as  he  lawfully  had  the  right  to  do,  and  no  more."     The  prose- 
cuting attorney  demurred  to  this  plea  for  want  of  sufficient  facts  to 
constitute  a  defence.     The  court  overruled  the  demurrer,  and  rendered 
judgment  discharging  the  defendant.    The  State  brings  the  cause  into 
tlP"*  court  by  appeal  on  tlie  question  of  law  involved  in  the  overruling 
of  the  demurrer  to  the  plea.     Bicknell,  in  his  Criminal  Practice,*  in 
summing  up  well  established  defences  to  charges  of  assault  and  battery, 
says:  "  It  is  a  good  defence  that  the  battery  was  merely  tlie  chastise- 
ment of  a  child  by  its  parent,  the  correcting  of  an  apprentice  or  scholar 
by  the  master,  or  the  punishment  of  a  criminal  by  the  proper  officer ; 
provided  tlie  chastisement  be  moderate  in  the  manner,  the  instrument, 
and  the  quantity  of  it ;  or  that  the  criminal  be  punished  in  the  manner 
appointed  by  law.'    The  same  rule  applies,  substantially,  to  keepers  of 
alms-houses  and  asylums  for  the  poor,  so  far  as  necessary  to  preserve 
order  and  to  enforce  proper  discipline  in  their  establishments.  =»    The 
facts  set  up  in  the  plea,  we  think,  were  sufficient  as  a  defence  to  the 
indictment.     The  prosecuting  attorney,   by  demurring    to  the  plea 
instead  of  taking  issue  upon  it,  admitted  the  truth  of  the  facts  thug  set 
up.     We  see  no  error  in  the  ruling  of  the  court  on  the  demurrer.     The 
judgment  is  affirmed. 


1  p.  296. 

s  I'.utler's  N.  P.  12.  See,  «!»o,  Pnmeroy's 
Notes  to  1  Arclib.  Cr.  L  (8tU  ed.),  p.  923; 
Wbart.  Cr.  L.,  sec.  1259. 


8  State  V.  HuH,  S4  Conn.  132;  Forde  v. 
Skinner,  4  O.  A  P.  494;  Regina  «.  Uercar,  « 
Jnr.  243. 


8  Defences. 


C2 


:t3i^>?«jf(^v^?;>,i^4i4^^-#'-i;i^f.^'^-  -A  ■ 


818 


CRIMES   AUAIN8T  TIIK   I'EBSONS   OF   INDIVIDUALS. 


ASSAULT  AND  BATTERY  —  DANGEROUS  WEAPON  — ARREST. 

DoERiNo  V.  State. 

[49  Ind.  60.] 
In  the  Supreme  Court  vf  Indiana,  1^74. 

1.  What  !•  a  Danveroua  Waapon  la  a  Queitlon  of  fact  and  not  of  law,  and  it  l»  arror 
(or  the  court  to  instruct  that  h  puliceman's  m«ce  Is  a  Uangeroua  weapon. 

g.  A  PoUoamon  may  Arraat  Without  a  warrant  one  whom  he  bat  reasonable  cauie  %» 
(uspect  of  II  felony,  and  may  Justify  an  assault  on  one  endeavoring  to  assist  such  per> 
son  to  escape. 

BcsKiRR,  C.  J.  This  was  «n  indictment  against  the  defendant  for 
an  assault  and  battery  upon  the  body  of  one  Thomas  Green.  There 
was  a  trial  by  jury,  a  verdict  of  guilty,  assessing  a  fine  of  one  cent. 
There  was  a  motion  for  a  new  trial,  which  was  overruled,  a  motion  in 
arrest  of  judgment,  which  was  also  overruled,  and  the  court  rendered 
Judgment  on  the  verdict. 

The  defendant  was  a  policeman,  of  the  city  of  Evansville,  and  as 
such,  was  informed  that  a  brother  of  tlie  prosecuting  witness,  Jim  Green 
by  name,  had  stolen  a  box  of  cigars.  Upon  that  information,  he  ar- 
rested said  Green.  He  was  taking  the  prisoner  to  the  city  prison,  and 
on  his  way  there,  passed  the  house  of  the  prosecuting  witness.  The 
prisoner  expressed  a  desire  to  see  hla  brother,  the  prosecuting  witness 
and  was  told  by  the  defendant  that  he  could  see  him  outside  the  house. 

All  the  persons  present  agree  in  their  testimony,  that  the  prisoner  at- 
tempted to  either  go  Into  the  house  or  escape,  and  that  the  appellant 
knocked  him  down  twice  with  his  mace.  In  the  scuffle  that  ensued,  the 
appellant  a..d  the  prisoner  got  around  the  corner  of  the  house  of  the 
prosecuting  witness,  about  ten  feet  from  the  corner.  At  this  point  of 
time,  the  prosecuting  witness  heard  the  noise  and  went  out  and  placed 
his  hand  upon  tb '  sh  julder  of  the  appellant,  and  turned  him  around  to 
the  gas-light.  1  ae  f  hfory  of  the  State  is,  that  the  prosecuting  witness 
heard  the  noise  and  weiii  out  to  stop  it,  without  knowing  who  the  par- 
ties were,  and  that  h.-t  gently  laid  his  hand  upon  the  appellant  and 
turned  around  to  the  gas-light  to  see  who  he  wa?i.  On  the  other 
hand,  it  is  contended  that  the  prosecuting  witness  knew  who  the  par- 
ties were,  and  went  out  to  aid  his  brother  in  escaping.  All  the  witnesses 
agree,  that  he  laid  his  hand  on  the  officer  before  he  was  struck.  The 
appellant  struck  him  over  his  head  with  a  mace.  It  is  further  argued 
that  it  can  make  no  difference  wliat  the  real  purpose  of  the  prosecuting 
witness  was,  it  the  appellant  had  reason  to  believe,  and  did  believe^ 


i»^ 


);UIV1DUAL8. 


DOERINO   V.  STATE. 


81U 


BAPON  — ARREST. 


,  1S74. 

nd  not  of  law,  and  tt  it  •rror 
sroui  weapon. 

1  he  hat  reasonable  cauie  to 
deavorlug  to  asaist  such  per- 


nst  the  defendant  for 
rhomaa  Green.  There 
ing  n  fine  of  one  cent, 
overruled,  a  motion  in 
and  the  court  rendered 

of  Evansville,  and  as 
;ing  witness,  Jim  Green 
Irnt  information,  he  ar- 

to  the  cit3'  prison,  and 
scouting  witness.  The 
Lhe  prosecuting  witness 
him  outside  the  house, 
y,  that  the  prisoner  at- 

and  that  the  appellant 
scuffle  that  ensued,  the 
ler  of  the  house  of  the 
)rner.  At  this  point  of 
ad  went  out  and  placed 
1  turned  him  around  to 
the  prosecuting  witness 
t  knowing  who  the  par- 
pon  the  appellant  and 
be  wa3.  On  the  other 
ness  knew  who  the  par- 
ping.  All  the  witnesses 
re  he  wai)  struck.  The 
3.  It  is  further  argued 
pose  of  the  prosecuting 
elieve,  and  did  believe^ 


that  his  purpose  was  to  aid  in  the  I'scapc  of  his  brother.     The  prisoner 
dill,  in  f.ict,  UKiko  iiis  iseaiie. 

Couiiacl  for  appellunt  contend  that  the  second  instruction  was  erro- 
neous, because  the  court  told  tho  jury  tiiat  the  weapon  used  was  a 
(hingerous  one,  when  the  question  Hhould  have  been  eubmitted  to  the 
jury  to  determine,  ns  a  fi'U'stion  of  fact.  The  instruction  was  in  these 
words:  "In  coming  to  u  conclusion  in  tliis  case,  it  is  important  that 
you  sliould  consider  the  character  of  tlie  weapon  used.  Custom  seems 
to  sanction  the  use  by  police  establislimcnts  of  pistols,  maces,  and 
otiier  dangerous  and  deadly  weapons,  but  they  oiiglit  to  use  such 
weapons  prudently.  There  can  be  no  doubt,  and  as  to  this  the  jury  and 
counsel  for  the  State  and  defendant  will  fully  agree  with  me,  that  the 
weapon  used  by  the  defendant  in  tins  case  was  a  dangerous  weapon. 
Did  he  use  it  recklessly  or  cruelly,  or  did  he  use  it  prudently?" 

It  is  the  duty  of  the  court  to  charge  the  jury  as  to  all  matters  of  law 
applicable  to  the  facta  proved.  It  is  the  province  of  the  jury  to  ascer- 
tain the  facts.  The  question  of  whether  a  particular  weapon  was  or 
was  not  dangerous,  was  a  question  of  fact,  and  not  of  law,  and  hence 
should  have  been  submitted  to  tho  Jury  for  ascertainment.' 

It  is  also  claimed  that  the  court  erred  in  giving  the  following  instruc- 
tion: "  If  the  defendant  made  the  arrest  of  James  Green  for  a  felony, 
on  information  and  not  on  view,  he  made  it  at  his  own  peril ;  and  in 
order  for  him  to  justify  the  assault  upon  Thomas  Green,  the  prosecut- 
ing witness,  when  it  becomes  a  matter  of  inquiry,  it  devolves  upon  the 
defendant  to  show  that  the  party  under  arrest  was  guilty  of  the  crime 
for  which  he  was  arrested." 

In  our  opinion,  the  instruction  was  clearly  errone*.  us. 

It  never  was  necessary,  under  the  law,  for  a  peace  officer  to  "show 
tliat  the  party  under  arrest  was  guilty  of  a  crime  for  which  he  was  ar- 
rested." A  peace  officer  has  a  right  to  arrest  without  a  warrant,  when 
he  is  present  and  sees  the  otf  ense  committed.  He  has  a  right  to  arrest 
without  a  warrant  on  information,  when  he  has  reasonable  or  probable 
cause  to  believe  that  a  felony  has  been  committed  ;  and  herein  there  is 
a  distinction  as  to  the  extent  of  his  authority.  In  cases  of  misde- 
meanor, the  officer  must  arrest  on  view  or  under  a  warrant ;  in  cases  of 
felony  he  may  arrest  without  a  wai-rant,  upon  information,  where  he  has 
reasonable  cause.  And  the  reasonable  or  probable  cause  is  an  absolute 
protection  to  hijc,  "  when  it  becomes  a  matter  of  inquiry,"  and  in  no 
case  is  he  bound  to  establish  the  guilt  of  the  party  arrested. * 

In  Holley  v.  Mix,^  the  court  held :  "  If  an  innocent  person  is  arrested 


1  Barker  v.  State,  48  Ind.  US. 
1  1  itiUiard  TortB;49  Ind.   (2d  ed.)  US, 
231, 235,  aud  notes. 


3  3  Wend.  350. 


-.V^ICJSSffitKiKJia^ 


820 


CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 


upon  suspicion  by  a  private  individual,  sucli  individual  is  excused  if 
felony  was  in  fact  committed  and  there  was  reasonal)le  ground  to  sui 
pect  the  person  arrested.  But  if  no  felony  was  oommitted  by  any  om 
and  a  private  individual  arrest  without  a  warrant,  such  arrest  is  illega 
though  an  otHcer  would  be  justified  if  he  acted  upon  information  froi 
another  which  he  had  reason  to  rely  upon." 

In  Samuel  v.  Paine,^  Lord  Mansfield  held  that  if  any  person  charj 
anotuer  with  felony,  and  desire  an  ottlcer  to  take  him  in  custody,  8U( 
charge  will  justify  the  officer,  though  no  felony  was  committed. 

In  a  MS.  note  of  a  case  of  Williams  v.  Dauson,  referred  to  by  cou: 
sel  in  Hobbs  v.  Branscomb,^  Mr.  Justice  BuUer  laid  down  the  law,  th 
"  if  a  peace  officer  of  his  own  head  takes  a  person  into  custody  on  su 
picion,  he  must  prove  that  there  was  such  a  crime  committed ;  but  th 
if  he  receives  a  i)er3on  into  custody,  on  a  charge  preferred  by  anoth 
of  felony  ov  breach  of  the  peace,  then  he  is  to  be  considered  as  a  me 
conduit,  and  if  no  felony  or  breach  of  the  peace  was  committed,  t 
person  who  preferred  the  charge  alone  is  answerable." 

In  Hobbs  v.  Branscomb,^  Lord  EUenborough,  in  speaking  of  the  n 
laid  down  by  Judge  Duller,  said:  "This  rule  appeared  to  be  reaso 
able,  and  that  very  injurious  consequences  might  follow  to  the  publ 
if  peace  officers,  who  ought  to  receive  into  custody  a  person  charg 
with  a  felony,  were  personally  answerable,  should  it  turn  out  that 
point  of  law  no  felony  had  been  committed." 

In  1  Chitty's  Criminal  Law,*  the  law  is  stated  thus:  "  Constables  i 

\)ound,  upon  a  direct  charge  of  felony,  and  reasonable  grounds  of  si 

picion  laid  before  them,  to  apprehend  the  party  accused,  and  if  upoi 

charge  of  burglary,  or  other  felony,  he  be  required  to  apprehend  > 

offender,  or  to  make  hue  and  cry,  and  neglect  so  to  do,  he  may  be 

dieted.     And  a  peace  officer,  upon  a  reasonable  charge  of  felony,  n 

justify  an  arrest  without  a  warrant,  although  no  felony  has  been  cc 

mitted,  because,  as  observed  by  Lord  Hale,  the  constable  can  not  ju< 

■whether  the  party  be  guilty  or  not,  till  he  come  to  his  trial,  which  ( 

not  be  till  after  his  arrest ;  and,  as  obser\ed  by  Lord  Mansfield 

Samuel  v.  Paine,  if  a  man  charges  another  with  a  felony,  and  requi 

another  to  take  him  into  custody,  and  carry  him  before  a  magistrate 

would  be  most  mischievous  that  the  officer  should  be  bound  first  to  i 

and,  at  his  peril,  exercise  his  judgment  in  the  truth  of  the  charge ; 

that  makes  the  charge  should  aljne  be  answerable ;  the  officer  does 

duty  in  conveying  the  accused  before  a  magistrate,  who  is  author! 

to  examine  and  commit,  or  discharge." 


1  1  Doug.  3S9. 
a  3  Camp.  420. 


3  tupra. 

*  p.  22. 


iF  INDIVIDUALS. 

I  individual  is  excused  if  a 
rea3onal)le  ground  to  sus- 
i/Fas  committed  by  any  one, 
•rant,  such  arrest  is  illegal, 
ted  upon  information  from 

1  that  if  any  person  charge 
>  take  him  in  custody,  such 
ony  was  committed. 
ncson,  referred  to  by  coun- 
Uer  laid  down  the  law,  that 
person  into  custody  on  sus- 
crime  committed  ;  but  that 
liarge  preferred  by  another 
i  to  be  considered  as  a  mere 
!  peace  was  committed,  the 
swerable." 

jgh,  in  speaking  of  the  rule 
rule  appeared  to  be  reason- 
might  follow  to  the  public, 
}  custody  a  person  charged 

should  it  turn  out  that  in 
i» 

atedthus:  "  Constables  are 
1  reasonable  grounds  of  sus- 
lart}'  accused,  and  if  upon  a 
3  required  to  apprehend  the 
rlect  so  to  do,  he  may  be  in- 
lable  charge  of  felony,  may 
^h  no  felony  has  been  com- 
,  the  constable  can  not  judge 
come  to  his  trial,  which  can 
'.wed  bj'  Lord  Mansfield 'in 
r  with  a  felony,  and  requires 
y  him  before  a  magistrate,  it 
should  be  bound  first  to  try, 
the  truth  of  the  charge ;  he 
swerable ;  the  officer  does  his 
magistrate,  who  is  authorized 


DOERINO   V.  STATE. 


821 


The  law  applicable  to  arrests  by  a  private  person  is  stated  with  great 
precision  and  clearness  by  Tllghjuan,  C.  J.,  in  Wakely  v.  Ilart,^  where, 
after  quoting  a  provision  of  the  State  Constitution  and  commenting 
thereon,  it  is  said :  "  I'ut  it  is  nowhere  said  that  there  shall  be  no  arrest 
without  warrant.  To  have  said  so  would  have  endangered  the  safety  of 
society.  The  felon,  who  is  seen  to  commit  murder  or  robbery,  must  be 
arrested  on  the  spot  or  suffered  to  escape.  So  althougl'  not  seen,  yet  if 
known  to  have  committed  a  felony,  and  pursued  with  or  without  a  war- 
rant, he  may  be  arrested  by  any  person.  And  even  when  there  is  only 
probable  cause  of  suspicion,  a  private  person  may  without  warrant,  at 
his  peril,  make  an  arrest.  I  say  at  his  peril,  for  nothing  short  of  prov- 
ing the  felony  will  justify  the  arrest.  These  are  principles  of  the  com- 
mon law,  essential  to  the  welfare  of  society,  and  not  intended  to  be 
altered  or  impaired  by  the  constitution." 

We  think  the  instruction  under  examination,  when  applied  to  arrests 
by  a  private  person,  expresses  the  law  correctly,  but  when  applied  to 
arrests  by  peace  ^-^fflcers,  is  clearly  erroneous. 

It  is,  however,  insisted  by  the  Attorney-General  that  there  is  nothing 
in  the  record  showing  that  the  appellant  possessed  the  powers  of  an 
ordinary  peace  officer.  The  city  of  Evansville  is  governed  by  a  special 
charter,  which  does  not  define  the  powers  of  the  police  force.  The 
charter  confers  on  the  common  council  power  "to  establish,  organize 
and  maintain  a  city  watch,  and  prescribe  the  duties  thereof,"  and  "  to 
regulate  the  general  police  of  the  city." 

The  ordinances  of  the  city,  defining  the  duties  and  prescribing  the 
powers  of  the  police  force,  were  not  read  in  evidence.  It  is  earnestly 
claimed  that  we  can  not,  under  these  circumstances,  indulge  the  pre- 
sumption that  the  appellant  possessed  the  powers  of  a  conservator  of 
the  peace.  We  take  notice  of  the  existence  of,  ar  d  the  powers  conierred 
by,  the  city  charter,  and  that  Evansville  has  a  city  government.  It  was 
proved  that  the  appellant  was  acting  as  a  policeman  in  such  city.  We 
think  we  should  indulge  the  presumption  that  the  police  force  of  such  a 
city  possessed  the  ordinary  powers  of  peace  officers  at  common  law,  but 
we  do  not  think  the  presumption  should  be  carried  beyond  the  powers 
possessed  by  conservators  of  the  peace  at  common  law. 

A  full  and  accurate  statement  of  the  powers  and  duties  of  the  police 
force,  under  the  general  act  of  incorporation  of  cities,  will  be  found  in 

Boaz  V.  Tate.- 

The  judgment  is  reversed,  with  costs ;  and  the  cause  is  remanded  for 
a  new  trial,  in  accordance  with  this  opinion. 

Judgment  reverted. 


pra. 
22. 


I  6  Blnn.  ^16. 


1  43  Ind.  60. 


822 


CRIMES  AGAINST  THE  PEKSONS  OF  INDIVIDUALS. 


ASSAULT -LAWFUL  USE  OF  VIOLENCE  -  SCHOOLMASTER. 

DOWLEN'    V.  StaTR. 

[U  Tex.  (App.)  61.] 

In  the  Court  of  Appeals  of  Texas,  1S83. 

1.  The  Court  Charged  the  Jury  as  Follows:  1.  When  an  '.njury  is  caa.od  by  vio- 
lencc  to  the  i)ei-.-ic)ii,  the  iiiteut  to  injure  is  presuuiea,  nn.l  it  rests  upon  the  person 
inflicting  tlio  injury  to  show  accident  or  innocent  Intention.  The  injury  intended 
may  bo  either  bodily  i>ain.  constraint,  a  sense  o(  shame  or  other  disagreeable  emotion  of 
the  mind.  2.  When  violence  is  permitted  to  etfect  a  lawful  purpo.sa,  only  that  degree  of 
force  must  be  used  which  is  necessary  to  effect  such  purpose.  Beld.  arroneous  applied 
to  the  present  case. 

a.  Se«  this  Case  for  Special  Instructions  requested  which,  embodying  correctly  the 
law  applicable  to  the  faci;s,  were  improperly  refused  on  the  trial  of  a  teacher  for  chastis- 
ing his  pupil. 

Appeal  from  the  Count}'  Court  of  Collin.     Tried  below  before  the 
Hon.  T.  C.  GooDNER,  County  Judge. 

The  county  attorney  of  Collin  County,  Texas,  presented  an  infor- 
mation in  the  County  Court  of  said  county,  on  the  twenty-seventh  day 
of  February,  1883,  under  article  49(5,  Revised  Criminal  Code,  based 
upon  tiie  wiitten  affidavit  of  one  Lafayette  Wisdom,  charging  that 
appellant  did,  on  the  thirteenth  day  of  February,  1882,  unlawfully 
commit  an  aggravated  assault  and  battery  upon  the  person  of  D.  H. 
Wisdom,  with  intent  to  injure  him;  that  said  D.  H,  Wisdom  was  then 
and  the  16  a  child,  and  appellant  was  an  adult  male  person.  The  trial 
resulted  in  the  conviction  of  the  appellant,  and  his  punishment  waa 
assessed  at  a  fine  of  ten  dollars. 

D.  H.  Wisdom  was  the  first  witness  for  the  State.  He  testified  in 
substance  that  he  was  thirteen  years  old.  He  attended  a  school  taught 
in  the  Farmersville  Academy  l)y  the  defendant,  in  January,  1883. 
Witness  and  Edgar  Clifton  got  into  a  fight  on  a  Monday  in  January, 
1883,  and  on  the  next  day,  Tuesday,  the  defendant  whijiped  the  wit- 
ness with  a  bois  d'arc  switch  about  five  feet  long  and  as  large  around 
at  the  butt  as  the  witness'  third  finger.  The  defendant  said  that  he 
disliked  very  much  to  whip  the  witness,  but  felt  constrained  to  do  so  as 
a  matter  of  duty.  He  struck  the  witness  twenty-two  licks  over  the 
shoulders,  back,  hips  and  thighs,  cutting  the  blood  from  the  thigh  and 
two  holes  in  the  witness'  pants.  Witness  was  sore  on  tiie  shoulders, 
hips  and  thighs  for  two  weeks  thereafter  —  so  sore  that  it  was  painful 
for  him  to  turn  in  bed.  The  defendant  did  not  appear  angry  at  the 
time,  but  on  the  contrary  talked  kindly  to  the  witness,  and  even  shed 
tears,  and  said  that  he  hated  to  do  the  whipping.  He  whipped  Edgar 
Clifton  at  the  same  time.     Witness  called  Edgar  a  liar,  and  Edgar 


JIVIDUALS. 


DOWLEN    V.  STATE. 


828 


CHOOLMASTER. 


1883. 

,n  '.njury  is  caasod  by  vio- 
1  it  rests  upon  the  person 
ion.  The  injury  intended 
lier  disagreeable  emotion  of 
l)uri)09e,  only  that  degree  o( 
e.    Held,  urroueous  applied 

h,  embodying  correctly  the 
rial  of  a  teacher  for  chastis- 


ried  below  before  the 

I,  presented  an  infor- 
le  twenty-seventh  d»y 
Criminal  Code,  based 
isdom,  charging  that 
ary,  1882,  unlawfully 
a  the  person  of  D.  H. 
H,  Wisdom  was  then 
ale  person.  The  trial 
lI  his  punishment  was 

State.  He  testified  in 
tended  a  school  tauglit 
at,  in  January,  1883. 
i  Monday  in  Juauary, 
idant  whipped  the  wit- 
ig  and  as  large  around 
defendant  said  tliat  he 
constrained  to  do  so  as 
jnty-two  licks  over  the 
Qod  from  the  thigh  and 
sore  on  the  shoulders, 
}ore  that  it  was  painf"! 
lot  appear  angry  at  the 
ivitness,  and  even  shed 
J.  He  whipped  Edgar 
Igar  a  liar,  and  Edgar 


called  witness  a  d— d  son  of  a  b— h.  Witness  thereupon  struck  Edgar 
with  a  ball  of  mud,  and  they  went  to  fighting.  Witness  knew  that  it 
was  against  the  rules  of  the  school  to  swear  dr  use  profane  language  on 
the  play  ground,  or  to  scuffle  and  wrestle,  but  did  not  know  that  it  was 
against  the  rules  to  fight. 

Witness  told  his  father  of  the  whipping  when  he  went  home,  and  his 
father  examined  his  person.  Jim  Church  examined  witness  on  Wed- 
nesday. Doctor  Nethery,  John  Utt  and  Joe  Binkley  examined  the 
witness  one  day  that  week.  John  Rike,  Frank  Rikc  and  Mr.  Grimes 
also  examined  the  witness.  The  witness  remained  at  school  all  day  the 
Tuesday  of  the  whipping,  and  was  there  next  day  and  on  Thursday, 
and  would  have  attended  school  on  Friday  but  for  the  rain. 

Lafayette  Wisdom,  father  of  the  injured  boy,  testified,  for  the  State, 
that  on  being  told  by  his  son  that  the  defendant  had  whipped  him,  he 
examined  his  person,  and  fousd  sixteen  scarlet,  red  and  dark  marks  on 
his  person.  These  marks  were  all  long  except  two  places  on  his  right 
thigli,  wliere  there  were  two  holes  ns  large  as  the  end  of  the  witness' 
finger,  and  looked  as  though  they  might  have  been  made  by  gunshots. 
The  scarlet  marks  were  black  by  morning.  The  witness  found  blood 
on  his  son's  drawers.  His  son  complained  of  soreness  for  some  time, 
and  said  that  it  pained  him  to  turn  in  bed.  Witness  took  the  boy  to 
'Squire  Rike  on  Tliursday  morning.  Bickley,  Nethery  and  Utt,  trustees 
of  the  school,  examined  the  boy  on  Wednesday  after  the  whipping. 

Bickley  and  Church  testified,  for  the  State,  that  they  examined  the 
boy,  the  first  at  noon  and  the  other  at  night  of  the  Wednesday  after  the 
whipping.  They  described  the  marks  and  abrasions  of  the  skin  on  the 
boy's  person  as  severe.  Church  counted  as  many  as  thirteen  stripes  ex- 
tending from  the  boy's  shoulders  to  a  point  down  on  his  legs.  Bickley 
was  a  trustee  and  patron  of  the  school. 

Dr.  A.  H.  Nethery  testified,  for  the  defence,  that  he  was  a  trustee  and 
patron  of  the  school.  He,  with  Bickley  and  Utt,  examined  the  boy  at 
noon  on  Wednesday.  He  found  five  or  six  marks  on  the  boy's  rump 
and  legs.  He  saw  two  small  circular  marks,  about  the  eighth  of  an 
inch  in  diameter,  on  his  hips.  These  were  the  severest  wounds. 
Serum,  the  watery  clement  of  blood,  had  exuded  and  formed  such  a 
scab  as  forms  over  a  slight  scratch.  The  defendant's  general  charac- 
ter in  the  community  is  good,  and  he  sustained  the  reputation  of  a  kind, 

humane  teacher. 
The  testimony  of  Trustee  Utt  was  substantially  the  same  as  -hat  of 

Dr.  Nethery. 
The  third  special  instruction  asked  by  the  defendant,  and  which  was 

refused,  reads  ns  follows:  — 

"  If  you  find  from  the  evidence  that  the  defendant  did  chastise  D. 


824  CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

H  Wisdom,  but  that  at  the  time  the  defendant  was  a  school  teacher^ 
and  said  Wisdom  was  his  pupil,  and  that  the  chastisement  was  admin- 
istered  to  him  by  defendant  because  said  Wisdom  bad  engaged  m  a 
fight  at  school  with  another  pupil,  or  had  used  improi)er  r nd  unbecom- 
ing language,  or  had  in  any  other  way  violated  the  rules  and  regulations 
of  the  school ;  and  that  such  chastisement  was  inflicted  by  the  defend- 
ant upon  said  Wisdom  for  the  purpose  of  correcting  him,  and  in  good 
faith  and  without  any  intention  on  the  part  of  the  defendant  to  injure 
said  Wisdom,  and  without  any  passion,  spite  or  ill-will  towards  said 
Wisdom,  then  you  will  find  the  defendant  not  guilty,  even  though  you 
should  find  from  the  evidence  that  the  chastisement  administered  was 
more  severe  than  was  actually  necessary." 

The  fourth  refused  special  instruction  reads  as  follows :  — 
•'  In  order  to  constitute  an  assault  and  battery,  it  is  necessary  that 
the  violence  used  should  have  been  done  with  the  purpose  and  intention  of 
inflicting  an  injury ;  but  when  an  injury  is  caused  the  law  presumes  that 
it  was  inflicted  with  the  intent  to  injure,  which  presumption  of  law  may 
be  rebutted  or  contradicted,  by  the  person  inflicting  the  injury  showing 
that  his  intention  was  innocent,  and  that  his  purpose  was  not  unlawful, 
which  innocent  intention  and  purpose  may  be  shown  by  the  acts,  con- 
duct, manner  and  declarations  of  the  person  inflicting  the  injury,  made 
at  the  time  when  such  injury  was  inflicted." 

The  motion  for  new  trial  raised  the  question  involved  in  the  opinion, 
and  denounced  tlie  verdict  as  unsupported  by  the  evidence. 
J.  A.  L.  Wolfe  and  Gamett  &  Mttae  filed  an  able  and  exhaustive  brief 

for  the  appellant. 

J.  H.  Burts,  Assistant  Attorney-General,  for  the  State. 

White,  P.  J.  This  prosecution  was  by  an  information  which  charged 
appellant  with  an  aggravated  assault,  he  being  an  adult  male,  com- 
mitted upon  the  person  of  one  D.  H.  Wisdom,  a  child.  Appellant  was 
a  school  teacher  and  D.  H.  Wisdom  one  of  his  pupils;  and  it  appears 
by  the  evidence  that  the  castigation  was  inflicted  on  account  of  a  viola- 
tion  of  the  rules  of  the  school  by  the  pupil. 

By  the  first  bill  of  exceptions  it  is  shown  that  the  prosecution  was 
allowed  to  prove,  over  objections,  that,  two  or  three  nights  after  the 
whipping,  the  injured  party  told  his  father  that  he  could  not  rest  or 
sleep  because  his  hips  were  so  sore  that  it  hurt  him  to  turn  over  in  bed. 
The  evidence  was  inadmissible,  because  the  statements  were  made  too 
long  after  the  infliction  of  the  injury.  Mr.  Wharton  has  discussed  this 
subject  in  one  of  his  standard  works.  He  says :  '•  The  character  of  an 
injury  may  be  explained  by  exclamations  of  pain  and  teiTor  at  the  time 
the  injury  is  received,  and  by  declarations  as  to  its  cause.  When,  also, 
the  nature  of  a  party's  sickness  or  hurt  is  in  litigation,  his  instinctive 


^rfi 


DIVIDUALS. 

was  a  school  teacher^ 
stisemcnt  was  aduiin- 
m  bad  engaged  in  a 
proper  r nd  unbecom- 
I  rules  and  regulations 
flitted  by  the  defend- 
ing him,  and  in  good 
e  defendant  to  injure 
ill-will  towards  said 
lilty,  even  though  you 
lent  administered  was 

roUows :  — 

y,  it  is  necessary  that 
irpose  and  intention  of 
I  the  law  presumes  that 
esuraption  of  law  may 
ng  the  injury  showing 
jose  was  not  unlawful, 
lown  by  the  acts,  con- 
cting  the  injury,  made 

ivolved  in  the  opinion, 

)  evidence. 

•le  and  exhaustive  brief 

;he  State. 

ormation  which  charged 
r  an  adult  male,  com- 
L  child.  Appellant  was 
pupils;  and  it  appears 
[  on  account  of  a  viola- 

lat  the  prosecution  was 
three  nights  after  the 
it  he  could  not  rest  or 
liim  to  turn  over  in  bed. 
tements  were  made  too 
arton  has  discussed  this 
:  "The  character  of  an 
n  and  teiTor  at  the  time 
» its  cause.  When,  also, 
litigation,  his  instinctive 


LOWLEN   V.  STATE. 


825 


declarations  to  his  physician  or  other  attendant  during  such  sickness 
may  be  received.  Immediate  groans  and  gestures  are,  in  like  manner, 
admissible.  But  declarations  made  after  convalescence,  or  when  there 
has  been  an  opportunity  to  think  over  the  matter  in  reference  to  pro- 
jected  litigation,  are  inadmissible.  -  *  •  But  where  such  subse- 
quent declarations  are  part  of  the  case,  on  which  the  opm.on  of  the 
physician  as  an  expert  is  based,  they  have  been  received.  Isot 
coming  within  any  of  the  exceptions  pointed  out,  it  was  error  in  the 
court  to  admit  the  testimony. 

Complaint  is  made,  in  the  second  bill  of  exceptions,  of  the  charges 
Riven  by  the  court  at  the  request  of  the  county  r^torney,  in  the  follow- 
ing  terms,  viz:  "1.  When  an  injury  is  caused  by  violence  to  the 
person,  the  intent  to  injure  is  presumed,  and  it  rests  with  the  person 
inflicting  the  injury  to  show  the  accident  or  innocent  intention.  The 
injury  intended  may  be  either  bodily  pain,  constraint,  a  sense  of  shame, 
or  other  disagreeable  emotion  of  the  mind.  2.  When  violence  »  per- 
mitted  to  effect  a  lawful  purpose,  only  that  degree  of  force  must  be 
used  which  is  necessary  to  effect  such  purpose." 

The  proposition  announced  in  the  first  paragraph,  though  unques- 
tionably  correct  in  the  abstract  and  declared  as  law  in  terms  by  our 
statute  Ms  not  applicable,  without  further  explanation,  to  cases  such 
as  the  one  under  consideration.  It  has  direct  application  only  to 
acts  of  "  unlawful  violence,"  in  the  first  instance,  such  as  are  essentia 
to  constitute  the  assaults  and  batteries  defined  in  article  484,  Penal 

Code. 

But   "  violence  used  to    person  "  is  not  unlawful,  and    does  not 
amount  to  an  assault  and  battery  in  the  exercise  of  moderate  restraint 
or  correction  given  by  law  to  the  parent  over  the  child,  the  guardian 
over  the  ward,  the  master  over  his  apprentice,  the  teacher  over  the 
scholar."  3    In  all  such  cases  the  law  presumes,  from  the  relation  of 
the  parties,  an  entire  absence  of  any  criminal  or  unlawful  intent  to  in- 
jure; and  in  order  to  effect  lawful  purposes,  permits  the  parent, 
guardian,  master,  or  teacher  to  restrain  and  correct  the  child,  ward,  ap- 
prentice and  scholar.    When  the  teacher  corrects  his  scholar  the  pre- 
sumption is  that  it  is  in  the  exercise  and  within  the  bounds  of  his 
lawful  authority,  and  it  does  not  •'  devolve  upon  him  to  show  accident 
or  his  intention."    Neither  is  it  any  criterion  of  his  act  or  intention 
that  "bodily  pain,  constraint,  a  sense  of  shame  or  other  disagreeable 
emotion  of  the  mind"  is  produced.     He  has  the  right,  under  the  law, 
to  inflict  moderate  corporal  punishment  for  the  purpose  of  restraining 
or  correcting  the  refractory  pupil.     But  "  where  violence  is  permitted 


I  Whar.  Cr.  Ey.  (8th  ed.).  ••c  Wl. 
•  Penal  Code,  art.  4SS. 


>  Fcnal  Code,  art.  490. 


826 


CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 


to  effect  a  lawful  purpose,  only  that  degree  o'  force  must  be  used  which 
is  necessarj-  to  effect  such  purpose."  ^ 

established  that  appellant  was  an  adult  male  — that  Wisdom, 
the  i)arty  alleged  to  have  been  injured  was  a  child  — that  the  former 
was  a  teacher  and  the  latter  his  scholar  — that  the  whipping  took  place 
at  the  time  charged  in  the  information,  the  main  qu.istion  to  be  deter- 
mined was,  "  was  the  correction  or  whipping  moderate  or  excessive?  " 
If  it  be  shown  chat  the  force  is  excessive,  then,  indeed,  the  rule  aa  to 
presumed  intention  may  apply ;  but  this  presumption  of  the  law  is  not 
conclusive  even  then.    Upon  this  supposed  state  of  the  case,  the  thud 
and  fourth  requested  instructions  of  the  defendant,  which  were  refused, 
presented  the  law  most  aptly  and  fully,  and  the  court  erred  in  not 
giving  them.     "  If  the  correction  was  moderate  defendant  was  not 
guilty  of  an  assault  and  battery  at  all.     If  it  was  not  moderate,  but 
-     ->^sive,   he  was  guilty  of  an  aggravated    assault  and   battery,  by 
IV :    -  exceeded  the  boundary  of  his  legal  right  as  teacher,  and  placed 
uiii.siif  in  the  attitude  of  a  stranger.     It  is  true  the  law  has  not  laid 
down  any  fixed  measure  of  moderation  in  the  lawful  correction  of  a 
9.'^  olar.  nnr  la  it  practicable  to  do  so.     Whether  it  is  moderate  or  ex- 
ct!3.^i^e  TvuL'c  nficfssarily  depend  upon  the  age,  sex,  condition  and  dis- 
position  of  the  scholar,  with  all  the  attending  and  surrounding  circum- 
stances to  be  judged  of  by  the  jury,  under  the  direction  of  the  court 
as  to  tl»e  law  of  the  case."  ' 

It  was  error  to  give  the  instruction  we  have  discussed  and  to  refuse 

the  third  and  fourth  special  instructions ;  and  the  charge  as  given, 

which  was  also  excepted  to,  did  not  properly  and  sufficiently  present 

the  issues  and  law  of  the  case. 

For  the  errors  pointed  out,  the  judgment  is  reversed  and  the  cause 

remanded. 

Beversed  and  remanded. 


MAYHEM -INTENT  MUST  BE  FOUND  BY  JURY. 

State  v.  Bloedow. 

[46  Wis.  279.] 
In  th€  Supreme  Court  of  Wisconsin,  1878, 

1  Wbenaflp«iial  Intent,  Beyond  the  Natural  consequences  of  the  thing  done.  Is 
•..ential  toVhe  crime  charged,  such  special  intent  must  be  pleaded,  proved  and  found. 


1  Fenal  Code.  arts.  490, 491. 


1  Stanfleld  v.  SUte.  43  Tex.  167. 


KMtMWMHWaMI 


nVIDUALS. 

e  must  be  used  which 

Bale  —  that  Wisdom, 
Id  —  that  the  former 

whipping  took  place 
question  to  be  deter- 
erate  or  excessive?  " 
iideed,  the  rule  aa  to 
tion  0?  the  law  is  not 
of  the  case,  the  third 
,  which  were  refused, 
a  court  erred  in  not 
e  defendant  was  not 
13  not  moderate,  but 
lult  and  battery,  by 
u  teacher,  and  placed 

the  law  has  not  laid 
[awful  correction  of  a 

it  is  moderate  or  ex- 
5x,  condition  and  dis- 

surrounding  circum- 
lirection  of  the  court 

iscussed  and  to  refuse 
the  charge  as  given, 
id  sufficiently  present 

eversed  and  the  cause 

rsed  and  remanded. 


STATE   V,  BLOEr    W. 


827 


»  BY  JURY. 


t,  1878. 

ences  of  the  thing  done,  is 
I  pleaded,  proved  and  found. 

.  SUte,  43  Tex.  167. 


1.  Where  Defendant  had  Destroyed  the  eye  of  a,  Perion  by  throwing  a  Btone  at  him. 
the  inJormatioii  for  mayhem  charged  Iho  maliciom  intent  in  the  words  of  the  statute. 
Verdict  that  defendant  was  "  guilty  as  charged  in  the  information,  with  the  malicious 
Intent  as  Implied  by  law."  Htlil,  that  this  does  not  And  the  malicious  Intent  as  a  fact 
with  sutncient  certainty  to  sustain  a  JudRment  for  mayliem. 

8.  But  the  Information  charging  an  assault  and  battery,  the  verdict  wiU  sustain  a  Judg- 
ment for  that  offense. 

Reported  by  the  judge  of    the    Municipal    Court    of   Milwaukee 

County. 

Defendant  was  tried  upon  an  information,  the  third  count  of  which 
charsied  that,  "  on,"  etc.,  said  defendant,  "  contriving  and  intending 
the  said  John  Mennier  to  maim  and  disHgure,  in  and  upon  the  said 
John  Mennier,  unlawfully,  willfully  and  maliciously  did  make  an  as- 
sault, and  that  he,  the  said  Cliarles  Bioedow,  with  malicious  intent, 
then  and  there  to  maim  and  disfigure  the  said  John  Mennier,  the  left 
eye  of  him,  the  said  John  Mennier,  unlawfully,  willfully  and  maliciously 
then  and  then  did  put  out  and  destroy."  The  verdict  found  defendant 
"  guilty  as  charged  in  the  third  count  of  the  information,  with  the  ma- 
licious intent  as  implied  by  law." 

The  judge  of  the  Municipal  Court  reported  the  case  to  this  court, 
under  tlie  statute,  for  a  determination  pf  the  question,  whether,  upon 
the  verdict,  any  punishment  could  lawfully  be  inflicted  on  the  defend- 
ant. 
James  Hickox,  for  the  defendant. 
F.   W.  Cotzhausen,  of  counsel  for  the  State. 

Ryan,  C.  J.  Tlie  defendant  was  charged  with  mayhem.  The  stat- 
ute defining  the  crime  requires  the  assault  to  be  made  with  malicious 
intent  to  maim  or  disfigure.  Maiming,  without  intent  to  maim,  is 
not  within  the  statute.  The  information  charged  the  malicious 
intent  in  the  words  of  the  statute.  The  verdict  found  the  defend- 
ant guilty,  as  charged  in  the  information,  with  the  malicious  intent  as 
implied  by  law.  And  the  question  certified  here  by  the  court  below  is, 
whether  the  defendant  can  be  punished  upon  the  verdict. 

Generally,  the  law  will  imply  an  intent  to  do  the  thing  done.  But, 
in  criminal  law,  when  a  special  intent,  beyond  the  natural  consequences 
of  the  thing  done,  is  essential  to  a  crime  charged,  the  special  intent 
must  be  pleaded,  proved  and  found.  The  intent  may  be  proved  in  va- 
rious ways. 

Surrounding  circumstances  generally  go  far  to  show  it.  Sometimes 
the  very  act  itself  does.  Thus,  if  one  slioot  another  with  a  rifle  in  a 
vital  part  of  the  body,  the  act  raises  a  presumption  of  intent  to  kill, 
unless  the  circumstances  under  which  it  is  done  go  to  repel  the  pre- 
sumption. 
So,  if  one  throw  a  stone  at  another,  the  act  raises  the  presumption 


828  CRIMES  AGAINST  THE  PERSONS   OF  INDIVIDUALS. 

Of  intent  to  iniure  generally,  unless  repelled  by  the  circumstances  under 
which  it  is  done.  But  the  law  will  not  presume  a  special  intent  beyond 
the  natural  consequence  of  the  act  done.  The  special  malice  or  intent 
is  a  fact  which  the  jury  must  find,  to  warrant  judgment  on  their  ver- 

diet.  i      t*    4. 

The  difficulty  with  the  verdict  in  this  case  is,  that  the  jury,  in  effect, 
find  the  act,  but  leave  the  s|.ecial  intent  or  malice  to  implication  of  law ; 
that  is  to  say,  they  find  the  defendant  guilty  of  the  act  charged,  but 
leave  the  intent  of  the  act  to  the  judgment  of  the  court.  The  verdict 
is  very  vague,  but  this  appears  to  be  its  true  construction.  And  even 
if  this  be°not,  the  verdict  is  too  uncertain  to  support  a  judgment  for 

mayhem.  ....         4.  *  ^ 

The  facts  in  this  case  go  far  to  illustrate  the  rule  as  it  has  been  stated. 
The  defendant  threw  a  stone  at  another.  The  stone  destroyed  an  eye. 
But  the  mere  throwing  of  the  stone,  itself,  indicates  no  intent  to  inflict 
the  natural  injury,  or  any  special  injury.  Such  an  injury  is  not  a 
natural  consequence  of  the  assault  committed.  If  as  has  happened  to 
the  disgrace  of  humanity,  one  engaged  in  a  fight  gouge  out  his  adver- 
sary's eye,  the  act—  unexplained  by  circumstances  —  may  be  sufficient 
proof  of  the  malicious  intent  to  maim.  But  the  mere  throwing  of  a 
stone  is  generally  not  sufficient  evidence  of  an  intent  to  maim,  merely 
because  it  does  maim;  for  that  result,  though  possible,  must  be  rare, 
and  may  happen  without  the  intent  or  with  it.  Generally,  such  a  re- 
sult would  be  merely  accidental. 

The  information  charges  an  assault  and  batttery.  The  verdict 
clearly  convicts  the  defendant  of  that,  and  for  that  the  defendant  may 

be  punished.*  .«  j  u      v 

The  answer  of  this  court,  therefore,  to  the  question  certified  by  the 
court  below  is,  tliat  the  defendant  may  be  puhished  upon  the  verdict 
for  assault  and  battery,  and  for  that  only. 


ASSAULT  WITH  INTENT  TO  MURDER. 

Hairston  V.  State. 

[64  Miss.  689.] 
Jn  the  Supreme  Court  of  Mississippi,  1877. 

\  One  who  Polat.  »  PUtol  »t  Another,  who  is  attempting  unlawfully  to  .top  hi.  team, 
audThrtrteu.  to  .hoot  him  unle».  he  desi.U  from  hi.  attempt,  may  properly  be  con- 

1  BuUivan  v.  SUte,  U  Wi*.  N6. 


JIVIDUALS. 

I  circumstances  under 
4pecial  intent  beyond 
I'cial  malice  or  intent 
dgment  on  tlieir  ver- 

at  the  jnry,  in  effect, 
o  implication  of  law ; 
tlie  act  charged,  but 
e  court.  The  verdict 
struction.  And  even 
port  a  judgment  for 

as  it  has  been  stated, 
one  destroyed  an  eye. 
tes  no  intent  to  inflict 
h  an  injury  is  not  a 
If  as  has  happened  to 

gouge  out  his  adver- 
es  —  may  be  sufficient 
le  mere  throwing  of -a 
Qtent  to  maim,  merely 
ossible,  must  be  rare, 

Generally,  such  a  re- 

)atttery.     The  verdict 
hat  the  defendant  may 

lestion  certified  by  the 
shed  upon  the  verdict 


HAIR8TON   V.  STATE. 


829 


TBDER. 


ypi,  1877. 

g  nnlawfally  to  (top  hia  team, 
kttempt,  may  properly  be  con- 


Vieted  ot  an  awault.  but  iuoh  cvi.Jonro  will  n<.t  .u«Mn  a  ronWctlon  for  awault  with 
Inte"  to  commit  murder.  To  conHtUute  ll...  latter  ..rten.c  there  muHl  exut  au  actual 
.nd  .bVo!ut™Tntent  to  kill,  wlurl.  the  coudUlouul  threat  doe»  uot  tend  to  prove,  but 
which,  on  the  contrary,  It  negative.. 
i  Persons  Eng»«ed  In  AsaUting  Another  In  a  lawful  net.  can  not  be  held  «"'"?«» 
'•  1rr«ulfS"^Uted  by  l.n„.  u>.le«H  tbe.o  U  ev.aen.e  ten,ln,K  to  <^^'"^-^2TioZw 
.piracy  or  present  participation  In  that  uot.  or  «<.mo  other  evidence  tending  to  .how 
that  they  were  present  to  aid  and  aesUt  in  any  unlawful  act  he  might  do. 

Chalmers,  J. ,  delivered  the  opinion  of  the  court. 

Wilson  Hairstoii,  in  company  with  others,  attempted  to  remove  the 
personal  effects  of  a  laborer  from  the  plantation  of  his  employer,  Rich- 
ards  In  defiance  of  the  latter's  orders.     Richards,  having  made   ad- 
vances  of  money  or  provisions  to  the  laborer,  forbade  the  removal  of 
his  household  furniture  until  he  was  repaid.     In  disregard  of  these  or- 
ders  Wilson  Hairston  was  driving  the  wagon  containing  the  furniture, 
from  Ricliards'  plantation,  when  the  latter  attempted  to  atop  tlie  wagon, 
saying  to  Hairston  that  tlie  laborer,  Charles  Johnston,  must  not  move 
until  he  had  settled  the  debt,  at  the  same  time  reaching  out  his  hand, 
as  if  to  take  hold  of  the  mules.     Hairston  drew  a  pistol,  and  pointing 
it  at  Richards,  said:  "  I  came  here  to  move  Charles  Johnston,  and  by 
G-d  I  am  going  to  do  it,  and  I  will  shoot  any  G-d  d-d  man  who  at- 
tempts  to  stop  my  mules,"  urging  his  mules  forward  as  he  spoke.     His 
manner  was  threatening  and  angry,  and  his  voice  loud  and  boisterous. 
The  persons  accompanying  him,  some  of  whom  were  armed  with  guns, 
pressed  towards  and  around  Richards,  as  if  to  aid  Hairston.     Deterred 
by  the  apparent  danger,  Richards  forebore  to  stop  the  mules,  and  the 

waeon  moved  on. 

Upon  proof  of  these  facts,  Wilson  Hairston  and  two  of  the  men  ac- 

companying  him,  James  Hairstoii  and  Edward  ProweU,  were  convicted 

of  an  assault  with  intent  to  commit  murder,  and  sentenced  to  two  year  s 

imprisonment  in  the  penitentiary.     Is  this  conviction  sustained  by  the 

proof?    It  is  insisted  by  counsel  for  the  plaintiff  in  error  that  there 

was  no  assault, because  the  threats  were  conditional;  and  reliance  is 

had  upon  the  old  familiar  cases,  in  one  of  which  the  assailant,  laymg 

his  hand  upon  his  sword,  said :  "  If  it  were  not  assize  time  I/o^ld  "O* 

take  such  language  from  you;"  and,  in  another,  the  defendant  raised 

his  whip,  and  said:    "Were  you  not  an  old  man  I  would  knock  you 

down  •"  and  other  like  cases,  in  all  of  which  it  was  held  that  there  was 

no  assault,    -^hese  were  not  conditional  threats,  properly  so-called, 

but  rather  declarations  that  the  speaker  did  not  intend  to  strike,  be- 

cause  of  an  existing  fact  over  which  neither  party  had  any  control. 

They  were  expressions  of  a  wish  to  strike,  but  a  statement  that  he 
would  not  do  so,  by  reason  of  existing  facts.  The  case  at  bar  is  an 
offer  to  shoot,  with  something  done  towards  accompUshing  it,  accom- 


iiiMinm<tat*lt*i  WW  ll*"* 


>V«*m»*M»aai^5M|J»«-aWsl«iaaW*»«9H^ 


830 


CRIMES   AGAINST  TUB   PERSONS   OP  INDIVIDUALS. 


paniecl  by  a  threat  to  shODt,  unless  the  opposite  party  complies  with  a 
certain  dcraaiul,  or  forbears  to  do  a  ce-tain  thing.  It  tliercforc  presents 
a  case  of  an  intentional  offer  to  commit  violence,  with  an  overt  act 
towards  its  accomplishment,  based  upon  a  conditional  threat.  Does 
this  constitute  an  assault?  Hairston  had  a  right  to  forbid  Richards 
touching  his  mules.  Ricliards  had  no  right  to  retain  the  furniture  of  his 
laborer  in  order  to  compel  payment  of  the  debt  due. 

The  laborer  had  the  right  to  remove,  and  Hairston  had  the  right  to 
assist  him.  When  the  latter  forbade  Richards  touching  his  mules,  he 
simply  forbade  the  commission  of  a  trespass  on  bis  property.  A  man 
has  the  legal  right  to  protect  his  property  against  trespass,  opposing 

force  to  force. 

If,  therefore,  the  offer  had  simply  been  to  commit  a  common  assault, 
as  by  declaring  he  would  strike  with  his  hand,  or  with  some  implement 
or  weapon  not  dangerous,  Hairston  would  have  been  guilty  of  no  of- 
fense. If  a  man  talvcs  my  hat,  or  offers  to  do  so  against  my  will,  and 
I,  drawing  back  my  hand,  declare  that  I  will  strike  if  he  does  not  for- 
bear, I  only  meet  the  trespass  by  an  offer  to  use  such  force  as  may  be 
appropriate  and  necessary.  But  I  can  not  at  once  leap  to  an  assault, 
with  deadly  weapons,  and  a  threat  to  kill.  If  I  were  to  kill  under  such 
circumstances,  the  killing  would  be  murder ;  and  hence  I  have  made  .in 
assault  which,  if  I  carried  into  a  battery  with  fatal  results,  would  con- 
stitute the  gravest  crime. 

As  no  trespass  upon  property  will  primarily  justify  the  taking  of  life, 
80  an  offer  to  commit  a  trespass  can  not  justify  an  assault  with  a  deadly 
weapon,  accompanied  by  a  threat  to  kill,  unless  the  party  desists.  The 
means  adopted  are  disproportioned  to  and  not  sanctioned  by  the  end 
sought.  We  think,  therefore,  that  Hairston  might  well  have  been  con- 
victed of  an  assault.^ 

But  he  was  indicted  for  and  convicted  of  an  assault  with  intent  to 
commit  murder.    Does  the  evidence  warrant  such  conviction? 

The  intent  in  this  class  of  cases  in  the  gist  of  the  offense.  It  is  the 
intent,  rather  than  the  act,  which  raises  it  from  a  misdemeanor  to  a 
felony.  It  was  held  in  Jeff's  Case,^  that  the  intent  might  be  inferred 
from  the  act;  but  that  the  facts  were  wholly  different  from  those  pre- 
sented by  this  case. 

In  Jeff's  Case  there  was  an  actual  and  well-nigh  fatal  stabbing  with  a 
weapon  proved  to  be  dangerous.  Here  there  was  only  a  conditional 
offer  to  shoot,  based  upon  a  demand  which  the  party  had  a  right  to  make. 
While  the  law  will  not  excuse  the  assault  actually  committed  in  leveling 


1  Morgan's  Case,  3  Ired.  186;  Mcyerfleld's 
Case,  Phil.  (N.  C.)  108;  Smith's  Case,  39 
MlBS.  621. 


1  39  Miss.  321. 


DIVIDUAL8. 

party  complies  with  a 
It  therefore  pres'^nts 
ce,  with  an  overt  act 
litional  threat.  Does 
rht  to  forbid  Richards 
»in  the  furniture  of  Lis 
ue, 

rston  had  the  ri^ht  to 
touching  his  mules,  he 
his  property.  A  man 
inst  trespass,  opposing 

mit  a  common  assault, 

r  with  some  implement 

been  guilty  of  no  of- 

0  against  my  will,  and 
;rike  if  he  does  not  f  or- 
3  such  force  as  may  be 
ice  leap  to  an  assault, 
ivere  to  kill  under  such 
[  hence  I  have  made  nn 
ital  results,  would  con* 

stify  the  taking  of  life, 
in  assault  with  a  deadly 
the  party  desists.  The 
sanctioned  by  the  end 
ght  well  have  been  coa- 

a  assault  with  intent  to 

eh  conviction? 

f  the  offense.    It  is  the 

1  a  misdemeanor  to  a 
ntent  might  be  inferred 
ifferent  from  those  pre- 

5h  fatal  stabbing  with  a 

was  only  a  conditional 

irty  had  a  right  to  make. 

ly  committed  in  leveling 


;ai. 


IIAIR8TON   V.  ^tl'ATK, 


S31 


the  pistol  within  shooting  distanco,  it  can  not,  from  this  fact  nlono,  infer 
an  iiitint  to  minder.  The  intent  must  be  atlual,  not  conditional,  and 
tHpecially  not  conditioned  upon  uon-complinuee  with  a  proper  demand. 
Tiie  law  punishes  the  assault  because  it  was  committed.  It  can  not 
punish  the  inti-nt,  because  tliat  did  not  exi>*t ;  and,  as  shown  by  the 
declaration  of  tlie  party,  would  not  ariao.  except  upon  the  happening  of 
a  certain  event,  to  wit,  the  commission  of  a  trespass  by  the  other  party. 
So  far  from  the  jury  being  allowed  to  infer  an  intent  to  murder,  we 
think  that  the  existence  of  such  intent  was,  by  the  eviden(re,  clearly 
ni'gativt'd. 

In  a  somewhat  extens.-o  examination  of  tiie  books,  we  have  found 
no  case  of  a  conviction  of  assault  with  intent  to  kill  or  murder,  upon 
proof  only  of  the  leveling  of  a  gun  or  pistol. 

It  follows,  from  these  vii'ws,  that  wliile  Wilson  Hairston  might 
properly  have  been  convictod  of  an  assault,  the  higher  grade  of  crime 
was  not  made  out  against  him. 

Whether  James  Hairston  and  Prowell  were  guilty  participants  in 
Wilson  Hairston's  unlawful  aft,  we  think  doubtful  under  the  testimony, 
especially  so  as  to  Prowell.  If  present  only  for  the  purpose  of  assist- 
ing in  the  removal  of  Johnston,  they  were  guilty  of  no  offense.  If,  in 
doing  this,  they  were  riotous,  disorderly  and  threatening  violence,  they 
were  guilty  of  a  riot ;  but  they  can  be  held  guilty  of  the  asaault  com- 
mitted by  Wilson  Hairston  only  upon  testimony  tending  to  show  pre- 
vious conspiracy  or  present  participation  in  that  act,  or  upon  testimony 
from  which  the  jury  could  rightfully  infer  that  they  were  present  to 
aid  and  assist  him  in  any  unlawful  act  he  might  do. 

Judgment  reversed  and  new  trial  awarded. 


ASSAULT  WITH  INTENT  TO   MURDER  —  INTENT  ESSENTIAL 

People  v.  Keefer. 

[18  Cal.  087.] 

In  the  Supreme  Court  of  California,  1861. 

K.  WM  Indicted  for  an  AsmuU  with  Intent  to  murder  E,  The  court  charged  the  jury 
that  i(  "  a  loaded  gun  was  presented  within  shooting  range  at  W.  or  E.  or  at  the  dog, 
under  circumsUnces  not  Justified  by  law,  and  under  circumstances  showing  an  aban- 
doned and  malignant  heart,  and  the  gun  was  fired  off  and  inflicted  a  dangerous  wound 
upon  E.,  then  the  crime  of  an  assault  with  a  dea<lly  weapon  with  Intent  to  Inflict  a  bodily 
injury  upon  E.  has  been  proved ;  and  it  would  only  remain  for  them  to  Inquire  whether 
defendant  was  guilty  of  the  crime."   There  was  evidence  tending  to  show  tha*.  K.  fired 


889  CHIMES   AGAINST  THE   PEB80N8   OF  INPIVIDUALS. 

BtUl,  lliat  the  clioigo  wa»  wrong. 

Appeal  from  tho  Hixtli  District.     Tl.e  facts  arc  sulHcicutly  stated  m 
tbu  opinion.     Defeiulunt  appculs. 

Umq^kmj  Griffith  and  N.  Greene  Curtis,  for  appellant. 
no8.  JI.  Wdliavia,  Attornoy-r.cneral,  for  rc.8i)on<kM.t. 
Baldwin,  J. ,  dolivcre.l  the  opinion  of  the  court.     CNn-K,  J. ,  cu..ci.rnng. 
The  dcfemlant  was  indicted  for  an  assanlt  with  intont  to  r^u.^^^ 
John  R.  Evann,  and  convicted  of  the  crime  of  an  assault  with  a  deadly 
Co",  -itb  intent  to  do  great   l.odily  harm.     The  court  instructed 
the    urv  that  If  a  loaded  gun  was  presented  within  «'-»«^;»^  J^'d  bv 
Wilson  or  Evans,  or  at  the  do,,  under  ^-^^^^^^-^-'^^VJ" f  fjf^^'^^, 
law,  and  under  circumstances  showing  an  abandoned  and  mahgnant 
Uea'rt,  and  that  the  gun  was  llred  off,  and  inflicted  a  daoge..us  wo  nd 
upon  the  witness  Evans,  then  tlie  crime  of  an  assault  with  a  deadly 
weapon,  with  intent  to  inflict  a  bodily  injury  upon  the  witness  Evan«. 
has  beeL  proved,  and  it  would  only  remain  for  them  to  mquire  whether 
or  not  the  defendant  was  guil.y  of  the  crime.     The  pertinency  of  this 
charge,  as  we  gather  from  the  case,  was  shown  ^y  P^«";%;;'';^';,  "l^""" 
duced  ;o  prove'thatKecfer  fired  a  gun  in  the  direction  of  -^'l;-  -j 
Evans  and  of  a  dog  near  them,  there  being  some  dispute  ^         whether 
the  intent  was  tu  kill  or  wound  the  dog,  or  these  men,  or  them. 

It  is  true,  that  a  person  may  be  convicted  of  murder  or  of  a.i  assau   . 
thouah  no  Rpeciflc  intent  may  have  existed  to  commit  the  crime  of  mur- 
der  or  assault  upon  the  person  charged.     The  familiar  illustration  is 
that  of  a  man  shooting  at  one  person  and  killing  another.     In  these 
cases,  the  general  malice  and  the  unlawful  act,  are  enough  to  constitute 
t"  oiense'    No  doubt  exists  that  a  man  may  be  guilty  of  «aus  augW- 
ter  under  some  circumstances  by  his  mere  carelessness.     But  this  rule 
Z  no  application  to  a  statutory  offense  like  that  of  w  iich  the  defend- 
ant was  convicted.     This  is  an  assault  with  a  deadly  weapon  with 
ii^ent  to  do  great  bodily  harm  to  another  person.    Jhe  offense  is  no^ 
constituted  in  any  part  by  the  battery  or  wounding,  but  '-o™P>«^^^y 
the  assault,  the  weapon  and  the  intent,  -as  if  A.  snaps  a  loaded  pistol 
at  B  within  striking  distance,  the  offense  would  be  no  more  under  the 
clause  of  the  statute  if  the  shot  took  effect.     It  could  scarcely  be  con- 
tended,  if  a  man  shot  at  another's  dog  or  chicken,  when  such  shooting 
would  be  a  trespass  and  wholly  illegal,  that  the  trespasser  was  guilty  o 
this  crime  of  assault  upon  a  man  with  intent,  etc. ,  merely  from  he  fact 
that  the  owner  of  the  animal  was  near  by  and  within  range  of  the  shot, 
or  the  shot  went  through  his  hat  or  clothes;  and  yet  the  reason  of  hold- 
incr  thus  in  that  case  is  as  great  as  in  this.     So,  if  a  man  carelessly 


mwiwMWi 


niVIDUALS. 


SIMPSON   V.  STATR. 


833 


,  tlierc  being  somo  dispute 
heao  men,  or  one  ot  thom: 


!  suUlcieutly  stated  in 
ppellant. 

)Oll<lt'llt. 

CnvK,  J.,t'o..ciimng. 
1  intout  to  imu-iltT  one 
1  assault  with  a  dcailly 
The  court  instructed 
lin  shoooting  range  at 
tanccs  not  justified  by 
idouod  and  malignant 
kI  a  dangerous  wound 
assault  with  a  deadly 
[jon  the  witness  Evans, 
lern  to  inquire  whether 
The  pertinency  of  this 
1  by  proofs  which  con- 
irection  of  ''^'^Uson  and 
e  dispute  '         whether 
46  men,  or  *  them, 

mrder  or  of  an  assault, 
)mmit  the  crime  of  mur- 
familiar  illustration  is 
ing  another.     In  these 
are  enough  to  constitute 
)e  guilty  of  manslaugh- 
leasness.     But  this  rule 
lat  of  which  the  defend- 
a  deadly  weapon,  with 
son.     The  offense  is  not 
ding,  but  is  complete  by 
A.  snaps  a  loaded  pistol 
Id  be  no  more  under  the 
It  could  scarcely  be  con- 
ken,  when  such  shooting 
>  trespasser  was  guilty  of 
tc,  merely  from  the  fact 
within  range  of  the  shot, 
ad  yet  the  reason  of  hold- 
So,  if  a  man  carelessly 


handling  hrlcks  on  the  roof  of  a  house,  Hhnuld  throw  tiiem  into  the  street 
below,  though  he  ml^lit  be  liable,  civilly  and  criminally,  for  injJiry  done 
t )  persons  thereby,  he  could  not  bo  guilty  of  the  statutory  offense  of 
assault  with  intent  to  kill.  The  words  of  the  statute,  "  with  intiiit  to 
do  great  bodily  Imrra  to  a  person,"  »  arc  not  merely  formal,  but  they  arc 
substantial,  they  constitute  the  very  gravamen  of  the  offonsi' ;  and  tlic 
statute,  like  all  other  penal  laws,  must  bo  strictly  construed.  It  is 
nothing  in  this  view,  that  the  defendant  is  guilty  of  some  crime ;  ho 
must  be  guilty  of  the  very  crime  charged,  which  can  not  Ito  unless 
the  elements  of  the  crime,  as  defined  by  the  Legislature,  ai)i)ear.  This 
U  the  universal  rule  applicable  t^-  ijninal  j^roceedlngs,  and  It  Is  'is 
pltiiuly  supported  by  common  se  iso  as  by  technical  law.  Wo  can  not 
iiiiike  the  proposition  plainer  by  illustration.  If  the  defendant  is  con- 
\  i.ted  under  this  charge  of  the  court,  it  would  seem  that  he  might  be 
convicted  of  an  assault  upon  a  dog  with  a  deadly  weapon,  with  intent  to 
do  a  great  bodily  injury  to  a  man ;  or  of  the  offense  of  assaulting  a 
man  with  a  deadly  weapon,  with  intent  to  do  that  man  great  bodily 
luirm,  when  he  had  no  such  intention. 

We  know  nothing  of  the  facts  of  the  case,  and  intimate  no  opinion  as 
Lo  the  merits  of  the  controversy. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial. 


ASSAULT  WITH  INTENT  TO  MURPER— SETTING  SPRINO-GUNS. 

Simpson  v.  State. 

[69  Ala.  1;  31  Am.  Rep.  1.] 
In  the  Supreme  Court  of  Alabama,  1877. 

It  Id  UnUwAU  for  the  occupant  •!  lands  to  set  gprlng-guns  or  other  mlsehlerous  weapons 
on  his  premises  and  If  the  same  cause  death  to  any  trespasser  it  is  a  criminal  homicide. 
But  to  authorize  a  conviction  of  assault  with  Intent  to  commit  a  murder,  a  specific 
felonious  intent  must  be  proved ;  and  so  when  one  plants  such  weapons  with  the  general 
intent  to  kill  trespassers  and  wounds  a  particular  person,  he  can  not  bo  convicted  of 
assault  with  Intent  to  commit  murder.  The  intent  to  kill  that  particular  person  alone 
must  be  shown  and  can  not  be  implied  from  the  general  conduct. 

Conviction  of  assault  with  intent  to  commit  murder.  The  evidence 
tended  to  show  that  the  complainant,  who  occupied  lands  adjoining  the 
defendant's,  was  wounded  by  a  spring  guu,  which  the  defendant  had 
long  been  in  the  habit  of  maintaining  against  trespassers  who  had  in- 


3  Dkfknce.s. 


1  Cr.  Pr.  Act,  sec.  50. 
53 


.11  miin — "  '  --■-■■— ■■"--•I 


834  CRIMES   AGAINST  THE   PERSONS   OF  IiN^DIVIDUALS. 

iurecl  his  property.     There  was  also  evidence  of  enmity  betw-  ->- 
Cplainant  Tnd  defendant.     The  substance  of  the  instrucUons  coj 
plained  of  is  sufficiently  set  forth  in  the  eighth  paragraph  of  the  opi 

''""^rrington  &  Graham  and  Rice,   Jones  &  Wiley  for  »PP«"-^*;- 

Settini^  a  spring  gun  under  the  circumstances  disclosed  by  the  bUl 
excen  "ons  i 'la^fu'u  The  language  of  the  statute  7  and  8  of  Geor 
?v'' whereas,  it  is  expedient  to  prohibit  the  settu^g  of  spring  gun 
el '  shows  it  Us  lawful  at  common  law.  There  is  no  statute  on 
subject  in  Alabama.  If  anything  more  was  needed  .t  is  sufficient 
B^y  that  while  the  practice  of  setting  spring  guns,  has  P'-aded  s" 
Zs  came  into  use  in  the  fourteenth  century,  not  a  case  can  he  fo. 
n  the  reports  of  England  or  America,  where  any  one  has  oecn  pro 
cuted  for  shooting  another  with  a  spring  gun. 

Bragg  and  Thorington,  for  the  Attorney-General,  co««ra. 
Brthkell  C  J.    The  Indictment  contains  a  single  count,  charg 
i„^;epres;rn3ed  form,  the  defendant  with  an  assault  with  inten 
Irder  one  Michael  Lord.     It  is  founded  on  the  statute,^  which  re 
as  follows:  "Any  person  who  commits  an  assault  on  another  witn 
It  to  murder,  mL.  rob.  ravish,  or  commit  the  crime  ag.ins  uat, 
or  who  attempts  to  poison  any  human  being,  or  to  comm  t  mu  de 
any  means  noi  amounting  to  an  assault,  must  on  conviction  be  I 
Sd  by  impasonment  in  the  penitentiary,  or  by  hard  labor  for 
ctntvfo  Itlessthantwoormore  than  twenty  years."     It  1^^ 
he  statute  wa,  intended  for  the  punishment  of  several  distinct  offer 
*t£  etments  of  each  being  an  act  d.ne,  which  of  H-lMhougMt™^^^ 
an  indictable  offense,  is  aggravated  by  the  intent  '^"«nding  »*,  an 
higher  offense  contemplated.     Each  was  an  offense  k"own  to  thee 
mon  law,  indictable  and  punishable  as  a  misdemeanor     We  do 
Tan  of  course,  that  each  was  at  common  law  recogmzedas  a  sepa, 
Tstrnct  techniJal  offense.     An  assault  was  a  misdemeanor;  ,f  a  te. 
^t    a  ilnious  intent  the  intent  was  a  matter  of  aggravation  , us 
TXe  imposition  of  severe  punishment  -  not  oMier  or  additional 
i^Lent-han  that  inflicted  on  misdemeanoas,  but  severer  in  deg 
Ina  so  at  common  law  an  attempt  to  poison  or  by  any  means  to 
™^  murder,  or  to  commit  any  felony,  in  itself  is  «  "^-^^-'j-^hi 
Repeat,  the  statute  provides  for  the  punishment  o     Beve-ral  d^sUn 
fenses  known  to  the  common  law.     It  does  not  declare  the  constit, 
of  eTtLr  offense  ;  it  is  silent  as  to  thefacts  which  must  concur,  to 

208 ;  •  Barn,  ft  Aid.  804 ,  Slier.  S  i«ai.  ^^^  _  ^  ^^^  ^^^  ^^  ^^^^  ^^^^ 

NeK.  B09.  ^  g  Whirt.  Cr.  L.,  sec.  2C96. 

s  Kev.  Code,  ieo.  8670. 


)F  li^DIVIDUALS. 

snce  of  enmity  betw  '^  e 
ee  of  the  instructions  com- 
rhth  paragraph  of  the  opin- 

Wiley,  for  appellants, 
nces  didclosed  by  the  bill  of 
e  statute  7  and  8  of  George 
the  setting  of  spring  guns," 
There  is  no  statute  on  the 
ras  needed,  it  is  sufficient  to 
ijg  guns,  has  prevailed  since 
iry,  not  a  case  can  he  found 
lere  any  one  has  been  prose- 
iin. 

-General,  cojitra. 
jns  a  single  count,  charging 
th  an  assault  with  intent  to 
[  on  the  statute,^  which  reads 
[1  assault  OQ  another  with  in- 
mit  the  crime  against  uature, 
ing,  or  to  comuiit  murder  by 
must  on  conviction,  be  pun- 
ry,  or  by  hard  labor  for  the 
f enty  years. "     It  is  apparent 
nt  of  several  distinct  offenses, 
lich  of  itself,  though  it  may  be 
e  intent  attending  it,  and  the 
an  offense  known  to  thecom- 
L  misdemeanor.     We  do  not 

1  law  recognized  as  a  separate, 
as  a  misdemeanor ;  if  attended 
aatter  of  aggravation,  justify- 
-not  o< her  or  additional  pun- 
janoas,  but  severer  in  degree.* 
)ison  or  by  any  means  to  com- 
itself  is  a  misdemeanor.''  We 
shment  of  several  distinct  of- 
es  not  declare  the  constituents 
3ts  which  must  concur,  to  con- 

Boasley  v.  State,  18  Ala.  634 ;  Meredith  »■ 
I,  in  manuscript ;  2  Whart.  Or.  L.,  Bee. 

2  Arch.  Or.  PI.  285,  not*. 

1  Whirt.  Cr.  L.,  sec.  2C96. 


SIMPSON   V.  STATE. 


835 


stitute  the  felonious  assault,  or  the  felonious  attempt.  These  must 
be  ascertaincil  from  the  common  law,  and  if  the  statute  liad  not  pre- 
-jcribed  the  forms  of  indictment,  or  declared  the  averments  it  is  neces- 
sary to  make,  the  offense  must  have  been  described  as  at  common 
law  —  the  facts  constituting  the  assault  or  attempt  must  have  been 
stated  and  connected  with  an  averment  of  the  felonious  intent  or 
design.'  Though  indictments  are  abridged  in  form  and  reduced  to  a 
stiitement  rather  of  legal  conclusions  than  of  the  facts  which  8ui)port 
or  from  which  the  conclusions  may  be  drawn,  the  nature  of  offenses  is 
not  changed,  and  the  conclusion  stated  must  be  sustained  by  the  same 
measure  of  evidence  which  would  be  necessary  if  the  facts  on  which  it 
depends  were  stated.  It  is  the  assertion  of  a  mere  truism  to  say  that 
if  an  indictment  charges  one  of  these  offenses,  it  can  not  be  supported 
by  evidence  of  another.  As  in  the  present  case,  the  charge  of  an  as- 
siuilt  with  intent  to  murder  is  not  supported  by  evidence  of  an  assault 
with  intent  to  maim,  or  to  commit  either  of  the  other  designated 
felonies.  Nor  yet  would  it  be  supported  by  evidence  of  an  attempt  to 
poison  or  commit  murder,  by  means  not  amounting  to  an  assault.  The 
offpi-T  charged  must  be  proved,  and  an  essential  element  of  the  pres- 
ent i>iii'nse  is  not  only  an  assault  with  intent  to  murder,  but  the  specific 
intent  to  murder  Ford,  the  person  named  in  the  indictment  If  the  in- 
tent was  to  murder  another,  or  if  there  was  not  the  specific  intent  to 
murder  Ford,  there  can  not  be  a  conviction  of  the  aggravated  offense 
charged,  though  there  may  be  of  the  minor  o^ense  of  assault,  or  of  as- 
sault and  battery.  ^ 

The  intent  can  not  be  implied  as  matter  of  law ;  it  must  be  proved 
as  matter  of  fact,  and  its  existence  the  jury  must  determine  from  all 
the  facts  and  circumstances  in  evidence.  It  is  true  the  aggravated 
offense  with  which  the  defendant  is  charged  can  not  exist  unless  if  deatii 
had  resulted,  the  completed  offense  would  have  been  murder.  From 
this  it  does  not  necessarily  follow  that  every  assault  from  which  if  death 
ensued,  the  offense  would  be  murder,  is  an  assault  with  intent  to  mur- 
der, within  the  purview  of  the  statute  or  that  tlie  specific  intent,  the 
essential  characteristic  of  the  offense,  exists.  Therefore  in  Moore  v, 
State^  an  aflBrmative  instruction  " that  the  same  facts  and  circum- 
stances which  would  make  the  offense  murder,  if  death  ensued,  fur- 
nish sufficient  CAndence  of  the  intention"  was  declared  erroneous. 
The  court  say:  "There  are  a  number  of  cases  where  a  killing  would 
amount  to  murder,  and  yet  the  party  did  not  intend  to  kill.  As  if  one 
from  a  housetop  recklessly  throw  down  a  billet  of  wood  upon  the  side- 


1  Beatley  v.  State,  irtpra. 

2  Barnci  v.  State.  40  Mias.  17;  Jones  «. 
State.  11  8.  &M.  315;  Ogletreo  v.  State,  28 


Ala.    69:);   Morgan  v.    State,   38    Id.  413} 
State  V,  Abraham,  10  Id.  928. 
s  18  Ala.  S33. 


83(5  CHIMES    AGAINST   THE    PEU80N8   OF   INDIVIDUALS. 

,.alk  where  persons  .re  constantly  passing,  and  it  fall  upon  a  person 
passing  l.y   aiul  kill  him,  this  would  be  by  the  eomumn  law  murder ; 
lutiftnsteadof  killing  hi.n  it  inflicts  only  a  slight  injury,  that  party 
could  not  be  convicted  of  an  assault  with  intent  to  murder         Olb.. 
illustrations  may  be  drawn  from  our  statutes  ;  murder  in  the  first  degree 
may  becommiUed  in  the  attemi-t  to  perpetrate  arson,  rape,  robbery 
or  burglary   and  yet  an  assault  committed  in  such  attempt  is  not  an 
assault  with  intent  to   murder.     If  the  intent  is  to  ravish  or  to  rob 
it  is  under  the  statute  a  distinct  offense  from  an  assault  with  intent  to 
murder  though  pu.ushed  with  the  same  severity.     And  at  common  law 
if  death  results  in  the  prosecution  of  a  felonious  intent,  from  an  act 
viahnn  m  se,  the  killing  is  murder.     As  if  A.  shot  at  the  poultry  otj^ 
intending  to  shoot  them  and  by  accident  kills  a  human  being  he  is  guilty 
of  murder.i     Yet  if  death  did  not  ensue,  if  there  was  a  mere  battery  or 
a  wounding,  it  is  not  under  the  statute  an  assault  with  intent  to  mur- 
der     The  statute  is  directe.l  against  an  act  done,  with  the  particular 
intent  specified.     The  intent  in  fact  is  the  intent  to  murder  the  Person 
named  in  the  indictment,  and  the  doctrine  of  an  intent  in  law  different 
from  the  intent  in  fact,  has  no  just  application ;  and  if  the  real  intent 
shown  bv  the  evidence  is  not  that  charged,  there  can  not  be  a  convic- 
tion for  the  offense  that  intent  aggravates,  and  in  contemplation  of  the 
statute,  merits  punishment  as  a  felony.^     As  is  said  by  Mr.  Bishop  the 
.-eason  is  obvious,  the  charge  against  the  defendant  is  that  m  conse- 
quence  of  a  particular  intent  beyond  the  act  done,  he  has  incurred  a 
guilt  beyond  what  is  deducible  merely  from  the  act  wrongfully  per- 
formed; and  therefore  to  extract  by  legal  fiction  from  this  act  such 
further  intent  and  then  add  it  back  to  the  act  to  increase  its  severity  is 

bad  in  law.^  ,    , 

An  application  of  these  general  princii.les  will  show  that  several  of 
the  instructions  given  by  the  Civil  Court  were  erroneous  and  some  c^ 
them  misleading  or  invasive  of  the  province  of  the  jury.     The  sixth 
asserts  the  familiar  principle  of  the  law  of  evidence,  that  a  man  must 
be  presumed  to  intend  the  natural  and  probable  consequences  of  Ins 
acts  and  from  it  draws  the  conclusions  "  that  if  a  man  shoots  another 
with  a  deadly  weapon  tlie  law  presumes  that  by  such  shooting  he  in- 
ten.led  to  take  the  life  of  the  person  shot."     Whether  this  instruction 
would  or  would  not  be  correct  if  death  had  ensued  from  the  shooting, 
and  the  defendant  was  on  trial  for  the  homicide,  it  is  not  now  important 
to  consider.     In  a  case  of  this  character  the  instruction  is  essentially 
erroneous,  for  if  it  has  any  force   it  converts   the   material  element  of 


1  1  RnBB.  Cr.  640. 

1  Ogletrco  V.  Slate,  Bupra;    Morgan    v. 
State,  lupra. 


!t  I  Bisli.  Cr.  L.,  sec.  614. 


■te^ 


[VIOUALS. 


SIMPSON    V.  STATE. 


837 


.  fall  upon  a  person 
.muiou  law  murder ; 
t  injury,  that  party 

0  murder."     Olbor 
let  iu  the  first  degree 
arson,  rape,  robbery 
ii  attempt  is  not  an 
to  ravish  or  to  rob 
ssault  with  intent  to 
And  at  common  law 
intent,  from  an  act 
at  the  poultry  of  B. 
lan  being  he  is  guilty 
7as  a  mere  battery  or 
:  with  intent  to  mur- 
,  with  the  particular 
to  murder  the  person 
itent  in  law  different 
and  if  the  real  intent 

can  not  be  a  convic- 
coutemplation  of  the 
lid  by  Mr.  Bishop  the 
ant  is  that  in  conse- 
ne,  he  has  incurred  a 
3  act  wrongfully  per- 
3n  from  this  act  such 
increase  its  severity  is 

1  show  that  several  of 
irroneous  and  some  of 

the  jury.  The  sixth 
ence,  that  a  man  must 
e  consequences  of  his 
a  man  shoots  another 
)y  such  shooting  he  in- 
^hether  this  instruction 
ued  from  the  shooting, 
it  is  not  now  important 
istruction  is  essentially 
he   material  element  of 

.  h.,  «ec.  B14. 


the  offense,  the  intent  to  murder  a  particular  person,  into  a  presump- 
tion of  law  drawn  from  the  nature  of  the  weapon  and  the  act  done  with 
it ;  while  the  .atent  is  a  fact  which  must  be  found  by  the  jury  and  the 
cliarat'ter  of  the  weai)on,  and  the  act  done  are  only  facts  from  which 
it  may  or  may  not  be  inferred.     The  weapon  used  and  the  act  done 
may  in  the  light  of  other  facts  and  circumstances,  impute  an  intent  to 
maim  or   merely   to   wound,  distinct  offenses   from  that  imputed   to 
the  defendant ;  and  maiming  or  wounding  is  a  probable,  natural  conse- 
quence of  the  act  done  with  such  weapon.     In  Morgan  v.  State,^  the 
court,  at  the  request  of  the  defendant,  charged  the  jury  "  that  they 
must  be  convinced  beyond  all  reasonable  doubt  that   the  prisoner  in- 
tended to  shoot  Schrimpshire  "  (the  prosecutor)  "  before  they  can  con- 
vict the  prisoner  of  an  assault  with  intent  to  murder,"  but  added, 
referring  to  the  particular  facts  of  the  case,  "that  the  presenting  of  a 
pistol  loaded  and  cocked,  within  carrying  distance  by  one  man  at  an- 
other, with  his  finger  on  the  trigger  in  an  angry  manner,  is  of  itself,  an 
assault  with  intent  to  murder."     This  court  said:     "  The  explanatory 
charge  given  by  the  court  in  this  case  can  not  be  supported.     It  ignores 
one  of  the  material  facts  which  constitutes  the  offense  for  which  the 
prisoner  was  on  trial.     The  defendant  was  not  guilty  as  charged  unless 
he  committed  the  assault  and  this  act  was  done  with  a  special  intent  to 
kill  and  murder  the  person  assaulted."     It  was  said  the  facts  were 
proper  for  the  consideration  of  the  jury  and  (quoting  from  Ogletree  v. 
Stiite,^)  that  it  was  competent  for  them  in  their  deliberations  "  to  act 
upon  the  presumptions  which  are  recognized  by  law,  so  far  as  they  are 
applicable  and  their  own  judgment  and  experience  as  applied  to  all  the 
circumstances  in  evidence.     It  does  not,  however,  result  as  a  conclusive 
presumption  at  law  from  the  facts  supposed  in  the  charge,  that  the  ac- 
cused had  the  intent  to  take  the  life  of  Schrimpshire ;  the  surrounding 
circumstances  should  have  been  considered  by  the  jury  and  unless  the 
jury  were  convinced  that  the  prisoner  entertained  the  particular  intent 
to  take  the  life  of  his  adversary  then  the  prisoner  could  not  be  convicted 
of  tiie  higher  crime.     The  particular  intent  reaches  beyond  the  act  done 
and  is  a  fact  to  be  found  preliminary  to  conviction  aa  necessary  to  the 
other  fact  itself,  viz. ,  that  the  assault  was  committed.     In  other  words 
while  the  law  permits  and  commands  juries  to  indulge  all  raasonable 
inferences  from  the  facts  in  proof  it  does  propria  vigore,  infer  the  one 
fact  from  another."     In  Scitz  v.  State,^  a  similar  question  was  consid- 
ered.    In  an  indictment  for  an  assault  with  intent  to  murder,  the  jury 
returned  a  special  verdict  finding  the  defendant  "guilty  of  striking 
with  a  loaded  whip,  calculated  to  produce  death,  without  any  excuse  or 


1  33  Ala.  4U. 


s  lupra. 


3  23  AU.  42. 


838  CRIMES   AGAINST   THE   PERSONS   OF    INDIVIDUALS. 

r.n  ••  nn  which  iud.rinent  of  conviction  was  pronounced,  which 
Zr:ZZaZc^^^^--^  -t  a  legal  conclusion  from  the  facts 
7t  H  that     ofendrnt  had  the  particular  intent  to  murder  the  person 
t:^T^A:it::u^^^^^^^^^    -Ith  mtent  to  fnghten,-  say  the  court, 
"  nn^m  or  wound,  without  producing  death,  or  for  tl-  P-l-«  «"»; 
flicing  punishment  or  disgrace,  is  equally  consistent  w.  h  t  e  lind.ng  o 
Z  iurv   as  that  it  was  :m  assault  with  intent  to  murder.       The  t  ue 
Sid,  le'  ts  that  the  particular  intent,  the  intent  to  murder  the  person, 
Tirl  i    m^  er  of  fact  about  which  the  law  raises  no  presumptmns 
7:^ttZZonl.n....^    The  jury  must  And  the  fact;  ami  in  as- 
certahin.  its  existence  they  may   and  will  draw  inferences  from  the 
chara  ler'of  the  assault,  the  want  or  the  use  of  a  deadly  -eapon  and 
heprtlce  or  the  absence  of  excusing  or  l-"^^^, -^^^^^^^^^^ 
What  are  the  presumptions  or  inferences  in  view  of  all  the  facts,  they 
Ist  be  left  free   to  determine  ;  and   the  court  misleads  them  and  m- 
vades  thdrpxlvince,  if  a  part  only  of  the  facts  is  singled  out  and  they 
Le  Tnstructed  from  them,  the  felonious  intent  must  ^^^^^^^ 
The  particular  facts  of  the  case  in  one  phase  m  wh  ch  the  evidence 
present   it  are  so  interwoven  with  the  remaining  instructions,  that  a 
Se     lationof  the  primary  question  they  -volve  is  necessary  to  a 
CO  re^t  understanding  of  them.     This  question  is  the  right  of  a  land 
Z^toXntsprin/guns  on  the   premises,  by  which  trespassers  may 
;rwounder  .  Hiraf  is  his  liability,  if  thereby  a  trespasser  receives 
be  wounaea,  an  y^^,^^^,^^  he  was  civilly  liable  at  common 

frrBagtedinr..rS..on,3butn^^^ 
eTnanv  c^vided  in   opinion.     In  Jlott  v.  Wilkes^  the  Coui.  «'  f 
Bench  unanimously  decided  that  "  a  trespasser  having  knowledge  tha 
fhere  are  spring-guns  in  a  wood,  although  he  may  be  ignoran   of  the 
SLu  Ir   pots  whore  they  are  placed,  can  not  ma  ntam  an  action  for 
injury  rceived  in  consequence  of  his  -«;d<;"^^3r^7,^^"«  j!"  ^'.1 
rin     wire  communicating  with  the  gun,  and  tli^reby    f  ting  t  off. 
statlr  followed  soon  after  this  decision,  rendering  the  setting  or 
pa^a  spHn^^^  and  other  like  agencies  calculated  to  des  roy 

hutanlifo'to  inflict  grievous  bodily  harm  on  trespassers,  or  others 
cliTgn  contact  with  them,  a  misdemeanor.^  It  is  not  our  pro^.nce 
o  deny  Siat  the  decision  in  Ilott  v.  Wilkes  is  a  correct  exposition  of  the 
I^mon  law  of  England  as  it  then  existed.  The  common  law  of  En- 
ZdUnri:  all  Aspects  the  common  law  of  this  country^  This  eoui. 
frfreque  tly  said  tliat  in  this  State,  only  its  general  principles  which 
Te  adapted  to  our  situation  and  not  inconsistent  with  our  policy,  legis- 


1  state  V.  Stewart,  29  Mo.  419. 

2  Meredith  v.  State,  in  manuscript, 
a  7  Taunt.  618. 


«  3  B.  ft  A.  304. 

>  1  Uu»8.  Cr.  7ii3. 

e  vannesa  v.  Packard,  2  Pet.  144. 


rmmfm 


^^ 


SIMPSON   V.  STATK, 


839 


IVIDUALS. 

i  pronounced,  which 
sion  from  the   facts 
)  murder  the  person 
ten,"  say  the  court, 
[•  the  purpose  of  in- 
it  with  the  finding  of 
murder."     The  true 
3  murder  the  person, 
iscs  no  presumptions 
the  fact ;  and  in  as- 
inferences  from  the 
,  deadly  ■weapon  and 
.ting  circumstances.'' 
of  all  the  facts,  tliey 
lisleads  them  and  in- 
singled  out  and  they 
St  be  inferred, 
n  which  the  evidence 
g  instructions,  that  a 
live  is  necessary  to  a 
is  the  right  of  a  land 
Thich  trespassers  may 
a  trespasser  receives 
lly  liable   at   common 
nded,  the  judges  being 
,4  the  Court  of  Kings 
having  knowledge  that 
lay  be  ignorant  of  the 
maintain  an  action  for 
ently  treading  on    the 
hereby  letting  it  off." 
idering  the  setting  or 
calculated  to  destroy 
1  trespassers,  or  others 
It  is  not  our  province 
orrect  exposition  of  the 
lie  common  law  of  En- 
is  country.^    This  court 
;eneral  principles  which 
it  with  our  policy,  legis- 

304. 

r.  733. 

V.  Packard,  2  Pet.  144. 


lation  and  institutions  are  of  force  and  prevail. »  We  concur  in  the  con- 
clusions reached  by  the  Supreme  Court  of  Connecticut  in  Johnson  v. 
Patterson^  and  -State  v.  Moore  ■^  after  a  careful  examination,  that  the  prin- 
ciple announced  in  Ilotf  v.  ir.Vto,  is  not  in  harmony  with  our  condition 
or  our  institutions,  and  that  it  had  its  origin  in  a  state  of  society  not 
existing  here,  and  the  necessity  for  protection  to  a  species  of  property 
not  here  recognized,  or  if  recognized,  of  less  importance  and  value  than 
the  legislation  of  Great  Britain,  and  the  common  law  there  prevailing 

attached  to  it. 

It  is  a  settled  principle  of  our  law  that  every  one  has  the  right  to  de- 
fend his  person  and  property  against  unlawful  violence,  and  may  em- 
ploy as  much  force  as  is  necessary  to  prevent  its  invasion.     Property 
would  be  ox  little  value  if  the  owner  was  bound  to  staml  with  folded 
arms  and  suffer  it  taken  by  him  who  is  bold  and  unscrupulous  enough 
to  seize  it.     But  wlien  it  is  said  a  man  may  rightfully  use  as  much  force 
as  is  necessary  for  the  protection  of  his  person  and  property,  it  must 
be  recollected  the  principle  is  subject  to  this  most  important  quiUifioa- 
tion,  that  he  shall  not,  except  in  extreme  cases,  inflict  great  bodily  harm, 
or  endanger  human  life.*    The  preservation  of  humpn  life  and  of  limb 
and  member  from  grievous  harm,  is  of  more  importance  to  society  than 
the  protection  of  property.     Compensation  may  be  made  for  injuries 
to  or  the  destruction  of  property ;  but  for  the  deprivation  of  life  there  is 
no  recompense ;  and  for  grieviius  bodily  harm  at  most  but  a  poor  equiva- 
lent.    It  is  an  inflexible  principle  of  the  criminal  law  of  this  State,  and 
^ve  believe  of  all  the  States,  as  it  is  of  the  common  law,  that  for  the 
,  revention  of  a  bare  trespass  upon  property,  not  the  dwelling-house, 
human  life  can  not   be  taken,  nor  grievous   bodily    harm  inflicted. 
If  in  the  defense  of  property,  not  the  dwelling-house,  life  is  taken  with 
n  deadly  weapon,  it  is  murder,  though  the  killing  may  be  actually  nec- 
essary to  prevent  the  trespass.    The  character  of  the  weapon  fixes  the 
<h<Trec  of  the  offense.     But  if  the  killing  is  not  with  a  deadly  weapon  — 
if  Tt  is  with  an  instrument  suited  rather  for  the  pnrpose  of  alarm  or  of 
chastisement,  and  there  is  not  an  intent  to  kill,  it  is  manslaughter.  ^ 
However  true  this  may  be  of  violence  the  owner  directly  in  person 
inflicts  for  a  trespass  or  in  defence,  or  prevention  of  a  trespass  or  m 
defense,  or  prevention  of  a  trespass,  committed  in  his  presence,  the 
argument  now  made  by  the  counsel  for  the  appellant  is  that  of  the  court 
in  Ilott  v.    Wilkes,  that  for  the  prevention  of  secret  trespasses  com- 


1  state  V.  Canwood.a  Stew.  860;  N.  A  C.  B. 
R.  Co.  V.  Peacock.  25  Ala.  229;  Barlow  v. 
Liimbert,  88  Id.  704. 

2  14  Conn.  1. 
:>  31  Id.  479. 

*  State  V.  Morgan,  3  Ired.  186. 


6  Carroll  v.  State,  23  Ala.  28;  IlarriBon  «. 
State,  24  Id.  21 ;  State  v.  Morgan,  8  Ired. 
18G;  Com.  V.  Drew,  4  Maes.  391;  McDanlel 
t>.  state,  8  8.  4  M.  401;  State  r.  Vance,  17 
Iowa,  138;  Whart.  Horn.,  sees.  414-417. 


KtaMMMHMPorv 


840  CRIMES   AGAINST   THE   PEK80N8   OF   INDIVIDUALS. 

mitted  in  the  absence  of  the  owner,  he  may  employ  means  of  defence 
and  protection  to  ^hich  he  conld  not  resort  if  present,  offermg  personal 
resistance.     The  instructions  requested,  place  the  proposition  in  its 
most  imposing  form,  of  protection  against  repeated  acts  of  aggression 
committed  in  the  night  time  by  unknown  trespassers,     lor  the  pieven- 
tion  of  such  trespassers,  he  may,  it  is  said,  employ   any  agency  or 
instrumentality  adequate  to  the  end,  even  though  it  involves  of  neces- 
sity,  grievous  bodily  harm  or  death  to  the  trespasser.     The  proposition 
itself  subordinates  human  life  and  the  preservation  of  the  body  in  lU 
organized  state  to  the  protection  of  property.     It  subjects  the  man  to 
loss  of  limb  or  member,  or  to  the  depredation  of  life,  for  a  mere  tres- 
pass  capable  of  compensation  in  money.     How  else  can  the  owner  pro- 
tect  himself  ?  it  is  asked.    The  answer  may  well  be  he  is  not  entitled  to 
protection  at  the  expense  of  thelife  or  limb  or  member  o^/^^^ J^^^^"' 
AH  that  the  latter  forfeits  by  the  wrong  is  the  penalty  the  law  pro- 
nounces.    At  common  law  he  would  be  compelled  to  compensation  for 
particular  trespasses  and  of  the  nature  in  one  '"^^Pf  *' *^\^\"^^«"J*°' 
Lended  to  guard  against-the  severance  from  the  ^^^^^^^^^^^ 
products -not  only  is  he  compelled  to  compensation,  but  under  our 
statutes,  indictable  for  a  misdemeanor.     It  may  well  be  a^ke*^  »°  «; 
turn  if  the  owner  has  the  right  to  visit  on  the  trespasser  a  higher 
penalty  than  the  law  would  visit?    Has  he   a  right  to  pumsh  a  mere 
Lpassasthe  law  will  punish  the  most  «   '     .ated  felonies,  which 
not  only  shock  the  moral  sense,  evince  .r.      ,.^doned   malignant,  de- 
nraved  spirit,  but  offend  the  whole  social  organization?    There  are  but 
jroflen'sls  the  law  suffers  to  be  punished  with  death.     Whether  thi* 
extreme  penalty  shall  be  visited  the  law  submits  to  the  discretion  and 
o  the  mercy  of  the  Jury,-they  may  consign  the  offender  to  impnson- 
^nt  for  life  in  the  penitentiary.     There  is  no  offense  which  is  punished 
by  the  laceration  of  the  body,  or  by  the  loss  of  limb  or  member.     Shall 
downer  for  the  prevention  of  a  trespass  inflict  absolute  y  the  penalty 
Tdeath   ajurycouldnotinflictnoracourtsanction.     Inflict  it  without 

rCortunity  the  jury  has  when  they  may  ^-'""^  ^"f  l;*;;[^^^^ 
sening  it  in  their  mercy  and  discretion  to  imprisonment?  Shall  he  in 
;rect;on  of  his  prope^y  lacerate  the  body,  a  punishment  so  revo  mg 
that  it  has  long  been  excluded  from  our  criminal  code?  If  the  owneris 
lexed  b'^crft  trespasses  and  their  repetition,  his  own  vgilance  must, 
within  tL  limits  of  the  law,  find  means  of  protection.  Stronger  enclo- 
Tu  e  and  a  ^ore  constant  watch  must  be  resorted  to  and  a  stricter  en- 
o  ment  of  the  remedies  the  law  provides  will  furnish  adequate  pto- 
taction.  If  these  fail  it  is  within  legislative  competency  to  adopt 
remedies  to  the  urgencies  and  necessities  of  the  owner. 

It  is  said  the  spring  gun  or  like  engine  is  harmless,  if  of  his  owi 


-ijl.Mrilp^.S*-*'^'- 


^^B 


<dividi:als. 

iloy  means  of  defence 
isent,  offering  personal 
the  proposition  in  its 
ited  acts  of  aggression 
isers.     I'or  the  preven- 
mp'.oy  any  agency  or 
;h  it  involves  of  neces- 
isser.    The  proposition 
tion  of  the  body  in  its 
[t  subjects  the  man  to 
of  life,  for  a  mere  tres- 
else  can  the  owner  pro- 
be he  is  not  entitled  to 
jmber  of  the  trespasser. 
he  penalty  the  law  pro- 
ed  to  compensation,  for 

respect,  the  defendant 
■om  the  freehold  of  its 
ensation,  but  under  our 
ay  well  be  asked  in  re- 
tlie  trespasser  a  higher 
I  right  to  punish  a  mere 

^ated  felonies,  which 
„jdoned,  malignant,  de- 
nization ?  There  are  but 
ith  death.  Whether  thi» 
lits  to  the  discretion  and 
the  offender  to  imprison- 
offense  which  is  punished 
t  limb  or  member.  Shall 
ict  absolutely  the  penalty 
action.     Inflict  it  without 

lawfully  inflict  it,  of  les- 
prisonment?  Shall  he  in 
1  punishment  so  revolting 
lal  code  ?  If  the  owner  is 
1,  his  own  vigilance  must, 
itection.  Stronger  enclo- 
orted  to  and  a  stricter  en- 
will  furnish  adequate  pro- 
ve competency  to  adopt 
le  owner. 

harmless,  if  of  his  own 


SIMPSON    V.  ^TATi:. 


841 


wrong  the  trespasser  does  not  come  in  contact  with  it.     Admit  it,  and 
the  controlling,  underlying  consideration  is  not  met.     If  it  was  conceded 
thereby  he  lost  liis  right  to  recover  compensation  for  the  injury  sus- 
tained, the  State  does  not  lose  the  right,  nor  is  its  duty  lessened,  to 
demand  retribution  for  its  broken  laws,  and  the  unlawful  death  or 
wounding  of  one  of  its  citizens.     With  certainty  the  measure  of  protec- 
tion to  property  is  declared,  and  the  force  which  may  be  employed  in 
its  defense  is  defined.     The  secrecy  of  the  trespass,  or  the  frequency 
of  its  repetition,  does  not  enlarge  the  one  or  the  other.     Life  must  not 
be  taken  nor  grievous  bodily  harm  inflicted.     The  trespasser  is  always 
in  fault,  —  it  is  his  own  wrong,  which  justifies  force,  to  the  extent  it  may 
be  lawfully  used  or  to  the  extent  it  may  be  provoked  and  exerted.     The 
secrecy  and  frequency  of  the  trespass  would  not  justify  the  owner  in 
conceahng  himself  and  with  a  deadly  weapon,  taking  the  life,  or  griev- 
ously wounding  the  trespasser,  as  he  crept  steadily  to  do  tlie  wrong 
intended.     What  difference  is  there  in  his  concealing  his  person  and 
weapon  and  inflicting  unlawful  violence  and  contriving  and  setting  a 
mute,  concealed  agency  or  instrumentality  which  will  inflict  the  same, 
or  it  may  be  greater  violence?    In  each  case  the  intention  is  the  same, 
and  it  is  to  exceed  the  degree  of  force  the  law  allows  to  be  exerted. 
In  the  one  case  if  the  trespasser  came  not  with  an  unlawful  intent  —  if 
his  trespass  was  merely  technical—  if  it  was  a  child,  a  madman,  or  an 
idiot,  carelessly,  thoughtlessly  entering  and  wandering  on  the  premises, 
the  owner  would  withhold  all  violence.     Or  he  could  exercise  a  discre- 
tion, and  graduate  his  violence  to  the  character  of  the  trespass.     The 
mechanical  agency  is  sensitive  only  to  the  touch ;  it  is  without  mercy  or 
discretion,  its  violence  falls  on  whatever  comes  in  contact  with  it. 
Whatever  may  not  be  done  directly  can  not  be  done  by  circuity  and  in- 
direction.    If  an  owner  by  means  of  spring  guns  or  other  mis(!hievou8 
engines  planted  on  his  premises,  capable  of  causing  death  or  of  inflict- 
ing bodily  harm  on  ordinary  trespassers,  does  cause  death,  he  is  guilty 
of  criminal  homicide.^ 

The  degree  of  the  homicide  depends  on  the  facts  already  stated.  If 
the  engine  is  of  the  character  of  a  deadly  weapon,  the  killing  is  murder. 
It  could  not  be  employed  without  the  intent  to  injure,  and  without 
indifference  whether  the  injury  would  be  death,  or  great  bodily  harm. 
But  if  not  deadly  in  its  character,  if  it  is  intended  only  for  alarm,  and 
for  inflicting  slight  chastisement  or  mere  detention  of  the  trespasser 
until  he  shall  be  freed  from  it,  there  may  be  no  offense,  or  at  most  but 
manslaughter.  The  character  of  the  instrument  and  its  probable  capa- 
city for  injury  may  repel  all  presumption  to  do  more  than  merely 
alarm,  or  without  inflicting  any  corporal  harm,  merely  to  detain  the 

I  Wliart.  Cr.  L.,  sees.  418,663. 


842  CRIMES   AGAINST  THE   PEHSONS   OF   INDIVIDUALS. 

:i  r^Lc  «.o„.  >^  e„,„c.,,u,«.  ::^r,''' h".*?-:: 

ment  is  adapted  only  to  tue  pi  rpu  i  offense  is  man- 

inflict  a  in-i«b™ent  fro.n   wh.eh  ae^^^^^^^^^ 

slaughter,  as  it  would  have  been  if  the  2"!       ^  pliant  were  iaconsist- 
violence.     The  instructions  requested  by  the  appellant 

ent  with  these  views  and  were  V^'^f^^^l^^^  ^^^^  ^,  ,,,^,  ..^ed  on 

cutor  by  the  spring  g-' >\-»^^  I^J^J^  ^al  ',   b  intent^to 

^.h  lutent  to  ""f '•■'*%'  ";„""^,,,  „,  ,te  trespasser,  .nd  ,«.lnst 
to  kill  the  prosecutor  whom  be  »"'1«'-'™  '        ,  ;„„„(  to  kill 

,1.„M  Ue  bore  malice,  altbougb  "'«'■«.""' "^""^f"      we   regard 
wboever  was  Ibe  trespasser,  coming  ...  contact  w,tb  it.  g 

eacb  class  of  ln,t™ctions  -  erroneon.  ^^^^^^^^  ^__^__^  .^  ^^^ 

— r:^:^«nr:jS^H^Hi--: 

tb.  felonious  in»n.io„  to  ^11  one,  -a  tbe  *a«^  .0      ,«,.,,„„,  intent 

causing  de«U  j^  ■7;,'^- J„^;„^]  byTlpUcatlon  of  law  supplies  tbe 
existing  in  the  mind  of  tue  actoi   ""'u    ,      '  ^^    ^  ,„p,|jd 

pl.ee  of  mdice  to  tlie  person  sbin.'  J""  *°"^™\°'  ;„„„„„„  i, «,. 

by  1.-,  different  from  ''- •7"',;".;:*  ^^^tL  te'rms  of  tbe  Stat- 
offenses  tbe  statute  pumshes.     It  is  «°'"<""    >  ,  y  ,    jt  i, 

ute,  wbicb  include  only  f-' «-*-  tf'K't" ere  Z.  no.  tbe 


1  Whart.  Horn..  Bee.  183;  4  Black,  2ttl; 
Bratton  v.  State.  iO  Humph.  103. 

•  Morgan  v.  State.  13  S.  &  M.  242;  Joue. 


V.  State,  n  Id.  318;  Norman  v.  State.  94  BIlfl». 

54. 

3  85  Ala.  363. 


IVIDUALS. 

anfl  if  death  should 
er,  and  an  unforseen 
;t  in  itself  not  unlaw- 
asser  or  by  detaining 
olve  hini  in  disgrace ; 
ISSC3.  If  tlie  instru- 
hment,  and  it  should 

the  offense  is  man- 
jrson  had  inflicted  the 
ellant  were  inconsist- 

»me  of  them,  based  on 
ounding  of  the  prose- 
murder,  it  is  a  legal 
ssault  with  intent  to 
is  guiltj'  of  an  assault 
Tith  the  specific  intent 
respasser,  and  against 
El  general  intent  to  kill 
with  it.     We  regard 

elonious  intent  is  made 
lich  we  have  said  ia  the 
ch  the  prisoner  stands 
ication  of  law  will  con- 
T,  though  his  death  or 
■er.     So  also  if  there  is 
1  blow  falls  on  another, 
i  to  the  felonious  intent 
ation  of  law  supplies  the 
ine  of  an  intent  implied 
^ve  no  application  to  the 
►y  the  terms  of  the  stat- 
person  of  the  party  it  is 
n  fact  there  was  not  the 
leral  felonious  intent,  or 
is  not  important  —  there 
a 

itnpt  by  violence,  to  do  a 
o(e,3  it  is  defined  as  "an 

'd.  31S ;  Norman  v.  State,  24  BIU». 


SIMPSON    V.  STATE. 


843 


attempt  to  offer  to  do  another   personal  violence,   without  actually 
accomplishing  it.     A  menace  is  not  an  assault,  neither  is  a  conditional 
„ffor  of  violence.     There  must  be  a  present  intention  to  strike.       In 
I„wson  V.  State,'  it  is  said:  "To  constitute  an  assault,  there  must  be 
tic  commencement  of  an  act,  which  if  not  prevented,  would  produce  a 
l,,ttery  ;  "  the  drawing  of  a  pistol,  without  cocking  or  presenting  it,  is 
not  an  assault.     In  State  v.  Davis;'  it  is  said  by  Gaston,  J. :  "It  is 
dil'lcult  in  practice  to  draw  the  precise  line  which  separates  violence 
menaced  from  violence  begun  to  be  cxecute.l,  for  until  the  execution  of 
il  is  be^un,  there  can  be  no  assault.     We  think,  liowever,  that  where 
an  unequivocal  purpose  of  violence  is  accompanied  by  au  act,  winch  if 
not  stopped  or  diverted,  will  be  followed  by  personal  injury,  the  execu- 
tion of  the  purpose  is  then  begun,  and  the   battery  is  attemi)ted. 
Constructive    assaults    are    not    within    the    statute.      The    ulterior 
offense ;  the  principal  felony  intended  and  the  intent  to  accomplish 
which  is  the  aggravating  (piality  of  the  offense,  consists  in  actual  vio- 
lence and  wrong  done  to  the  person.     The  assault  must  therefore  con- 
sist of  an  act  begun,  which  if  not  stopped  or  diverted  will  result,  or 
m-iv  result  in  the  ulterior  offense,  and  the  act  when  begun  must  be 
directed  against  the  person  who  is  to  be  injured.^     It  must  also  l)e  an 
act  which  when  begun,  the  person  against  whom  it  is  directed  has  the 

riirlit  to  resist  by  force.'' 

The  setting  a  spring  gun  on  his  premises  by  the  owner,  is  culpable 
only   because  of  the  intent  with  which  it  is  done.     Unless  the  public 
sifety  is  thereby  endangered,  it  is  not  indictable. ^    If  dangerous  to  the 
miblic  it  is  indictable  as  a  nuisance.     Resistance  by  force  to  the  setting 
of  it,  by  an  individual  (if  not  dangerous  to  the  public),  the  law  would 
not  sanction,  though  he  may  apprehend  hijury  to  him  is  intended  if  he 
trespass  on  the  premises.     The  injury  exists  only  in  menace  —  it  is  con- 
ditional  and  his  own  act  must  intervene  and  put  in  motion  the  force 
from  which  injury  will  proceed.     While  because  of  the  unlawful  inten- 
lion  with  which  the  gun  is  set,  the  owner  is  made  criminally  liable  for 
the  consequences  he  contemplates,  it  is  not  his  violence,  except  by  im- 
plication of  law,  which  produces  the  injury.     It  is  not,  consequently, 
an  assault,  which,  connected  with  an  intent  to  murder,  is  punishable 
under  the  statute.     If  the  gun  is  set  with  the  intent  to  kill  a  particular 
person  who  is  injured  by  it,  whether  it  is  not  an  attempt  to  murder 
committed  by  means,  not  amounting  to  an  assault,  indictable  under 


>  30  Ala.  14. 
'  1  Ired.  125. 
3  Eyans  v.  State,  1  Humph.  894;  State  v. 

FreeU,  3  Id.  228. 


*  2  Archb.  Cr.  PI.  224, 2  note. 
6  State  V.  Moore,  31  Conn.  479. 


844  CRIMES  AGAINST  THE  PERSONS   OF  INDIVIDUALS. 

another  clause   of  the  statute,   is  a  question  this  record  does  not 

present.  ,       ,  *i. 

The  result  is  that  the  judgment  of  the  City  Courtis  reversed  and  the 
cause  remanded.  The  prisoner  will  remain  in  custody  unt  ischarged 
by  due  course  of  law. 


AGGRAVATED  ASSAULT- MEANING  OF  "CHILD." 

McGregor  v.  State. 

[4  Tex.  (App.)  699.] 
In  the  Court  of  Appeals  of  Texas,  1878. 

1.  Vndar  th.  TexM  Statute  making  an  »i«anlt  on  a  "  chUd"  an  afgravated  ataaolt  the 

word  "child"  is  not  •ynonymoui  with  minor. 
4  Charge  of  the  Court. -An  information  charged  an  sdolt  with  aggrarated  aisatilt  on  a 
chiia,  and  alleged  no  other  cIrcumBtanco  of  aggratation.    Btld,  error  to  initruct  the 
Jury  to  conTict  in  case  they  found  that  the  aieaalt  wai  made  under  other  olreamatanoet 
of  aggravation  than  the  one  alleged. 

Appeal  from  the  County  Court  of  Lamar.  Tried  below  before  the 
Hon.  S.  C.  Brtson. 

Winkler,  J.  The  appellant  and  another  were  prosecuted,  by  infor- 
mation, for  an  aggravated  assault  and  battery  alleged  to  have  been  com- 
mitted upon  one  William  Edmonson,  the  assailants  being  averred  to  be 
adult  males  and  the  assaulted  party  a  child.  On  the  trial  it  was  shown 
in  evidence  that  the  assaulted  party  was  of  the  age  of  fourteen  yeai-sand 
upwards. 

The  court  charged  the  jury,  among  other  things,  to  the  effect  fol- 
lowing :  — 

"If  you  should  find  that  he  did  commit  an  assault  upon  him,  he,  the 
defendant,  being  an  adult  male  person,  and  the  party  a  child  under  the 
age  of  twenty-one  years,  or  that  the  assault  was  made  in  a  manner  or 
with  an  instrument  calculated  to  inflict  disgrace,  or  that  he  did  him 
some  serious  bodily  injury,  you  will  find  him  guilty  of  an  aggravated 

assault." 

This  charge,  as  well  as  other  portions  of  the  charge  given,  and  also 
an  instruction  asked  by  the  defendant  and  refused  by  the  court  —  to  the 
effect  that  a  child,  under  the  statute,  is  a  person  of  tender  years,  one 
who  has  not  arrived  at  the.strength  and  age  of  manhood  —  Indicate  that 
the  trial  proceeded  on  the  idea  that  the  term  child  was  synonymous  with 
minor. 


fDlVIDUALS. 

this  record  does  not 

irtis  reversed  and  the 
Btody  unt:     iscbarged 


m'oregor  v.  state. 


845 


IF  "CHILD." 


,  1878. 

A"  an  aggravated  aiaanlt  the 

with  aggraTated  awaalt  on  a 
.  Held,  error  to  Instruct  the 
de  ander  other  cireamstanoet 

Tried  below  before  the 

e  prosecuted,  by  infor- 
£ged  to  have  been  com- 
nts  being  averred  to  be 
n  the  trialit  was  shown 
ge  of  fourteen  yeai-s  and 

lings,  to  the  effect  fol- 

ssault  upon  him,  he,  the 
party  a  child  under  the 
iS  made  in  a  manner  or 
ce,  or  that  he  did  him 
guilty  of  an  aggravated 

charge  given,  and  also 
ed  by  the  court  —  to  the 
jon  of  tender  years,  one 
manhood  —  indicate  that 
lid  was  synonymous  with 


One  of  the  circumstances  under  which  nn  assault  or  battery  becomes 
aggravated,  under  the  provisions  of  the  code,  is  "  when  committed  by 
an  adult  male  upon  the  person  of  a  female,  or  child,  or  by  an  adult 
female  upon  the  person  of  a  child." 

An  assault  may  become  aggravated  under  other  circumstances,  but 
from  the  prominence  given  to  the  idea  that  the  assaulted  party  came 
within  the  description  mentioned  in  the  statute  under  the  denomination 
of  child,  we  are  led  to  conclude  that  this  ideapieponderated  in  the  mind 
of  the  court,  and  necessarily  had  a  controlling  influence  upon  the  find- 
ing of  the  jury ;  or  that  it,  at  any  rate,  was  so  intimately  connected  with 
other  portions  of  the  charge  that  we  are  unable  to  separate  it  so  as  to 
determine  its  precise  effect.  And  it  may  be  well  to  note,  in  this  con- 
nection,  that  the  information  does  not  charge,  as  one  of  the  circum- 
stances of  aggravation,  that  the  assault  was  made  by  means  such  aa 
inflicts  disgrace ;  and  for  this  reason  the  charge  was  incorrect. 

In  the  absence  of  any  such  guide,  we  are  of  opinion  that  that  por- 
tion of  the  law  set  out  must  have  been  enacted  for  the  purpose  of  pro- 
tecting the  weak,  and  the  weaker  sex,  against  the  strong,  and  this 
object  becomes  the  more  evident  by  that  portion  which  renders  an  as- 
sault aggravated  when  committed  by  an  adult  female  upon  a  child. 
Ordinarily,  the  object  would  not  be  attained  by  construing  the  word 
chil'',  in  either  case  mentioned,  to  extend  to  and  include  any  and  all 
persons  under  twenty-one  yoars  of  age ;  as,  on  the  one  hand,  there 
T\ould  not  ordinarily  be  any  sue..  Msparity  between  the  strength  of  a 
person  twenty  years  and  six  months  old  and  one  twenty-one  years  and 
three  months  old,  or  between  one  at  tlie  age  of  twenty  and  an  adult 
female,  as  that  the  law  could  take  hold  of  and  act  upon  it.     Hence  we 
conclude  that  the  terra  child  must  be  construed  to  have  the  meaning 
affixed  to  it  which  it  has  in  common  parlance,  or  as  understood  in  com- 
mon language,  and  that  the  charge  which  held  it  to  mean  any  one  who 
had  not  attained  the  full  age  of  twenty-one  years  was  erroneous ;  and 
having  been  excepted  to  at  the  time,  and  an  effort  having  been  made  to 
correct  it  by  an  additional  instruction,  and  the  action  having  been  .as- 
signed as  error,  we  are  not  at  liberty  to  pass  it  unnoticed,  although  we 
might  deem  the  charge  amply  sustained  by  the  evidence. 

"  Except  when  a  word,  term,  or  phrase  is  specially  defined,  all  words 
used  in  this  code  are  to  be  taken  and  construed  in  the  sense  in  which 
tUey  are  understood  in  common  language,  taking  into  consideration  the 
context  and  subject-matter  relative  to  which  they  are  employed."  > 
The  word  "  child  "  is  mentioned  in  the  code,  and  is  not  specially  de- 
fined therein;  and,  therefore,  there  must  be  aflSxed  to  it  the  sense  and 
meaning  in  which  it  is  understood  in  common  language. 


I  Penal Oode.art.  28  (Paic.  Dig., att.  1630). 


846  CRIMES   A0AIN8T  THE   PERSONS  OF   INDIVIDUALS. 

The  court  also  errod  In  permitting  the  prosecuting  witness  to  testify 
to  what  tl.e  other  boys  sai.l  when  he  told  them  of  his  conversation,  ». 
shown  bv  bill  of  exceptions  tnlcen  as  tl>e  time. 

Fo    these  errors  thl  judgment  is  reversed  and  the  cause  remanded. 

ror  iuco«=  o  jieveraed  uhd  remanded. 


AOORAMTED    ASSAULT-».AI>E  UPON   DECREPIT  PEHSON-OR  IN 

private  house. 
Ham.  v.  State. 

[16  Tex.  (App.)  «•] 
In  the  Court  of  Appeals  of  Texas,  1884. 

iiri*»,i«  th«  Taxas  Statute  Is  one  who  ii  disabled,  Incapable  o 

Sras  to  rondo..  ...u  Uel..le«  a.a.nst  o..e  o,  -  '->•  ^-JJ;  ^^,^^„^^  ,„^,„,,,  ,,, 
3.  H.  wa.  ladioted  for  an  assault  on  another  ««  ^'»  ^^/^^-^/^J  *;„,«   ,an,ily  the  d. 

denoe  was  insufflclent. 

APPEAL  from  the  County  Court  of  Grayson.     Tried  below  before  tt 
Hon  S  D.  Steedman,  County  Judge. 

The  appellant  was  convicted  in  the  County  Court  of  Grayson  Count, 

Texas  Tder  an  indictment  charging  in  substance  in  the  first  count  th 

defemia"  committed  an  aggravated  assault  and  battery  upon  the  pe    - 

7 ZniP  Hall   a  female,  the  defendant  then  and  there  being  an  ah 

iC-ontibes^ndcountcharging^^ 

^^  a  plrson  of  robust  health  and  strength,  and  the  said  Jennie  th 
Z  there  being  decrepit;  and  the  third  count  charging,  in  Bubstam 
Jhl  defenlnf  went  Lo  the  house  of  a  private  family  and  there  co 
mitted  an  assault  and  battery  upon  the  said  Jennie  Hall. 

The  jury  returned  a  verdict  of  guilty  of  aggravated  -«-  ^^^f  ^ 
defendant!and  as  punishment  assessed  against  him  a  fine  ^f  twenty-1 

'ir.' Jennie  Hall  was  ^  first  witness    '  state.     She  test!. 

that'he  was  thirty-seven  years  old;  th  was  stei>mot     r 

defendant,  having  been  seven  years  marr.,       o  his  father,     xue  defe 
ant  struck  the  witness  twice,  on  the  ninth  day  of  September,  1883 
he   fX  ^  ting  room,  in  the  house  of  her  husbaud,  -tuated  in  G, 
son  cTuSy,  Texas.    Witness  did  not  know  whether  ornot  she  at 
Z  defen/a'nt.     She  struck  at  him  with  a  chair  because  he  was  pusl 


INDIVIDUALS. 


HALL   t^.  STATE. 


847 


scutlng  witness  to  testify 
m  of  his  conversation,  »* 

»nc\  the  cause  remanded. 
teveraed  and  remanded. 


IREPIT   PERSON  — OR   IN 


xas,  1884. 

one  who  la  disabled,  Incapable  or 
ad  by  age  or  otherwise,  to  such  an 
ir}'  health. 

Buse.  The  evidence  dlslosed  thnt 
father,  of  whose  family  the  de- 
an occupant.    JTeM.that  the  evi- 


n.     Tried  below  before  tbe 

J  Court  of  Grayson  County, 
itance  in  the  first  count  that 
md  battery  upon  the  person 
n  and  there  being  an  adult 
ubstance  that  the  defendant 
I,  and  the  said  Jennie  then 
unt  charging,  in  substance, 
rivate  family  and  there  com- 
I  Jennie  Hall. 

ggravated  assault  against  tlie 
inst  him  a  fi"<«   "^  twenty-five 

State.  She  testified 
was  step-mot'  r  to  the 
to  his  father,  lue  defend- 
I  day  of  September,  1883,  in 
r  husbaial,  situated  in  Gray- 
ow  whether  or  not  she  struck 
chair  because  he  was  pushing 


her.  Witness  could  not  remember  what  the  defendant  said  as  he  ad- 
vanced into  the  room,  except  that  he  cursed  her.  Defendant,  witli  his 
fist,  struck  the  witness  iu  tlie  left  eye,  and  then  knoclced  her  down. 
The  witness*  face  swelled  up  and  became  discolored,  and  remained  so 
for  two  or  three  weeks.  The  witness  thought  tlie  defendant  had  reached 
tlie  age  of  twenty-one  years,  and  was  a  strong  man.  Witness  had  been 
in  bed  all  day  at  the  time,  and  had  »)een  sick  off  and  on  all  summer. 

Cross-examined,  the  witness  stated  that  the  room  in  which  the  diffi- 
culty took  plac'  was  no  more  the  defendant's  room  than  it  was  the  room 
of  the  other  hired  hands.  The  defendant's  second  blow  knocked  the 
witness  flat  on  the  floor.  The  blow  did  not  break  the  chair.  Witness 
mver  curses  at  any  time.  She  had  never  threatened  the  defendant,  and 
had  never  called  him  a  son  of  a  b— h.  The  sitting  room  in  which  the 
difficulty  occurred  opened  into  a  hallway,  and  the  stair  ran  down  opposite 
the  sitting  room  door.  Witness'  husband,  E.  C.  Hall,  had  just  come 
into  the  hall,  and  was  standing  inside  of  the  door  when  the  witness  first 
saw  him.  This  was  before  E.  C.  Hall  interfered.  The  witness'  daugh- 
ter, Alice  Stobin,  was  present  and  saw  the  whole  of  the  difficulty,  but 
did  not  strike  the  defendant.  Witness  assisted  in  placing  supper  on 
the  table,  but  told  Mr.  Hall  that  she  would  not  get  a  warm  meal. 

Alice  Stobin  testified,  for  the  State,  that  she  was  the  thirteen-year-old 
daughter  of  the  prosecutrix,  Jennie  Hall,  and  was  present  when  the 
difficulty  occurred.  While  Mrs.  Hall  was  in  the  sitting  room,  the 
defendant  came  down  stairs,  stopped  at  the  sitting  room  door,  and 
cursed  Mrs.  Hall.  He  then  stepped  into  the  room  and  struck  Mrs':  Hall 
twice,  knocking  her  down  with  the  first  blow.  Mrs.  Hall  first  struck  the 
defendant  with  a  chair.  Witness'  step-father,  E.  C.  Hall,  then  inter- 
fered and  separated  the  parties. 

Cross-examined,  the  witness  stated  that,  during  the  fight  between  her 
mother  and  the  defendant,  she,  the  witness,  struck  the  defendant.     Wit- 
ness' mother  struck  the  first  blow,  with  the  chair,  and  then  received  two 
blows  from  the  defendant,  the  first  of  which  felled  her  to  the  floor.     At 
the  time  that  the  difficulty  commenced  the  belligerent  parties  were 
standing  just  inside  the  sitting  room  door.     E.  C.  Hall  rushed  in  to  sei> 
arate  the  combatants  as  soon  as  he  could  after  Mrs.  Hall  struck  the  first 
blow.     Mrs.  Hall' s  face  was  discolored  for  two  weeks  after  the  difficulty. 
The  witness  went  off  to  school  two  days  after  the  difficulty  and  did  not 
return  home  for  three  weeks.     As  soon  as  the  difficulty  was  over,  wit- 
ness and  the  prosecutrix  went  to  the  house  of  Mr.  Hughes,  a  neighbor. 
Mrs.  Hall  called  the  defendant  a  "trifling  puppy,"  but  nothing  else^ 
She  did  not  curse  him. 

Tlie  defendant  introduced  his  father,  E.  C.  Hall,  who  testified  in  sub- 
stance that  he  was  seventy  years  of  age,  and  had  been  married  to  the 


848 


CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 


prosecutrix  about  six  years.     The  defendant,  at  the  time  of  this  ti 
was  not  quitp  twenty-one  years  old,  and  still  lived  at  home  with  the 
ness.     Witness  was  present  at  the  time  of  the  difficulty  between  his  s 
the  defendant,  and  bis  wife.     The  witness,  accompanied  by  the  deft 
ant,  had  been  after  medicine  for  his  wife,  who  had  been  complaii 
during  the  day.     They  reached  home  about  seven  or  eight  o'clock, 
witness  asked  his  wife  to  prepare  a  little  supper.     She  declined, 
witness  and  defendant  retired  to  the  dining  room  to  partake  of  a  ( 
supper.     While  eating,  the  witness'  wife,  the  prosecutrix,  came 
the  dining  room  and  proceeded  to  scold  the  witness.     The  witness  ta] 
back  somewhat  roughly.     She  then  accused  the  defendant  of  tel 
witness  tales  on  her,  and  called  the  defendant  many  ugly  names, 
then  went  up  stairs  and  threw  the  defeuda.it's  trunk  out  of  the  wind 
and  his  satchel  of  clean  clothes  out  at  the  ni>rth  door.     Witness  then 
mad  himself,  went  up  stairs  and  threw  his  wife's  daughter's  trunk 
at  the  door. 

Witness  then  got  the  defendant's  satchel  of  clothing  and  put  i 
the  stair  steps,  that  he  might  take  it  upstairs.  In  the  meantime  the 
fendant  had  taken  his  trunk  back  upstairs.  When  he  came  down  si 
for  his  satchel,  he  saw  Mrs.  Hall  standing  in  the  door,  and  said  to  ] 
"  I  don't  want  you  to  monkey  with  my  things  any  more."  Thereu 
Mrs.  Hall  caught  up  a  chair,  ran  up  to  the  defendant,  and  struck 
over  the  head.  Witi.ess  had  just  entc -ed  the  hall,  and  seeing  his  ■ 
strike  the  defendant  with  the  chair,  ran  in  between  them,  and  told  t 
to  stop  their  row.  Witness  shoved  his  wife  back  into  the  room, 
defendant  was  then  about  even  with  the  sitting  room,  or  posa 
a  short  distance  inside  the  room.  As  soon  as  Mrs.  Hall  struck  the 
fendant,  they  both  wade  a  rush  at  each  other,  and  it  was  at  this  1 
that  the  witness  made  his  way  between  them.  In  the  scramble  tc 
at  each  otlier,  Mrs.  Hall  fell  to  the  floor.  She  fell  some  four  or 
feet  inside  the  sitting  room.  Each  continued  the  ef.rtto  strike 
other  after  the  witness  got  between  them.  The  witness  did  not  k 
whether  or  not  the  defendant  struck  Mrs.  Hall  during  the  fracas. 
80,  the  witness  did  not  -.^v.  him  do  so,  and  witness  saw  the  whole  of 
fight.  Mrs.  Hall  cursed  and  threatened  the  defendant,  saying  that 
would  kill,  poison,  or  cut  the  defendant,  or  make  him  leave  the  ho 

Being  subjected  to  cross-examination,  the  witness  averred  thai 
testified  in  this  cause  with  the  greatest  reluctance.  While  the  wit 
was  doing  his  best  to  separate  his  wife  and  son  and  stop  tlie  fight, 
girl,  Alice  Stober,  was  pounding  the  defendant's  back  with  all  the  t 
of  which  she  was  capable.  If  the  defendant  struck  Mrs.  Hall  du 
the  fight,  the  witness  saw  nothing  of  the  blow.  Witness  was  some\ 
excited,  and  it  is  possible  that  the  defendant  may  have  struck 


OF   INDIVIDUALS. 


HALL   V.  STATE. 


849 


iant,  at  the  time  of  this  trial, 
ill  lived  at  home  with  the  wit- 
the  difficulty  between  hia  son, 
,  accompanied  bj-  the  defend- 
,  who  had  been  complaining 
it  seven  or  eight  o'clock,  and 
supper.  She  declined,  and 
ig  room  to  partake  of  a  cold 
,  the  prosecutrix,  came  into 
witness.  The  witness  talked 
3ed  the  defendant  of  telling 
iant  many  ugly  names.  She 
it's  trunk  out  of  the  window, 
lorth  door.  Witness  then  got 
3  wife's  daughter's  trunk  out 

ihel  of  clothing  and  put  it  on 
irs.  In  the  meantime  the  de- 
.  When  he  came  down  stairs 
in  the  door,  and  said  to  her : 
ings  any  more."  Thereupon 
tie  defendant,  and  struck  him 
the  hall,  and  seeing  his  wife 
between  them,  and  told  them 
ife  back  into  the  room.  The 
le  sitting  room,  or  possibly 
)n  as  Mrs.  Hall  struck  the  de. 
other,  and  it  was  at  this  time 
hem.  In  the  scramble  to  get 
r.  She  fell  some  four  or  five 
inued  the  ef  .rt  to  strike  the 
1,  The  witness  did  not  know 
3.  Hall  during  the  fracas.  If 
witness  saw  the  whole  of  the 
lie  defendant,  saying  that  she 
or  make  him  leave  the  house, 
the  witness  averred  that  he 
jluctance.  While  the  witness 
,nd  son  and  stop  the  fight,  the 
dant'3  back  with  all  the  torce 
idant  struck  Mrs.  Hall  during 
low.  Witness  was  somewhat 
mdant  may  have  struck  her 


without  witness  seeing  it.  Defendant  did  not  curse  Mrs.  Hall  in  wit- 
ness' hearing.  He  said  nothing  more  to  her  than  "  I  don't  want  you  to 
monkey  with  my  things  any  more."  The  witness  stopped  the  difficulty 
as  soon  as  he  could.  Mrs.  Hall  cursed  the  defendant,  calling  him  also, 
a  "trifling  punpy"  and  a  "son  of  a  b—h."  She  was  very  angry. 
Witness  was  very  much  excited  and  talked  very  loud  in  his  efforts  to 
separate  the  parties.  The  stairway  ran  down  on  the  west  side  of  the 
hall,  and  the  sitting  room  was  on  tlie  east  side  of  the  hall,  the  door 
being  just  opposite  the  foot  of  the  stairway. 

A  new  trial  was  asked  because  "  the  verdict  is  contrary  to  the  law, 
and  the  evidence." 

Coides  &  Story,  J.  L.  Cobb,  and  J.  P.  Cox,  for  the  appellant. 

/.  //.  Burts,  Assistant  Attorney-General,  for  the  State. 

WiLLsoN,  J.  There  are  three  counts  in  the  indictment,  each 
charging  an  aggravated  assault  and  battery.  First,  that  the  defendant, 
an  adult  male,  committed  an  assault  and  battery  upon  a  female ;  sec- 
ond, that  the  defendant,  a  person  of  robust  health  and  strength,  com- 
mitted an  assault  and  battery  upon  a  decrepit  person;  and  third,  that 
he  went  into  the  house  of  a  private  family  and  committed  the  assault 
and  battery. 

A  general  verdict  of  guilty  of  an  aggravated  assault  was  rendered 
upon  this  indictment,  without  specifying  upon  which  of  the  three  counts 
it  was  based.  As  to  the  first  count,  it  is  not  sustained  by,  but  is  con- 
trary to  the  evidence.  An  adult,  is  a  person  who  has  attained  the  full 
age  of  twenty-one  years. ^  It  was  proved  by  the  testimony  of  defend- 
ant'? father  positively,  that  at  the  time  of  the  trial,  the  defendant  was 
not  twenty-one  years  old.  There  was  no  evidence  contradicting,  or 
tending  to  contradict  this  proof,  except  that  of  the  alleged  injured 
female,  who  testified  that  she  thouglit  the  defendant  was  twenty-one 
years  old.  She  did  not  state  that  she  knew  hia  age,  nor  does  it  appear 
that  in  testifying  about  it,  slie  had  reference  to  tue  time  of  the  alleged 
offense,  or  at  the  time  of  the  trial.  Besides,  the  mere  opinion  or  be- 
lief of  this  witness  can  not  be  regarded  as  evidencfi  in  contradiction 
of  the  positive  testimony  of  th.  defendant's  father,  who,  it  must  be 
presumed,  knew  the  age  of  his  ov  n  son. 

As  to  the  second  count,  while  the  evidence  might  be  held  sufficient 
to  establish  the  allegation  that  the  defendant  was  a  person  of  robust 
health  and  strength,  itwas  not  sufficient  to  prove  that  the  alleged  as- 
saulted party  was  decrepit.  Slie  was  not  an  aged  person,  being  only 
thirty-seven  years  old.  Mr.  Webster  defines  ' '  aged ' '  as  follows :  ' '  Old ; 
having  lived  long ;  having  lived  almost  the  usual  time  allotted  to  that 
species  of  being."     The  usual  time  for  human   beings  to  live,  pre. 

1  Schenault  v.  State,  10  Tex.  (App.)  ilO. 
S  Defences.  64 


850  CRIMES    AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

scribed  by  revealed  law,  and  in  accord  with  the  law  of  nature,  is  the 
period  of  three  score  years  and  ten.  It  is  not  alleged  m  the  indict- 
ment, however,  that  the  lady  was  an  aged  person,  but  that  she  was 
decrepit,  and  we  must  therefore  direct  our  attention  to  this  specific  al- 
legation. ,„      ,  J  •      41 

What  meaning  are  we  to  give  the  word  decrepit?    Words  used  in  the 
Penal  Code,  except  where  specially  defined  by  law,  are  to  be  taken  and 
construed  in  the  sense  in  which  they  are  understood  in  common  lan- 
euage,  taking  into  consideration  the  context  and  subject-matter  relative 
to  which  they  are  employed.^    Mr.  Webster  makes  the  word  "de- 
crepit" a  dependant  of  old  age;  that  is,  according  to  his  definition, 
befora  a  person  can  be  decrepit  old  age  must  have  supervened  upon 
such  person.     He  defines  the  word  thus:  "Broken  down  with  age: 
wasted  or  worn  by  the  inflrmaties  of  old  age ;  being  in  the  last  stage  of 
decav ;  weakened  bv  age."     This  word  is  not  befined  in  the  Code,  nor 
do  we  find  any  definition  of  it  in  the  law  lexicographies.     la  our  opinion, 
as  used  in  article  406  of  the  Penal  Code,  and  as  commonly  understood 
in  this  country,  it  has  a  more  comprehensive  signification  than  that 
given  it  by  Mr.  Webster.     We  understand  a  decrepit  person  to  mean 
one  who  is  disabled,  incapable,  incompetent,  from  either  physical  or 
mental  weakness  or  defects,  whether  produced  by  age  or  other  causes, 
to  such  an  extent  as  to  render  the  individual  comparatively  helpless  in 
a  personal  conflict  with  one  possessed  of  ordinary  health  and  strength. 
Wo  think  that,  within  the  meaning  of  the  word  as  used  in  the  Code,  s 
person  may  be  decrepit  without  peing  old  ;  otherwise  the  use  of  th( 
word  in  the  Code  would  be  tautology.     It  certainly  was  intended  h) 
the  Legislature  that  it  should  signify  another  state  or  condition  of  tli( 
person"  than  that  of  old  age.     Thus,  where  the  party  assaulted  was  i 
man  about  fifty  years  old,  disabled  by  rheumatism  to  such  an  exton 
that  he  was  compelled  to  carry  his  arm  in  an  unnatural  position,  am 
in  such  a  manner  as  to  render  it  almost  if  not  entirely  useless  to  hii 
in  a  personal  difficulty,  it  was  held  that,  whilst  his  cond.tion  might  nc 
come  technically  within  the  meaning  of  the  word  decrepit  as  defined  b 
Mr.  Webster,  yet  it  might  with  propriety  be  said  that  it  feU  in  ll 
measure  of  that  word  as  used  in  common  acceptation.** 

But,  giving  to  this  word  its  broadest  meaning,  we  do  not  think  th; 
the  proof  in  this  case  shows  that  the  alleged  injured  person  'vas  decrepi 
She  testifies  herself  that  she  had  been  sick  off  and  on  during  the  sur 
mer,  and  that  she  had  been  in  bed  all  day  the  day  of  the  difficulty, 
is  not  shown  what  was  the  character  of  her  sickness,  or  what  effect 
had  produced  upon  her.  On  the  other  hand,  it  was  proved  that  on  t 
evening  of  the  difficulty,  and  ut  the  time  of  its  occurrence,  she  was  i 


1  Penal  Code,  art.  10. 


Sowden  t>.  State,  2  Tex.   (App.)  66. 


INDIVIDUALS. 

the  law  of  nature,  is  the 
ot  alleged  in  the  indict- 
3erson,but  that  she  was 
jntion  to  this  specific  al- 

ipit?  Words  used  in  the 
law,  are  to  be  taken  ami 
(lerstood  in  common  lan- 
id  subject-matter  relative 
r  makes  the  word  "  de-  I 
■cording  to  his  definition, 
it  have  supervened  upon 
Broken  down  with  age; 

being  in  the  last  stage  of 

befined  in  the  Code,  nor 
rraphies.  la  our  opinion, 
,  as  commonly  understood 
ve  signification  than  that 
I  decrepit  person  to  mean 
,  from  either  physical  or 
d  by  age  or  other  causes", 

comparatively  helpless  in 
inary  health  and  strength. 
ord  as  used  in  the  Code,  a 

otherwise  the  use  of  the 
certainly  was  intended  by 
r  state  or  condition  of  tlie 

the  party  assaulted  was  !i 
imatism  to  such  an  extent 
n  unnatural  position,  and 
lot  entirely  useless  to  him 
lilsthis  cond.tion  might  not 
«rord  decrepit  as  defined  by 
)e  said  that  it  fell  in  the 
ceptation.'' 

aning,  we  do  not  think  that 
ajured  person  'vas  decrepit, 
off  and  on  during  the  sum- 
he  day  of  the  difficulty.  It  ] 
•  sickness,  or  what  effect  it 
i,  it  was  proved  that  on  the 
!  its  occurrence,  she  was  up 


HALI,   V.  STATE. 


851 


and  going  about  the  house ;  and  just  before  she  was  assaulted  by  the 
(lefciulant  she  liad  gone  up  stairs  and  thrown  his  trunk  of  clothes  out 
of  the  iiouse  through  a  wlnow,  and  had  also  thrown  his  satchel  out  of 
t'.e  house.  It  was  further  proved  that  before  defendant  struck  or  at- 
tempted to  strike  her  s\e  struck  him  with  a  chair.  Considering  all  the 
testimony  upon  tliis  question,  we  are  of  the  opinion  that  it  fails  to  show 
that  the  lady,  at  the  time  of  the  alleged  assault  upon  her,  was  in  a  de- 
crepit condition  within  the  meaning  of  tlie  law.  Therefore  the  convic- 
tioii  can  not  be  sustained  under  the  second  count. 

As  to  the  third  and  last  count,  the  learned  judge,  in  his  charge,  did 
nnt  submit  the  issues  under  it  to  the  jury.     He  instructed  the  jury  as  to 
the  first  and  second  counts  only,  saying  nothing  whatever  as  to  the 
third.     As  this  last  count  was  not  submitted  to  the  jury,  we  must  pre- 
sume that  the  verdict  was  not  based  upon  it,  but  upon  one  or  the  other, 
or  both,  of  the  preoe.ling  counts.     We  think  the  court  very  properly 
omittc  1  to  submit  thistliird  count  to  the  jury,  because  in  our  opinion, 
the  evidence  did  not  warrant  its  consideration.     It  was  shown  by  the 
evidence  that  the  alleged  assault  took  place  in  the  houso  of  defendant's 
fatlier,  in  the  common  sitting  room  of  the  family,  and  that  the  defend- 
ant at  the  time  was  an  occupant  of  the  house  and  a  menber  of  the 
family.     We  do  not  think  that  subdivision  3  of  article  496  of  the  Penal 
Code  applies  to  such  a  case.     We  do  not  believe  that  it  was  intended 
tc  make  an  assault  and  battery  aggravated  when  committed  by  a  per- 
son in  his  own  house.    We  think  the  object  of  this  provision  is  to  pro- 
teet  private  familes  from  the  intrusion  into  their  houses,  and  assaults 
made  therein,  by  persons  who  are  not  members  of  the  family,  and  who 
have  no  legal  right  to  be  upon  the  premises  without  the  consent  of   the 
owner  thereof. 

We  find  in  the  record  numerous  bills  of  exceptions  and  pssignments 
of  error  which  we  do  not  think  it  necessary  to  notice  in  this  opinion. 
The  questions  presented  are  not  of  general  importance,  and  are  of  a 
character  that  may,  by  proper  investigation  and  effort  on  the  part  of 
the  court  and  the  counsel  in  the  case,  be  avoided  on  another  trial. 

Because  in  our  opinion  the  v,  rdict  of  the  jury  is  not  supported  by 
the  evidence,  the  judgment  is  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 


rden  V.  State,  2  Tex.   (App.)  66. 


852  CRIMES  AGAINST  THE  PERSONS  OF   INDIVIDUALS^. 

AGGRAVATED  ASSAULT  -  INTENT  AND  ACT  NECESSARY 

FoNDREN  V.  State. 

[16  Tex.  rApp.)  48.] 
In  the  Court  of  Appeals  of  Texas,  1S84. 

In  Every  A..auU  there  must  be  an  intent  to  Injure  coupled  with  an  not  ^h'^h  "lust  .t 
feLt  be  «?e  beginning  of  the  attempt  to  injure  at  »"««' «»'« .""' ?  7'^'  "nVe  h  Td  o 
tion.orBome  contempluted  injury  that  "'^7  a^crward,  be  inn.cted.  Ev.,ence  ft^^^^^^^ 
be  insufficient  in  this  case  to  support  a  conviction  for  aggravated  assault,  because  iusum 
cient  to  prove  an  assault. 

Appeal  from  the  County  Court  of  Ellis.  Tried  below  before  the 
Hon.  O.  E.  DuNLAi',  County  Judge. 

The  conviction  was  of  an  aggravated  assault  upon  one  Fayette  MiUer, 
with  a  gun.  The  offense  was  alleged  to  have  been  committed  in  Elba 
County  on  the  fifteenth  day  of  January,  1883.  A  fine  of  fifty  dollars 
WIS  the  penalty  imposed.  , 

Fayette  Miller  was  the  first  witness  for  the  State.     He  testified,  in 
substance,  that  some  time  in  January,  1883,  he  was  at  the  defend- 
ant's  gin,  in  Ellis  County,  Texas.     Mr.  M.  Halford  came  to  the  gm 
house,  and  said  to  the  defendant :  "  I  have  come  for  one  of  those  bales 
of  cotton  and  I  intend  to  have  it.     Right  is  right,  and  right  wrongs  no 
man  "     Halford  then  went  out  of  the  gin  house  and  began  to  load  the 
cotton  on  the  wagon.    Defendant  followed,  pushed  Halford  back,  threw 
the cottonoff,  and  said :  "  Don'tyoutake  that  cotton."     Halford  struck 
the   defendant,  and  the  two  fell  to  the  ground,  Halford  on  top.     Hal- 
ford  struck  defendant  several  blows,  then  got  up,  walked  off  a  short 
distance,  picked  up  a  stick,  and  told  the  defendant  that  he  would  drop 
the   stick  when  defendant  put  up  his  knife.     Defendant  put  up  his 
knife   and  started  toward  the  gin,  when  Halford  said  to  him:  "You 
have  made  your  brags  about  marking  and  splitting  cars,  but  you  can't 
do  me  that  way."     Defendant  returned  and  he  and  Halford  engaged 
i"  another  fight.     When  the  defendant  came  back  this  time  witness 
could  not  say   whether  Halford  was  or  was  not  rolling  the  bale  of  cot- 
ton.    Soon  after  this  the  defendant's  wife  came  upon  the  scene  of  ac- 
tion.    She  took  hold  of  the  lines  and  attempted  to  lead  the  horses  away 
from  the  bale  of  cotton,  when  Halford  went  around,  took  hold  of  the 
horses,  and  told  Mrs.  Fondren  not  to  meddle  with  the  horses.    The  de- 
fendant then  went  around  the  wagon  and  said  to  Halford:  "If  you 
strike  my  wife  I  will  cut  your  guts  out."     Halford  thereupon  backed 
off  and  secured  a  club  about  three  feet  long  and  two  inches  in  diameter. 
Defendant  then  said:  "  If  I  can  aot  protect  my  property  without  it,  I 


fDIVIDUALh. 


CT  NECESSARY 


rONDREN    V.  STATE. 


853 


,  2.954. 

od  with  an  act  which  must  at 
id  not  a  mere  act  of  prepuni 
e  inflicted.    Eviilence  fteW  to 
vated  assault,  because  iusufll- 


'ried  below   before  the 

ipon  one  Fayette  Miller, 

been  committed  in  Ellis 

A  fine  of  fifty  dollars 

State.     He  testified,  in 
he  was  at  the  defend- 
aalford  came  to  the  gin 
le  for  one  of  those  bales 
rht,  and  right  wrongs  no 
je  and  began  to  load  the 
shed  Halford  back,  threw 
otton."     Halford  Btruclc 
J,  Halford  on  top.     Hal- 
ot  up,  walked  off  a  short 
idant  that  he  would  drop 
Defendant  put  up  his 
ford  said  to  him:  "You 
itting  ears,  but  you  can't 
he  and  Halford  engaged 
back  this  time  witness 
ot  rolling  the  bale  of  cot- 
ame  upon  the  scene  of  ac- 
d  to  lead  the  horses  away 
t  around,  took  hold  of  the 
with  the  horses.    The  dc- 
aid  to  Halford:  "  If  you 
Halford  thereupon  backed 
id  two  inches  in  diameter, 
my  property  without  it,  I 


will  go  and  get  my  gun."  Accordingly  he  went  to  tlie  house,  about 
two  hundred  yards  distant,  and  returned  with  his  gun  on  his  shoulder. 
When  he  reached  h  point  about  fifty  yards  distant  from  the  party,  he 
took  his  gun  from  his  shoulder,  and  throwing  it  across  his  arm  said : 
"Clear  the  track." 

Witness,  then  being  apprehensive  of  serious  trouble,  met  the  defendant 
and  asked  him  "  not  to  shoot  the  boy,"  telling  him  at  the  same  time 
that  Halford  had  consented  to  let  the  cotton  alone.  The  defendant  told 
the  witness  to  "  get  out  of  the  way,"  that  "  this  is  not  your  fight,"  and 
walked  around  the  witness.  The  witness  followed  after  him.  The  wit- 
ness at  this  time  did  not  have  his  knife  ont.  Webb  then  came  out  of 
the  gin  with  a  stick  and  told  the  witness  to  hold  up ;  that  two  on  one 
was  too  many.  Witness  then  took  out  his  knife  and  told  Webb  to 
stand  back,  that  he,  witness,  was  trying  to  put  a  stop  to  the  row.  Webb 
then  called  to  defendant  that  witness  had  a  knife.  Defendant  turned, 
drew  his  gun  on  witness,  and  told  witness  to  put  up  his  knife  or  he 
would  shoot  the  witness.  Witness  put  up  his  knife,  and  the  defendant 
put  up  his  gun.  When  witness  left  Halford  to  meet  the  defendant, 
Mrs.  Fondren  was  standing  near  and  talking  to  Halford,  and  she 
was  standing  in  tiie  same  place  when  witness  returned.  Several  chil- 
dren, including  one  of  the  defendant's,  were  standing  around.  About 
this  time  everything  quieted  down.  Defendant  did  not  frighten  the 
witness  when  he  drew  his  gun  on  him* 

J.  J.  Daniels  was  the  next  witness  for  the  State.  His  account  of  the 
dilHculty  was  the  same  as  that  of  the  witness  Fayette  Miljer,  up  to  the 
time  that  the  defendant  went  to  the  house  and  returned  with  his  gun. 
Proceeding  with  his  testimony,  he  stated  that  when  the  defendant  got 
within  forty  or  fifty  yards  of  the  crowd  he  pointed  his  gun  toward  the 
crowd  and  said:  "Look  out!  I  am  going  to  shoot."  Miller  then 
walked  up  to  defendant  and  told  him  that  he  sbould  not  shoot  the  boy. 
Defendant  told  Miller  to  go  off,  that  it  was  none  of  his  fight,  andpassed 
around  Miller  and  up  to  where  Halford  and  Mrs.  Fondren  were.  Webb 
at  this  time  came  up  with  a  club  and  stopped  Miller.  Miller  drew  his 
itnife  and  told  Webb  to  stand  back.  Webb  replied  that  two  on  one 
was  unfair.  Miller  retorted  that  he  was  only  trying  to  stop  the  row. 
During  this  time  Webb  called  to  defendant  that  Milh-r  had  a  knife. 
Defendant  turned  on  Miller,  covered  him  with  his  gun,  and  told  him  to 
put  up  his  knife  or  he  would  shoot.  Miller  put  up  his  knife  and  de- 
fendant put  up  his  gun. 

M.  L.  Halford,  the  next  witness  for  the  State,  testified,  in  substance, 
that  he  rented  land  from  his  uncle,  the  defendant,  in  1882,  and  under 
the  contract  was  to  give  him  one-half  of  the  cotton  crop  grown  on  it. 
Witness  had  gathered  and  sold  three  bales  of  the  cotton.     In  October 


854  CRIMES    AOAINST   THE    PEKSON'S   OF   INDIVIDUALS. 

or  November  of  that  year  witness  quit  the  crop,  but  soon  after  returned 
aud  agreed  with  defendant  to  resume  work  and  carry  out  his  eontruct, 
and  to  pick  what  remained  of  the  cotton  before  he  got  any  more  of  it 
for  himself.     He  had  not  picked  all  of  the  cotton  remaining  at  the  tune 
lie  went  for  the  bale  which  was  the  subject-mntter  of  this  difficulty. 
Tliere  remained,  perhaps,  some   six  hundre.l  pounds  of  ucpicked  cot- 
ton in  the  Held.     When  the  witness  went  to  put  this  bale  in  his  wagon 
the  defendant  went  and  pushed  the  witness  off,  threw  the  cotton  out  of 
the  wa<^uii,  aud  told  witness  to  let  the  cotton  alone.     In  pushing  the  wit- 
nesa  off  he  scratched  tlie  witness'  hand.     The  two  clinched,  fell  to  the 
ground,  the  witness  on  top,  and  the  witness  struck  defendant  several 
blows      Defendant  then   drew  his  knife  aud  attempted  to  cut  witness. 
Witness  got  up,  walked  off  and  got  a  stick,  and  told  defendant  to  put 
up  his  knife.     The  defendant  did  so,  and  started  back  to  the  gin,  when 
witness  said :  "  You  have  made  your  brags  abcait  marking  and  turning 
loose,  but  you  can  not  serve  me  so."     Witness  at  that  time  was  trying 
to  get  the  cotton  back  on  the  wagon.     Defendant  picked  up  a  stick  anci 
started  back  toward  the  witness,  and  another  little  fight  ensued. 

About  this  time  Mrs.  Fondreu,  the  defendant's  wife,  came  up,  took 
hold  of  the  linos,  and  attempted  to  lead  the  horses  off.  Witness  told 
her  to  go  away  ;  that  she  was  not  concerned  in  that  controversy.  The 
defendant  stepped  up  with  his  knife  out  and  told  witness  not  to  strike 
his  wife,  unless  he  warted  to  be  cut  open.  Witness  stepped  off  a  short 
distance,  picked  up  a  stick,  and  told  defendant  to  put  up  his  kmfe. 
Defendant  replied :  "  If  I  can  not  protect  my  property  any  other  way 
I  will  do  it  with  ray  gun,"  and  went  to  the  house  to  get  his  gun.  Wit- 
ness sat  down  on  a  bale  of  cotton,  and  Mrs.  Fondren  came  to  him  and 
opened  up  a  conversation.  The  remainder  of  the  witness'  state 
ment  was  essentially  the  same  as  that  of    the  witnesses  Miller  and 

Daniels.  .      o    ^        i 

The  statements  of  two  otlier  witnesses,  one  for  the  State  and  one 
for  the  defence,  were  substantially  the  same  as  those  of  the  foregoing 

witnesses.  ,     ..u     *     i 

Mrs  Fondren,  for  the  defence,  was  the  last  witness  to  take  the  stand. 
She  did  not  see  the  beginning  of  the  difficulty,  and  her  first  ap- 
pearance upon  the  scene  was  when  she  attempted  to  lead  the  horsea 
from  the  cotton.  In  preventing  her  from  doing  this,  Halford  caught 
her  by  an  arm  and  pressed  it  so  tight  that  for  several  days  the  print  oi 
his  fin^rers  was  on  her  arm.  From  this  time  to  the  culmination  of  the 
affair  her  account  harmonized  with  that  of  the  others,  except,  according 
to  her  statement,  when  Miller  went  to  intercept  the  defendant,  on  th« 
latter'8  return  from  the  house  with  the  gun,  he.  Miller,  drew  hi3  knife 
held  it  with  the  blade  up  his  coat  sleeve,  and  thus  armed  approacbec 


XDIVIDUALS. 


FONDREN   V.  STATE. 


855 


but  soon  after  returned 
I  carry  out  his  eontriict, 
e  he  got  any  more  of  it 
m  remaining  at  the  time 
natter  of  this  difficulty, 
lounils  of  unpicked  cot- 
ut  tliis  bale  in  his  wagon 
,  threw  the  cotton  out  of 
lie.     In  pushing  the  wit- 
two  clinched,  fell  to  the 
struck  defendant  several 
ittempted  to  cut  witness. 
ad  told  defendant  to  put 
;d  back  to  the  gin,  when 
lUt  marking  and  turning 
js  at  that  time  was  trying 
mt  picked  up  a  stick  and 
ttle  fight  ensued, 
ant's  wife,  came  up,  took 
liorses  off.     Witness  told 
n  that  controversy.     The 
told  witness  not  to  strike 
'ituess  stepped  off  a  short 
ant  to  put   up   his  knife. 
y  property  any  other  way 
use  to  get  his  gun.     Wit 
''ondren  came  to  him  and 
r  of    the   witness'    state 
the  witnesses  Miller  and 

lie  for  the  State  and  one 
as  those  of  the  foregoing 

,  witness  to  take  the  stand, 
iculty,  and  her  first  ap- 
inpted  to  lead  the  horses 
aing  this,  Halford  caught 
•r  several  days  the  print  of 
( to  the  culmination  of  the 
others,  except,  according 
pt  the  defendant,  on  the 
he.  Miller,  drew  his  knife, 
id  thus  armed  approached 


the  defendant,  and  in  the  same  manner  followed  him  back  to  the  crowd. 
Tiie  defendant  at  no  time  attempted  to  shoot  Miller. 

The  motion  for  new  trial  raised  the  question  involved  in  the  opinion, 
nnd  denounced  the  punishment  irai)03ed  by  the  verdict  as  excessive. 

WiLLsoN.  We  are  of  the  opinion  that  the  evidence  does  not  sus- 
tain the  conviction.  JMiller  was  advancing  toward  defendant,  armed 
with  an  open  knife,  when  defendant  was  told  of  it,  and  instantly  turned 
and  pointed  his  gun  at  him,  telling  him  if  he  did  not  put  up  his  knife 
lie  would  shoot  liim.  Miller  put  up  his  knife  and  the  defendant  put 
down  his  gun.  At  the  time  these  acts  occurred  defendant  and  another 
person,  who  was  present,  were  angry  at  each  other,  and  had  just  before 
'leen  engaged  in  fighting  each  other,  and  defendant  had  gone  off  and 
got  his  gun  and  returned,  with  the  avowed  purpose  of  protecting  his 
property  from  being  taken  by  the  person  with  whom  he  had  been  fight- 
ing. He  had  no  difficulty  with  Miller,  and  there  is  no  evidence  that  he 
had  any  feeling  or  malice  toward  him.  While  defendant  was  in  an  ex- 
cited state  of  mind  from  his  difficulty  with  the  other  party,  and  had  his 
attention  directed  to  that  part}',  he  was  informed  that  Miller,  who  was 
in  his  rear,  was  armed  with  a  knife,  and,  looking  around,  be  discovered 
that  such  was  the  fact,  and  that  Miller  was  advancing  upon  him.  With 
a  foe  in  front  and  another  in  the  rear,  as  he  doubtless  supposed,  he  very 
naturally  made  the  necessary  preparations  to  defend  himself.  He  made 
no  attempt  to  shoot  Miller  or  any  one  else,  but  merely  stood  upon  the 
defensive.  It  does  not  appear  that  his  intention  was  to  injure  Miller  or 
any  one  else,  unless  he  was  forced  to  do  so  in  defence  of  hia  person  or 
his  property.  On  the  contrary,  it  is  shown  that  when  he  saw  he  was  no 
longer  in  danger  he  put  down  his  gun  and  made  no  further  hostile  demon- 
stration. 

In  every  assault  there  must  be  an  intention  to  injure,  coupled  with  an 
act  which  must  at  least  be  the  beginning  of  the  attempt  to  injure  at 
once,  and  not  a  mere  act  of  preparation  for  some  contemplated  injury 
that  may  afterwards  be  inflicted.^ 

We  think  the  evidence  in  this  case  fails  to  show  any  act  committed  by 
the  defendant  which,  in  law,  would  constitute  an  assault  upon  Miller ; 
and  because  the  verdic*^  is  not  warranted  by  the  proof,  the  judgment  is 
reversed  and  the  cause  is  remanded. 

Reversed  and  remanded. 

I  Clark's  Cr.  L.  U9,  note  7*. 


856 


CRIMES  AGAINST  THE  PERSONS   OP   INDIVIDUALS. 


MAYHEM— PREMEDITATION  NECESSARY. 

Godfrey  v.  People. 

[(•.3  N.  Y.  207.] 
7a  the  Neto  York  Court  of  Appeals,  1875. 

A  Premeditated  Deeiim  to  do  the  act  Is  eiientlal  to  maThcm,  and  therefore  where  the 
act  i8  done  in  the  heat  of  a  Budden  affray,  without  any  efldence  of  premeditation,  the 
crime  is  not  committed. 

The  case  is  reported  below.' 
Mitchell  Laird,  for  plaintiff  in  error. 
B.  K.  Phelps,  for  defendant  in  error. 

Miller,  J.  The  statute  under  which  the  plaintiff  (in  error)  was  in- 
dicted ar  d  convicted  is  as  follows : — 

"  Every  person  who  from  premeditated  design,  evinced  by  laying  in 
wait  for  the  purpose  or  in  any  other  manner,  or  with  intention  to  kill 
or  commit  any  felony,  shall  (1)  cut  out  or  disable  the  tongue;  or  (2) 
put  out  an  eye ;  or  (3)  slit  the  lip  or  destroy  the  nose ;  or  (4)  cut  off 
or  disable  any  limb  or  member  of  another,  on  purpose,  upon  conviction 
thereof,  shall  be  punished,"  etc' 

A  question  is  made  by  the  prisoner's  counsel  whether  as  the  case  stood 
upon  the  evidence  the  prisoner  could  be  convicted  of  the  crime  of  may- 
hem. This  question  was  presented  upon  the  trial  in  the  request  and 
refusal  to  charge  that  he  could  not,  and  by  an  exception  to  that  por- 
tion of  the  charge  in  which  the  judge  charged  the  jury  that  if  they 
found  from  the  evidence  that  the  prisoner  willfully  and  intentionally 
seized  the  left  ear  of  the  complainant  with  his  teeth  at  any  time  during 
the  affray  with  the  intention  of  biting  it  off  and  did  willfully  andinten- 
tionally  and  on  purpose  bite  it  off,  and  though  the  intention  to  bite  off 
his  ear  originated  or  was  first  meditated  but  an  instant  before  he  seized 
the  ear,  they  would  be  authorized  to  find  that  he  bit  the  ear  off  from 
premeditated  design,  within  the  meaning  of  the  statute. 

According  to  the  statute  there  must  be  a  premeditated  design,  which 
must  be  shown  by  lying  in  wait  for  the  purpose  or  in  some  other  man- 
ner. There  was  no  evidence  upon  the  trial  to  establish  that  the  prisoner 
lay  in  wait  for  the  complainant  or  that  prior  to  the  time  of  the  com- 
mission of  the  alleged  offense,  he  had  contemplated  or  intended  to  do 
the  act.  The  proof  evinces  that  it  was  done  upon  the  impulse  of  the 
moment  in  an  affray  which  originated  unexpectedly,  with  no  previous 
ill  feeling  except  what  arose  at  the  time,  or  apparent  intention  upon 


16  Hun,  359. 


2  2  Bev.  Stat*.  664,  sect  37. 


NDIVIDUAL9. 


GODFREY  V.  PEOPLE. 


857 


JESSARY. 


Is,  1875. 

Ijom,  and  therefore  where  the 
BTidence  of  premeditation,  the 


intifl  (in  error)  was  in- 

gn,  evinced  by  laying  in 
or  with  intention  to  Itill 
able  the  tongue ;  or  (2) 
ihe  nose ;  or  (4)  cut  off 
)urpo8e,  upon  conviction 

whether  as  the  case  stood 
ted  of  the  crime  of  may- 
trial  in  the  request  and 
n  exception  to  that  por- 
3d  the  jury  that  if  they 
Ufully  and  intentionally 
teeth  at  any  time  during 
d  did  willfully  andinten- 
1  the  intention  to  bite  off 
,  instant  before  he  seized 
t  he  bit  the  ear  off  from 
i  statute. 

emeditated  design,  which 
le  or  in  some  other  man- 
establish  that  the  prisoner 
to  the  time  of  the  com- 
plated  or  intended  to  do 
I  upon  the  impulse  of  the 
ectedly,  with  no  previous 
apparent  intention  upon 

itat».  664,  sect  37. 


the  part  of  the  prisoner  or  the  prosecutor  to  engage  in  any  such  alter- 
cation as  produced  the  consequences  which  ensued.  There  was  then 
no  premeditated  design  evinced  by  lying  in  wait  for  such  a  purpose 
witliin  the  meaning  of  the  statute,  and  under  the  circumstances  pre- 
sented it  is  certainly  not  clearly  apparent  how,  or  in  what  form,  such 
premeditated  design  is  evinced  in  "  any  other  manner."  The  last 
words  are  not  very  explicit  and  somewhat  general,  but  they  can  not, 
without  a  constrained  construction  be  held  to  mean  that  they  include 
cases  of  simple  assault  and  battery  where  there  is  no  direct  proof  of 
any  intent  or  purpose  whicQ  results  unfortunately  in  the  loss  or  dis- 
abling of  some  member  of  the  body  of  the  person  assailed.  If  such  a 
result  should  occur  in  an  ordinary  affray  by  accidental  circumstances 
and  without  any  manifest  intention,  no  case  would  be  established  within 
the  meaning  of  the  statute.  There  must  be  a  design  or  intention  ex- 
isting and  a  purpose  to  do  this  very  act  and  this  must  be  the  result  of 
premeditation.  The  words  cited  must  bo  construed  in  connection  with 
ai)d  in  reference  to  those  which  precede  them  in  the  same  section ;  and 
when  thus  interpreted  they  evidently  mean  in  any  like  or  similar  man- 
ner. There  are  numerous  instances  where  full  force  and  effect  may 
be  given  to  this  language  where  a  premeditated  design  has  existed  with- 
out lying  in  wait  for  the  purpose,  while  it  would  not  be  applicable  to 
ca'^es  where  no  such  intention  has  been  formed,  or  proved.  Take  the 
case  of  a  person  who  had  determined  and  threatened  to  out  off  an  ear, 
put  out  an  eye  or  disable  some  limb  or  member  of  the  body  of  another 
and  preparing  himself  with  the  necessary  weapon  for  that  purpose 
should  meet  the  individual  against  whom  his  animosity  was  directed 
and  commit  the  offense,  or  if,  perchance  when  seeing  him  at  a  distance  ' 
he  should  follow  him,  suddenly  rush  upon  his  victim  and  carry  his  in- 
tention into  execution.  These  cases,  without  referring  to  others  which 
might  be  named,  are  suflficient  to  show  that  the  language  employed  could 
be  made  effective  and  have  full  operation. 

This  interpretation  of  the  language  stated  is  also  sanctioned  by  the 
last  clause  of  the  section  which  provides  that  the  cutting  off  or  dis- 
abling of  any  limb  or  member  must  be  done  ' '  on  purpose. ' '  If  the 
offense  was  committed  within  the  meaning  of  the  statute  it  must  have 
been  done  "on  purpose"  as  well  as  with  a  " premeditated  design." 
There  is  no  real  ground  for  claiming  that  there  was  premeditation  and 
a  purpose  existing  at  any  time  during  the  progress  of  the  conflict  when 
the  passions  of  both  parties  were  aroused  and  there  was  no  time  or  op- 
portunity for  reflection  or  deliberation.  Such  an  assumption  would  be 
contrary  to  the  natural  inferences  to  be  drawn  from  the  circumstances 
and  the  situation  of  the  parties  at  the  time,  and  looking  at  them  it 


858  CniMI-.S  AOA1N8T  THE   PERSONS  OF   INDIVIDUALS. 

can  not  be  fairly  claimed  that  the  prisoaer  intended  to  commit  the 
nfffiiso  of  which  he  was  convicted. 

An  ar.'un.ent  is  made  by  the  learned  counsel  for  the  prosecu  .on  to 
the  cffec't  that  the  doctrine  of  instantaneous  malice  un.ler  the  old  law 
of  murder  is  applicable,  and  that  the  definition  of  premeditation,  as 
.pplied  to  such  a  case,  may  be  invoked.  I  can  not  concur  in  this  view. 
In  cases  of  homicide,  where  the  offense  is  committed  by  means  of  weap- 
ons,  or  by  the  use  of  violence  sufficient  to  produce  death,  such  a  rule 
mi4t  well  be  applied,  because  eveiy  circumstance  tends  to  show  that 
thrrosult  was  intended.  But  this  differs  widely  f ron»  a  case  of  simp lo 
nssault  and  battery  where  there  was  a  hand  to  hand  flght,  without  an^ 
r^pon  which  could  be  used  to  maim  or  disable,  and  every  intendment 
is  af^ainst  any  such  purpose. 

Another  answer  to  this  position  is  that  the  statute  of  mayhem  in 
England  as  well  as  In  this  State,  was  evidently  intended  to  provide  for 
c-ises  where  there  was  an  antecedent  and  secret  purpose  to  commit  the 
act,  and  not  for  casual  and  sudden  affrays,  when  the   act  was   done 
in  the  heat  of  the  strife  and  with  no  direct  evidence  of  any  such  inten- 

*'Tt  is  evident  that  the  offense  of  mayhem  was  not  made  out,  and  that 
the  judge  erred  in  refusing  the  request  made;  and  in  that  portion  of 
the  charge  referred  to.  Questions  are  made  as  to  the  f onn  of  the  in- 
dictment as  well  as  to  some  other  rulings  on  the  trial ;  but  the  consider- 
ation  of  them  is  not  required,  as  sufficient  already  appears  to  reverse 
the  judgment. 
All  concur. 


ASSAULT  WITH  INTENT -"BODILY  INJURY  DANGEROUS  TO  LIFE." 

R.  V.  Gray. 

[Dears.  &  B.  303.] 

In  the  English  Court  for  Crown  Cases  Reserved,  1857. 

statute. 

The  following  case  was  reserved  on  the  Norfolk  Spring  Circuit  1857 
at  Huntingdon,  b:  Erle,  J.,  and  stated  by  him  for  the  consideratio 
anddecisionof  the  Court  of  Criminal  Appeal.  ,    ,.#.  t 

The  indictment  was  for  causing  a  bodily  injury  dangerous  to  life, 
wit,  a  congestion  of  the  lungs  and  a  congestion  of  the  heart,  with  intent  t 


XDIVIDUALS. 

[tended  to  commit  the 

1  for  the  prosecution  to 
ilice  under  tlie  old  law 
n  of  piemt'ditntion,  as 
not  concur  in  this  view, 
ittcd  by  means  of  wcap- 
iduce  death,  such  a  rule 
mee  tends  to  show  that 
y  from  a  case  of  simple 
hand  fight,  without  any 
e,  and  every  intendment 

5  statute  of  mayhem  in 
intended  to  provide  for 
,  purpose  to  commit  the 
when  the   act   was   done 
ience  of  any  such  inten- 

3  not  made  out,  and  that 
;  and  in  that  portion  of 
is  to  the  form  of  the  in- 
e  trial ;  but  the  consider- 
ready  appears  to  reverse 


n.  V.  GRAY. 


859 


DANGEROUS  TO  LIFE." 


>s  Reserved,  1857. 

'  bodUy  Injury  dangerous  to  life" 
doned  her  olilld  in  a  field  whereby 
Held,  that  this  was  not  within  the 


)rfolk  Spring  Circuit  1857, 
him  for  the  consideration 

njury  dangerous  to  life,  to 
i  of  the  heart,  with  intent  to 


murder.  The  verdict  was  guilty.  T'lo  facts  wore  these.  The  prisoner 
lift  Ikt  infant  child  on  a  cold  wet  diij'  lying  in  an  open  field,  intending 
that  it  should  die,  and  it  was  found  there  after  some  hours  nearly  dead 
num  the  effects  of  such  exposure,  there  being  congestion  of  the  lungs 
iind  the  heart  caused  thereby,  which  would  have  been  in  a  short  time 
fatal  if  relief  had  not  been  given.  At  the  time  when  the  prisoner  left 
the  child  l^'ingin  the  field  she  had  not  caused  nu}' bodily  injury  to  it  and 
ill  a  few  hours  after  the  child  had  been  found  it  was  restored  by  care, 
aiul  then  there  remained  no  bodily  injury  either  to  the  lungs  or  heart,  or 
o'l  her  wise  consequential  from  the  exposure  through  congestion  or  other- 
wise. Judgment  was  respited,  the  prisoner  remaining  in  custodj'  till 
(!,e  opinion  of  this  court  could  be  taken  on  the  question,  whether,  on 
tlu'se  facts,  the  .r^'^viction  for  causing  a  bodily  injury  dangerous  to  life 
was  right. 
This  case  was  argued  on  2d  Maj',  1857,  before  CocKncftN,  C.  J.,  CoL- 

EHIDOK,  J.,  CUOW'DEU,  J.,\VlLLE8,  J.  and  BuAMWEM,,  B. 

Cuuck  appeared  for  the  Crown ;  no  counsel  appeared  for  the  pris- 
oner. 

Couch,  for  the  Crown.  This  indictment  is  under  section  2  of  7 
William  IV.  and  1  Victoria,*  which  enacts,  that  "  whosoever  shall  ad- 
minister to  or  cause  to  be  taken  by  any  person  any  poison  or  other 
ile>tructive  thing,  or  shall  stab,  cut,  or  wound  any  person,  or  shall  by 
any  means  whatsoever  cause  to  any  person  any  bodilj'  injury  danger- 
(  us  to  life,  with  intent,  in  any  of  the  cases  aforesaid,  tocommitt  m"> 
der,  slwill  be  guilty  of  felony,  and  being  convicted  thereof  shall  suffer 
death."  Now  in  this  case  the  prisoner  left  her  infant  child  in  a  field 
(11  a  cold  and  wet  day  intending,  as  the  jury  found  that  it  should  die. 
There  was  therefore  the  intent  to  murder,  and  the  question  is,  whether, 
the  temporary  injury  to  the  child,  by  the  congestion  of  the  lungs  and 
heart  was  a  "  bodily  injury  dangerous  to  life,"  within  the  meaning  of 
the  statute.  The  learned  judge  at  the  trial  seemed  to  think  that,  to 
tiling  the  case  within  the  second  section  of  the  statute,  the  bodily  injury 
must  be  of  a  like  nature  with  the  injuries  previously  mentioned  in  that 
section,  namely,  stabbing,  cutting  or  wounding.  But  I  submit  the 
words  upon  which  this  indictment  is  framed  constitute  an  entirely  dis- 
tinct provision,  and  create  an  offense  different  to  those  previously  men- 
tioned. 

CocKBURN,  C.  J.     What  bodily  injury  is  there  here? 

Couch.  There  is  congestion  of  tlie  lungs  and  heart,  which,  if  relief 
had  not  been  given,  would  shortly  have  caused  death.  The  intention 
of  the  Legislature  seems  to  have  embraced  every  kind  of  attempt  to 
murder,  whatever  the  means  employed,  and  therefore  the  words,   "  or 

1  eh.  85. 


860  CRIMES  AGAINST  THE  PERSONS   OF  1ND1VI1>UAL9. 

by  any  means  "  -were  Introduced.  If  the  child  hnd  been  plac^a  In  an 
open  field  with  the  intent  that  it  should  die,  and  it  had  died  in  conse- 
quence, it  would  have  been  murder. 

CoLERiDGK,  J.  No  doi.bt;  but  hcrc,  the  child  not  having  died,  the 
question  is,  was  there  any  bodily  injury  produced  by  the  act  of  the  pns- 
oner?  Suppose  tlie  child  had  been  put  into  an  exhausted  receiver, 
but  had  been  taken  out  before  it  had  actually  received  any  bodily  in- 
jury  would  that  have  been  an  offense  within  this  section? 

Couch.  There  was  no  bodily  injury  in  the  sense  of  a  wound,  but 
there  is  an  internal  injury,  and  it  has  been  held  that  an  internal  wound- 
ine  Is  within  the  section.^ 

CocKBi'itN,  C.  J.  Must  it  not  be  an  injury  to  the  organic  structure 
to  satisfy  the  statute?  All  that  was  produced  in  this  case,  was  a  mere 
functioi  derangement.  Congestion  is  the  flUing  of  the  lungs  and 
heart  with  more  blood  than  there  ought  to  be  there.  The  offenses  ere- 
ated  by  the  preceding  words  of  this  section  are  cases  of  injury  to  the 
bodily  structure.  The  words  "  stab,  cut  or  wound  "  all  relate  to  some 
Injurv  to  the  structure,  some  lesion  of  the  body. 

Cbowdek,  J.  But  the  section  also  relates  to  administering  poison 
or  other  destructive  thing. 

CoLEUiDOE,  J.  I  think  the  words,  "  or  by  any  means  cause  bodily 
injury  dangerous  to  life,"  were  intended  to  meet  cases  of  serious  injury 
where  no  instrument  is  used,  such  as  injuries  by  biting,'^  or  striking  with 
the  fist,  wb'Qh  it  had  been  decided  were  not  within  the  meaning  of  pre- 
vious statutes.  «^„„„v= 
Couch  The  Legislature,  by  using  the  most  general  words,  appears 
to  have  intended  to  make  their  application  as  wide  as  possible. 

CocKBiRN,  C.  J.  Must  not  the  means  be  applied  with  intent  to 
cause  the  particular  Injury  sustained?  It  strikes  me  that  this  was  an 
attempt  to  commit  murder. 

BRA.MWELI,,  B.  If  the  prisoner,  inter  '.g  to  kill  the  child,  bad 
directed  upon  it  a  blast  of  cold  air,  or  a  stream  of  jater,  and  had 
thereby  injured  the  child,  would  that  have  been  within  the  statute? 
Is  there  any  difference  between  that  and  exposing  the  child  to  the  influ- 
ence of  the  weather? 

Couch.  The  prisoner  in  this  case,  placing  her  child  in  the  open  field, 
i8  the  same  as  if  she  had  directly  applied  the  blast  of  cold  air,  or  the 
stream  of  water  to  the  child  intending  to  kill  it  thereby.     The  Legisla- 


1  In  Reg.  V.  Smith,  8  C.  &  P.  173,  a  Wow 
had  been  given  with  a  hammer,  on  the 
fae«  which  broke  the  lower  Jaw  in  two 
places;  the  skin  was  broken  internally  but 
not  externally,  and  there  was  not  much 
Wood;  Parke,  J.,  on  consulting  with  Lord 


Denman,  O.  J.,  held  the  offense  to  come 
within  the  section  in  question  in  the  princi- 
pal case.  See,  also,  lleg.  v.  Warmern,  1  Den. 
183. 

«  Rex  V.  Steveni,  1  Moo.  0. 0. 409;  Bex*. 
Harris,  7  0.  A  P.  M6. 


«D1VIDUAL8. 

Imd  been  placoil  In  an 
id  it  had  died  in  conse- 

d  not  having  died,  the 
I  by  the  act  of  the  pris- 
m  exhausted  receiver, 
received  any  bodily  in- 
lis  section? 

sense  of  a  wound,  but 
that  an  internal  wound- 

;o  the  organic  structure 
in  this  case,  was  a  mere 
lUing  of  the  lungs  and 
liere.  The  offenses  cre- 
e  cases  of  injury  to  the 
und"  all  relate  to  some 

to  administering  poison 

my  means  cause  bodily 
jt  cases  of  serious  injury 
r  biting,*  or  striking  with 
thin  the  meaning  of  pre- 

t  general  words,  appears 
(vide  as  possible. 
J  applied  with  intent  to 
ikes  me  that  this  was  an 

to  kill  the  child,  had 
Iream  of  water,  and  had 
been  within  the  statute? 
ling  the  child  to  the  influ- 

ler  child  in  the  open  field, 
e  blast  of  cold  air,  or  the 
it  thereby.     The  Legisla- 

3.  J.,  held  the  offense  to  come 
section  in  qnestlon  In  the  princl- 
ee,  also,  lleg.  v.  Warmern,  1  Den. 

Steyent,  1  Moo.  0. 0.  i09;  Rexv. 
AF.446. 


STATE  V.  LUNSFOItD. 


HfU 


ture  intended  to  include  every  bodily  injury  dangerous  to  life,  if  occa- 
sioned by  that  wliich  was  done  with  Intent  to  murder ;  and  I  submit 
that  this  case  comes  within  the  evil  intended  to  be  remedied  and  withio 
tiie  moaning  of  the  statute,  and  that  the  conviction  is  right. 

Cur.  adv.  vult. 

Tlie  judgment  of  the  court  was  delivered  on  the  22d  of  June,  1857, 

l>y  — 

CocKBunN,  C.  .1.  This  case  was  argued  before  my  brotliers  Cole- 
ridge, CuowDEiJ,WiLLE9,  BuAMWEix  and  myself  on  u  point  reserved  by 
my  brother  Ekle,  as  to  whether  the  prisoner,  who  had  exposed  her  child, 
whereby  temporary  congestion  of  the  lungs  had  taken  place  in  the 
child,  was  liable  to  be  indicted  and  convicted  under  the  7  William  IV. 
and  1  Victoria.!  We  are  of  opinion  that  the  conviction  in  this  case  can 
not  be  sustained.  We  think  that,  looking  to  the  words  of  the  act  of 
Parliament  and  the  other  offenses  provided  for  by  the  second  section  of 
the  7  William  IV.  and  1  Victoria,^  the  condition  of  the  child's  organs 
not  having  been  attended  with  any  lesion,  there  was  no  bodily  Injury 
dangerous  to  life  within  the  meaning  of  the  statute.  The  conviction 
therefore  must  be  quashed  and  the  prisoner  discharged. 

Conviction  quashed. 


false  imprisonment  — no  crime  where  pirson  goes  volun- 
tarily—fraud. 

State  v.  Lunsford. 

[81  N.  C.  628.] 
In  the  Supreme  Court  of  North  Carolina,  1879. 

1.  False  Imprisonment  la  the  nieval  reetraint  of  one's  peraon  against  bis  wlU. 

I.  When  on  Trial  of  an  Indictment  'or  such  offense  It  appeared  that  the  defendants  went 
to  the  prosecutor's  house  at  night,  called  him  up  out  of  bed,  represented  to  him  in 
changed  voices  that  they  were  in  search  of  a  stolen  horse,  and  offered  to  pay  him  to 
accompany  them ;  and  thereupon  he  mounted  behind  one  of  the  defendants  on  his  horse, 
and  went  yoluntarily,  without  threat  or  yiolence  from  defendants,  and  after  riding  a 
quarter  of  a  mile  on  a  gallop  he  complained  of  the  uncomfortable  mode  of  transportation, 
dismounted  aiid  discovered  he  was  the  victim  of  a  hoax  and  was  left  in  the  road  by 
defendants :  Seld,  that  the  fraud  practiced  did  not  impress  the  transaction  with  tQ% 
character  of  a  criminal  act. 

Indictment  for  false  Imprisonment  tried  at  Spring  Term,  1879,  of 
Macon  Superior  Court,  before  Gudger,  J. 
The  bill  charges  that  the  defendants,  Wiley  Lunsford,  Leander  Bate- 


1  ch.  8S,  sec.  82. 


9  ch.  85. 


8(52 


CRIMES   AOAINST   THE   PERSONS   OF   INDIVIDUALS. 


man  and  Nelson  Rogers  did  make  an  assault  npon  one  Robert  Garrison, 
and  him  the  said  Garrison  unlawfully  and  injuriously,  against  his  will, 
and  against  the  laws  of  the  State  and  without  any  legal  warrant,  author 
ity,  or  reasonable  or  justifiable  cause  whatsoever,  did  imprison  anc 
detain,  etc. 

The  jury  returned  a  special  verdict  finding  the  following  facts ;  or 
the  night  of  the         day  of  ,  1878,  the  defendancs  went  to  th( 

house  of  Robert  Garrison,  the  prosecuting  witness,  after  he  had  gon< 
to  bed,  and  called  him  up  and  represented  to  him  thattliey  were  search' 
ing  for  a  stolen  horse  which  they  understood  had  gone  in  the  directioi 
of  Swain  County,  and  urged  him  to  go  with  him  in  search  of  the  hors*" 
The  defendants  changed  their  voices  and  their  names.  After  giving 
them  some  directions  about  the  roads,  the  witness  yielded  to  then 
request  to  go  with  them,  they  offering  to  pay  him.  Garrison  thought 
they  were  the  persons  they  represented  themselves  to  be,  and  were  it 
search  of  a  stolen  horse,  and  got  behind  one  of  them  on  bis  horse 
when  the  defenda-nts  rode  off  in  a  gallop  some  quarter  of  a  mile  befon 
Garrison  discovered  vho  they  were.  He  complained  of  being  luir 
from  the  riding,  and  defendants  proposed  that  he  should  change  ant 
get  on  behind  another  one  of  the  defendants.  He  then  got  down  anc 
the  defendants  rode  off,  leaving  him  in  the  dark  about  a  quarter  of  i 
mile  from  his  house.  The  defendants  offered  him  no  violence,  nor  did 
him  any  injury  except  such  as  resulted  from  the  rapid  riding.  Defend 
ants  were  not  in  search  of  a  stolen  horse,  but  used  the  device  only  fo: 
the  purpose  of  perpetrating  a  practical  joke  on  the  prosecutor 
Defendants  were  young  men,  and  the  prosecutor  between  sixty  an( 
seventy  years  of  age.  Upon  these  facts  the  court  held  that  the  defend 
ants  were  guilty.     Judgment ;  appeal  by  the  defendants. 

The  Attorney-Oenerai,  for  the  State. 

Beade,  Busbee  &  Bmbee,  for  the  defendants. 

AsiiE,  J.  False  imprisonment  is  the  illegal  restraint  of  the  persoi 
of  any  om;  against  his  will.  The  common  law  was  so  jealous  of  ch 
personal  liberty  of  the  citizen,  that  it  was  regarded  as  a  beinou 
offense  and  the  inf ringem  ,^nt  of  this  right  in  England  under  certaii 
circumstances  was  visited  with  severe  punishment.  False  imprison 
ment  generally  included  an  assault  and  battery  and  always  at  least  i 
technical  assault ;  and  hence  the  form  of  the  indictment,  which  is  fo 
an  assault  and  battery  and  false  imprisoi  nent ;  though  there  may  be 
false  imprisonment  without  touching  the  person  of  the  prosecutor,  a 
when  a  constable  showed  a  magistrate's  warrant  to  the  prosecutor  an( 
desired  him  to  go  before  the  ma^, '.  trate,  which  he  did,  without  furthe 
compulsioi'.  This  was  held  to  be  a  sufiRcient  imprisonment,  becaus 
the  officer  .  olicitP'l  a  warrant  for  his  arrest,  and  in  going  with  him,  h 


r   INDIVTDUALS. 

upon  one  Robert  Garrison, 
juriously,  against  bis  will, 
any  legal  warrant,  author- 
soever,  did  imprison  and 

g  the  following  facts ;  on 
iie  defendancs  went  to  the 
vitness,  after  he  had  gone 
him  that  they  were  searcli- 

had  gone  in  the  direction 
im  in  search  of  the  hors'-. 
leir  names.     After  giving 

witness  yielded  to  their 
y  him.  Garrison  thought 
nselves  to  be,  and  were  in 
ne  of  them  on  bis  horse, 
le  quarter  of  a  mile  before 
omplained  of  being  hurt 
hat  he  should  change  and 
3.  He  then  got  down  and 
dark  about  a  quarter  of  a 
1  him  no  violence,  nor  did 
the  rapid  riding.  Def  end- 
it  used  the  device  only  for 
joke  on  the  prosecutor, 
ecutor  between  sixty  and 
iourt  held  that  the  defend* 

defendants. 

ts. 

;al  restraint  of  the  person 
law  was  so  jealous  of  the 
IS  regarded  as  a  heinous 
in  England  under  certain 
ishment.  False  imprison- 
btery  and  always  at  least  a 
le  indictment,  which  is  for 
it ;  though  there  may  be  a 
rson  of  the  prosecutor,  as 
'rant  to  the  prosecutor  and 
ich  he  did,  without  further 
ent  imprisonment,  because 
and  in  going  with  him,  he 


BEVILLE   V.  STATE. 


863 


yielded  to  what  he  supposed  to  be  a  legal  necessity.     But  there  must 
lie  a  deteption,  and  the  detention  must  be  unlawful. i 

The  prosecutor  in  this  case  went  voluntarily  with  the  defendants 
with  the  expectation  of  a  reward  for  his  trouble.  Instead  of  walking 
to  the  point  of  destination,  a  short  distance  from  his  house,  he  pre- 
forred  to  mount  on  the  crupper  of  one  of  the  horses  ridden  by  some  of 
the  party,  and  after  going  about  one-fourth  of  a  mile  and  discovering 
that  he  was  the  victim  of  a  hoax,  he  complained  of  the  uncomfortable 
mode  of  transportation,  and  dismounted  without  objection  from  any 
one.  He  was  left  all  the  while  to  the  exercise  of  his  own  free  will 
There  was  no  violence,  no  touching  of  his  person,  no  threat,  no  intim- 
idation of  any  sort.  And  the  ruse  employed  by  the  defendants  to 
decoy  him  from  his  house  we  do  not  think  was  such  a  fraud  so  as  to 
impress  the  transaction  with  the  character  of  a  criminal  act.  It  seems 
to  have  been  one  of  those  practical  jokes  that  are  sometimes  practiced, 
without  any  intention  of  doing  harm,  or  violating  the  law ;  and  we  are 
of  the  opinion  thtit  there  was  no  violation  of  the  criminal  law  in  this  case. 
There  is  error.     Let  this  be  certified,  etc. 

Reve7'sed. 


FALSE  IMPRISONMENT  — DELAY  IN  TAKING  BOND. 

Beville  V.  State. 

[16  Tex.  (App.)  70.] 
In  the  Court  of  Appeals  of  Teras,  1884. 

1.  Xbe  Ordinance  of  a  City  authorized  the  arreet  by  an  officer  of  a  drnnken  man  without 
warrant.  A.  being  arrebted  by  D.  for  druukenncsB  immediately  offered  to  give  bond, 
which  B.  refused  and  he  was  confined  in  the  calabooie  about  an  hour.  Held,  that  B. 
was  not  liable  to  conviction  for  false  imprisonment. 

•.  — Authority  of  Officer.  —  Upon  the  question  of  tho>  right  of  the  u.'pnty  manihal  to 
arreiit  a  party  detected  in  the  violation  of  the  ordinance,  the  trial  court  charged  that,  in 
ordiir  to  make  a  valid  arrest,  such  officer  must  have  "  eznresa  '  uathority.    Held,  error. 

Appeal  from  the  County  Court  of  Wise.  Tried  below  before  the  Hon. 
G.  B.  Pickett,  County  Judge. 

The  opinion  discloses  the  nature  of  the  case.  A  fine  of  ten  dollars 
was  the  penalty  imposed. 

The  evidence  disclosed,  in  substance,  that  Decatur,  Wise  County, 
was  a  town  incorporated  under  the  general  incorporation  act  of  the 
State ;  that  its  ordinances  denounced  drunkenness  and  i^iceaciies  of  the 

1  8  BU.  Cms.  m> 


864  CRIMES   AGAINST  THE  PERSONS  OF  INDIVIDUALS. 

peace  as  offenses ;  that  H.  C.  Carter  was  drunk  and  in  the  act  of  com- 
mittmg  a  breach  of  the  peace  in  the  presence  of  N.  C.  Cargill, -marshal, 
and  the  defendant,  deputy  marslial,  of  the  town ;  that  the  marshal  and 
the  defendant,  having  no  warrant,  arrested  Carter,  and  started  to  the 
town  calaboose  with  him ;  that  Carter  proposed,  as  soon  as  arrested,  to 
execute  a  bond  for  his  appearance  before  the  mayor's  court,  and  that 
several  parties  present,  some  of  whom  were  solvent,  proposed  to  sign 
such  bond  as  sureties ;  and  that  the  marshal  declined  to  accept  a  bond. 
There  was  no  proof  that  the  marshal  neard  any  solvent  person  propose 
to  go  on  the  bond.     It  was  proved,  also,  that  while  the  defendant  and 
the  marshal  were  taking  Carter  to  the  calaboose.  Carter  tripped  the 
marshal,  threw  him  down  and  stamped  him,  and,  while  the  marshal  was 
unlocking  tlie  calaboose  door,  that  Carter  struck  the  marshal  a  blow  in 
the  face,  whereupon  the  jiarshal  struck  Carter  a  severe  blow  .-er  tl.o 
right  eye,  drawing  the  blood.     Carter  was  confined  in  the  calaboose  for 
about  one  hour,  and  was  released  on  bail. 
The  motion  for  new  trial  raised  the  questions  involved  in  the  opinion. 
J.  H.  Burts,  Assistant  Attorney-General,  for  the  State. 
Hurt,  J.     N.  C.  Cargill,  marshal  of  the  city  of  Decatur,  and  the  ap- 
pellant, deputy  marshal,  arrested  one  H.  C.  Carter,  within  tlie  limits  of 
said  city,  while  said  Carter  was  intoxicated  in  a  public  place,  and  in  tlie 
act  of  committing  a  breacli  of  the  peace  in  the  view  of  said  officers. 
The  arrest  was  made  without  a  warrant.     The  marshal  and  appellant, 
his  deputy,  carried  Carter  to  the  calaboose,  a  place  provided  by  tlie 
city  for  the  detention  of  city  prisoners,  and  tliere  kept  him  confined 
about  an  hour,  when  he  was  liberated  on  giving  an  appearance  bond. 
Carter  proposed  to  give  such  bond  when  he  was  arrested,  but  this  was 
refused  by  the  marshal  and  appellant.     By  ordinances  of  the  city  of 
Decatur  drunkenness  and  breaches  of  the  peace  are  made  offenses. 

Appellant  was  prosecuted  to  conviction  for  false  imprisonment;  from 
which  convietiun  he  appeals  to  this  court.  Under  the  above  state  of 
facts,  had  ai)pellani  the  right  to  arrest  and  imprison  Carter  as  ha  did? 
We  are  most  clearly  of  tlie  opinion  tliat  he  liad.  Nor  does  the  fact  that 
Carter  offered  to  give  bond  when  arrested  affect  the  question. 

As  stated  iu  the  case  of  Sdrcle  v.  Neeves ;  ^  "  There  is  probably  not  a 
city  or  town  in  the  ^tat.'  making  any  pretense  to  proper  mun  cipal  gov- 
ernment tliivt  has  not  an  ordinance  in  substance  t!.e  same  as  this  (one 
making  drunkenness  an  offense),  and  whose  police  officers  do  not  con- 
stantly ar-est,  lock  up  and  afterward  carry  before  the  courts,  persons 
who  violate  its  provisions.  Such  persons  must  learn  that  nociety  has 
the  right  to  protect  itself  against  the  evil  influences  of  their  example. 


I  47  Ind.  289. 


D1VIDUAL8. 

Tid  in  the  act  of  com- 
J.  C.  Cargill, 'marshal, 
that  the  marshal  and 
er,  and  started  to  the 
LS  soon  as  arrested,  to 
jayor's  court,  and  that 
rent,  proposed  to  sign 
lined  to  accept  a  bond, 
lolvent  person  propose 
tiile  the  defendant  and 
ise,  Carter  tripped  the 
while  the  marshal  was 
the  marshal  a  blow  in 
a  severe  blow  dver  i 
led  in  the  calaboose  for 

nvolved  in  the  opinion, 
the  State. 

)f  Decatur,  and  the  ap- 
ter,  within  tlie  limits  of 
public  place,  and  in  the 
lie  view  of  said  officer- 
marshal  and  appellant, 
I  place  provided  by  the 
lere  kept  him  confined 
ig  an  appearance  bond. 
»  arrested,  but  this  was 
dinances  of  the  city  of 
are  made  offenses, 
ilse  imprisonment ;  from 
ader  the  above  state  of 
prison  Carter  as  ha  did? 
Nor  does  the  fact  that 
t  the  question. 
There  is  probably  not  a 
0  proper  mun  cipal  goM- 
le  t'-ie  same  as  this  (one 
)lice  officers  do  not  con- 
fore  the  courts,  persons 
it  learn  that  Hociety  has 
uences  of  their  example. 


ASSAULT  —  NOTES. 


865 


and  that  the- are  proper  objects  of  municipal  legislation,  arrest  and 
punishment."     This  we  believe  to  be  the  correct  doctrine. 

We  are  of  the  opinion  taat  it  was  the  duty  of  the  marshal,  or  his 
deputy,  to  arrest  and  confine  C^.ter  until  he  became  sufficiently  sober 
and  rational  as  not  to  be  a  nuisance  to  peaceable  and  orderly  citizens  of 
the  city.  Society  has  rights  as  well  as  the  citizen,  and  when  the  good 
order  of  society  is  thus  invaded  and  defied,  her  officers  sliould  act 
promptlj'  and  effectively. 

This  verdict  is  not  supported  by  the  evicencc,  and  for  this,  if  no  other 
reason,  the  judgment  would  be  reversed. 

The  learned  judge  charged  the  jury  that  defendant  must  have  express 
lawful  authority  to  make  the  arrest.  This  was  calculated  to  mislead 
the  jiirj'.  If,  from  all  the  circumstances,  the  law  would  authorize  the 
arrest,  by  a  fair  construction,  defendant  would  not  be  guilty  because 
the  power  was  not  expressly  given.  Because  the  charge  was  erroneous, 
aD.i  because  the  evidence  does  not  support  the  verdict,  the  judgment  is 
rpvv^.jed  and  the  cause  remanded. 

Reversed  and  remanded. 


NOTES. 

5  628.  ABMult  — ThereMustbea  Present  Intention  to  Strtke.  — An  a«> 
sault  la  an  attempt  or  offer  to  do  anether  person  violence  without  actually  ac^ 
complishlug  It.  A  menace  is  not  an  assault;  neither  is  a  conditional  offer  of 
violence  or  a  threat.  There  must  be  a  present  intention  to  stril{e,»  Whereagun 
is  held  In  s  threatening  way,  yet  there  Is  no  Intent  to  use  it  unless  assaulted  by 
the  adversary,  there  Is  no  assault.' 

In  State  v.  Mooney,^  the  prosecutor,  with  some  other  person!),  had  gone  to 
Mooney's  house,  and  after  some  conversation,  a  quarrel  arose,  in  the  course  of 
which  insulting  language  was  used  by  both  parties.  Thereupon  the  defendant 
ordered  the  others  to  leave  his  house.  At  or  about  the  same  time  he  seized  his 
pun;  the  witnesses  diflering  as  to  whether  he  did  this  Immediately,  or  after 
finding  that  the  prosecutor  and  his  party  did  not  leave.  A  scufDe  for  the  r,an 
ensued  between  the  defendant  and  som«<  members  of  his  own  family,  and  the 
latter  Hnally  got  possession  of  it.  The  defendant  did  not  present  it  or  attemf/t  to 
make  use  of  it.  As  the  prosecutor  and  his  friends  were  leaving  the  premls3n, 
the  defendant  followed  them  and  seized  an  axe,  getting  near  enough  to  throw  it, 
but  the  witnesses  differed  as  to  whether  he  was  near  enough  to  strilie  with  It. 
He  did  not  attempt  to  use  it.  Subsequently,  upon  bslng  dared  to  come  out,  he 
advanced  again  with  the  axe,  but  did  not  get  nearer  to  them  than  twenty-flve  or 
thirty  yards.    The  court  charged  the  jury  that  In  any  view  of  the  testlmoay  u 


1  JohnioB  V.  state,  35  Ala.  3U  (186C) ;  Pno- 
Pla  •.  LiUejr,  ante,  p.  "S3. 

3  Defences,  65 


3  state  V.  Blackwell,  9  Ala.  79  ilMS). 
3  PbiU.  4M  (1868). 


866  CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

aeeault  had  been  committed  by  the  defendant  with  both  the  gun  and  the 


axe. 


Verdict  aullty;  rule  for  a  new  trial  discharged;  Judgment  and  appeal. 

READS,  J.  His  honor's  charge  "that  in  any  view  of  the  testimony  the  de- 
lendaut  was  guilty,"  Is  so  broad  as  to  entitle  the  defendant  to  a  new  trial,  if 
there  is  any  view  consistent  with  his  Innocence.  After  a  careful  cons  deration 
of  the  testimony,  we  ar«  obliged  to  say  that  in  no  view  of  the  case  is  the  de- 

fendant  guilty.  ,  ^^, 

When  the  defendant  ordered  the  prosecutor  and  his  crowd  to  leave  ma 
house,  as  he  liad  a  right  to  do,  it  may  have  been  rrde  behavior  to  seize  his  gun 
at  the  same  time;  but  as  he  did  not  point  his  gun,  or  in  any  way  offer  or  aU 
tempt  to  use  it,  there  was  certainly  no  assault,  which  Is  an  offer  or  attempt, 
and  not  a  mere  threat,  to  commit  violence.  And  so  the  picking  up  of  an  axe 
within  some  twenty-flve  yards  of  the  prosecutor  without  an  offer  or  attempt  to^ 
use  it,  was  Hot  an  assault.    There  is  error.    This  opinion  will  be  certified. 

§  6H.  Assault -Intentton  to  Injure  ■ssenilal,  Coupled  with  Act. -In 
every  assault  there  must  bo  an  intention  to  injure,  coupled  with  an  act  towards 
that  end,  and  not  an  act  of  preparation  for  some  contemplated  injury  that  ma,^ 
afterwards  be  iuflicted.i  There  must  be  the  commencement  of  a.a  act  which,  if 
not  prevented,  would  produce  a  battery.  Therefore,  drawing  a  pistol,  without 
i;resenting  or  coclcing  it,  is  not  an  assault.''  In  a  sudden  quarrel  A  and  B 
lew  pistols  and  confronted  each  other.  B.  did  not  present  his  pi«to  at  A.,  but 
threaten' d  to  shoot  him  if  he  cocked  L,.  pistol,  when  bystanders  interfered. 
This  was  held  not  an  assault  by  B.*  ^  *  . 

In  State  v.  Milsaps,*  the  prisoner  using  insulting  language  to  the  prosecutor, 
plckea  up  a  stone,  being  about  twelve  feet  from  him,  but  did  not  offer  to  throw 
It.    This  was  not  an  assault. 

S  626.  ThrwitenluB  Oeature  not -Pointing  Cane. -A  mere  threatening 
gesture  is  not  an  assault.'  So  to  point  a  cane  in  derision  at  a  person  in  the 
street  is  not  an  assault.* 

(  626.  Intent  to  Injure   the  Gist -Pointing  Pistol  not  per  ae  an 

Assault. -In  Bichelsy.  State,^  the  court  in  reversing  a  conviction  say :  The 
question  arises  upon  the  charge  of  the  court.  It  was  so  far  as  excepted  to,  u 
these  words:  "That  the  defendant  would  be  guilty  of  an  assault  if  they  found 
from  the  evidence  that  he  pointed  a  pistol  purporting  to  be  loaded  at  the  pro- 
secutor.  within  the  distance  such  pistol  would  carry,  notwithstanding  he  did 
not  then  and  thereby  intend  to  shoot  and  so  stated."    This  is  erroneous. 

An  assault  is  an  attempt  or  offer  to  do  a  personal  violence  to  another.  It  Is 
an  inchoate  violence  with  the  present  means  of  carrying  the  intent  nto  effect. 
The  Intention  to  do  harm  is  of  the  essence  of  the  offense  and  this  intention  .» 
to  be  ascertained  by  the  jury  from  the  circumstances.  If  at  the  tl.ne  of  menac- 
ing  the  prosecutor  and  apparently  offering  to  harm  him,  defendant  ^8«d  words 
showing  It  was  not  his  intention  to  do  It  at  that  time,  it  is  no  assault.*    The 

1  Johnson ...  State.  43  Tex.  976  (1876).  '  Goodwin'.  Cs.e  6  City  H.  Bee.  9  (IWl). 

a  L«weon».8Ute.30Als.  14(1867).  i  8ne«d. 606  (1854). 

8  Ralnbolt  V.  State,  34  Tex.  887  (1870).  •  «  Greenl.  Ev..  sec.  88. 

4  88  N.  C.  549  (1880).  '  •'*•  **"•'  ™* 

»  Spears  v.  SUte,  8  Tex.  (App.)  244  (1877). 


JDl  VI  DUALS. 


ASSAULT  —  INTENT   TO   INJURE. 


867 


both  the  gun  and  the 

Igment  aud  appeal, 
of  the  testimony  the  de« 
sfendant  to  a  new  trial,  U 
ii  a  careful  consideration 
lew  of  the  case  Is  the  de- 

I  his  crowd  to  leave  his 
behavior  to  seize  his  gua 
or  in  any  way  offer  or  at. 
>.h  Is  an  offer  or  attempt, 
the  plsklng  up  of  an  axe 
jut  an  offer  or  attempt  to 
Qion  will  be  certified. 

Coupled  with  Act.  —  In 
ipled  with  an  act  towards 
teniplated  injury  that  may 
cement  of  a.a  act  which,  it 
drawing  a  pistol,  without 
sudden  quarrel  A.  and  B. 
iresent  his  pistol  at  A.,  but 
lien  bystanders  Interfered. 

inguage  to  the  prosecutor, 
but  did  not  offer  to  throw 


ai:  —  A.  mere  threatening 
derlaion  at  a  person  in  the 


air  Pistol  not  per  ge  an 
sing  a  conviction  say :  The 
ts  so  far  as  excepted  to,  in 
of  an  assault  If  they  found 
ng  to  be  loaded  at  the  pro- 
xy, notwithstanding  he  did 
."    This  Is  erroneous. 
1  violence  to  another.    It  Is 
•ylng  the  intent  into  effect.' 
>flense  and  this  intention  is 
!s.    If  at  the  tiine  of  menac- 
him,  defendant  ised  words 
lime,  it  is  no  assault.*    The 

n'»  Caie,  e  City  H.  Reo.  9  (1821). 

m  (18M). 

1.  £v..  leo.  8!. 

,88. 


example  given  in  all  the  boolts  treating  of  this  subject,  of  one's  laying  his  hand 
on  his  sword,  saying,  "if  it  were  not  assize  time,  I  would  not  take  such  Ian- 
guaire,"  is  an  illustration  of  this  rule. 

Pointing  a  pistol  at  another  would  perhaps  be  sufficient  evidence  of  an  intent 
to  do  harm,  if  nothing  more  appeared.  But  if  It  were  shown  that  it  was  done 
playfully  or  accompanied  with  a  declaration  that  he  did  not  Intend  to  shoot  or 
any  other  words  evincive  of  the  absence  cf  any  criminal  Intent,  then  it  would 
not  be  an  assault.  It  would  still  be  a  question  for  the  jury  to  determine,  from , 
all  the  facts,  as  to  the  intent.  If  the  prosecutor  had  good  reason  in  view  of  all ' 
the  circumstances  to  apprehend  danger,  notwithstanding  the  declarations  made 
at  the  time,  the  jury  would  be  authorized  to  find  tlie  defendant  guilty.  For  it 
might  be  well  shown  by  the  circumstances,  that  this  disavowal  of  harmful  In- 
tentions was  insincere,  or  intended  to  put  the  other  party  off  liis  guard. 

As  a  matter  of  law  then,  it  is  not  true  that  to  point  a  pistol  at  another,  is  of 
itself  in  assault,  as  charged  by  his  honor.  It  may  or  may  not  be,  according  to 
the  attending  jircumstances.  These  must  be  such  as  to  satisfy  a  jury  that 
there  was  an  intent,  coupled  with  an  ability  to  do  h.irrn,  or  that  the  other  party 
had  a  right  so  to  believe  from  the  facts  before  him;  otherwise  there  is  no  dan- 
ger of  a  breach  of  the  peace. 

The  judgment  will  be  reversed  and  u  new  trial  granted. 

§  627.  Worda  aot  an  Assault.  — Threatening  words  and  violent  and 

men.  c'ng  gestures,  if  unaccompanied  by  a  present  Intention  to  do  a  corporal 
injury  do  not  amount  to  assault. ^ 

§  628.  No  Assault  Where  Words  Bxplaln  Hostile  Action.  — In  Com- 
monwealth V.  F-re,^  a  prisoner  raised  his  hand  and  said  to  the  prosecutor:  "If 
it  were  not  for  your  gray  hairs  I  would  tear  your  heart  out."  This  was  held  no 
assault  as  the  words  tools  away  the  idea  of  an  intention  to  strilce. 

In  State  v.  Croio,^  the  defendant  was  indicted  for  an  assault  on  William  Gray- 
son. One  witness  testified  that  he  heard  the  parties  have  some  words  and  he 
then  saw  the  defendant  raise  a  whip  which  he  had  In  his  hand,  and  shake  it  at 
Grayson,  swearing  that  he  had  a  great  mind  to  kill  him;  and  that,  at  the  time 
when  the  defendant  raised  his  whip,  he  was  in  striking  distance  of  Grayson, 
but  not  strike  him,  although  not  prevented  from  doing  so  by  the  interference 
of  any  other  person.  One  or  two  other  witnesses  testified  that  they  did  not 
see  the  defendant  raise  the  whip,  but  heard  him  say  to  Grayson,  "  were  you 
not  an  old  man  I  would  knock  you  down."  The  defendant's  counsel  contended 
that  no  assault  was  proved,  because  the  words  which  accompanied  his  acts 
qualified  them  and  showed  tliat  he  had  no  intention  of  striking,  and  oonse- 
quently  there  was  no  such  o«".r  or  attempt  to  strike  as  constituted  an  assault. 
The  court  charged  the  jury  that,  notwithatandiug  the  words  used  by  the  de- 
fendant when  he  raised  his  whip  and  shook  it  at  Grayson,  yet  if  .his  conduct 
was  such  as  would  induce  a  man  of  ordinary  firmness  to  suppose  he  was  about 
to  be  stricken  and  to  strike  his  assailant  in  self-defence,  the  latter  would  be 
guilty.  Otherwise  there  might  be  a  fight  and  the  peace  broken,  and  yet  neither 
party  be  guilty.  And  further,  that  otherwise,  one  man  might  follow  another 
all  over  the  court  yard,  shaking  a  stick  over  his  head,  and  yet  not  be  guilty, 


>  Smith  V.  State,  39  MiM.  S4  (1660) ;  J%,- 
nit«Q  V.  State,  8  Tex.  (App.)  iea  (1870;. 


»  1  8.  A  K.  847  (1815). 
3  1  Ired.  S7B  (ISil). 


868 


CRIMES   AGAINST   THE   PERSONS    OF   INDIVIDUALS. 


Brovlde,!  he  took  care  to  declare,  while  he  was  doing  so,  that  "  he  had  a  great 
Tnd  to  kao  k  him  down."  The  jury  found  the  defendant  ^-^^y'--'^-^^^ 
TrUl  being  refused,  judgment  was  produced  against  hin.,  from  which  judgment 
he  aoDealed  to  the  Supreme  Court.  j,„„„  i 

Slttorney-aeneral,  for  the  State,  cited  Archboid's  Crlmtual  Pleadings' 

and  Hawkins  .'-i 

No  counsel  appeared  for  the  defendant,  ^     .    ,  »v    ^„.„„a 

DAKiEL.  J.    The  judge  charged  the  jury  "  that  it  the  conduct  of  the  defend- 
ant was  s^ch  as  would  induce  a  man  of  ordinary  firmness  to  suppose  he  was 
tbort  to  be  stricken,  and  to  strike  in  self-defence,  the  defendant  -ould  by  such 
conduct  be  guilty  of  an  assault."    We  admit  that  such  conduct  would  be  strong 
rvfdence  to'  pro've,  what  every  person  who  relies  on  the  plea  of  -n  ««««« 
Jemesne  must  prove  to  support  his  plea,  to  wit,  that  ^''^f'^'^"/^^''''^''^^^ 
or  offered  to  strike  him;  but  It  is  not  conclusive  evidence  of  t^^' J"^^^^^^^^^^^^ 
it  can  be  collected,  notwithstanding  appearances  to  the  contrary,  that  there  was 
not  a  present  purpose  to  do  an  Injury,  there  Is  no  assault.^    The  law  makes  a  - 
lowance,  to  some  extent,  for  the  angry  passions  an   infirmities  of  man.    It 
seems  to  us  that  the  words  used  by  the  defendant,  cotemporaneously  with  the 
act  of  raising  his  whip,  were  to  be  taken  into  consideration,  as  tending  to 
qualify  that  a?t,  and  show  that  he  had  no  intention'  to  strike.    The  defendant 
did  not  strike,  although  he  had  an  opportunity  to  do  so,  and  was  not  prevented 
by  any  other  person.    The  judge  should,  it  seems  to  us,  have  told  the  jury,  that 
if  at  the  time  he  raised  his  whip  and  made  use  of  the  worde,  "were  you  not 
";  old  man  I  would  knock  you  down,"  the  defendant  had  not  a  presen  purpose 
to  strike,  in  law  It  was  not  an  assault.    We  again  repeat  what  was  said  In  Davis 
case-    "It  was  difficult  to  draw  the  precise  line  which  separates  violence 
menaced  from  violence  begun  to  be  executed,  for  until  the  execution  of  it  be 
begun,  there  can  be  no  assault."    The  evils,  which  the  judge  supposed  might 
follow  if  the  law  was  different  from  what  he  sUtedlt  to  be,  can  always  be 
oSd  by  the  offending  part,  being  bound  to  his  good  behavior.    There 
must  be  a  new  trial.  j^^^  ^^^j  awarded. 

§  629.  A8«kult  Must  be  on  Person. -So  besetting  the  house  .*  another  i« 
not  an  assault*  nor  Is  beating  his  horse .s 

6  630    Opentog  Railway  Switch.  -  In  Be  Lems  «  the  prlsone    opened  a 

railway  switch  with  intent  to  cause  a  collision  whereby  two  trains  dll  come  in 
collision  causing  a  severe  injury  to  a  person  in  one  of  them.  This  was  heldnot 
an  assault. 

*631    Assault  MuBt  be  to  Person  -  Swpplmr  Oarrlage  Not. -This 

was  ruled  in  State  v.  Edge,^  the  court  saying:  "  Upon  a  slight  view  It  migh 
seem  that  this  case  was  decided  by  the  case  of  the  State  v.  Davis  «'««5»'-*'«: 
where  the  defendants  were  found  guilty  of  an  assault  In  cutting  a  rope  by  which 
the  prosecutor  had  tied  the  body  of  a  negro  to  his  own  person.    This  case  was 
decided  on  the  ground,  that  every  thing  attacaed  to  a  man's  person  partakes  ol 


1  p.  S47. 

3  oh.  la,  Bee.  1. 

3  State  t».  Davie,  1  Ired.  1*7. 

*  State  v.  FrceU,3  Uumpb.  229  (1842). 


6  Kirland  ti.  State, «  Zni.  149  (1873). 
•  6  U.  C.  Pr.  Bep.  2i7  (1874). 
'  latrobh.  91  (1846). 
«  1  HIU,  96. 


DIVIDUALS. 

o,  that  "  he  had  a  great 
ndant  guilty,  and  a  new 
n,  from  which  judgment 

I's  Crlmlaal  Pleadings  i 


B  conduct  of  the  defend- 
ness  to  suppose  he  was 
defendant  would  by  such 
conduct  would  be  strong 

the  plea  of  son  assault 
idversary  first  attempted 
ience  of  that  fact,  for  if 

contrary,  that  there  was 
iult.3   The  law  makes  al- 

inflrmlties  of  man.    It 
temporaneously  with  the 
lideratlon,  as  tending  to 
>  strilce.    The  defendant 
o,  and  was  not  prevented 
i,  have  told  the  jury,  that 
i  worde,  "were  you  not 
iad  not  a  present  purpose 
,t  what  was  said  in  Davis' 
Thich  separates  violence 
til  the  execution  of  it  be 
he  judge  supposed  might 
d  it  to  be,  can  always  be 
is  good  behavior.    There 

New  trial  awarded. 

g  the  house  v*  another  is 


wis "  the  prisone  opened  a 
eby  two  trains  di  I  come  in 
if  them.    This  was  held  not 

ilng  Carriage  Not.  — This 
pon  a  slight  view  it  might 
State  V.  Davis  and  Purdue,^ 
It  in  cutting  a  rope  by  which 
wn  person.  This  case  was 
a  man's  person  partaltes  of 

u.  state,  43  :nd.  149  (1873). 
'r.  Rep.  til  (1874). 
.91  (1846). 
}. 


ASSAULT  —  MUST   BE  TO   PERSON. 


869 


his  personal  inviolability,  as  the  clothes  he  wears,  or  the  stick  he  carries  in  his 
hand.  But  the  extension  of  this  doctrine  to  the  extent  contended  for  in  this 
case  would  confound  the  distinctions  between  trespass  to  the  person,  which  is 
indictable,  uud  trespass  to  goods,  which  is  not.  Many  cases  arc  to  be  fonnd  in 
the  Eiifflish  Reports,  where  the  defendant  willfully  ran  against  the  carriage  of 
the  prosecutor,  by  reason  whereof  he  was  hurt  and  sustained  bodily  injury; 
but  the  cases  go  no  farther.  It  would  be  going  too  far  to  say,  tliat  to  stop  the 
carriage  in  which  the  carriage  is  riding,  without  any  design  or  manifestation  of 
intention  to  do  him  any  bodily  hurt,  can  amount  to  an  assault,  any  more  than 
to  stop  a  boat  in  which  many  persons  were  sailing,  would  be  an  assault  on  each 
and  every  of  the  passengers.  In  tfiis  case  the  declared  object  of  the  defendant 
Edge  was  to  recover  his  negro,  which  the  prosecutor  was  unlawfully  carrying 
away.  This  he  might  lawfully  do,  if  he  could  effect  it  without  a  breach  of  the 
peace  or  the  violation  of  the  criminal  laws  of  the  country.  If  this  was  his 
object,  and  so  declared  at  the  time,  and  there  was  no  offer  or  attempt  to  commit 
any  violence  on  the  person  of  the  prosecutor,  I  can  not  regard  the  act  as  any 
thing  more  than  a  trespass;  or  at  most,  the  momentary  restraint  on  the  liberty 
of  the  prosecutor  would  be  only  a  false  imprisonment,  which  it  is  now  settled 
may  be  committed  without  an  assault;  though  the  opinion  seemed  once  to  have 
been  entertained  that  a  false  imprisonment  included  an  assault.'  Incases  like 
the  present,  where  no  personal  injury  is  done  or  attempted,  the  question  is 
always  one  of  intention,  and  the  jury  should  be  instructed  to  find  the  defend- 
ants  guilty,  or  not,  according  as  they  should  decide  that  he  intended  to  do  an 
injury  to  the  person  of  the  prosecutor,  or  not.  That  the  jury  may  decide  on 
this  point,  a  new  trial  is  ordered," 

§  G32.  Force  Must  be  External.  —  In  R.  v.  JTansun,^  one  Hanson  put 

some  cantharides  into  a  glass  of  rum  and  gave  It  to  Mary  Warburton  to  drink. 
She  drank  the  liquor  not  knowing  what  it  contained,  and  was  made  ill.  This 
was  held  not  an  assault. 

§  633.  And  Must  do  Injury,  —  To  expose  a  child  to  the  inclemency  of 

tlie  weather,  where  as  a  result  no  injury  or  inconvenience  actually  happens  to 
the  child,  is  not  an  assault. ^  A  prisoner  indicted  for  manslaughter  and 
acquitted  because  the  death  was  not  the  result  of  the  assault  can  not  be  con- 
victed of  assault.* 

§  034.  Accident  or  Play — No  Intent  to  Injure.  —  There  must  be  an 

^intent  to  injure  —  either  In  bodily  pain,  constraint,  shame  or  other  disagreeable 
emotion.  Thus  to  shove  another  in  accident  or  in  play'  or  in  friendship*  is  not 
au  assault. 

§  C35.  Use  of  Lawful  Force.  —  The  use  of  lawful  force  is   not  an 

assault.  Thus  the  conductor  of  a  car  may  remove  a  passenger  violating  the 
rules '  or  not  paying  fare.'    So  the  sexton  of  a  church  as  to  persons  violating 


1  2  Bos.  ft  Pul.  2.'». 

2  2  C.  ft  K.  913  (1849). 

s  K.  i:  Renshaw,  2  Cox,  286  (1847). 
*  II.  V.  Connor,  2  C.  ft  K.  518  (1847). 
'■  Kutherford  r.  State,  13  Tax.  (App.)  92 
(ItWJ;. 


«  People  V.  Hale,  1  N.  Y.  Crlm.  Kep,  883 
(1883). 

'  State  V.  Goold,  83  Me.  279  (1865) ;  Stato 
V.  Cliovin,  7  Iowa,  204  (1858);  People  v. 
Caryl,  3  Park.  326  (1857). 

•  People  V.  JilleoD,  3  Park.  234  (1886). 


870  CUIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

«,«  rnlos  I  and  the  superintendent  of  a  poor-house,  as  to  thelnraates.Sorapollce- 

r?^i;iC-e.t.3   A.tot.eri«htofpar^ 

ter  corporal  punUhment  to  infant,  see  volume  III.  of  this  series. 

§  630.  Preventing  Breacuof  Peace. -Laying  hands  on  another  to  prerent 
his  fighting  or  comralttluf?  u  breach  of  the  peace  is  not  assauU." 

s  rqfia  ShootlnB  at  House  Window.  -  Where  one  shoots  at  a  picture  la  the 
^iiow  of  !nlerwUh  latent  to  destroy  the  picture,  because  he  Is  offended  by 
U,  but  w^ouUnLt  ^^^  do  a  personal  Injury  to  any  one.  It  Is  not  an  assault 
upon  the  owner  of  the  house.'  • 


1  Com.  V.  Dougherty.  107  Mass.  245  (1871). 
«  Slate  V.  Neff.M  lud.  B66. 

3  Doering  v.  State,  49  lud.  60;  Shovllnr. 
Com.,  106  ra.  St.  390  (1884). 

4  ante.  vol.  HI.,  ch.  V.    And.  see.  Dowlon 
V.  State.  14  Tex.  (Avp.)  61  (1888). on  e.  p.  8«. 

0  .'ipicer  V.  People.  U  Btadw.  295  (1882). 
In   People  v.  Van  Vechten,  2   N.    Y.    Cr. 
Rep.  291  (1884).    Learned.  J.,  delivered  the 
ioUowing  dissenting  opinion:  •'ThlB^vasa 
prosecution  for  anassault  and  battery.    The 
defence  claimed  that  the  complainant  Hib- 
bard  had  been  previously  forbidden  to  come 
into  defendant's  hotel  where  the  assault  had 
been  committed;  that  Hibbardwas  drunk, 
and  that  defendant  used  no  more  force  than 
was  necessary  to  eject  him.    The  defend- 
anfi  counsel  asked  Hibbard  whether  the 
defendant,  prior  tb  the  assauU.  had  forbid- 
den him  to  enter  the  hotel  unless  he  had 
legal   process.    This  was  excluded.   The 
Inquiry  was  repeated  in  several  forms  and 
was  excluded.    The  same  questions  were 
asked  of  the  defendant,  and  again  excluded. 
The    defendant's    counsel    also    inquired 
whether  Hibbard  at  the  time  was  drunk  or 
sober,  and  this  was  excluded.    An  inquiry 
was  also  made  of  defendant  when  the  con- 
versation as  to  Hibbard's  coming  en  the 
premises  was  bad.  This  was  excluded .  Now 
there  was  no  dispute  that  the  premtses. 
■where  the  assault  was  committed  were  in 
the  lawful  possession  of  the  defendant.  Nor 
is  it  claimed  that  Hibbard  entered  by  virtue 
of  his  authority  as  a  peace  officer.    He  says 
himself  that  he  did  not  go  vnere  in  that 
capacity.    The  place  was  a  hotel,  and  very 
properly  without  some  evidence  on  the  con- 
trary, there  is  an  implied  invitation  to  enter 
peacefully  into  a  hotel.    But  certainly  the 
proprietor  may  forbid  such  entrance.  When 
he  does  forbid  such  entrance  to  any  person, 
if  that  person  then  enter,  he  is  a  trespasser. 
The  occupant  of  the   premises   may  eject 
him.  using  no  more  force  than  is  necessary. 
By  the  exclusion  of  the  evidence  which  was 


offered,  the  defendant  was  deprived  of  the 
opportunity  of  Justiiylng  the  alleged  assault. 
He  was  placed  in  the  condition  of  a  person 
who.  without  any  previous  prohibition  to 
Hibbard  against  entering  the  hotel,  com- 
mitted an  assault.    Now  even  If  the  Jury  had 
believed  that  the  force  used  was  no  more 
than  necessary  to  eject  Hibbard,  the  defend- 
ant would  have  been  convicted,  because  he 
was  not  permitted  to  show  that  he  had  pre- 
viously forbidden  Hibbard  to  enter.    It  was 
not  in    litigation  of  damages  or  In   any 
such  view,  that  the  evidence  of  previous 
conversation    was     offered.     It    was     to 
show  that,   at   the  time.   Hibbard  was   a 
trespasser,  and  therefore,  that  the  defend- 
ant might  lawfully  remove  him.    It  Is  true 
that  defendant  would  not  then  be  Justlfled 
in  using  unnecessary  violence.    But  It  does 
not  appear  that  the  Jury  thought  the  force 
used  was  unnecessary.    The  defendant  was 
not  allowed  to  show  the  fact  which  would 
have  JusilQed  some  degree  of  force.    So  too. 
I  think  that   proof  should  have  been  ad- 
mitted that  Hibbard  was  intoxicated.    Not 
that  intoxication  Justifies  an   assault,  but 
because  the  question  of  what  Is  necessary 
force  to  remove  an  intruder  from  one's 
premises,  may  depend  on  the  condition  of 
the  intruder.    A  degree  of   force  may  be 
necessary  in  the  removal  of  a  drunken  man 
from  one's  hotel,  which  would  be  quite 
needless  and  improper  in  the  case  of  one 
who  was  sober  and  quiet.  Of  course.  It  might 
be  that,  if  the  evidence  of  this  forbidding 
Hlobard  to  enter  had  been  received,  the 
Jury  might  still  find  that  the  defendant's 
acts  were  not  Justifiable;  that  he  used  un- 
necessary force  in  attempting  to  remove 
Hibbard.    But  the  defendant  had  a  right  to 
have  the  jury  decide  this  question,  and  of 
that  right  he  was  deprived.    I   think  tno 
conviction  and  Judgment  should  be  reversed 
and  a  new  trial  had." 

0  United  States  v.  Hand.  2  Wash.  435. 


fDIVIDUALS. 

the  Inmates,"  or  a  pollce- 
schoulmaater  to  adminla- 
lis  series.* 

9  on  another  to  prerent 
assault." 

shoots  at  a  picture  In  tin- 
because  he  Is  offended  by 
jne,  It  Is  not  an  assault 


ifendant  was  deprived  of  the 
justiiylng  the  alleged  aasault. 
in  the  condition  of  apereon 
any  previous  prohibition  to 
ist  entering  the  hotel,  nom- 
ult.    Now  even  if  the  Jury  had 
the  force  used  was  no  more 
^  to  eject  Hlbbard,  the  defend- 
rebeen  convicted,  because  he 
Itted  to  show  that  he  had  pre- 
den  Hlbbard  to  enter.    It  was 
itlon  of  damages  or  In   any 
at  the  evidence  of  previous 
was     offered.     It    was     to 
t   the  time,   Hlbbard  was   a 
id  therefore,  that  the  defend- 
rtuUy  remove  him.    It  Is  true 
It  would  not  then  be  Justlfled 
icessary  violence.    But  It  does 
iiat  the  Jury  thought  the  force 
iccessary.    The  defendant  was 
to  show  the  fact  which  would 
1  some  degree  of  force.    So  too, 
proof  should  have  been  ad- 
Hlbbard  was  Intoxicated.    Not 
ition  Justifies  an   assault,  but 
question  of  what  is  necessary 
move  an  Intruder  from   one's 
ly  depend  on  the  condition  ot 
■.    A  degree  of   force  may  be 
the  removal  of  a  drunken  man 
hotel,  which  would  be  quite 
d  Improper  in  the  case  of  one 
er  and  qiilet.  Of  course,  it  might 
lie  evidence  of  this  forbidding 
enter  had  been  received,  the 
still  find  that  the  defendant's 
lot  Justifiable;  that  he  used  un- 
orce  in  attempting  to  remove 
tut  the  defendant  had  a  right  to 
iry  decide  this  question,  and  of 
he  was  deprived.    I   think  tno 
ind  Judgment  should  be  reversed 
;rlal  had." 
States  t'.  Hand,  2  Wash.  435. 


ASSAULT  —  MAYHEM. 


871 


§  G3C,b.  NcfrllgrentDrlvlngr.— One  ne^Usently  driving  over  another  Is  not 
guilty  of  an  assault  and  battery,  though  he  Is  violating  a  municipal  ordinance 
against  fast  driving.' 

§  G37.  Recaption.  —  If  a  constable  levy  upon  and  talce  goods,  after  the 

authority  of  the  seizure  derived  from  the  writ  has  expired,  the  defendants  who 
do  no  more  than  temporarily  exercise  the  cOmmon-law  right  of  recaption,  are 
not  guilty  of  assault.^ 

§  C38.  Force  used  to  Recover  Property  Fraudulently  Talcen.  —  In  An- 

derson  v.  State,^  It  is  said:  "  If  a  man  meet  another  In  the  highway  and  by  false 
and  fraudulent  misrepresentation  Induce  that  other  to  surrender  to  him  the 
possession  of  bis  horse  and  carriage  and  when  he  has  so  obtained  possession 
show  a  different  purpose  by  word  or  act  to  appropriate  it  to  bis  own  use  and 
to  escape  with  it,  surely  it  will  not  be  held  the  person  so  deprived  of  property 
is  compelled  to  stand  with  folded  arms  and  see  the  fellow  so  escape  beyond  the 
reach  of  the  law,  or  a  hope  of  the  restitution  of  the  property  or  be  guilty  of  a 
violation  of  law  in  attempting  to  recover  possession.  On  the  contrary  every 
ramn  has  a  right  to  defend  his  property  and  his  possession  thereof,  and  to  use 
such  force  as  wUl  secure  to  him  its  full  enjoyment.  If  he  use  the  necessary 
force  to  eject  the  Intruder  from  his  house  or  premises,  upon  the  same  principle 
he  may  use  like  force  to  recover  a  chattel  attempted  to  be  converted  by  a  dis- 
sembler or  felon." 

§  638a.  Mayhem — Premedltatlonnecessary.— To  the  crime  of  mayhem  pre- 
meditation Is  necessary.* 

§  639.  Mayhem — Other  Bcsentlala. — A  permanent  Injury  i3  neces- 
sary —  a  temporary  Inj  ury  of  a  finger,  an  arm,  or  an  eye  is  not  mayhem  fi  Biting 
off  a  small  portion  of  the  ear  Is  not  mi^yhem,*  nor  fracturing  the  skull.'  Under 
a  statute  In  Virginia,  which  enacts  that  If  any  person  *'  shall  unlawfully  cut  out 
or  disable  the  tongue,  put  out  an  eye,  slit  a  nose,  bite  or  cut  off  a  nose  or  Up, 
or  cut  off  or  disable  any  limb  or  member  of  any  person  whatsoever,  within  the 
Commonwealth,  with  intent  In  so  doing  to  malm  or  disfigure,  in  any  of  the  man- 
ners before  mentioned,  such  person,"  he  shall  be  declared  a  felon  and  suffer  as 
in  case  of  felony,  biting  off  an  ear  Is  not  a  felony .» 

§  640.  << Maiming"  by  "Lyinff  in  Walt."  —  A  husband  cutting  hts 

wife's  throat  while  both  are  In  bed  Is  not  "maiming"  by  "lying  la  wait" 
within  the  statute.* 

§  641.  Assault  'With  Intent  to  Kill.  —  On  this  charge  the  Intent  to  kill  must 
be  proved.io  To  sustain  an  indictment  under  the  act  of  March  3,  1825,  it  must 
be  proved  that  the  assault  was  made  with  the  Intention  to  take  the  life  of 


1  Com.  V.  Adams,  \U  Mass.  362  (1873). 
^  Finn  v.  Com.,  6  Pa.  St.  460  (1847). 
3  6Baxt.608(1872). 

*  Godfrey  r.  People.  68  N.  Y.  207  (1875). 
s  State  V.  Brlley,  8  Port.  473  (183tt). 
<  State  V.  Abram,  10  Ala.  929  (1847). 


Deo.  57i  (1811).  As  to  what  la  mayhem 
under  the  New  York  statute,  see  Ilurke  v. 
People,  11  N.  Y.  (S.  C.)  481  (1S75.) 

»  United  States  v.  Askinti, 4  Crunch,  C.  C.  98. 

•  B.  V.  Lee,  1  Leach,  61  (1761). 

1°  Ogletree  v.   State,  28  Ala.  693   (1856) ; 


7  Com.  V.  Somervllle,  1  Va.  Caa.  163 ;  5  Am.      SUte  v.  Painter,  67  Mo.  U  (iS77). 


»m'- 


872  CRIMES   AGAINST   THE   PEUSONS   OF   INDIVIDUALS. 

the  person  assaulted;  an  intent  to  torture  merely,  or  to  give  pain,  is    not 

enough. 1 

Where  a  person  aiming  at  A.  misses  him  and  wounds  B.,  he  can  not  be  con- 
victed of  assault  with  intent  to  kill  B.* 

In  State  v.  Sluanaker,''  the  prisoner  was  indicted  for  an  assault  and  battery 
comiultted  by  the  prWoner  on  James  Brown  with  intent  to  Itlll  him.    On  the 
evening  of  tne  25th  of  August  preceding,  upon  the  arrival  of  the  train  on  the 
railroad  at  Claymont  Station,  Mr.  Brown  had  just  left  the  train  and  taken  his 
seat  in  his  carriage,  when  a  pistol  was  discharged  from  the  platform  of  one  of 
the  cars,  the  ball  from  which  hit  and  penetrated  the  right  side  of  his  face,  from 
which  it  was  afterwards  extracted,  but  inflicting  a  wound  which  was  at  one 
time  considered  to  be  dangerous  to  his  life.    There  were  some  twenty  persons 
on  the  platform  of  the  station  when  the  prisoner,  who  had  just  before  been  seen 
standing  with  another  young  man  on  the  platform  of  a  car  with  a  pistol  In  his 
hand,  apparently  examining  it  as  the  train  was  starting  and  had  partly  passed 
Mr.  Brown's  carriage,  suddenly  brought  his  arm  and  hand  with  the  pistol  in  it 
around  in  that  direction  and  discharged  it.    They  were  both  strangers  to  Mr. 
Brown,  and  were  on  their  journey  together  from  Philadelphia  to  Dover,  to  work 
at  their  trade  as  carpenters  for  a  person  who  had  employed  them  there.    The 
companion  ol  the  prisoner  was  the  owner  of  the  pistol,  and  in  packing  his  chest 
In  the  city  had  forgotten  it  until  it  was  too  late  to  be  packed,  and  on  leaving 
had  put  it  in  his  pocket,  and  had  informed  the  prisoner  of  it  about  the  time  thf 
train  reached  the  station,  and  told  him  he  did  not  like  to  be  carrying  a  pistol  in 
his  pocket,  when  the  latter  expressed  a  desire  to  see  it,  and  he  handed  it  to  him 
for  that  purpose,  as  they  went  out  on  the  platform  of  the  car.    He  further  tes- 
tified that  tlie  prisoner  was  examining  it  when  he  accidentally  and  unintention- 
ally discharged  it,  and  that  the  prisoner  did  not  know  that  it  was  loaded  uiiill 
it  went  off.    When  a  gentleman  on  the  train,  who  had  no  acquaintance  with  the 
prisoner,  went  to  him  soon  afterwards  and  told  him  that  it  was  rumored  on  Ihe 
train  that  a  man  had  been  shot  by  him,  he  replied  Insolently  to  him,  and  said 
11  he  had  done  it  he  did  not  know  that  it  was  any  of  his  business;  and  after  the 
train  had  reached  Wilmington,  when  he  replied  that  he  did  Arc  a  pistol  in  that 
direction,  but  if  any  one  said  he  fired  at  anybody,  or  tried  to  shoot  anybody, 
he  was  a  liar  and  he  would  whip  him,  although  he  was  not  a  fighting  man, 
They  were  followed  by  ofllcers  to  Dover  the  same  night,  and  were  arrested  to- 
gether In  the  same  bed.    They  both  said  to  the  officers  arresting  them  that  they 
bad  got  hold  of  the  wrong  parties,  and  when  asked  for  the  pistol  denied  that 
they  had  any,  but  on  turning  back  the  bed  clothes  and  pillows  they  found  one 
under  them.    The  prisoner  had  since  called  on  Mr.  Brown,  in  Philadelphia,  and 
said  that  he  was  the  man  who  did  it,  and  that  he  was  sorry  for  It. 

The  Deputy  Attorney-Generial,  asked  the  court  to  charge  the  jury  that 
if  they  were  satisfied  from  the  evidence  that  the  pistol  was  recklessly  dis- 
charged by  the  prisoner  into  the  crowd  ol  people  then  and  there  assembled, 
and  particularly  in  such  a  place,  regardless  of  Its  effects,  or  whom  he  might 
wound  or  kill,  it  was  a  case  of  malice  generally  against  all  of  them,  and  was 
sufficient  to  sustain  the  felonious  Intent  alleged  in  the  indictment  to  kill  the 
person  wounded  by  it,  although  he  might  have  been  an  entire  stranger  to  the 


1  United  States  v.  Riddle,  4  V^ash.  644. 
a  LAcefleld  v.  State,  34  Ark.  276  (1879). 


'  1  Houat.  Cr.  Cas.  02  (1858). 


NUIVIDUALS. 


ASSAULT  WITH    INTENT   TO   KILL. 


,  or  to  give  pain,  is   not 

nds  B.,  be  can  not  be  con- 

or  an  assault  and  battery 
ntunt  to  1(111  him.    Un  the 
arrival  of  tlie  train  on  the 
L-ft  the  train  and  tukuu  hit) 
otn  the  platform  of  one  of 
■ight  side  of  Ills  fact",  from 
wound  which  was  at  one 
were  some  twenty  persons 
>  liad  just  before  been  seen 
t  a  car  with  a  pistol  In  his 
ting  and  had  jiartly  passed 
1  hand  with  the  pistol  In  It 
were  both  strangers  to  Mr. 
ladelphla  to  Dover,  to  work 
mployed  them  there.    The 
3l,  and  In  packing  his  chest 
I  be  packed,  and  un  leaving 
3er  of  It  about  the  time  the 
e  to  be  carrying  a  pistol  in 
it,  and  he  handed  it  to  him 
jf  the  car.    He  further  tcs- 
jcldentally  and  unlntentlon- 
jow  that  it  was  loaded  uiiill 
id  no  acquaintance  with  the 
tliat  It  was  rumored  on  Ihe 
Insolently  to  him,  and  said 
his  busine<:s;  and  after  the 
it  lie  did  Are  a  pistol  In  that 
or  tried  to  shoot  anybody, 
he  was  not  a  fighting  man, 
light,  and  were  arrested  to- 
ers  arresting  them  that  they 
sd  for  the  pistol  denied  that 
I  and  pillows  they  found  one 
Brown,  In  Philadelphia,  and 
as  sorry  for  it. 
rt  to  charge  the  jury  that 
I  pistol  was  recklessly  dis- 
)  then  and  there  assembled, 
I  effects,  or  whom  he  might 
gainst  all  of  them,  and  was 
in  the  Indictment  to  kill  the 
len  an  entire  stranger  to  the 

t.  Cr.  Cas.  62  11858). 


prlsiiDer  at  the  time,  and  the  latter  might  have  had  no  Individual  or  actual 
iiiulice  against  him. 

Gurtlun,  for  the  prisoner.  The  felonious  Intent  to  kill  must  bo  proved  in  this, 
as  in  ivcry  other  case,  like  any  other  material  fact  In  It,  and  It  was  incumbent 
(  n  the  State  to  establish  it.  But  if  the  pistol  was  accidentally  or  unluteution- 
iilly  discharged  by  the  prisoner  on  the  occasion,  it  was  a  case  of  misadventure 
iu  contemplation  of  law,  and  would  be  a  good  defence  even  to  the  misde- 
nieaunr  or  the  assault  simply,  although  It  would  be  no  defence  In  such  a  case 
Id  a  civil  action  for  the  trespass. 

G  ii.riN,  C.  J.,  charged  the  jury,  that  If  they  were  satisfied  that  the  pistol 
was  flred  by  the  prisoner  unintentionally  and  by  accident  merely,  however 
imprudent  or  Improper  It  may  have  been  for  him  to  be  handling  It  or 
examining  It  loaded  In  such  a  place  and  at  such  a  time,  he  ought  not  to  be  con- 
victed of  either  the  misdemeanor  or  the  felonious  Intention  alleged  In  the 
indictment.  But  If,  on  tlio  contrary,  they  were  satisfied  by  the  proof  that  he 
discharged  It  Intentionally  and  wantonly  and  recklessly  Into  the  crowd  of  per- 
sons assembled  about  the  place  at  the  time,  or  In  the  direction  of  the  carriag« 
of  the  prosecuting  witness,  indifferent  as  to  whom  he  might  shoot,  or  what  the 
mischief  or  Injury  might  be,  or  where  or  on  whom  it  might  fall,  such  conduct 
would  manifest  such  a  wicked  and  depraved  Inclination  and  disposition  on  his 
part,  that  it  might  well  be  presumed  by  tliem  that  he  intended  at  the  time  to 
shoot  some  one,  upon  the  principle  that  every  one  is  presumed  to  intend  the 
probable  consequence  of  bis  own  act;  and  if  that  was  so  in  the  opinion  and 
belief  of  the  jury,  the  prisoner  was  guilty  at  least  of  the  assault  alleged  in  the 
indictment.  But  the  felonious  intention  alleged  in  it  to  kill  the  prosecuting 
witness,  Mr.  Brown,  was  not  a  matter  to  be  mode  out  by  Inference  or  presump- 
tion merely,  but  must  be  proved  like  any  other  fact  material  In  the  case,  in 
order  to  convict  blm  of  the  felony,  or  felonious  intention  alleged  in  it,  and  the 
point  had  been  several  times  so  ruled  and  decided  in  this  court.  It  was  com- 
petent under  the  statute,  however,  for  the  jury  to  convict  him  upon  the  Indict- 
ment of  the  misdemeanor  or  the  assault  merely.  But  as  to  the  felony  or  intent 
to  kill  the  prosecuting  witness,  it  would  have  been  a  very  different  case,  both 

in  law  and  fact,  if  he  bad  died  of  the  wound  within  a  year. 

Verdict,  not  guilty. 

§642.  Assault  With  Intent  to  Murder  —  BlementB  of  Crime.  — In 

this  charge  every  element  of  murder  must  be  present,  except  the  death  of  the 
assaulted  party,' and  there  must  be  an  intent  to  kili.^  Presenting  a  pistol, 
loaded  and  cocked,  within  shooting  distance  in  an  angry  manner,  do  not  per  sc 
constitute  an  assault  with  intent  to  murder.*  The  evidence  was  held  insuf- 
cientto  convict  in  the  following  cases:  Black  v.  State,*  State  v.  Ah  Eung,^ 
Joties  V.  State,"  Erring  v.  State.'' 

In  People  v.  iiree/er,^  the  court  said:  »'The  defendant  was  indicted  for  an 
assault  with  intent  to  murder  one  John  R.  Evans,  and  convicted  of  the  crime 
of  an  assault  with  a  deadly  weapon,  with  intent  to  do  great  bodily  harm. 
The  court  Instructed  the  jury  that  If  a  loaded  gun  was  presented  within  shoot- 
ing range  at  Wilson  or  Evans,  or  at  the  dog,  under  circumstances  not  justified 


1  Smith  V.  State,  62  Ga.  88. 

2  Hairston  v.  State.  61  Miss.  689. 

3  Morgan  v.  State,  33  Alii.  413  (18S9). 
<8Tex.  (App.)  329  (1880). 


<■  17  Nev.361  (1683). 
0  13  Tex.   (App.)  1  (1882). 
'  Hex.  (App.)  417  (1878). 
»  18  Oal.  636  (1861). 


874  CRIMES   AGAINST  THE   PERSONS   OF  INDIVIDUALS. 

by  the  law,  aart  under  circumstance*  showing  an  abandoned  ""d  ™aH?na 

heart  and   hat  the  gun  wa«  flred  off  and  Inflicted  a  dangen.us  wound  upon  th 

tnl  Evans,  then'the  crime  of  an  assault  with  a  deadly  ^oapon  w  th  Intej 

to  inflict  a  bodily  Injury  upon  the  witness  Evans,  has  been  proved;  »«    "  w«ul 

only  remain  for  them  to  Inquire  whether  or  not  the  defendant  was  guilty  of  th 

crime.    The  pertinency  of  this  charge,  as  we  gather  from  the  case,  was  show 

by  proofs  which  conduced  to  prove  that  Keeper  flred  a  Run  In  the  direction  < 

Wilson  ai'l  Evans  and  of  a  dog  near  them,  there  being  some  dispute  os  t 

whether  the  Intent  was  to  kill  or  wound  the  dog  or  these  men  or  one  of  then 

It  is  true  that  a  person  may  be  convicted  of  murder  or  of  an  assault,  thou 

no  specUlc  Intent  may  have  existed  to  commit  the  crime  of  murder  upon  tl 

person  charged.    The  familiar  Illustration  Is  that  of  a  man  shooting  at  oi 

person  and  killing  another.    In  these  cases,  the  general  malice  and  the  unla, 

fuTact  are  enough  to  constitute  the  offense.    No  doubt  exists  that  a  man  m. 

be  guilty  of  manslaughter  under  some  circumstances  by  his  mere  carelessnea 

But  this  rule  has  no  application  to  a  statutory  offense  like  that  of  which  tl 

defendant  was  convicted.    This  is  an  assault  with  a  deadly  weapon,  with  nte 

to  do  great  bodily  harm  to  another  person.    The  offense  Is  not  constituted 

any  part  by  the  battery  or  wounding,  but  Is  complete  by  the  assault  the  weap, 

and  the  lat.nt-as  If  A.  snaps  a  loaded  pistol  at  B.  within  striking  dlstan 

the  offense  would  be  no  more  under  this  clause  of  the  statute  It  the  shot  to 

effect.    It  could  scarcely  be  contended.  If  a  man  shot  at  another  s  dog 

chicken,  when  such  shooting  would  be  a  trespass  and  wholly  Illegal,  that 

trespasser  was  guilty  of  this  crime  of  assault  with  Intent,  etc.,  merely  from 

fact  the  owner  of  the  animal  was  near  by  and  within  range  ««  «'e  shot,  or  t 

shot  went  through  his  hat  or  clothes;  and  yet  the  reason  of  holding  thus 

that  case  Is  as  great  as  in  this.    So,  if  a  man  carelessly  handling  bricks  on  t 

roof  of  a  house  should  throw  them  Into  the  street  below,  though  he  might 

liable,  civilly  and  criminally,  for  injury  done  to  persons  thereby,  he  could  i 

be  guilty  of  the  statutory  offense  of  assault  with  Intent  to  kill.    The  words 

the  statute,  « with  intent  to  do  great  bodily  harm  to  a  person,'  i  are  not  mer 

formal,  but  they  are  substantial  -  they  constitute  the  very  gravamen  of  i 

offense;  and  the  statute,  like  all  other  penal  laws,  must  be  strictly  constru 

It  is  nothing  In  this  view  that  the  defendant  is  guilty  of  some  crime;  he  m 

be  guilty  of  the  very  crime  charged,  which  can  not  be  unless  the  element* 

the  crime,  as  defined  by  the  Legislature,  appear.    This  is  the  universal  r 

applicable  to  criminal  proceedings;  audit  is  as  plainly  supported  by  comn 

sense  as  by  technical  law.    We  can  not  make  the  proposition  plainer  by  ill 

-ration     If  the  defendant  is  convicted  under  this  charge  of  the  court,  it  wo 

seem  that  he  might  be  convicted  of  an  assault  upon  a  dog  with  a  deo 

weapon,  with  intent  to  do  a  great  bodily  Injury  to  a  man;  or  of  assaultlr 

man  with  a  deadly  weapon  with  intent  to  do  that  man  great  bodily  harm,  w 

he  had  no  such  Intention. 

«« We  know  nothing  of  the  facts  of  the  case,  and  intimate  no  opinion  as  to 

merits  of  the  controversy. 

Judgment  reversed  and  cause  remanded  for  a  new  trta 

§  642a    Assault  With  Intent  to  Murder -Assault  With  Intentto  Kill  No 
In  Peterson  v.  Stat^;  tse  prisoner  had  been  convicted  of  an  assault  with  in 


1  Woods  Dig.  335. 


»  13  Tex.  (App)i»l). 


.djtet^jteJQMSwiJttsateiti^^'' 


■>. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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2.2 


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Photographic 

Sdences 

Corporation 


23  WEST  MAIN  STMET 

WIBSTER.N.Y.  USSO 

(716)872-4503 


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Collection  de 
microfiches. 


Canadian  Institute  for  Historical  iViicroreproductions  /  Institut  Canadian  de  microreproductions  historiques 


^^B 


A8SAULT  WITH   INTENT   TO   MURDER. 


875 


to  kill.  On  the  trial,  tlie  court  iu  its  charge  to  the  jury,  when  explaining  the 
difference  between  an  assault  with  intent  to  murder,  and  an  aggravated  assault, 
used  this  language:  "The  offense,  if  any,  would  not  be  reduced  to  an  aggra- 
rated  assault,  if  you  believe  from  the  evidence  that  the  defendant  assaulted 
Sidilie  Acco  with  a  knife,  which  was  a  deadly  weapon,  with  intent  to  kill."  On 
appeal,  this  was  held  error,  the  Court  of  Appeal  saying:  "The  charge  of  the 
learned  judge,  as  a  whole,  was  a  very  able,  clear  and  exhaustive  embodiment 
of  tlie  law  of  the  dase,  but  we  are  of  the  opinion  that  the  extract  above  quoted 
is  erroneous;  and,  having  direct  reference  to  a  most  material  issue  in  the  case, 
it  would  be  most  likely  to  mislead  the  jury  to  the  injury  of  the  defendant's 
riglits.  The  error  in  the  paragraph  quoted  is  *his,— it  concludes  with  the 
word  kill  instead  of  the  word  murder.  The  defendant  may  have  assaulted 
Siddle  Acjo  with  a  knife  — a  deadly  weapon  — and  with  Intent  to  kill  him,  and 
yet  under  circumstances  which  would,  in  case  the  death  of  Acco  had  ensued 
from  the  assault,  have  reduced  the  homicide  to  mpnslaughter.  There  exists  an 
intention  to  kill  In  manslaughter,  and  therefore,  notwithstanding  the  assault  in 
this  case  may  have  been  made  with  the  intent  to  kill,  that  would  not  necessarily 
make  It  an  assault  with  intent  to  murder.  The  Intent  to  kill  may  have  existed 
without  malice,  and  malice  is  as  essential  In  the  offense  of  an  assault  with 
intent  to  murder  as  It  is  in  murder  itself.  It  is  clear,  therefore,  that,  although 
the  jury  might  have  believed  from  the  evidence  that  the  assault  was  made  with 
a  deadly  weapon,  and  with  intent  to  kill,  they  might  still  very  properly  acquit 
tlie  defendant  of  the  charge  of  assault  with  Intent  to  murder  and  find  her  guilty 
of  an  aggravated  assault,  provided  the  evidence  did  not  satisfy  their  minds, 
beyond  a  reasonable  doubc,  that  the  homicide.  If  accomplished,  would  have 
))een  murder.  But  the  charge  referred  to  instructs  them  plainly  and  positively 
to  the  contrary,  and  while  we  do  not  doubt  but  that  it  was  an  accidental  mistake 
iathe  otherwise  model  charge  of  the  learned  judge,  we  think  it  was  a  most  vital 
one  to  the  defendant,  and  one  which  demands  a  reversal  of  the  judgment." 

§  643.  Assault  With  Intent  to  Murder— Mtist  t>e  Intent  to  Kill  Party 

I  Awaulted.  — An  Intent  to  kill  another  is  not  enough.    In  Barcus  v.  State,^  the 

court  said:  "At  the  last  term  of  the  Circuit  Court  of  Warren  County,  the 

plaintiff  In  error  was  Indicted,  tried  and  convicted  on  a  charge  of  shooting  at 

,  Sandy  Mitchell  with  Intent  to  kill.    From  the  judgment  against  him  the  accused 

prosecuted  a  writ  of  error,  and  asks  here  a  reversal  of  that  judgment  upon 

several  grounds  not  essential  to  repeat  or  discuss.    Upon  the  trial,  the  right  of 

tlie  city  police  to  arrest  vagrants,  without  warrant,  was  made  a  prominent 

point,  and  Is  again  pressed  in  the  argument  in  this  court,  but  we  do  not  think 

that  question  Involved  at  present.    There  is  a  fatal  error,  however,  in  this 

case,  and  it  is  this:   there  is  no  evidence  that  the  accused  shot  at  Sandy 

Mitcht'll.    The  proof  Is,  that  he  shot  at  Henry  Creighton,  and  according  to  his 

own  declarations  subsequent  to  the  shooting,  Intended  to  kill  him.    Upon  this 

I  point  there  is  no  conflict  in  the  evidence.    It  is  positive  and  uncontradicted, 

I  that  he  shot  at  Henry  Creighton,  accidentally  hitting  Sandy  Mitchell,  an  Inno- 

Icent  bystander.    The  verdict  Is  wholly  unsupported  by  the  evidence.    It  is 

I  true,  that  the  jury,  in  response  to  the  instruction  for  the  State  have  found,  in 

I  substance,  that  the  accused  shot  at  Sandy  Mitchell  with  the  intent  to  kill  and 

I  murder  him ;  but  the  verdict  must  have  been  through  some  misapprehension  of 


49  Mias.  IT. 


876 


CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 


law  or  fact.  There  Is  no  doubt  of  the  rule,  that  a  man  shall  be  presumed  to 
intend  that  which  he  does,  or  which  is  the  natural  and  necessary  consequence 
of  his  act;  and  that  malice,  in  this  class  of  cases,  may  be  presumed  from  the 
character  of  the  weapon  used.  If  the  ev  Idence  in  the  case  at  bar  was  limited 
to  the  mere  fact  of  shooting  and  the  striking  of  Mitchell  as  the  result  of  the 
shot,  or  if  the  evidence  as  to  the  person  intended  to  be  killed  was  conflictinii, 
we  might  accept  the  v  --rdict  as  conclusive;  but  the  record  before  us  leaves  no 
question  or  doubt.  Indeed,  it  is  conclusive  that  Creighton  and  not  Mitchell 
was  the  person  aimed  at  and  designed  to  be  hit.  To  sustain  the  indictment  in 
this  case,  it  was  incumbent  on  the  part  of  the  State  to  prove  that  the  accused 
shot  at  and  intended  to  kill  Mitchell,  whereas  the  proof  is  that  he  shot  at 
Creighton  with  the  intent  to  kill  him.  The  essential  averments  of  the  indict- 
ment are,  therefore,  not  only  not  sustained,  but  absolutely  negatived.  It  fol- 
lows  that  the  indictment  should  have  charged  the  shooting  to  have  been  at 
Creighton,  and  the  result  is,  the  judgment  must  be  reversed  and  the  indictment 
quashed,  but  the  accused  can  not  be  set  at  liberty.  He  will  be  detained  in 
custody  to  await  a  trial  under  another  indictment,  to  be  drawn  as  herein  indi- 
cated." 

I  (J44.  Assault  with  Intent  to   Murder  —  Spring  Guns.  — One  who 

plants  spring  guns  with  a  general  intent  to  kill  trespassers,  and  wounds  one 
can  not  be  convicted  of  assault  with  intent  to  murder .» 

§  645.  Assault  with  Intent  to  Commit  Manslaughter.  —  There  appears  to 
be  no  such  offense  as  this.'' 

§  646 .  Assault  with  Intent  to  Rob — Subseauent  Common  Assault.  — 

In  B.  v.  Satulyi>,^  the  prisoner  and  another  were  indicted  for  feloniously  as- 
saulting the  prosecutor  with  intent  to  rob  him. 

It  appeared  that  the  prisoners  had  met  the  prosecutor  upon  the  road,  and  as 
it  seemed,  for  a  frolic,  demanded  his  money  or  his  life.  The  prosecutor  recog- 
nlzed  them,  and  some  words  passed,  and  the  prisoners  offered  a  shilling  to 
make  it  up.  They  tried  to  thrust  the  shilling  into  the  prosecutor's  hand,  and  in 
doing  so  it  fell  to  the  ground ;  they  then  insisted  on  his  getting  off  his  horse  to 
pick  it  up.  He  complied,  then  they  struck  hlra  three  times  against  his  horse, 
and  gave  hlra  a  black  eye.  One  of  the  prisoners  was  drunk,  the  other  was  not. 
On  these  facts  being  proved,  Wightman,  J.,  suggested  that  the  transaction  was 
more  of  a  frolic  than  a  felony. 

Merivale,  for  the  prosecution,  admitted  this,  but  contended  that  the  prisoners 
miehi  be  convicted  of  a  common  assault. 

Cornish,  for  the  prisoners,  contended  tliat  the  assault  proved,  being  subse- 
quentto  the  act  charged  as  felonious,  was  an  after  thought,  a  distinct  transac 
tion  and  in  no  way  connected  with  the  original  felony.  Assuming  that  there 
had  ever  been  a  felonious  intent,  it  had  ceased  before  the  assault  was  com- 
mitted.     Watkin'8  Case  *  and  Phelp's  Case^  were  cited. 

Wightman,  J.  (after  consulting  Patteson,  J.).  My  brother  Patteson  is 
clearly  of  opinion  with  me  that  assuming  that  the  assault  proved  was  not  com- 


1  Btmpson  V.  state,  69  Ala.  1  (1877). 
s  People  V.  LlUey,  aiUt,  p.  783. 
»  1  Cox,  8  (18U).    See  Robertson  v.  State, 
lOTex.  (App.)e4aaS81). 


<2Moo.C.  C. 
<>  Ibid. 


V1DUAL8. 


AGGRAVATED  ASSAULT DANGEROUS   WEAPON. 


877 


shall  be  presumed  to 
ecessary  consequence 
le  presumed  from  the 
use  at  bar  was  limited 
sll  as  the  result  of  the 
killed  y/Hs  confllctin;:, 
rd  before  us  leaves  no 
ton  and  not  Mitchell 
tain  the  indictment  in 
>rove  that  the  accused 
of  is  that  he  shot  at 
erments  of  the  indict- 
ely  negatived.  It  fol- 
oting  to  have  been  at 
led  and  the  indictment 
[e  will  be  detained  in 
drawn  as  herein  indi> 


ng  Guns.  —  One  who 
sers,  and  wounds  one 


r.  —  There  appears  to 


It  Oommon  Assault.  — 
:ed  for  feloniously  as- 

r  upon  the  road,  and  aB 
The  prosecutor  recog- 
s  offered  a  shilling  to 
08ecutor*8  hand,  and  in 
getting  off  his  horse  to 
mes  against  his  horse, 
ink,  the  other  was  not. 
that  the  transaction  was 

nded  that  the  prisoners 

It  proved,  being  subse- 
igbt,  a  distinct  transac 
',  Assuming  that  there 
e  the  assault  was  com- 
fy brother  Patteson  is 
nil  proved  was  not  com- 


mitted with  a  felonious  intent,  it  was  not  so  connected  with  the  original  trans- 
action as  to  be  the  subjec'  of  felony  under  this  indictment.  His  lordship  then 
directed  the  acquittal  of  the  prisoners. 

§  647.  Anrntvatea  Assault  — <' Child "—»' Decrepit  Person."— Under  the 
Texas  statute  an  assault  is  aggravated  when  made  by  an  "  adult"  on  a  child,  or 
a  "  decrepit  person."  But  "  child  "  is  not  synonymous  with  "  mlacr,"  i  and  a 
"decrepit  "  person  is  one  who  is  wholly  disabled  and  helpless.^  An  «« adult " 
means  a  person  twenty-one  years  old.* 

§  647a.  Aggravated  Assault  —  Intent  and  Act  Essential.  —Both  intent  and 
act  are  necessary  to  an  ag^^ravated  assault,  like  common  assault.*  In  Texas  an 
assault  or  battery  does  not  become  aggravated  by  being  committed  upon  a 
woman  by  another  woman.  Nor  is  a  man  necessarily  guilty  of  an  aggravated 
assault  and  battery,  simply  because  he  agrees  that  one  woman  may  commit  an 
assault  on  another,  whether  he  aids  her  or  not.' 

§  C48.  "Beating." — Pulling  a  man  to  the  ground  and  holding  him  while 

another  escapes  is  not  "beating"  him.* 

I  049.  "  Bodily  Injury  Dangerous  to  liife."  —  This  does  not  include  a 

mere  temporary  disease  resulting  from  exposure.' 

§  650.  "arlevoua  Bodily  Harm."  —The  fact  of  striking  a  man  with  tht 

fist  so  as  to  break  his  jaw  is  not  per  se  sufficient  to  show  an  intent  to  do  grievous 
bodily  harm.* 

§  661.  ««Wounding."  — To  constitute  a  "wounding"  the  skin  must  be 

broken.*  To  constitute  a  "  wounding  "  there  must  be  a  separation  of  the  whole 
skin ;  a  separation  of  the  cuticle  or  upper  skin  only  is  not  sufficient."  Breaking 
a  person's  collar  bone  and  bruising  him  with  a  hammer,  the  skin  not  being 
broken  is  not  a  "  wounding  "  withlnjthe  English  statute."  This  word  In  a  stat- 
ute means  a  wounding  with  some  instrument.  Therefore,  biting  off  the  end  of 
a  person's  nose,  or  a  joint  from  a  person's  finger  is  not  a  "  wounding."  12  A 
wound  Inflicted  by  a  party's  teeth  is  not  a  "  wounding;  "  it  must  be  done  with 
an  instrument.'^    Throwing  vitriol  In  a  person's  face  is  not  a  "  wounding."" 

§  652.  Dangerous  Weapon  —  "Deadly  Weapon."  — A  gun  or  pistol 

used  simply  to  strike  with  is  not  per  ae  a  "  deadly  weapon,"  »^  nor  is  a  police- 
man's club  a  "  dangerous  weapon."  i* 


1  MeOregor   v.  State,  4  Tex.  (App.)  790 
(18T8). 

2  Hall  V.  State,  16  Tex.  (App.)  6   (1881). 
»  Schenault   v.  State,  10   Tex.  App.  41 

(1S81) ;  Ueorge  v.  State,  11  Tex.  (App.)  S5 

(l!i81). 

*  Fondren  v.  State,  16  Tex.    (App.)   48 
(1384). 

''  ColquUt  V.  State,  34  Tex.  S50  (1870) 
«  R.  Hale,2  C.  &K.  327  (1846). 

•  R.  r.  Gray,  D.  A  B.  303  (18S7). 

>  R.  V.  Wheeler,  1  Cox,  106  (1844). 

»  R.  *.  Wood,  I  Moo.  278  (1830).    As   to 


what  is  not  a  "  woun'ling,"  see  R.  v.  Jones,  3 
Oox,  441  (1848). 

1°  R.  V.  MoLoaghlln,  8  C.  ft  P.  63S  (1838). 

11  R.  V.  Wood.  4  C.  4  P.  881  (1830). 

13  R.  V.  Harris,  7  C.  4  P.  446  (1836). 

13  R.  V.Jennings,  3  Lew.  ISO  (183S);  R.  v. 
Harris, /d.  131(1836). 

14  R.  V.  Hensball,  2  Lew.  133  (1834) ;  R.  v. 
Hurrow.t  Lew.  136  (1835) ;  1  Moo.  456  (1835). 

1>  Shadle  «.  State,  34  Tex.  573  (1S70).  As 
to  what  is  not  an  assault  with  a  deadly 
weapon,  ave  Tarpley  v.  People,  42  111.  340 

(1860). 

i>  Doering  v.  State,  49  ind.  W. 


878 


CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 


§  653.  oflenalve    Weapon.— A  common  whip  is  not  an   "offenaiTe 

weapon."  • 

<!  664.  Sharp,  Dan^erotiB  Weapon.  ~  A  blow  with  the  handle  of  a 

pitchlork,  used  like  a  club  is  not  an  assault  with  a  "  sharp,  dangerouH  weapon  " 
within  the  phrase  In  a  statute.*  A  "  sharp,  dangerous  weapon  "  must  be  both 
sharp  and  dangerous.^ 

665.  AssavUt  with  Violence  —  Snatchlngr  Bank-bill  from  Hand.  —  Snatch- 
ing  a  bank-bill  from  the  owner's  hand  and  thereby  touching  his  hand,  but  with 
no  Intention  of  injuring  or  touching  his  person,  Is  not  an  assault  with  force  and 
violence  under  the  Massachusett's  statute.* 

§  666.  Assault  —  Deterring  Persoa  from  aivlnff  Bvidence.  —  An  En- 
glish statute  made  it  a  felony  to  make  use  of  any  force  or  Inflict  any  assault  to 
deter  another  from  giving  evidence. 

In  an  Anonymous  Case,''  A.  while  detained  in  gaol  as  a  witness  against  certain 
persons  was  frequently  spoken  to  on  the  subject  by  B.  and  C,  called  a  spy  and 
Informer,  and  told  not  to  prosecute,  and  two  days  after  was  assaulted  and 
beaten  by  them,  no  illusion  being  made  to  the  subject  during  the  assault.  It 
was  held  that  this  was  not  within  the  statute. 

§  667.  Beatlnff  Person  to  Force  Confer     jn.  —  The  code  of  Alabama 

provides  that  "  all  persons  to  the  number  of  two  or  more  who  abuse,  whip  or 
beat  any  person  upon  any  accusation,  real  or  pretended,  or  to  force  such  person 
to  confess  himself  guilty  of  such  offense"  shall  be  punished.  In  construing 
this  statute  In  Underwood  v.  State,*  it  \a  said:  "To  make  out  the  offense  con- 
templated by  the  first  part  of  this  section  it  Is  essential  that  the  accusation 
should  be  the  moving  cause  of  the  abuse  or  violence.  The  term  •  accusation ' 
must  not  be  confounded  with  the  act  on  which  it  is  based.  It  means  something 
distinct  from  and  independent  of  it.  If  two  persons  were  to  bring  a  charge 
against  a  third,  and  beat  him  upon  provocation  of  the  act  complained  of,  that 
is  very  different  from  Infllxstlng  the  same  violence  upon  him,  not  from  the  pro- 
vocation of  the  act  Itself,  but  because  they  believed  him  guilty  of  the  accusation 
brought  against  him  for  the  commission  of  it.  The  one  Is  simply  an  act  of 
private  vengeance,  while  the  other  implies,  to  some  extent,  the  usurpation  of 
legal  authority  —  to  try  and  punish  upon  a  charge — what  is  commonly  called 
lynching.  In  the  present  case,  if  the  violenee  used  towards  the  prosecutor  was 
upon  the  provocation  that  the  son  of  one  of  the  parties  had  been  whipped  by 
him,  the  defendant  would  have  been  guilty  of  an  assault  and  battery,  but  not  of 
the  statutory  offense;  while  on  the  other  hand,  If  the  accusation  was  the  cause, 
then  a  conviction  on  the  Indictment  would  have  been  proper.  The  charge  of 
the  court  was  erroneous,  for  the  reason  that  it  did  not  observe  the  distinction 
we  have  noticed. 

"Judgment  reversed  and  cause  remanded." 


1  B.  V.  Fletcher,  1  Cash.  37  (1748). 
t  FUkins  V.  People,  69  N.  Y.  101  (1877). 
•  People  V.  Hiekey,  11  Hun,  631    (1877) ; 
People  V.  Oavanagh,  63  How.  Pr.  187  (1881). 


«  Com,  V.  Ordway,  13  Ouib.  370  (18S3). 
>  3  Cox,  187(1818). 
•  2R  Ala.  70  (1864). 


i 


^^m 


IDCALS. 

not  an   "offennive 


1th  the  handle  of  a 
dangeroufl  weapon  '* 
jon  "  must  be  both 


FALSE   IMPRISONMENT. 


87^ 


§  fi68.  False  Imprisonment— Restraint  Must  be  Against  Will.  — To  con- 
stitute false  imprisonment  it  is  necessary  that  the  restraint  was  against  t&e 
party's  will.    If  he  consent  to  It,  even  through  fraud,  it  is  not  a  crime.' 

< 

§  659.  False  Imprisonment  —  Delay  in  Taking  Ball. —An  unavoidable 
delay  of  a  magistrate  in  taking  ball  for  a  prisoner  is  not  a  false  imprison- 
ment.* 


om  Hand.  —  Snatch- 
ig  his  hand,  but  with 
ssault  with  force  and 


I  state  V.  Lanitord,  81  K.  C.  628  (1879). 
Evidence  held  imuffleient  to  snstain  con- 
Tiotion  in  Boyd  v.  State,  11  Tez.  (App.)  80 
(1881). 


*  Beville  V.  State,  16  Tex.  (App.)  70 
(1884) ;  CarglU  v.  State,  8  Tex.  (App.)  431 
(1860). 


Bvldence.  —  An  En- 
inflict  any  assault  to 

ttness  against  certain 
1 C,  called  a  spy  and 
r  was  assaulted  and 
uring  the  assault.    It 


rhe  code  of  Alabama 
B  who  abuse,  whip  or 
r  to  force  such  person 
Ished.    In  construing 

out  the  offense  cou- 
1  that  the  accusatiou 
he  term  '  accusation  * 

It  means  something 
'ere  to  bring  a  charge 
:t  complained  of ,  that 
ilm,  not  from  the  pro- 
ulltyof  the  accusation 
le  is  simply  an  act  of 
snt,  the  usurpation  of 
It  is  commonly  called 
ds  the  prosecutor  was 
had  been  whipped  by 
ind  battery,  but  not  of 
isationwas  the  cause, 
iroper.  The  charge  of 
•bserve  the  distinction 

nd  cause  remanded.** 


ly,  13  OuBb.  270(1803). 

8). 

I). 


880 


CRIMES  AGAINST  THE  PEB30NS  OF  INDIVIDUALS. 


Part  III. 
RAPE, 


RAPE— FORCE  AND  VIOLENCE  ESSENTIAL. 
McNair  v.  State. 

[53  Ala.  463.] 
In  the  Supreme  Court  of  Alabama,  1875. 

Voroe  la  an  Essential  Ingredient  In  the  crime  of  rape,  and  a  charge  that  it  the  defend- 
ant intended  "  to  gratify  his  passion  upon  the  person  of  the  femaie,  cither  by  force  or  by 
■urprise,  and  against  her  consent,  then  he  is  guilty  as  charged,"  i^  erroneous. 

Manning,  J.  In  Lewis  v.  State,^  decided  in  1867,  a  prosecution  of 
a  negro  slave  for  rape,  or  attempting  to  commit  rape,  by  personating 
the  Iiusband  of  a  married  wliite  woman,  and  so  effecting,  or  endearor- 
ing  to  effect,  illicit  sexual  intercourse  with  Iier,  this  court 'said:  — 

"It  is  settled  by  a  chain  of  adjudications,  too  long  and  unbroken 
to  be  now  shaken,  that  force  is  a  necessary  ingredient  in  the  crime  of 
rape. 

"The only  relaxation  of  this  rule  is,  that  this  force  may  be  construc- 
tive. 

"Under  this  relaxation  it  has  been  held,  that  where  the  femalii  was 
an  idiot,  or  had  been  rendered  insensible  by  the  use  of  drugs  or  intcd- 
cating  drinks,  *  *  *  she  was  incapable  of  consenting,  and  the 
law  implied  force ;  "  in  support  of  which  propositions  authorities  were 
cited.  And  it  was  further  held,  that  where  the  sexual  intercourse  was  had 
with  the  consent  of  tlie  woman,  "  although  that  consent  was  procured  by 
fraudulent  personation  of  her  husband,  there  was  neither  actual  nor 
constructive  force,  and  such  act  does  n^t  amount  to  the  crime  of 
rape." 

It  is  not  easy  to  conceive  of  a  case  in  which  an  act  of  this  sort 
could  be  more  properly  said  to  have  been  accomplished  by"  surprise." 

Yet  it  was  decided,  as  we  have  seen,  that  it  would  not  amount  to  a 
rape,  and  further,  that  if  unsuccessful,  the  offender  would  not  be  guilty 
of  an  attempt  to  commit  rape,  if  he  did  not  intend  to  overpower  the 
woman  by  force,  if  necessary.  (This  decision  led  to  enactments  to 
meet  such  a  case. ) 


A1S.M. 


"  -^ 


IVIDUAL8. 


M'NAIR   V.  STATE. 


881 


NTIAL. 


875. 

charge  that  it  the  defend- 
male,  cither  by  force  or  hj 
d,"  ij  erroneoas. 

!67,  a  prosecution  of 
rape,  by  personating 
fecting,  or  endearor- 
!8  court 'said:  — 
long  and  unbroken 
dient  in  the  crime  of 

rce  may  be  construc- 

rhere  the  female  was 
e  of  drugs  or  intOTi- 
consenting,  and  the 
ions  authorities  were 
il  intercourse  was  had 
sent  was  procured  by 
3  neither  actual  nor 
int  to  the  crime  of 

I  an  act  of  this  sort 
ished  by"  surprise." 
mid  not  amount  to  a 
r  would  not  be  guilty 
end  to  overpower  the 
led  to  enactments  to 


The  offender,  in  the  case  before  us,  was  a  youth  fourteen  and  one- 
liftlf  years  old  the  female  was  a  girl  of  about  the  same  age.  She  was 
in  bed  in  the  same  room  in  which  three  or  four  of  her  sisters  were  also 
sleeping.  Defendant,  through  a  window  that  was  nailed  up,  broke  into 
and  entered  the  room,  about  two  hours  after  midnight.  Being  aroused 
by  his  jarring  against  her  bed,  and  her  foot  being  brought  into  con- 
fact  with  his  naked  person,  she  screamed  and  alarmed  the  household, 
and  he  escaped  through  the  window.  The  indictment  against  him  was 
for  breaking  into  and  entering  a  dwelling  house  with  intent  to  commit 
rape,  and  (in  a  separate  count)  with  intent  to  commit  a  felony.  The 
breaking  into  and  entering  were  clearly  proved,  and  the  court  charged 
the  jury,  among  other  things,  that  if  this  was  done  "with  the  intent 
u[)on  his  part  to  gratify  his  passion  upon  the  person  of  the  female, 
either  by  force  or  by  surprise,  and  against  her  consent,  then  he  is  guilty 
as  charged  "  in  the  count  alleging  the  intent  to  commit  a  rape. 

According  to  the  reasoning  in  Lewis  v.  State,  it  can  not  be  main- 
tained that  this  charge  was  correct.  It  plainly  implies  that  the  crime 
of  rape  may  be  committed  without  force,  either  actual  or  constructive ; 
whereas,  not  only  has  it  always  been  held  that  there  must  be  force,  but 
the  short  forms  of  indictment,  in  which  nothing  is  contained  that  was 
not  held  to  be  essential,  prescribed  by  the  code  of  this  State  for  that 
crime,  and  the  assault  with  intent  to  commit  it,  expressly  use  the  word 
forcibly,  as  neccessary  in  describing  those  offenses.* 

The  very  question  presented  by  this  record  has  been  decided  in  other 
States,  in  cases  of  greater  aggravation,  and  in  which  the  parties  ac- 
cused were  negroes,  and  the  females  white  persons.  In  Charles  v. 
State,'^  the  testimony  of  the  principal  witness,  a  Miss  Combs,  was : 
"That  about  four  o'clock  in  the  morning,  she  was  lying  asleep  with 
four  other  little  girls,  she  was  awoke  by  some  one  who  took  hold  of  her 
by  the  shoulders,  and  tried  to  turn  her  over ;  that  she  was  lying  with 
her  face  toward  the  other  girls ;  that  he  made  an  effort  to  get  over  her ; 
tiiat  she  threw  out  her  hand,  and  discovered  the  person  to  be  a  man  and 
partly  undressed ;  that  she  then  raised  the  alarm,  and  called  for  help," 
etc. 

The  judge  who  delivered  the  opinion  of  the  court,  says:  "In  the 
case  of  Hex  v.  Williams,'^  it  was  held  that  in  order  to  find  a  prisoner 
guilty  of  an  assault  with  intent  to  committrape,  the  jury  must  be  sat- 
isfied that  the  prisoner,  when  he  laid  hold  of  the  prosecutrix,  not  only 
desired  to  gratify  his  passion  upon  her  person,  but  that  he  intended  to 
do  so  at  all  events,  and  notwithstanding  any  resistance  on  her  part.  In 
the  case  of  Commonwealth  v.  Fields,*  a  free  negro,  which  was  an  in- 


1  R.  C.  808, 809,  forms  Nos.  7  and  IS. 
0  6  Eng.  Ark.  3(». 
8  Defrnces. 


66 


»  33  Eng.  Com.  I.  R.  BM. 
«4Loigh,648. 


882  CRIMES  AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

dictment  for  an  attempt  to  ravish  a  white  woman,  the  jury  found  a 
special  verdict  — that  the  prisoner  did  not  Intend  to  have  carnal  knowl- 
ed<re  of  the  female,  as  charged  in  the  indictment,  by  force,  but  that  he 
intended  to  have  such  ca.nal  knowledge  of  her  when  she  was  asleep, 
and  made  the  attempt,"  etc.,  "  but  used  no  force  except  such  as  wns 
incident  to  getting  in  bed  with  her,  and  stripping  up  her  night-garment 
in  which  she  was  sleeping,  which  caused  her  to  awake.     Upon  that  state 
of  facts  the  General  Court  of  Virginia  was  of  opinion  that  ho  ought  to 
have  been  acquitted."     Aud  upon  these  authorities  the  Supreme  Courtot 
Arkansas  held  that  the  negro  Charles  could  not,  upon  the  facts  in  the  case 
before  them,  be  found  guilty  of  an  Msault  with  intent  to  commit  rape. 
The  same  court,  in  a  subsequent  case»  of  a  very  aggravated  assault 
by  a  slave  upon  a  white  woman,  referring  to  the  case  of  Charles  v.  State, 
and  commenting  on  the  nature  of  the  crime  say:  "  The  better  autlior- 
ity  would  seem  to  be,  that  if  the  man  accomplish  his  purpose  by  fraud, 
as  where  the  woman  supposed  he  is  her  husband,  or  obtained  possession 
of  her  person  by  surprise,  without  intending  to  use  force,  it  is  not  rape, 
because  one  of  the  essential  ingredients  of  this  offense  is  wanting.    So, 
where  force  is  used,  but  the  assailant  desists  upon  resistance  being 
made  by  the  woman,  and  not  because  of  an  interruption,  it  can  not  be 
said  that  it  was  his  intention  to  commit  rape." 

The  char<re  of  the  court  in  the  case  now  before  us,  was  not  in  conso- 
nance with^the  almost  uniform  current  of  decisions  in  respect  to  the 
using  or  purpose  to  use  force  by  the  accused,  in  accomplishing  the 
gratification  of  his  passion  in  such  a  case,  and  was,  therefore,  erroneous. 
The  judgment  is  reversed,  and  the  cause  remanded,  but  the  prisoner 
must  remain  in  custody  until  discharged  by  due  course  of  law. 


BAPE- FORCE  AND    VIOLENCE    ESSENTIAL  -  ACTS   AND    DEVICES 

not  enough. 
People  v.  Royal. 

[68  Cal.  63.] 
In  the  Supreme  Court  of  California^  1878. 

Voro*  1.  lto.eiitt»l  to  the  crime  of  rape,  and  acts  and  derices  without  violence  by  which 

Te  morlU  Mture  ot  the  woman  U  corrupted,  and  .he  can  not  reeUt.  will  not  take  iU 

place. 

Appeal  from  the  County  Court  of  Sonoma  County. 

The  defendant  was  tried  for  the  crime  of  rape,  committed  upon  the 


I  Pleasant  v.  State,  II  Ark.  360. 


'■  $upra. 


DlVinUALS. 

»n,  the  jury  found  a 
to  have  carnal  knowl- 
by  force,  but  that  be 
when  she  waa  asleep, 
e  except  such  as  was 
up  her  night-garment 
ike.     Upon  thnt  state 
inion  that  ho  ought  to 
I  the  Supreme  Court  ot 
an  the  facts  in  the  case 
ntent  to  commit  rape, 
ry  aggravated  assault 
le  of  Charles  v.  State,^ 
♦'  The  better  author- 
his  purpose  by  fraud, 
or  obtained  possession 
36  force,  it  is  not  rape, 
fense  is  wanting.    So, 
[ipon  resistance  being 
rruption,  it  can  not  be 

}  us,  was  not  In  conso- 
ions  in  respect  to  the 
in  accomplishing  the 
},  therefore,  erroneous, 
nded,  but  the  prisoner 
course  of  law. 


.ACTS  AND  DEVICES 


PEOPLE  V.   ROTAL. 


883 


o,  1878. 

•8  withont  Tlolenoa  by  which 
tn  not  resiit,  will  not  take  iU 


»unty. 

le,  committed  upon  the 


person  of  a  girl  sixteen  years  of  age.  He  was  a  practicing  physician 
at  Santa  Rosa,  and  the  girl  was  in  the  habit  of  visiting  his  wife.  On 
one  occasion,  at  about  six  o'clock  in  the  evening,  the  defendant  drove 
up  bis  bugfry  to  the  bouse  where  the  girl  was  living,  and  invited  her  to 
go  home  with  him.  She  assented,  and  during  tiie  drive  the  defendant 
practiced  the  "manipulation"  mentioned  in  the  opinion.  Upon  ap- 
proaching his  office,  which  was  furnished  with  locks  and  lounges,  he 
ceased  the  manipulation,  assisted  the  girl  to  alight,  and  accompanied 
her  npstairs  in  to  his  office,  where  he  bad  carnal  intercourse  with  her. 
There  was  no  evidence  of  force,  but  the  girl  testified  that  the  defend- 
ant's lewd  conduct  during  the  drive  made  her  feel  so  dull  and  stupid  as 
to  be  unconscious  of  the  nature  of  tlie  act  of  carnal  intercourse. 

The  defendant  was  found  guilty  of  rape,  and  sentenced  to  fifteen 
years'  imprisonment.  He  moved  for  a  new  trial,  which  was  denied,  and 
he  appealed.    The  other  facts  are  stated  in  the  opinion. 

J.  B.  Southard,  E.  D.  Haw,  and  J.  T.  Campbell,  for  appellant,  argued 
that  force  is  a  necessary  element  of  the  crime  of  rape,  and  that  the  evi- 
dence of  solicitation  was  inadmissible. 

Barclay  Henley,  and  W.  E.  Turner,  fo.  ihe  People,  argued  that  the 
mental  condition  of  the  girl  was  the  most  important  element  in  deter- 
mining the  criminal  character  of  the  defendant's  acts ;  and  as  his  man- 
ipulation wag  such  as  to  overcome  her  power  of  resistance,  he  was  as 
much  guilty  of  rape  as  if  ho  had  overcome  her  by  force. 

By  the  Court.  Against  the  objection  of  the  defendant  the  witness 
Smith  was  permitted  to  testify  that  in  his  opinion  as  a  medical  man  the 
"  manipulation  "  of  the  person  of  the  prosecutrix  on  the  same  d»y  while 
driving  oii  the  public  road  between  Healdsburg  and  Santa  Rosa,  and  be- 
fore she  accompanied  defendant  to  his  office,  may  have  weakened  her  ca- 
pacity to  resist  when  the  alleged  rape  was  committed.  The  effect  of  such 
"manipulation"  upon  females,  as  explained  by  the  witness,  is  ordi- 
narily "to  excite  their  passions  to  such  an  extent  as  to  influence  their 
judgment  and  mental  condition."  The  expert  adds:  "If  it  excited 
no  pussion  or  gave  no  pleasure,  it  might  affect  the  intellect  or  might 
not  —  might  make  some  angry  and  might  frighten  others.  Supposing  it 
excites  no  passion  at  all  and  no  pleasurable  emotion,  it  might  have  the 
effect  to  bewilder  her." 

The  foregoing,  and  more  of  the  same  kind  of  testimony  appearing  in 
the  record,  was  inadmissible.  The  common-law  judges  recognized  no 
such  refinement,  but  referred  all  improper  caresses  and  indecent  liber- 
ties to  the  head  of  solicitation.  The  homely  sense  of  our  ancestors 
distinguished  without  difficulty  between  the  force  which  constitutes  rape 
and  the  blandishments  of  the  seducer. 

If  such  testimony  was  admissible  at  all,  the  jury  were  authorized  to 


884  CniME8   AQAINaT  THE   PERSONS   OF   INDIVIDUALS. 

regard  it  as  evidence  whicli  made  less  resistance  sufflolent  than  woul<l 
in  tlieir  opinion  Imve  been  sufficient,  but  for  the  testimony  in  re8i)ect  of 
the  effect  of  tlie  alleged  manipulation.  TluU  tlie  evidence  may  have 
influenced  the  verdict  can  not  l>e  disputed,  and  the  rule  requires  of  us 
to  reverse  a  judgment  when  improper  evidence  haa  been  admitted,  un- 
less it  clearly  appears  that  the  evidence  erroneously  admitted  could  not 
have  had  any  effect  on  the  action  of  tlie  jury. 

Tliat  the  testimony  of  the  medical  witness  did  influence  the  verdict 
is  made  to  appear  the  more  distinctly  by  the  charge  o'/  the  court.     Por- 
tions of  the  charge  suggest  to  the  jury  the  theory -or  at  least  possi- 
bility —that  the  will  of  tiie  prosecutrix  and  her  capacity  of  resistance 
mMxt  have  been  destroved  by  some  occuh  influence  proceeding  from 
defendant,  that  her  mind  might  have  been  "  bewildered  "  or  indeed 
••paralyzed  "  by  some  mysterious  agency,  entirely  disconnected  from 
any  physical  violence  or  threat  of  violence.     There  is  no  pretense  that 
any  drug  or  noxious  substance  was  employed  to  render  the  prosecutrix 
unconscious,  or  to  produce  unsoundness  of  mind.     The  portions  of  the 
charge  of  the  court  referred  to  if  they  had  application  to  any  part  of 
the  evidence,.could  only  have  been  understood  by  the  jury  as  having 
application  to  such  testimony  as  that  given  by  the  witness  Smith ;  and 
as  an  instruction  that  the  law  demands  less  resistance  on  the  part  of 
the  female,  when  erotic  passion  has  been  aroused  by  the  solicitation  of 
a  suitor,  accompanied  by  improper  familiarities,  at  a  period  when  the 
amatory  passion  is  supposed  to  be  peculiarly  active,  than  when  no  such 
ardent  appeal  or  manipulation  has  preceded  the  alleged  illicit  inter- 
course > 
For  example,  amongst  other  matters  the  court  charged :  — 
«'  If  from  all  the  evidence  you  are  satisfied  that,  on  or  about  the 
time  alleged,  the  defendant,  by  manipulation,  art  or  device,  or  by  other 
means,  so  bewildered  or  overpowered  the  mind  and  will  of  this  girl  as 
to  render  her  at  the  time  unconscious  of  the  nature  of  the  act  of  carnal 
intercourse,  or  powerless  to  resist  it,  and  under  these  circumstances 
he  had  carpal  intercourse  with  her,  he  is  guilty  of  rape." 

Such  language  conveys  the  notion  distinctly  that  seduction  may  be 
rape;  that 'the  employment  of  any  art  or  device  by  which  the  moral 
nature  of  a  female  is  corrupted,  so  that  she  is  no  longer  able  to  resist 
the  temptation  to  yield  to  sexual  desire,  will  render  sufficient  less  proof 
of  resistance  than  would  otherwise  be  necessary ;  that  consent  thus  ob- 
tained is  no  consent.  The  proposition  entirely  overthrows  the  estab- 
lished law  in  respect  to  the  offense  with  which  the  defendant  is  charged. 
Judgment  and  order  reversed,  and  cause  remanded  for  a  new  trial. 


1^^ 


IVIDUALS. 

iiffloient  than  would 
timony  in  re8|)cct  of 
evUlcMiee  may  have 
)  rule  roquires  of  us 
\,  been  admitted,  un- 
f  admitted  could  not 

influenca  the  verdict 
s  o'i  the  court.  Por- 
—  or  at  least  poBul- 
ipacity  of  resistance 
lice  proceeding  from 
vildered  "  or  indeed 
y  disconnected  from 
•e  is  no  pretense  that 
inder  the  prosecutrix 

The  portions  of  the 
cation  to  any  part  of 
y  the  jury  as  having 
s  witness  Smith ;  and 
stance  on  the  part  of 
by  the  solicitation  of 
it  a  period  when  the 
e,  than  when  no  such 

alleged  illicit  inter- 

harged :  — 
»at,  on  or  about  the 
or  device,  or  by  other 
[id  will  of  this  girl  as 
e  of  the  act  of  carnal 
these  circumstances 
[  rape." 

lat  seduction  may  be 
e  by  which  the  moral 
1  longer  able  to  resist 
jr  sufficient  less  proof 
that  consent  thus  ob- 
overthrows  the  estab- 
defendant  is  charged. 
wded  for  a  new  trial. 


DAWKIN8  V.  STATE.  885 

RAPE  — WIIAT  IS  "ABUSE"  OF  CHILD  UNDER  TEN. 

Dawkins  V.  State. 

[58  Ala.  870;  20  Am.  Rep.  754.] 

i 

In  the  Sttvreme  Court  of  Alabama,  1877.  ' 

la  a  Statute  FanUhlnv  cnrnal  knowledge  or  "abu»e"  Id  an  attempt  to  have  carnal 
knowluilgo,  of  a  tunmlo  child  under  ton  ycari  of  age,  the  word  "  iibuae  "  applies  only  to 
injurloii  to  tho  gonltiil  organs  In  nn  unHueceBBful  attempt  at  rane,  and  doea  not  Include 
mere  forcible  or  wrongful  lll-naage. 

Indictment  for  having  carnal  knowledge  of  «'or  abuse  In  the 
attempt  to  carnally  know,"  a  female  child  under  ten  years,  of  age. 
There  was  no  evidence  of  carnal  knowledge.  Tlie  court  chargtil  that 
"the  word  'abuse  '  was  not  synonymous  with  tho  word  '  injure,'  but 
meant  to  '  forciby  use  wrongfully.'  "  The  defendant  <',  n  asked  the 
court  to  charge  the  jury  that  "  if  the  evidence  failed  to  show  that  t)au 
defendant  ?  jin  d  Cora  Blankshear  in  the  attempt  to  have  :  imal 
knowledge  of  her  by  bruising,  cutting,  lacerating,  or  teariug  iaoron 
some  jtart  of  her  person,  the  defendant  could  not  be  convicted  of  the 
offense  charged  in  the  indictment,"  which  charge  the  court  refused. 
The  defendant  was  convicted. 

W.  D.  Roberts,  for  appellant. 

J.  W.  A.  Sanford,  Attorney-General,  contra. 

Brickell,  C.  J.  The  indictment  in  the  form  prescribed  charges 
that  the  defendant,  "  did  carnally  know  or  abuse  in  the  attempt  to  car- 
nally know  "  a  female  child  under  the  age  of  ten  years.  It  is  founded 
on  the  statute,*  which  reads  as  follows:  "Any  person  who  has  carnal 
knowledge  of  any  female  under  the  age  of  ten  years,  or  abuses  such 
female  in  the  attempt  to  have  carnal  knowledge  of  her,  must,  on  con- 
viction, be  punished  at  the  discretion  of  tlie  jury,  either  by  death  or 
by  imprisonment  in  the  penitentiary  for  life,  or  by  hard  labor  for  the 
county  for  life."  The  Circuit  Court  was  of  opinion  and  so  instructed 
the  jury  that  the  word  abuse,  as  found  in  the  statute,  was  not  the  syn- 
onym of  injure,  but  signified  to  forcibly  use  wrongfully.  The  correct- 
ness of  the  instruction  is  the  only  matter  presented  for  consideration. 

Rape,  as  defined  by  Blackstone,  is  "  the  carnal  knowledge  of  a 
woman  forcibly  and  against  her  will. "  »  A  better  definition  Mr.  Bishop 
suggests  is,  "rape  is  the  having  of  unlawful  carnal  knowledge  by  a 
man  of  a  woman,  forcibly,  whereby  she  does  not  consent. "  3    A  distinct 


1  Code  of  18TC,  SCO.  4306. 

2  4  Black.  210. 


3  BUh.  on  Cr.  L.,  eec.  1115. 


886 


CRIMES   AGAINST   THE   PERSONS   OF    INDIVIDUALS. 


oflense,  though  punished  with  like  severity,  was  the  carnal  knowled( 
and  abuse  of  a  female  child  under  the  age  of  ten  years.  Force  ov€ 
coming  the  resistance  of  a  woman  if  she  was  not  an  idiot,  or  subdui 
by  fraud,  or  rendered  unconscious  by  the  administration  of  drug 
medicines,  or  intoxicating  drinks,  or  other  substances,  was  an  indi 
pensable  element  of  the  offense  of  rape.  The  consent  of  the  woma 
yielded  at  any  time  before  the  act  of  penetration  was  complete,  reliev 
the  offense  of  its  felonious  character.  Of  the  latter  offense,  the  carr 
abuse  of  female  childien  under  ten  years  of  age,  the  wrongful  act  i 
volved  all  the  force  which  was  a  necessary  element  of  the  crime,  ai 
the  consent  or  non-consent  of  the  child  was  immaterial.  The  Engli 
statute  of  18  Elizabeth,^  directed  against  the  offense  is  substantially 
follows :  ' '  That  if  any  person  shall  unlawfully  and  carnally  know  a; 
abuse  any  woman  child  under  the  age  of  ten  years,  every  such  unlawl 
and  carnal  knowledge  shall  be  felony,  and  the  offender  thereof  bei 
duly  convicted  shall  suffer  as  a  felon  without  allowance  of  clergy 
The  present  statute,*  employs  the  terms  "  carnally  know  and  abi 
anj'  girl  under  the  age  of  ten  years."  ^  In  this  country  statutes  hs 
be  enacted  in  nearly  all,  if  not  all,  of  the  States  punishing  the  oflei 
and  generally  describing  it  as  in  the  English  statute  by  the  won 
"unlawfully  and  carnally  know  and  abuse  any  woman  child  um 
the  age  of  ten  years."  Several  of  these  statutes  are  to  be  found 
2  Wharton's  American  Criminal  Law.^  It  is  perhaps  true,  as  suggesi 
by  Mr.  Bishop,  that  in  these  statutes  carnally  know  includes  in 
meaning  ail  that  is  signified  by  the  word  abuse. 

There  can  not  be  sexual  connection  between  a  male  capable 
committing  rape  and  a  female  child  under  ten  years  of  age  without 
jury  to  the  private  parts  of  the  child. ^  The  statutes  to  which  we  hi 
referred  are  directed  against  the  complete  offense  —  when  there 
something  more  than  mere  outward  contact  of  the  genital  organs 
something  which  may  be  called  penetration. ^  The  offense  then  inclui 
of  necessity  physical  injury  to  the  child  and  it  is  this  injury  the  U 
abuse  includes,  though  it  is  included  also  in  the  words  carnally  kn( 
Our  statute  differs  from  these  statutes  and  is  unlike  any  to  which 
have  access.  It  is  directed  not  only  against  the  offense  itself  wl 
complete,  but  against  attempts  to  commit  it,  if  in  the  attempt  thert 
abuse  of  the  child.  Without  any  contact  of  the  genital  organs,  w 
out  anything  which  may  be  called  penetration,  there  may  be  injurj 
the  child's  sexual  organs.  It  is  said  that  often  tlie  chief  injury  to 
child  results  from  the  use  of  the  fingers  of  the  male.     There  have  b 


1  ch.  7. 

«  34  and  '.'5  Vict.,  ch.  100,  sec.  BO. 
Biah.Stat.  Cr.,sec.  489. 


«  sects.  1124,  113*. 

'  Whart.  &  S.  Med.  Jur.,  sec.  432. 

•  Bisb.  Stat.  Cr.  sec.  494. 


^liM 


3P    INDIVIDUALS. 

,  was  the  carnal  knowledge 
of  ten  years.  Force  over- 
as  not  an  idiot,  or  subdued 
i  administration  of  drugs, 
•  substances,  was  an  indis- 
riie  consent  of  tlie  woman, 
ition  was  complete,  relieved 
he  latter  offense,  the  carnal 
>f  age,  the  wrongful  act  in- 
clement of  the  crime,  and 
.3  immaterial.  The  English 
le  offense  is  substantially  as 
ully  and  carnally  know  and 
I  years,  every  such  unlawful 
the  offender  thereof  being 
hout  allowance  of  clergy." 
"  carnally  know  and  abuse 
1  this  country  statutes  have 
States  punishing  the  offense 
jlish  statute  by  the  words, 
se  any  woman  child  under 
statutes  are  to  be  found  in 
is  perhaps  true,  as  suggested 
rnally  know  includes  in  its 
luse. 

between  a  male  capable  of 
ten  years  of  age  without  in- 
he  statutes  to  which  we  have 
ite  offense  —  when  there  is 
act  of  the  genital  organs  — 
.6  The  offense  then  includes 
nd  it  is  this  injury  the  term 
in  the  words  carnally  know, 
nd  is  unlike  any  to  which  we 
linst  the  offense  itself  when 
it,  if  in  the  attempt  there  is 
of  the  genital  organs,  with- 
tion,  there  may  be  injury  to 
often  the  chief  injury  to  the 
the  male.     There  have  been 


Its.  1124,  1131 

tart.  &  S.  Med.  Jur.,  sec.  432. 

lb.  Stat.  Cr.  sec.  494. 


COMMONWEALTH  V.  MERRILL. 


887 


cases  in  which,  without  th«  contact  which  would  constitute  the  com- 
plete offense,  bodily  harm  has  been  inflicted  by  cutting  the  private 
parts  of  the  child.  An  injury  to  these  parts  in  the  attempt  at  carnal 
knowledge,  is  the  abuse  to  which  the  statute  refers,  and  not  to  forcible 
or  wrongful  ill  usage,  which  would  be  an  element  of  the  offense  of  an 
assault  with  intent  to  ravish  the  child.  Abuse  is  stated  by  Webster  to 
be  the  synonym  of  injure,  and  in  its  largest  sense  signifies  ill  usage  or 
improper  treatment  of  another.  Its  proper  signification  must  be  ascer- 
tained by  reference  to  the  subject-matter  or  the  context  and  the  mean- 
ing of  the  words  with  which  it  is  associated.  In  this  statute  intended 
for  the  punishment  of  deflouring  female  children,  it  must  be  limited  in 
signification  by  the  words  with  which  it  is  connected  referring  to  the 
same  subject-matter.  The  instruction  given  by  the  Circuit  Court 
would  render  the  attempt  to  know  carnally  and  abuse  of  the  child  the 
equivalent  of  an  assault  with  intent  to  ravish,  a  distinct  offense,  subject 
to  a  different  punishment  under  another  statute.^  Rape  and  its  kin- 
dred offenses  are  the  subject  of  several  different  statutory  provisions 
and  the  punishment  for  each  offense  is  distinctly  described.  No  one 
of  these  statutes  embraces  the  offense  which  is  included  in  another. 
The  result  is  the  instruction  of  the  Circuit  Court  is  eiToneous,  and  the 
judgment  must  be  reversed  and  the  cause  remanded  ;  the  prisoner  will 
remain  in  custody  until  discharged  by  due  course  of  law. 

Reversed  and  remanded. 


ASSAULT   WITH    INTENT  TO  COMMIT  RAPE  —  INTENT    TO   ACCOMP- 
LISH rURPOSE  MUST  EXIST. 

C/OMMONWEALTH   V.  MeRRJLL. 

[U  Gray,  416.] 

In  the  Supreme  Judicial  Court  of  Massachusetts,  1860. 

On  the  Trial  of  an  Indictment  charging  the  defendant  with  an  ussault  on  hit  daughter 
with  intent  to  commit  a  rape,  it  appeared  that  ha  uncovered  her  person  as  she  was  lying 
asleep  in  bed,  and  took  indecent  liberties  with  her  person,  and  after  she  awoke  endeav- 
ored to  persuade  her  to  let  him  have  connection  with  her,  and  offered  iirr  money  to 
induce  her  to  do  so,  and  lay  upon  her,  but  she  wholly  refused  his  request,  ami  he  did  not 
effect  his  purpose,  and,  when  she  finally  refused,  desisted  from  his  intent,  and  left 
her.    Held,  that  there  was  no  evidence  of  the  felonious  intent  alleged. 

Indictment  for  an  assault  with  intent  to  commit  a  rape.  At  the  trial 
n  the  Superior  Court  in  Suffolk  at  August  term,  1859,  the  district  at- 
torney introduced  evidence  of  the  following  facts :  — 

The  defendant  at  midnight,  with  a  light  in  his  hand,  entered  the 

1  Code  of  1S76,  tec.  4tl4 


888 


CRIMES   AGAINST  THE   PERSONS   OF  INDIVIDUALS. 


room  of  his  daughter,  thirteen  years  of  agefand  went  to  her  bed,  where 
she  was  asleep  in  her  night  clotlies,  touched  her  quietly  to  ascertain 
whether  she  was  awake,  raised  the  clothes,  and  examined  and  applied 
his  hand  to  her  private  parts  for  half  an  hour,  desisting  whenever  she 
seemed  to  start  or  likely  to  wake.  She  then  awoke  and  sat  up  in  bed, 
put  the  clothes  down,  and  said  she  wished  he  would  go  away.  He 
asked  her  to  let  him  have  connection  with,  and  offered  her  money,  but 
she  refused.  He  then  got  into  the  bed  with  his  private  parts  exposed, 
laid  one  leg  over  her,  and  continued  urging  her  to  consent  to  his  wishes, 
and  took  hold  of  her  hand,  and  asked  her  to  put  it  upon  his  private 
parts.  She  utterl}'  refused  his  request,  and  told  him  to  get  off  from 
her,  to  get  off  the  bed  and  go  down  stairs  or  she  would  call  her  mother. 
He  laid  upon  the  bed  for  half  an  hour  or  more,  and  then  went  down 
stairs  to  his  own  bed.  He  did  not  take  hold  of  her  at  all,  or  use  any 
force,  except  as  above  stated,  the  girl  testified  further  that  his  private 
parts  did  not  touch  her  that  night ;  that  he  tried  to  touch  her  but  did 
not  succeed.  The  bill  of  exceptions  stated  this  evidence  in  greater  de- 
tail, tind  added;  "the  above  is  a  statement  of  all  the  evidence  of  the 
acts  done  by  the  defendant  at  the  time  of  the  alleged  assault." 

Russell,  J.,  instructed  the  jury,  among  other  things,  as  follows:  •'  If 
the  jury,  from  the  evidence  in  the  case,  are  satisfied,  beyond  a  reason- 
able doubt,  that  the  defendant  forcibly,  wantonly  and  indecently  com- 
mitted any  violence  upon  the  person  of  his  daughter,  against  her  will, 
they  will  convict  him  of  an  assault.  If  they  are  so  satisfied  that  he 
committed  such  violence  with  intent  to  ravish  her  by  force  and  violence, 
against  her  will,  they  will  convict  of  the  whole  offense  charged.  If 
they  have  a  reasonable  doubt  as  to  the  intent,  they  may  acquit  of  that 
part  of  the  charge,  aqd  convict  of  assault,  if  they  are  satisfied  that  an 
assault  was  committed." 

The  jury  returned  a  verdict  of  guilty  of  the  full  charge  in  the  indict- 
ment, and  the  defendant  alleged  exceptions  to  these  instructions. 

T.  L.  Wakefield,  for  the  defendant. 

S.  H.  Phillips,  Attorney-General,  for  the  Commonwealth. 

BiGELOW,  J.  We  think  it  entirely  clear,  that  the  evidence  at  the 
trial  of  this  case  fell  far  short  of  proving  any  intent  by  the  prisoner  to 
have  carnal  knowledge  of  the  prosecutrix  by  force  and  against  her  will. 
There  was  ample  proof  of  gross  indecency  and  lewdness,  and  of  an 
attempt  by  long  continued  and  urgent  solicitations  and  inducements  to 
lead  the  prosecutrix  to  consent  to  the  wish  of  the  prisoner  to  h^ve 
sexual  intercourse  with  her.  These  facts  would  have  been  sufficient  to 
warrant  a  jury  in  finding  the  prisoner  guilty  of  an  assault.^  But  thsre 
was  an  entire  absence  of  all  evidence  of  the  use  of  force,  there  was 


I  1  Bum.  Or.  (7Ui  Am.  e«.)  7St. 


OIVIDUALS. 

ent  to  her  bed,  where 
r  quietly  to  ascertain 
xamiued  and  applied 
esisting  whenever  she 
ke  and  sat  up  in  bed, 
voukl  go  away.  He 
!fered  her  money,  but 
irivate  parts  exposed, 
consent  to  Iiis  wishes, 
it  it  upon  hia  private 
i  him  to  get  oft  from 
rould  call  her  mother, 
and  then  went  down 
her  at  all,  or  use  any 
irtber  that  his  private 

I  to  touch  her  but  did 
vidence  in  greater  de- 
ll the  evidence  of  the 
ged  assault." 

lings,  as  follows:  •'  If 
9ed,  beyond  a  reason- 
r  and  indecently  com- 
hter,  against  her  will, 
re  so  satisfied  that  he 
by  force  and  violence, 
offense  charged.  If 
ey  may  acquit  of  that 
ly  are  satisfied  that  an 

II  charge  in  the  indict- 
ese  instructions. 

nonwealth. 

:  the  evidence  »t  the 
;ent  by  the  prisoner  to 
e  and  against  her  will. 
1  lewdness,  and  of  an 
ns  and  inducements  to 
the  prisoner  to  h^ve 
have  been  sufflcient  to 
n  assault.^  But  thsre 
ise  of  force,  there  was 


COMMONWEALTH   V.  MERRILL. 


889 


proof  of  no  act  of  violence,  no  struggle,  no  outcry,  and  no  attem^  t  to 
restrain  or  confine  the  person  of  the  prosecutrix,  which  constitute  the 
usual,  proper  and  essential  evidence  in  support  of  a  charge  of  an  intent 
to  accomplish  a  felonious  purpose  on  the  body  of  a  female  by  force  and 
against  her  will.  The  gist  of  the  aggravated  charge  laid  in  the  indict* 
ment  against  the  prisoner  was  the  intent  to  ravish. 

In  many  cases,  as  in  the  familiar  instance  of  a  charge  of  breaking 
and  entering  with  intent  to  steal,  proof  of  the  actual  commission  of  the 
larceny  is  decisive  proof  of  the  intent  with  which  the  entry  was  made. 
The  overt  act  leaves  no  room  for  doubt  as  to  the  felonious  purpose  with 
which  the  previous  criminal  act  was  perpetrated.  But  the  case  at  bar 
is  a  very  different  one.  The  act  itself,  which  if  committed,  would  be 
decisive  proof  of  the  intent,  was  never  consummated,  and  if  it  had 
been,  would  have  constituted  a  higher  crime  than  that  charged  in  the 
indictment.  The  nature  of  the  charge  presupposes  that  the  intent  of 
the  prisoner  was  not  carried  out.  It  is,  therefore,  necessary  that  the 
acts  and  conduct  of  the  prisoner  should  be  shown  to  be  such,  that  there 
can  be  no  reasonable  doubt  as  to  the  criminal  intent.  If  these  acts 
and  conduct  are  equivocal,  or  equally  inconsistent  with  the  absence  of 
the  felonious  intent  charged  in  the  indictment,  then  it  is  clear  that  they 
are  insufficient  to  warrant  a  verdict  of  guilty. 

The  facts  in  the  prt  it  case  resemble  those  proved  in  Rex  v.  Nichol,^ 
where  it  was  shown  that  a  teacher  took  very  gross  and  indecent  liber- 
ties with  a  female  scholar  under  his  control,  of  tender  years,  without 
her  consent,  and  it  was  held  that  he  was  rightly  convicted  of  an  as- 
sault, but  not  of  an  intent  to  ravish.  So  in  the  present  case,  the  jury 
should  have  been  instructed  that  there  was  no  sufflcient  proof  to  main- 
tain the  charge  against  the  defendant  of  an  assault  on  the  prosecutrix 
with  a  felonious  intent  to  have  carnal  knowledge  of  her  by  force  and 
against  her  will.  As  the  case  was  left  by  the  court  to  the  jury  under 
tlie  instructions  which  were  given  them,  they  were  at  liberty  to  infer 
that  the  evidence  was  sufflcient  to  warrant  them  in  finding  the  defend- 
ant guilty  of  the  aggravated  charge.  This,  we  think,  was  erroneous. 
The  omission  to  instruct  the  jury  in  a  criminal  case  that  the  evidence 
does  not  prove  the  offense  laid  in  the  indictment  is  good  ground  of 

exception.     (Omitting  another  point. ) 

Exceptions  sustained. 

1  Ruis.  &  Ry.  ISO. 


890 


CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 


ASSAULT  WITH  INTENT  TO  COMMIT  RAPE -INTENT  TO  COMMIT 

rai'e  must  be  proved. 
Thomas  v.  State. 

[16  Tex.  (App.)  636.] 
J»  the  Court  of  Appeals  of  Texas,  1884. 

la  Order  to  Sustain  »  conviction  for  asBault  with  intent  to  commll  rape,  the  proof  must 
.^w  th!t  tho  assault  was  committed  with  the  spec.flo  intent  to  conHnit  rape  No  other 
Intent  will  suffice.  A  conviction  for  such  offense  is  not  supported  bJiproof  that  the 
accused  assaulted  a  woman  with  the  Intent  of  having  Improper  connection  with  her. 
without  the  nse  of  force,  nor  without  her  consent. 

Appeal  from  the  District  Court  of  Anderson.     Trietl  below  before 

the  Hon.  J.  J.  Peukins. 

The  conviction  in  tliis  case  was  for  an  assault  with  intent  to  commit 
rape  upon  the  person  of  Ida  Kreig,  in  Anderson  County,  on  the  first 
day  of  November,  1883.  The  penalty  imposed  was  a  term  of  five  years 
in  the  penitentiary. 

Ida  Kreig  was  the  first  witness  for  the  State.     She  testified,  in  sub- 
stance, that  she  was  a  girl  thirteen  years  of  age.     On  the  night  of  No- 
vember  14, 1883,  at  about  seven  or  eight  o'clock,  the  witness  and  Henry 
Carswell,  a  little  boy  about  eight  years  old,  started  down  town  in  tlie 
town  of  Palestine,  Anderson  County,  to  purchase  some  lace  for  the 
witness'  Bister,  who  was  to  be  married  on  the  next  night.     When  the 
witness  reached  a  point  in  the  middle  of  the  street  about  opposite  a 
store  kept  by  a  Mrs.  Nelson,  the  defendant  approached  the  witness  and 
the  boy,  coming  out  of  Mrd.  Nelson's  store,  with  two  bottles  in  his 
hands,  resembling  soda  water  bottles.    He  told  witness  and  the  boy  to 
drink.    The  boy  drank  from  one  of  the  bottles.    The  witness  took  the 
other  bottle  in  her  hand,  but  did  not  drink.     She  gave  it  back  to  the 
defendant,  and  he  put  it  in  his  pocket.     The  defendant  took  the  wit- 
ness*  hand  with  his  left  hand  when  he  gave  her  the  bottle.    She  ex- 
pected him  to  release  her  hand  when  she  returned  the  bottle  to  him. 
The  defendant  then  told  the  witness  that  he  would  give  her  ten  dollars 
if  she  would  "give  him  some."     Witness  refused.     Defendant  then 
pulled  the  witness  up  to  him  and  told  her  that  he  would  give  her  a  hun- 
dred dollars  if  she  would  consent ;  that  he  was  a  railroad  man  and  bad 
plenty  of  money.     Witness  again  refused,  telling  defendant,  who  was 
showing  her  money,  that  she  did  not  want  his  money.     The  witness 
then  succeeded  in  releasing  both  hands,  and  she  and  the  boy  ran  oil 
towards  Mi-.  Harris'  house,  which  stood  on  the  street.    The  defendant 
pursued  and  caught  the  witness  just  as  she  reached  Harris*  fence.     He 
pushed  her  up  against  the  fence,  and  again  proposed  to  pay  her  if  she 


DIVIDUALS. 


NTENT  TO  COMMIT 


THOMAS   V.  STATE. 


891 


,  1884. 

^onlmil  rape,  the  proof  must 
nt  to  commit  rape.  No  other 
Bupported  by  iproof  that  the 
iproper  connection  with  her, 


.     Trietl  below  before 

t  with  intent  to  commit 
ion  County,  on  the  first 
nras  a  term  of  five  years 

.     She  testified,  in  sub- 
.     On  the  night  of  No- 
,  the  witness  and  Henry 
irted  down  town  in  the 
lase  some  lace  for  the 
next  night.     When  the 
street  about  opposite  a 
roacbed  the  witness  and 
with  two  bottles  in  his 
witness  and  the  boy  to 
I.     The  witness  took  the 
She  gave  it  back  to  the 
defendant  took  the  wit- 
lier  the  bottle.    She  ex- 
iirned  the  bottle  to  him. 
3uld  give  her  ten  dollars 
3f  used.     Defendant  tlicn 
he  would  give  her  a  huu- 
i  a  railroad  man  and  bad 
IHng  defendant,  who  was 
lis  money.     The  witness 
she  and  the  boy  ran  off 
i  street.     The  defendant 
iched  Harris'  fence.     He 
reposed  to  pay  her  if  she 


would  consent  to  copulation.  Witness  and  the  boy  went  through  Har- 
ris' gate  on  to  his  gallery  to  escape  the  defendant,  and  saw  the  defend- 
ant pass  on  down  the  street.  Witness  saw  no  one  at  Mrs.  Nelson's 
store,  or  at  Harris'  house,  though  she  saw  a  dim  light  in  the  latter 
building. 

Witness  and  the  boy  remained  on  Harris'  gallery  some  minutes,  until 
they  thought  that  the  defendant  had  gone.  They  looked  around  for 
him,  and,  not  seeing  him,  came  out  and  started  along  a  rond  that  ran 
diagonally  through  the  space  where  the  stock  yards  were  once  located. 
At  this  point  the  road  intersected  a  street  which  led  into  town.  When 
they  had  crossed  the  street  and  started  across  the  stock  pen,  the  witness 
looked  around  and  saw  the  defendant  as  he  rose  up  from  the  ground  at 
the  corner  of  Harris'  fence.  The  defendant  started  in  pursuit,  running 
at  his  best,  and  the  witness  and  the  boy  ran,  screaming,  and  still  pur- 
sued by  the  defendant,  until  they  encountered  Mr.  Whittle  on  the  road 
intersecting  the  street  near  Mrs.  Potts'.  Defendant  pursued,  until  he 
came  within  eight  or  ten  feet  of  witness,  the  boy  and  Mr.  Whittle,  when 
seeing  Whittle  on  horseback  with  a  gun,  the  defendant  turned  and  ran 
in  another  direction.  About  this  time,  the  witness'  step-father,  Mr. 
Warner,  came  up  with  a  basket  containing  purchases,  and  asked  what 
was  the  matter.  On  being  told,  Warner  sat  his  basket  down  and  ran 
after  the  defendant.  Witness  saw  the  defendant  again  that  night.  He 
was  the  same  man  she  saw  at  Mrs.  Nelson's  store,  the  same  man  who 
pursued  her,  the  same  man  who  was  now  on  trial.  She  had  never  seen 
that  man  before  that  night. 

Witness  did  not  cry  out  or  give  any  alarm  in  the  street  near  Mrs. 
Nelson's  store.  She  saw  a  light  in  that  store,  but  saw  no  person  in  it. 
She  gave  no  alarm  at  Harris'.  She  saw  no  person  at  Harris'. 
She  did  not  give  any  alarm  until  she  was  pursued  the  last  time  by  the 
defendant.  She  gave  no  reason  for  not  doing  so,  tliough  she  was  asked 
by  counsel.  The  defendant  did  not  throw  her  down  at  Harris'  fence, 
nor  did  he  lift  up  her  clotlies.  He  only  put  his  hand  on  her  as  3he  ran. 
The  witness  said  that  she  knew  what  the  defendant  meant  when  he 
asked  her  to  "give  him  some,"  but  declined  to  answer  how  she  knew. 

Henry  Carswell  testified,  for  the  State,  that  he  Was  eight  years  old. 
Ida  Kreig  came  to  the  house  where  the  witness  lived  on  the  niglit  of  the 
alleged  offense,  and  asked  him  to  go  with  her  to  town,  and  the  two  went 
together.  They  saw  the  defendant  in  the  street  near  Mrs.  Nelson's 
store.  He  is  the  same  man  who  pursued  witness  and  Ida  across  the 
stock  pen  grounds. 

J.  C.  Whittle  was  the  next  witness  for  the  State.  He  testified  that 
that  he  had  been  hunting  on  the  day  of  the  alleged  assault,  and  left  the 
duck  pond,  about  eight  miles  distant  from  Palestine,  near  dusk.     He 


-•^MhvMMaMtWMl 


892 


CRIMES   AGAINST  THE  FERSONS  OF   INDIVIDUALS. 


rode  in  quite  a  brisk  walk  until  he  reached  the  suburbs  of  the  town 
when  he  checked  up  to  a  slow  walk.     Witness  reached  the  stock  pen 
grounds  at  the  point  where  the  road  crossing  it  diagonally  intersect* 
the  street  which  runs  north  and  south  by  Mrs.  Pott's  residence,  between 
eight  and  nine  o'clock.     As  witness  was  crossing  the  stock  pen  grounds, 
and  nearing  the  street  last  mentioned,  he  heard  the  voices  o..'  children 
screaming.     Supposing  the  parties  to  be  children  at  play,  the  witness 
at  first  paid  no  attention  to  the  screaming.     The  voices  came  nearer 
and  nearer,  and   sounding  more  like  children  in  fright,  the  witness 
stopped  his  horse  and  turned  in  his  saddle  to  see  what  was  the  matter. 
Ida  Kreig  and   Henry  Carswell  about  that  time  came  running  and 
screaming  toward  the  witness  who  was  then  holding  his  gun  muzzle  up, 
the  breach  resting  on  his  thigh.     At  the  same  time  witness  saw  a  man 
stop  suddenly,  and  then  run  off  rapidly  in  a  northerly  direction.     He 
had  approached  within  ten,  fifteen,  or  twenty  steps  of  the  children. 
The  children  appeared  to  be  very  much  frightened,  excited  and  nearly 
out  of  breath.     Witness  asked  Ida  what  was  the  matter  and  she  replied 
that  the  man  was  after  her.     About  the  same  time  Mr.  Warner,  Ida's 
step-father,  came  up,  and  being  informed  of  the  assault,  and  being  di- 
rected to  the  man  who  was  running  off,  but  in  sight,  he    at  his  basket 
on  the  ground,  requesting  the  witness  to  stay  with  th    children,  and 
started  in  pursuit.     The  witness  went  home  with  the  children,  and 
there  saw  the  defendant  in  charge  of  a  policeman.     The  witness  had 
never  seen  the  defendant  before  that  night  to  know  him,  and  could  not 
swear  that  he  was  the  same  man  he  saw  running  after  and  ott  from  the 
children  a  short  time  before.     The  children  caught  up  with  witness 
about  one  hundred  yards  from  where  witness  first  heard  them  scream- 
ing.    The  witness  described  the  topography  of  the  stock  pen  grounds. 
Chas.  Finger  lived  in  a  house  about  sixty  feet  east  of  Harris,  and  par- 
ties lived  east  and  west  of  Finger.     The  distance  between  Harris* 
house  and  Nelson's  store  is  about  one  hundred  yards.    There  was  a 
light  in  Nelson's  store,  and  the  door  was  open.     Witness  did  not 
remember  that  he  saw  anybody  in  the  store  as  he  passed  it.     He  did 
not  see  the  children  as  he  passed  that  store.     If  the  children  were  in 
Harris'  yard  or  on  the  street  near  the  house  when  the  witaeaB  passed, 
they  would  have  been  too  far  to  witness'  left  to  be  noticed  '  '         L's,  y 
made  a  noise.     Witness  heard  no  noise  on  the  street  ami  uf.  ot-.'jr 

persons  than  the  persons  mentioned. 

W.  B.  Warner  was  the  last  witness  for  the  State.  He  tt  «fl  that 
he  was  the  step-father  of  Ida  Kreig.  He  knew  the  defendant,  C.  H. 
Thomas.  Defendant  was  a  married  man,  and  in  November,  1883, 
lived  ne.ir  the  witness.  The  witness  heard  the  children  screaming  on 
the  evening  in  question,  and,  thinking  he  recognized  Ida's  voice,  went 


A^i 


D1VIDUAL8. 


THOMAS  V.  STATE. 


893 


suburbs  of  the  to\\'n 
cached  the  stock  pen 
;  diagonally  intersects 
t's  residence,  between 
he  stock  pen  grounds, 
tlie  voices  o.'.'  children 
n  at  play,  the  witness 
le  voices  came  nearer 
in  fright,  the  witness 
I  what  was  the  matter, 
ae  came  running  and 
ng  his  gun  muzzle  up, 
me  witness  saw  a  man 
rtherly  direction.     He 
iteps  of  the  children, 
ed,  excited  and  nearly 
matter  and  she  replied 
me  Mr.  Warner,  Ida's 
assault,  and  being  di- 
vht,  he    at  his  basket 
vrith  tb    children,  and 
rith  the  children,  and 
an.     The  witness  had 
ow  him,  and  could  not 
after  and  oft  from  the 
Lught  up  with  witness 
st  heard  them  scream- 
;he  stock  pen  grounds, 
ist  of  Harris,  and  par- 
ance  between  Harris' 
I  yards.    There  was  a 
>en.     Witness  did  not 
he  passed  it.     He  did 
If  the  children  were  in 
len  the  witaeaB  passed, 
be  noticed  '•■'.'■     .  U-.y 
treat  ami  uf.     ::.■■  ot-.vjr 

ate.  He  tt  «fl  that 
r  the  defendant,  C.  H. 
I  in  November,  1883, 
children  screaming  on 
lized  Ida's  voice,  went 


rapidly  to  the  point  from  whence  the  sounds  came.  He  there  found 
Ida,  Henry  Carswell  and  Mr.  Whittle.  Asking  what  was  the  matter, 
Ida  told  him  that  a  man  was  after  her,  and  pointed  out  tlie  retreating 
figure  of  a  man.  Witness  pursued  instantly,  keeping  the  man  con- 
stantly in  sight,  until  he  overtook  him  after  a  chase  of  about  two  hun- 
dred yards.  The  defendant  is  the  same  identical  man  who  was  pointed 
out  to  him  by  Ida  Kreig  as  the  man  who  had  pursued  her.  The  State 
dosed. 

Lively  Jowers,  a  colored  woman,  was  the  only  person  introduced  by 
the  defence.  She  testified  that,  crossing  the  stock  pens  on  her  way 
home  from  work,  on  the  night  in  question,  she  heard  children  scream- 
ing, and  turned  and  looked  toward  the  point  from  where  the  screaming 
seemed  to  come.  She  then  saw  Ida  Kreig  and  Henry  Carswell  running 
:md  screaming.  At  the  same  time  she  saw  the  defendant,  whom  she 
knew  well,  standing  at  the  corner  of  Mr.  Harris'  fence.  He  did  not 
move  while  the  witness  was  looking  at  him.  Thinking  nothing  was 
wrons,  the  witness  started  on.  She  walked  some  distance  before  she 
looked  back  again.  When  she  did  look  back  all  the  parties  were  stand- 
ing just  as  they  were  when  witness  first  saw  them.  Defendant  was  tlien 
dressed  in  dark  clothes  and  hat.  He  had  two  bottles,  resembling  soda 
water  bottles  in  his  hands.  It  was  a  moonless,  but  bright  star  light 
iiiglit.  The  witness  and  the  defendant  were  about  two  hundred  yards 
apart. 

The  motio;i  for  a  new  trial  presented,  among  other  grounds,  the 
issues  discussed  in  the  opinion. 

Gammage  &  Gregg  and  T.  J.  Williams,  for  the  appellant. 

J.  H.  Burta,  Assistant  Attorney-General,  for  the  State. 

WiLLSOS,  J.  1.  To  authorize  a  conviction  of  the  offense  of  assault 
with  intent  to  rape,  it  devolves  upon  the  State  to  prove  satisfactorily 
such  specific  intent.  That  particular  intent,  no  other,  will  make  this 
offense.  Thus  an  assault  with  intent  to  have  an  improper  connection 
with  a  woman,  but  without  the  use  of  force,  and  not  without  the  con> 
sent  of  the  woman,  would  not  be  an  assault  with  intent  to  rape.' 

In  explaining  to  the  jury  the  law  of  assault  and  assault  and  battery, 
the  learned  judge  in  one  paragraph  of  his  charge  says:  "  Any  unlaw- 
ful violence  upon  the  person  of  another  with  intent  to  injure  such  per- 
son is  a  battery,  and  where  violence  is  actually  committed  upon  the 
person  of  another,  no  matter  how  slight,  it  rests  with  the  person  inflict- 
ing the  injury  to  show  the  accident  or  innocent  intention."  This  por- 
tion of  the  charge  is  assigned  as  error,  and  was  made  a  ground  of 
defendant's  motion  for  new  trial 


>  Pefferling  v.  State,  40  Tex.  488 ;  Curry  v. 
State,  4Tex.  (App.)B74. 


894 


CRIMES   AOAliVST  THE  PERSONS   OF   INDIVIDUALS. 


Whilst  the  paragraph  ia  in  almost  the  exact  words  of  the  code,'  and 
in  the  abstract  is  unquestionably  correct,  still  we  think  it  was  error  to 
give  it  in  this  case.  The  burden  was  upon  the  State  to  show,  beyond  a 
reasonable  doubt,  that  defendant  committed  the  assault,  and  that  he 
committed  it  with  the  speciflo  intent  of  raping  the  person  assaulted. 
He  might  have  committed  the  assault  and  injury  with  some  other  intent 
than  that  of  rape,  and  if  so,  certainly  he  could  not  be  convicted  of 
this  offense  because  he  failed  to  show  that  his  other  intention  was  an 
innocent  one.  Suppose  he  assaulted  the  girl  with  intent  to  persuade 
her  to  such  carnal  intercourse  with  him,  but  with  no  intent  »v^  force 
her  to  such  carnal  intercourse ;  he  would  not  be  guilty  of  an  assault 
with  intent  to  rape,  and  yet  he  would  be  unable  to  show  that  be  com- 
mitted tlie  assault  with  innocent  intention.  This  charge  instructed  the 
jury  that  it  devolved  upon  the  defendant  to  show  his  innocent  intention. 
His  innocent  intention  of  what?  Of  persuading,  or  of  forcing  the  girl 
to  have  carnal  intercourse  with  him?  Considering  the  charge  as  a 
wholo,  we  understand  that  it  only  devolved  upon  the  defendant  to  show 
his  innocent  intention  as  to  the  rape  in  order  to  relieve  him  of  this 
charge,  but  we  very  much  doubt  whether  the  jury  so  understood  the 
charge.  It  is  quite  probable,  we  think,  that  they  understood  it  to  de- 
volve upon  the  defendant  the  burden  of  proving  an  innocent  intention 
of  committing  any  offense  or  wrong  upon  the  girl. 

But,  however  it  may  have  been  understood  by  the  jury,  we  think  it 
was  wrong  to  give  it,  because  it  shifted  the  burden  of  proof  from  the 
State  to  the  defendant  upon  an  issue,  the  affirmative  of  which  the  State 
was  bound  to  prove  beyond  a  reasonable  doubt.  There  are  instances 
where  it  is  proper  to  thus  shift  the  burden  of  proof,  and  where  it 
would  be  proper  to  instruct  the  jury  in  this  manner ;  but  this  case  does 
not  present  such  an  instance.'  We  think  this  error  in  the  charge  was 
calculated  to  mislead  the  jury  to  the  prejudice  of  defendant's  rights, 
and  it  is  therefore  such  error  as  demands  a  reversal  of  the  judgment. 
In  all  other  respects  the  charge  of  the  learned  judge  is  a  clear,  forcible 
and  correct  exposition  of  the  law  of  the  case. 

2.  Considering  the  whole  evidence  as  presented  by  the  record,  the 
case  to  our  minds,  is  a  singular  one,  if  the  defendant's  intention  was 
to  commit  rape.  We  think  the  evidence  was  unsatisfactory  as  to  such 
being  his  intention.  In  view  of  the  meagerness  of  the  evidence  tend- 
ing to  establish  this  specific  intent,  and  of  the  alleged  newly  discovered 
evidence,  we  think  the  court  should  have  granted  defendant  a  new  trial. 
The  judgment  is  reversed  and  the  cause  is  remanded. 

Beveraed  and  remanded. 


1  Penal  Code,  art.  48ft. 


s  Jonet    e.   State,  13    Tox.    (App.)    1; 
Curry  V.  State, 4  Tex.  (App.)  674. 


A^M 


INDIVIDUALS. 


STATE  r.  MASSEY. 


S»ft 


ords  of  the  code,'  and 
e  tbink  it  was  error  to 
bate  to  sliow,  beyond  a 
e  assault,  and  that  he 

tbe  person  assaulted, 
with  some  other  intent 
d  not  be  convicted  of 
other  intention  was  an 
ith  intent  to  persuade 
with  no  intent  v^j  force 
)e  guilty  of  an  assault 
e  to  show  that  be  con}- 
8  charge  instructed  the 
r  his  innocent  intention. 
I,  or  of  forcing  the  girl 
iring  the  charge  as  a 
t  the  defendant  to  show 

to  relieve  him  of  this 
jury  so  understood  the 
ey  understood  it  to  de- 
;  an  innocent  intention 
rl. 

)y  the  jury,  we  think  it 
•den  of  proof  from  the 
itive  of  which  the  State 
t.  There  are  instances 
)f  proof,  and  where  it 
ner ;  but  this  case  does 
error  in  the  charge  was 
i  of  defendant's  rights, 
ersal  of  the  judgment, 
udge  is  a  clear,  forcible 

bed  by  the  record,  the 
ifendant's  intention  wns 
[isatisfactory  as  to  such 
s  of  the  evidence  tend- 
lleged  newly  discovered 
d  defendant  a  new  trial, 
imanded. 
versed  and  remanded. 


,  state,  13    Tox.    (App.)    1; 
•.4  Tex.  (App.)  674. 


ASSAULT  WITH  INTENT  TO  COMMIT  RAPE  —  NO  PRESUMPTION  OF 

INTENT. 

State  v.  Massey. 

[86  N.  C.  669;  41  Am.  Rep.  478.] 

in  the  Supreme  Court  of  North  Carolina  1882. 

On  aa  Xadlotmant  for  asiault  with  intent  to  commit  rape  it  appeared  that  the  proieoutriz 
with  a  boy  six  years  old  waa  trundling  a  carriage  with  a  baby  in  it.  The  defendant 
ieyenty-flv*  yards  distant  shouted,  ••  Hait,  I  intend  to  ride  in  the  carriage ;  if  you  don't 
halt,  I'll  kill  you  when  I  get  hold  of  yon."  The  prosecutrix  ran,  trundling  the  carriage, 
and  the  defendant  pursued,  telling  hor  to  stop,  until  she  came  up  with  another  woman. 
Beld,  Insufficient  to  convict  of  assault  with  Intent  to  commit  rape. 

Conviction  of  assault  with  intent  to  commit  rape.  The  head-note 
states  tbe  facts. 

Attorney- General,  for  State. 

Reade,  Buabee  &  Buabef  for  defendant. 

Ashe,  J.  That  the  defendant  is  guilty  of  an  assault  according  to 
the  testimony  of  tbe  prosecutrix,  there  can  be  no  question ;  but  we  are 
of  the  opinion  that  the  evidence  in  tlie  case  did  not  warrant  the  jury  in 
codvicting  him  of  tbe  intent  charged,  and  that  the  court  erred  in  not 
submitting  to  the  jury  the  instruction  asked  by  tbe  defendant. 

We  tbink  tbe  jury  should  have  been  instructed  that  there  was  no 
evidence,  or  at  least  none  reasonably  sufficient  to  maintain  the  charge 
against  tbe  defendant  of  an  assault  on  tbe  witness,  with  a  felonious 
intent  to  have  carnal  knowledge  of  her  person  by  force  and  against  her 
will.  Such  a  charge  would  have  been  substantially  that  asked  for 
by  defendant.  But  as  tbe  case  was  left  to  the  jury  without  any 
instructions,  they  were  at  liberty  to  infer  that  the  evidence  waa  suffi- 
cient to  warrant  them  in  finding  the  defendant  guilty  of  tbe  assault 
with  intent.  In  this  consists  tbe  error.  Where  a  judge  refuses  to 
instruct  the  jury  that  the  evidence  does  not  prove  the  offense  charged 
in  the  indictment,  it  is  good  ground  for  exception. 

In  order  to  convict  a  defendant  on  the  charge  of  an  assault  with 
intent  to  commit  rape,  the  evidence  should  show  not  only  an  assault, 
but  that  tbe  defendant  intended  to  gratify  bis  passion  on  the  person  of 
the  woman,  and  that  he  intended  to  do  so  at  all  events,  notwithstanding 
any  resistance  on  her  part.* 

When  the  act  of  a  person  may  reasonably  be  attributed  to  two  or 
more  motives,  the  one  criminal  and  the  other  not,  tbe  humanity  of  our 

>  Roscoe's  Or.  Ev.  810;  Rex  ».  Lloyd,  7  C. 
*  P.  318 ;  Joice  r.  SUte,  S3  Ga.  60. 


896 


CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 


^., 


law  will  ascribe  it  totliatwhicli  is  not  criminal.  "  It  is  neither  charity, 
nor  common  sense,  nor  law,  to  infer  the  worst  intents  which  tlie  facts 
will  admit  of.  Tiie  reverse  is  tlie  rule  of  justice  and  law.  If  the  facts 
will  reasonably  admit  the  inference  of  an  intent,  wiiich  tliougli  immoral 
is  not  criminal,  we  are  bound  to  infer  tliat  intent."  *  Every  man  is  pre- 
Rumed  to  be  innocent  until  tlie  contrary  is  proved,  and  it  is  a  well 
establislied  rule  in  criminal  cases  that  if  tliere  is  any  reasonable  hypotli- 
esis  upon  which  the  circumstances  are  consistent  with  the  innocence  of 
the  party  accused,  the  court  should  instruct  the  jury  to  acquit,  for  the 
reason  the  proof  fails  to  sustain  the  cliarge.  The  guilt  of  a  person  is 
not  to  be  inferred  because  ilie  facts  are  consistent  with  his  guilt,  but 
they  must  be  inconsistent  with  his  innocence. 

Even  conceding  that  the  defendant  pursued  the  prosecuting  witness 
with  the  intent  of  gratifying  his  lustful  desires  upon  her,  does  it  follow 
that  ho  intended  to  do  so  "  forcibly  and  against  her  will."  That  is  an 
essential  element  of  the  crime  charged  and  .aust  be  proved.  It  must 
be  established  by  evidence  that  does  more  than  raise  a  mere  suspicion, 
a  conjecture  or  possibility,  for  evidence  which  merely  shows  it  possible 
for  the  fact  in  issue  to  be  as  alleged  or  which  raises  a  mere  conjecture 
that  it  is  so,  is  an  insufficient  foundation  for  a  verdict,  and  should  not 
be  left  to  the  jury." 

There  is  no  evidence  in  this  case  in  our  opinion  from  which  a  jury  might 
reasonably  come  to  the  conclusion  that  the  defendant  intended  to  have 
carnal  knowledge  of  the  person  of  the  prosecutrix,  at  all  hazards  and 
against  her  will.  At  most  the  circumstances  only  raised  a  suspicion  of 
his  purpose  and  therefore  should  not  have  been  left  to  the  considera- 
tion of  the  jury. 

In  the  case  of  Commonwealth  v.  Merrill,^  which  was  an  indictment 
for  an  assault,  with  intent  to  commit  rape,  tlie  court  says:  "The 
nature  of  the  charge  presupposes  that  the  intent  was  not  carried  out. 
It  is,  therefore,  necessary  that  the  acts  and  conduct  of  the  prisoner 
should  be  shown  to  be  such  that  there  can  be  no  reasonable  doubt 
as  to  the  criminal  intent.  If  these  acts  and  conduct  are  equivocal  or 
equally  consistent  with  the  absence  of  the  felonious  intent  charged  in 
the  indictment,  then  it  is  clear  that  they  are  insufficient  to  warrant  a 
verdict  of  guilty." 

The  attorney- general  relied  upon  Neeley'a  Case.  The  opinion  there 
was  delivered  by  the  late  chief  justice,  to  whose  eminent  abilities  and 
learning  we  are  always  disposed  to  yield  a  becoming  deference ;  but  it 
was  a  divided  court ;  there  was  a  dissenting  opinion  filed  by  Mr.  Jus- 


I  state  V.  Neeler.  74  N.  C.  435 ;  «.  e.  21  Am. 
Sep.  4»6,  diaaentlng  opinion. 

3  Matthia  v.  Matthla,  3  Jones,  132;  Sutton 


V.  Madre.Z  /d.  330;  Wittkowalcf  o.  Wataon, 
71 N.  C.  Ml;  State  v,  Bryaon,  82  Id.  S76. 
3  14  Oray,  415. 


^rfl 


DIVIDUAL8. 


PENETRATION   MUST  BE   PROVED. 


897 


It  is  neither  charity, 
itonts  which  the  facts 
nd  law.  If  the  facts 
riiich  thoiigli  immoral 

*  Every  man  is  pre- 
ved,  and  it  is  a  well 
ay  reasonable  hypotli- 
with  the  innocence  of 
ury  to  acquit,  for  the 
le  guilt  ot  a  person  is 
tit  with  his  guilt,  bul 


tice  Rodman  and  concurred  in  by  Mr.  Justice  Bynum,  both  highly  JIs- 

ttnguished  for  their  learning  and  legal  acumen ;  and  after  a  careful 

consideration  of  the  different  views  of  the  question  presented  by  these 

eminent  jurists,  we  feel  constrained  to  differ  from  tlie  majority  of  the 

court  and  adopt  the  reasoning  and  conclusion  of  the  dissenting  opinion 

as  enunciating  the  correct  principle  applicable  to  the  cause. 

A  venire  de  novo  must,  therefore,  be  awarded  the  defendant.     Let 
this  be  certified. 

Error.  Venire  de  novo. 


le  prosecuting  witness 
»on  her,  does  it  follow 
lerwill."  That  is  an 
t  be  proved.  It  must 
raise  a  mere  suspicion, 
erely  shows  it  possible 
ses  a  mere  conjecture 
erdict,  and  should  not 

om  which  a  jury  might 
idant  intended  to  have 
fix,  at  all  hazards  and 
'  raised  a  suspicion  of 
left  to  the  considera- 

dch  was  an  indictment 
le  court  says :  "  The 
it  was  not  carried  out. 
onduct  of  the  prisoner 
no  reasonable  doubt 
luct  are  equivocal  or 
ous  intent  charged  in 
isufflcient  to  warrant  a 

je.  The  opinion  there 
e  eminent  abilities  and 
iming  deference ;  but  it 
inion  filed  by  Mr.  Jus- 

330;  Wittkowaky  v.  Watton, 
late  V,  Bryson,  82  Id.  676. 
5. 


NOTES. 

§  660.  Rape— Foro*  and  VlolenoeBssantlal.— Force  and  Tiolenee  on  the 
man's  part  must  be  proved,'  arts  or  devices  practiced  on  her  to  inflame  her  pas* 
sion,*  or  frsud,^  is  not  enough. 

i  661. Psnetrstlon  Must  Xm  Proved. — Penetration  must  be  proved. 

la  B.  V.  Gammon,*  it  was  held  that  If  the  hymen  was  not  ruptnred  there  was  not 
suflactent  penetration  to  constitute  rape. 

In  Davia  v.  State,*  a  conviction  for  rape  was  reversed,  on  the  ground  that  the 
proof  ot  penetration  was  Insufflclent,  the  court  saying:  "The  only  question 
upon  which  the  testimony  left  any  room  for  dispute  or  ground  upon  which  to 
rest  an  opinion  was,  whether  the  alleged  offense  had  been  completed  by  pene- 
tration. While  the  slightest  penetration  Is  sufficient,  still  there  must  be  sat- 
isfactory proof  of  some  to  consummate  the  offense.  It  must  be  shown,  aays 
Tlndal,  C.  J.,  that  the  private  parts  of  the  male  entered,  at  least  to  some  ex- 
tent, those  of  the  female.  Unless  tills  is  the  case,  the  accused  may  be  guilty  of 
an  attempt  to  commit  the  crime  of  rape,  but  not  of  its  actual  commission. 

"The  proof  upon  this  point,  consisted  of  the  evidence  stating  the  position  In 
which  appellant  and  the  girl,  alleged  to  have  been  ravished,  was  found  by  her 
mother,  the  red  and  swollen  coudition  of  her  private  parts,  and  the  witness' 
statement  that  she  was  convinced  and  fully  satisfied  from  what  she  saw  take 
place  at  the  time,  and  also  from  the  examination  of  the  person  of  her  daughter, 
that  there  had  been  penetration.  On  the  other  hand  she  testified  that  there 
was  no  laceration  or  blood  that  she  could  discover,  resulting  from  such  pene- 
tration, and  a  surgeon,  who  was  examined  as  a  wituess,  stated,  after  having 
made  a  private  examination  of  appeilant,  that  though  there  were  exceptions  to 
tiie  rule,  a  man  of  his  d'mcnsions  could  not  evidently  or  probably,  penetrate  a 
female  of  the  age  and  size  of  the  girl  alleged  to  have  been  injured,  without 
laceration.  He  also  stated,  however,  if  she  could  be  so  penetrated,  the  con- 
dition of  her  parts,  as  described  by  her  mother,  would  be  a  natural  consequence 
of  the  act. 

"  This  reference  to  the  testimony  shows  (as,  we  regret  to  say,  we  find  of  much 
too  frequent  occurrence,  in  cases  of  the  greatest  Importance),  a  want  of  that 


1  HoNalr  V.  State,  88  Ala.  4SS. 

»  People  V.  Royal,  SS  CaU  68  (1878). 

'  ante,  vol.  III.,  cap.  IV.  "Ooment." 


«S  CAP.  321  (1832). 
'  42  Tex.  226  (187S). 


898 


CHIMES   AOAINST  TUB   PERSONS   OF   INDIVIDUALS. 


(nil  and  thorough  development  and  exploration  of  all  the  facta  and  clrcum> 
atancea  connected  with  and  bearluK  on  the  case,  of  which  It  would  leem  to 
to  reaaonably  auaccptlble,  and  auch,  aa  tta  vital  Importance  evidently  demundM. 
No  medical  examination  of  tlio  child  waa  made,  nor  wax  the  physician,  who  te>i> 
tiflod  in  the  case,  interrogated  In  reference  to  the  aymptoma  deocrlbed  by  the 
mother,  except  in  the  particular  previously  referred  to.  The  time  and  circum- 
•tances  under  which  the  mother  made  her  examination  are  not  shown.  The 
neighbor,  to  whose  bouse  she  was  taken  Immediately  after  the  alleged  act, 
waa  not  examined.  It  does  not  appear  whether  the  child's  under  clothing  was 
inspected,  and  many  other  mutterH  tending  to  aid  in  a  correct  conclusion,  do  not 
appear  to  have  been  adverted  to,  so  far  as  we  can  see  from  the  atatementof  facts. 

"  It  is  said  by  Wharton,  iu  his  work  on  Criminal  Law,  after  commenting  on 
several  English  cases,  discuttsing  the  necessity  of  proof  of  penetration:  'The 
practice  seems  to  be,  to  judge  from  the  cases  just  cited,  not  to  permit  a  convic- 
tion iu  these  cases.  In  which  It  is  alleged  violence  has  been  done,  without  modi- 
cal  proof  of  the  fact  whenever  such  proof  was  attainable.  It  seems  but  right, 
both  in  order  to  rectify  mistakes  and  to  supply  the  information  necessary  to 
convict,  that  the  prosecutrix  should  be  advised  at  the  outset,  ho  that  she  can 
take  the  necessary  steps  to  secure  such  an  examination  In  questiou.  If  this 
principle  be  generally  Insisted  upon,  there  is  no  danger  of  any  conviction  falling 
because  of  non-compliance  with  it,  and  on  the  other  hand,  many  mistaken  pros* 
ecutions  will  be  stopped  at  the  outset.'  > 

"While  we  can  not  say  that  the  necessity  of  a  medical  examination  has  been 
regarded  as  absolutely  indispensable  to  a  conviction  in  all  cases  by  the  Ameri- 
can courts,  or  that  we  are  prepared  to  yield  our  assent  to  so  broad  and  un- 
qualified a  proposition  aa  seems  to  be  approved  by  this  able  commentator,  yet 
we  think,  the  great  and  essential  importance  of  this  character  of  evidence  can 
not  be  denied,  and  especially  in  cases  like  this,  rh-'n  t^^  party  alleged  to  be  in- 
jured is  Incapable  of  testifying,  and  the  proo'  of  penetration  can  be  establishid 
by  circumstantial  testimony  only,  and  that  oy  no  means  of  an  absolute  or  con- 
clusive character,  it  can  hardly  be  overestimated. 

"  These  considerations  lead  us  to  the  concl'ision  — without,  however,  intending 
to  intimate  any  opinion  as  to  the  proper  conclusion  which  should  be  reached  In 
a  more  full  and  careful  consideration  of  the  case  —  that  in  view  of  the  vague 
and  indefinite,  and  somewhat  contradictory  testimony  on  which  it  was  tried, 
the  absence  of  such  instructions  as  would  probably  have  enabled  the  jury  to 
have  given  a  more  full  and  thorough  consideration  to  the  evidence  applicable  to 
the  only  real  and  vital  question  in  the  case,  the  nature  of  the  offense,  the  cir- 
cumstances under  which  it  is  alleged  to  have  been  committed,  the  difficulty  of 
disproving  the  charge  in  most  cases  of  this  kind  when  unfounded,  the  extreme 
penalty  of  the  law  Imposed  by  the  verdict,  and  the  humane  and  merciful  prin- 
ciple of  our  criminal  law,  giving  the  accused  the  benefit  of  all  reasonable  doubt, 
the  motion  for  a  new  trial  should  have  been  granted. 

"  The  judgment  Is  reversed,  and  the  cause  remanded. 

"  Beveried  and  remandtd." 

§  662.  Proof  of  Bmlasion.  — In  Ohio  it  was  held  In  Blackburn  ▼.  State,^ 

that  emission  was  a  reqalaite,  and  the  same  has  been  held  in  North  Carolina.^ 


■a 

■'■fr 
X 


1  see.  1188. 

*820bioSt.  108  (1871).    And  to  in  incest' 
Noble  V.  State,  82  Ohio  St.  Ml  (1878). 


•  State  «.  Gray,  8  Jones,  170. 


JDIV1DUAL8. 


RAPE  —  INSUFrit'lENT   rilOOF, 


899 


II  the  factB  and  ctrcum- 
which  it  would  ■eem  to 
tance  evidently  demandt*. 
\H  the  physician,  who  te>*- 
mptoma  described  by  the 
o.  The  time  and  circum- 
Ion  are  not  ahown.  The 
y  after  the  alleged  act, 
bild'a  under  clothing  was 
iorrcct  concluBion,  do  not 
oni  the  Btatementof  facts, 
aw,  after  commenting  on 
Qof  of  penetration:  'The 
id,  not  to  permit  a  convlc- 
been  done,  without  mcdl- 
lable.  It  seems  but  right, 
information  necessary  to 
le  outset,  so  that  she  can 
tlon  In  question.  If  this 
r  of  any  conviction  falling 
liand,  many  mistaken  pros- 

Ileal  examination  has  been 
in  all  cases  by  the  Amerl- 
ssent  to  so  broad  and  un- 
this  able  commentator,  yet 
I  character  of  evidence  can 
t>"?  party  alleged  to  be  in- 
etratlon  can  be  establishid 
lans  of  an  absolute  or  con- 

rithont,  however.  Intending 
which  should  be  reached  In 
-  that  In  view  of  the  vague 
ray  on  which  it  was  tried, 
ly  have  enabled  the  jury  to 

0  the  evidence  applicable  to 
iure  of  the  offense,  the  clr- 
committed,  the  difficulty  of 
iien  unfounded,  the  extreme 

1  humane  and  merciful  prln- 
lefit  of  all  reasonable  doubt, 
I. 

led. 

*  Beverted  and  remandtd." 

I  held  in  Blackburn  v.  State,'^ 
m  held  In  North  Carolina.^ 

Gray,  8  Jones,  170. 


§  608.  Not  Rnpe  If  Woaian  Oonaent.  — And  if  the  woman  consc  ', 

even  though  her  consent  Is  the  result  uf  fraud.  It  Is  not  rape.> 

§  664. Intent  Must  be  to  Btfeot  Purpose  at  all  Haiarda.  —The  pris- 
oner must  intend  to  effect  his  purpot^e  at  all  events,  and  notwithstanding  any 
resistance  on  the  woman's  part.^ 

§  6(16.  Bvldenoe  Held  Insxifflolent.  —  In  many  cases  the  conviction  Ins 

been  reversed  on  th«  ground  that  the  evidence  did  not  prove  the  crime."    The  ■ 
must  Important  of  the  cases  are  given  in  the  succeeding  sections. 

§  666.  Rape  — Conviction  Reversed  for  Insvifflolent  Bvldenoe—  People  v. 
Ardaffa.—  In  People  v.  Ardaga,*  the  prosecutrix,  DelUna,  was  the  only  witness 
called  for  the  People.  She  testified  that  she  went  from  Los  Angeles  to  Wilming- 
ton on  a  pleasure  trip,  and  stopped  at  the  bouse  of  Mannella  Ruellna,  and  that 
she  slept  with  her  child,  and  that  another  bed  in  the  same  room  was  occupied 
by  Frank  Silver;  tliat  ah  ut  twelve  o'clock  at  night,  while  she  was  asleep, 
three  men  bro'^e  into  the  room  and  took  her  from  the  bed ;  that  she  did  not 
awake  until  they  had  carried  her  to  the  door,  when  she  screamed ;  that  one  of 
the  men  held  a  piptol  pointed  at  her  head,  and  threatened  to  kill  her  If  she  did 
not  keep  still;  that  they  put  her  on  horseback,  and  carried  her  In  her  nlg»ic 
clothes  two  miles,  when  the  four  men  each  had  intercourse  with  her  by  force; 
and  that  they  then  carried  her  back  to  the  room.  She  admitted  that  she  was 
living  with  Frank  Sliver,  and  had  been  living  with  him  three  years,  but  claimed 
that  she  had  been  true  to  him  since  she  had  lived  with  him.  fihe  also  admitted 
that  lour  persons  besides  herself  and  Silver  were  sleeping  in  the  house,  and 
that  she  could  not  say  she  was  virtuous.  She  further  testlfled  that  the  defend- 
ants were  two  of  the  four  men.  The  two  not  on  trial  had  not  been  arrested. 
The  defendants  were  convicted,  and  appealed  from  the  judgment  and  from  an 
order  denying  a  new  trial.  By  the  Couut.  The  defendants  were  convicted  of 
rape  on  the  uncorroborated  evidence  of  the  prosecutrix,  who  admitted  herself 
to  be  an  unchaste  woman.  Her  story  Is  so  grossly  Improbable  on  the  face  of  It, 
as  to  render  the  Inference  Irresistible  that  the  jury  must  have  been  under  the 
influence  of  passion  or  prejudice.  In  People  v.  Benson,* the  defendant  was 
convicted  of  rape  on  the  uncorroborated  but  positive  testimony  of  the  woman 
alleged  to  have  been  outraged;  and  in  reversing  the  judgment  and  ordering  a 
new  trial,  this  court  said  that  the  story  of  the  woman  was  '♦  so  improbable  of 
itself  as  to  warrant  us  in  the  belief  that  the  yerdlct  was  more  the  result  of 
prejudice  or  popular  excitement  than  the  calm  and  dispassionate  conclusion 
upon  the  facts  by  twelve  men  sworn  to  discharge  their  duty  faithfully.  •  •  • 
A  conviction  upon  such  evidence  would  be  a  blot  upon  the  jurisprudence  of  the 
country,  and  a  libel  upon  jury  trials."  lu  People  v.  Hamilton*  which  was  a  sim. 
ilar  case,  we  arrived  at  the  same  conclusion,  and  reversed  the  judgment, 
observing  that  "  the  ends  of  justice  demand  that  the  cause  shall  be  tried  anew.'* 


1  See  ante,  vol.  III.,  cap.  V.,  "  Oouent." 
•  R  V.  Lloyd,  7  0.  A  P.  818  (1836) ;  B,  v. 

Wright,  4  F.  A  F.  967  (1866)  j  Irving  v.  State, 

9  Tex.  (App.)  66  (1880) ;  Curry  v.  SUte,  4  Tex. 

(App.)  574  (1878) ;  Ssnford  v.  State.l  2  Tex- 

(App.)  196  (18H3). 
'  Topolanck  v.  State,  40  Tex.  160  (1874) ; 


■Gate  V.  State,  0  Fla.  168  (1860) ;  People  v.  Ben- 
son, 6  Cal.  22S  (1866) ;  People  v.  Hamilton, 
46  001.844(1873). 
*  51  Cal.  371. 
»  6  Cal.  221. 
•46  Cal.  640. 


900 


CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 


We  are  of  the  same  opinion  in  ttie  present  case.  Judgment  and  order  rev 
and  cause  remanded  for  a  new  trial. 

§667.  Rape  —  BTldenoe  Inaufflclent  to  Convict — Obrlstlan  v. 

monwealth.  —  In  Chriatian  v.  Commonvcealth,^  the  prisoner  Iiad  been  con 
belovr  of  an  attempt  to  commit  a  rape  under  tlie  following  clicumstances 
prosecutrix  proved  ttiat  one  niglit,  about  four  months  before  the  trial,  sh( 
with  the  prisoner  to  a  performance  of  negroes  from  Washington,  given  at  th 
Topolltan  Hall,  the  prisoner  paying  all  expenses ;  that  after  the  perf orman 
over,  they  started  home  together.  On  the  way  home,  when  near  the  Tn 
Works,  the  prisoner  asked  her  an  unfair  question;  aslced  her  to  do  It;  as 
refused ;  and  he  laid  hold  of  her,  pushing  her  down  on  a  i<ile  of  lumber,  cl 
her,  and  trying  to  pull  up  her  clothes;  that  she  resisted,  and  that  he  did  i 
complish  his  object;  and  after  a  while  desisted  from  his  effort,  and  she  s 
on  home,  he  following  behind  herj  entreating  her  to  yield  to  his  wishe 
making  no  effort  to  lay  hold  of  her  again,  or  use  any  violence  towards  her 
she  had  never  been  married,  and  lived  on  Brown's  Island,  with  a  negro  w< 
herself  and  her  two  children,  and  the  negro  woman,  comprising  the  housi 

"  Whether  the  proof  is  sufficient  or  not  must  depend  upon  the  circumstan 
each  case :  among  which  the  character  and  condition  of  the  parties  may  hi 
Important  bearing.    Acts  of  the  accused,  which  would  be  ample  to  sho 
produce  conviction  on  the  mind,  that  it  was  the  wicked  attempt  and  pi 
to  commit  this  infamous  crime,  if  done  in  reference  to  a  female  of  goo 
virtuous  charact^jr,  would  be  wholly  insufficient  to  establish  guilt,  if  the] 
acts  done  to  a  female  of  uissolute  character  or  easy  virtue.    The  certiflc 
facts  in  this  case  shows  that  the  accused  and  the  prosecutrix  were  both  ne| 
and  ha<^  been  to  witness  some  dramatic  exhibition  of  negroes  at  night. 
Metropolitan  Hall,  to  which  the  prosecutrix  had  gone  with  the  accused,  i 
his  expense ;  and  that  the  alleged  attempt  to  commit  the  crime  waf)  again 
whose  virtue  had  been  overcome  on  previous  occasions;  as  she  was  by  he 
admission,  the  mother  of  two  bastard  children.    The  evidence  indicatcM  t 
had  used  her  pretty  roughly,  in  a  way  that  would  have  been  horrible 
shocking  outrage  towards  a  woman  of  virtuous  sensibilities,  and  shoul 
subjected  him  to  the  severest  punishment  which  the  law  would  warrant 
how  far  it  shocked  the  Berisibilities  of  the  prosecutrix  does  not  appear, 
no  means  appears,  from  the  facts  certified,  that  it  was  an  attempt  to  ravl 
against  her  will ;  or  that  it  was  not  only  an  attempt  to  work  upon  her  pa: 
and  overcome  her  virtue,  which  had  y  ielded  to  others  before,  how  of te 
not  appear.    But  that  he  dasisted  when  he  could  probably  have  accomi 
his  purpose,  if  it  had  been  to  force  her,  when  he  found  her  more  uny 
than  he  perhaps  expected,  without  any  interference,  or  any  outcry  on  he 
together  with  his  after  conduct,  show,  we  think,  that  his  conduct,  thou 
tremely  reprehensible,  and  deserving  of  punishment,  does  not  involve 
the  crime  which  this  statute  was  designed  to  punish.    We  are  of  opinion, 
fore,  to  reverse  the  judgment  of  the  Hustings  Court  of  the  City  of  Richn 
Christian,  Staples  and  Bouldin,  JJ^  concurred  in  tlie  reversal  of  the 
ment  upon  the  facts  proved;  but  they  thought  the  indictment  good." 

HoNCUBB,  J.,  concurred  in  the  opinion  of  Amokrsou,  J. 

Judgment  revt 

f 

>  23  Uratt.  054  (1873). 


^^ 


OF  INDIVIDUALS. 
Judgment  and  order  reversed, 

convict -Christian  v.  Com- 
Lhe  prisoner  had  been  convicted 
e  following  clicumstances:  The 
lonths  before  the  trial,  she  wen 
,m  Washington,  given  at  the  Met- 
•  that  after  the  performance  was 
y  home,  when  near  the  Tredegar 
on;  asked  her  to  do  It;  and  she 
own  on  a  \A\e  of  lumber,  choking 
resisted,  and  that  he  did  not  ac- 
1  from  his  effort,  and  she  started 
her  to  yield  to  his  wUhes,  but 
leany  violence  towards  her;  that 
vn's  Island,  with  a  negro  wo^an; 
oman,  comprising  the  household^ 
depend  upon  the  clrcumstonces  ol 
idltlon  of  the  parties  may  have  an 
Ich  would  be  ample  to  show  and 
the  wicked  attempt  and  purpose 
.ference  to  a  female  of  good  and 
nt  to  establish  guilt.  If  they  were 
>r  easy  virtue.    The  certificate  of 
;he  prosecutrix  were  both  negroes, 
ibltlon  of  negroes  at  night,  at  the 
iad  gone  with  the  accused,  and  -t 
commit  the  crime  wah  against  one 
occasions;  as  she  was  by  her  own 
n     The  evidence  Indicates  that  he 
.  would  have  been  horrible  and  a 
Ions  sensibilities,  and  should  have 
rhlch  the  law  would  warrant.    B:' 
osecutrlx  does  not  appear.    It  by 
,at  It  was  an  attempt  to  ravish  her 
attempt  to  work  upon  her  passions, 
I  to  others  before,  how  often  does 
could  probably  have  accomplished 
hen  he  found  her  more  unyielding 
erence,  or  any  outcry  on  her  part^ 
hlnk,  that  his  conduct,  though  ex. 
mlshment,  does  not  Involve  him  In 
punish.    We  are  of  opinion,  there- 
9  Court  of  the  City  of  Richmond, 
'iurred  in  the  reversal  of  the  judg- 
it  the  Indictment  good." 

Iandersou,  J. 

Judgment  reveriea. 


KAPE  —  INSUmCIENT  PROOF. 


901 


§  66B.  Rape  —  Bvldenca  Held  Insufllolent  to  Convict  — reopla  v.  Hamilton. — 
In  People  v.  Hamilton,^  the  court  In  reversing  a  conviction  for  rape  say :  "  The  In- 
dictment charges  the  defendant  with  the  crime  of  rape,  alleged  to  have  been 
committed  on  the  person  of  a  child  under  ten  years  of  age.  At  the  trial  he  was 
convicted  of  an  assault  with  the  intent  to  commit  rape,  and  was  sentenced  to 
confinement  In  the  State  prison  for  fourteen  years.  Ho  appeals  from  the  Judg- 
ment and  from  the  order  denying  his  motion  for  a  new  trial.  It  appeared  in  evi- 
dence,  that  t**"  child  on  whom  the  assault  Is  alleged  to  have  been  made,  is  a 
step-daughter  of  the  defendant,  and  was  residing  on  a  farm,  In  the  same  bouse 
with  the  defendnnt  and  his  wife,  the  mother  of  the  child.  At  the  time  of  the 
trial,  she  was  under  thirteen  years  of  age,  and  was  the  only  witness  called  to 
prove  thci  accusation.  She  testified  not  only  to  the  assault,  with  tb*)  intent  to 
commit  rape,  but  also  to  the  complete  aceomplishment  of  the  criminal  intent. 
I  0  witness  was  called  to  corroborate  her  testimony  In  any  particular,  as  to  time, 
place  or  circumstances,  or  in  any  respect  whatever,  except  as  to  her  age.  The 
deiendant,  who  testified  in  bis  own  behalf,  explicitly  denied  the  truth  of  her 
testimony  in  respect  to  the  alleged  assault  and  the  perpetration  of  the  crime. 
Her  version  of  the  affair  is,  that  the  offense  was  accomplished  in  the  bam,  about 
fifty  yards  distac  j  from  the  dwelling  bouse ;  and  that  immediately  afterward  the 
defendant  ordered  her  to  assist  her  younger  brother,  a  boy  five  or  six  years  of 
age,  to  carry  from  the  barn  to  the  house  a  box  of  soap  of  the  usual  size ;  that 
on  reaching  the  house  with  the  soap  she  found  her  mother  engaged  in  her  usual 
household  duties,  but  did  not  state  to  her  the  occurrence  at  the  bam;  and  on 
the  contrary,  proceeded  to  assist  her  about  her  household  affairs  as  usual ;  that 
no  bleeding  resulted  from  the  assanlt  upon  her,  and  it  does  not  appear  that  she 
complaineu  of  any  pain  or  injury.  She  further  testified  that  she  did  not  Inform 
ber  mother  of  the  occurrence  at  the  bam  until  about  two  years  afterward,  and 
(he  assigns  as  a  reason  for  her  silence  that  he  threatened  to  kill  her  If  she  dls- 
closed  the  facts,  and  that  she  was  afraid  of  him.  Two  physicians  were  called, 
v'-o  testified  that  though  it  was  not  Impossible  for  a  man  to  have  carnal  knowl- 
edge of  a  child  of  such  tender  rears,  it  was  in  the  highest  degree  Improbable 
that  bleeding  and  great  bodily  palu  would  not  ensue.  This  is  all  the  testi- 
mony; and  on  these  facts  we  are  asked  to  award  a  new  trial,  on  the  ground  that 
the  evidence  was  Ineufflclent  to  support  the  verdict.  The  almost  uniform  prac- 
tice of  this  and  other  appellate  courts  is,  to  refuse  to  disturb  verdicts  on  this 
ground  when  there  Is  a  substkntial  confiict  in  the  evidence.  The  rule  is 
founded  on  the  fact  *:hat  the  jury  had  the  opportunity  to  observe  the  demeanor 
of  tlie  witnesses,  and  is,  therefore,  more  ...impotent  than  we  to  decide  upon  their 
credibility.  The  rule  is  a  most  salutary  one,  and  one  not  to  be  lightly  departed 
from,  iiievertheless,  there  are  exceptional  cases.  In  which  the  preponderance 
of  evidence  against  the  verdict  is  so  great  an  to  produce  a  conv'ctlon  that, 
In  rendering  it,  the  jury  must  nave  been  under  the  Influence  of  passion  or  pre- 
judice. Such  was  the  case  of  People  v.  Beneon,^  which  was  also  a  prosecu- 
tion for  rape  on  a  girl  thirteen  years  of  age,  who  was  the  sole  witness  to  prr'  e 
the  charge.  She  testifieu  positively  to  the  forcible  commission  of  the  act  of 
sexual  intercourse  on  the  occasion  complained  of,  but  admitted  on  cross-exam- 
ination, that  on  many  previous  occasions  she  had  carnal  intercourse  with  the 
defendant,  and  on  none  of  them  had  made  any  outcry,  though  the  defendant's 
wife  was  In  an  adjoining  room:  nor  had  she  ever  disclosed  the  facts  to  his  wife; 


l8T3). 


i  460al.649(187S). 


3  6  Col.  231. 


902 


CRIMES   AGAINST  THE  PERSONS  OF   INDIVIDUALS. 


BSiijntng  for  a  reason  that  she  was  afraid  the  defendant  would  kill  her.  The 
defence  introduced  evidence  of  the  bad  character  of  the  prosecutrix  forchaatlty, 
and  that  she  had  frequently  expressed  feelings  of  friendship  for  the  defendant. 
On  these  facta  the  defendant  was  oonvlcted,  and  on  appeal  this  court  said  that 
the  story  of  the  girl  was  '  so  improbable  of  itself  as  to  warrant  us  in  the  belief 
that  the  verdict  was  more  the  result  of  prejuctce  or  popular  excitement  than 
the  calm  and  dispassionate  conclusion  upon  the  facts  by  twelve  men  sworn  to 
discharge  their  duty  faithfully.  A  conviction  upon  such  evidence  would  be  a 
blot  upon  the  Jurisprudence  of  the  country,  and  a  libel  upon  jury  trials.'  In 
some  respects  the  present  case  is  very  similar  to  People  v.  Benson,  Just  noticed. 
The  charge  rests  upon  the  uncorroborated  testimony  of  a  child,  who,  at  the 
time,  was  under  ten  years  of  age ;  and  who  not  only  made  no  outcry,  but  imme- 
diately went  about  her  daily  duties,  us  though  nothing  unusual  had  occurred, 
and  failed  for  two  years  to  disclose  the  facts,  even  to  her  mother.  When,  in 
addition,  she  admits  that  no  flow  of  blood  followed  the  alleged  outrage,  and  it 
does  not  appear  that  she  suffered  or  complained  of  any  bodily  pain,  it  is  almost 
Inconceivable  that  a  Jury  free  from  passion  or  prejudice,  would  not,  at  least, 
have  entertained  a  reasonable  doubt  as  to  the  guilt  of  the  defendant.  A  charge 
of  so  heinous  a  nature,  when  supported  by  even  the  slightest  evidence,  arouses 
In  the  public  mind  an  intense  indignation  against  the  supposed  culprit ;  and  it 
is  not  surprising  that  tlie  same  feeling  sometimes  finds  its  way  Into  the  jury- 
box.  That  it  did  so,  to  some  extent,  in  the  present  case  is  manifest  from  the 
unseemly  conduct  of  one  of  the  jurors,  who  in  the  progress  of  the  trial  inter- 
rnpted  the  counsel  for  defence  in  a  most  improper  manner,  and  evinced  clearly 
that  he  was  under  the  influence  of  passion  or  prejudice,  or  both.  On  the 
whole,  we  think  the  ends  of  Justice  demand  that  the  cause  shall  be  tried  anew. 
"Judgment  reversed,  and  cause  remanded  for  a  new  trial;  remittitur ioith- 
irith." 

}  669.  Bap* — Offense  Held  not  Proved  on  the  Facta  —  Bozley  ▼.  Oom* 
monwealtb.  —  In  Boxley  v.  Commonvotalth,^  the  prisoner  being  convicted  of  rape, 
appealed  to  the  Supreme  Court,  which  held  the  evidence  insuflloient  to  sustain 
the  conviction,  in  the  following  opinion :  <  We  are  of  opinion  that  the  Circuit 
Court  erred  in  refusing,  under  all  circumstances  of  the  case,  to  grant  the  new 
trial. 

Without  recapitulating  or  very  critically  analyzing  the  testimony,  we  are 
compelled  to  say  that  the  evidence  adduced  to  establish  the  felonious  act  —  the 
corpus  delicti —  is,  to  say  the  least  of  it,  of  a  very  doubtful  and  inclusive  char- 
acter. It  consists  exclusively  of  the  statements  of  the  person  upon  whom  the 
oitcnse  is  charged  to  have  been  committed,  and  is  certifled  by  the  court  as  fol- 
lows: <  On  the day  of  June,  1878,  it  being  Sunday,  about  twelve  o'clock 

m.,  Hiss  Martha  Spencer  was  at  the  spring  (which  is  about  one  hundred  yards 
from  her  father's  house),  had  filled  her  bucket  and  was  sitting  down  on  a  rock 
at  the  spring;  while  sitting  there,  some  one  came  up  behind  her  and  seized  her 
by  the  shoulders,  pulled  her  over  backwards,  her  bonnet  falling  over  her  eyes; 
the  person  making  the  attack  spoke  to  her  in  a  low  tone,  aud  told  her  "  not  to 
make  a  noise  "  (a  suggestion  wb'.ch,  for  some  reason,  she  seems  to  have  duly  re- 
spected). "She  screamed  once"  (whether  in  a  similar  tone  or  not  does  not 
appear) ;  *'  but  the  bonnet  was  held  over  her  mouth  and  ears  and  eyes  so  that 
she  was  unable  to  make  further  outcry,  and  could  only  catch  a  glimpse  of  her 

1 14  Gratt  655. 


mtm 


%>  WatWmwKawW'' ' 


^^m 


INDIVIDUALS. 

dant  would  kill  her.  The 
he  prosecutrix  for  chastity, 
eudship  for  the  defendant, 
appeal  this  court  said  that 
to  vrarrant  us  in  the  belief 
ir  popular  excitement  than 
,8  by  twelve  men  sworn  to 

such  evidence  would  be  a 
libel  upon  jury  trials.'  In 
iple  V.  Benson,  just  noticed, 
>ny  of  a  child,  who,  at  the 
made  no  outcry,  but  Irnme- 
ling  unusual  had  occurred, 

to  her  mother.  When,  In 
the  alleged  outrage,  and  it 
,ny  bodily  pain,  it  Is  almost 
iudice,  would  not,  at  least, 
>f  the  defendant.  A  charge 
slightest  evidence,  arouses 
io  supposed  culprit ;  and  It 
finds  Its  way  into  the  jury- 
t  case  Is  manifest  from  the 

progress  of  the  trial  inter- 
lanner,  and  evinced  clearly 
rejudlce,  or  both.  On  the 
e  cause  shall  be  tried  anew. 
I  new  trial ;  remittitur  forth* 


le  Facts  —  Bozlay  ▼.  Oom- 
>ner  being  convicted  of  rape, 
lence  insuffloient  to  sustain 
of  opinion  that  the  Circuit 
i(  the  case,  to  grant  the  new 

zing  the  testimony,  we  are 
bllsh  the  felonious  act— the 
doubtful  and  inclusive  char- 

the  person  upon  whom  the 
sertifled  by  the  court  as  fol. 
Sunday,  about  twelve  o'clocli 

is  about  one  hundred  yards 
d  was  sitting  down  on  a  rock 
ip  behind  her  and  seized  her 
lonnet  falling  over  her  eyes; 
»  tone,  aud  told  her  "  not  to 
»n,  she  seems  to  hove  duly  re* 
imilar  tone  or  not  does  not 
ith  and  ears  and  eyes  so  that 

only  catch  a  glimpse  of  her 


RAPE INSUrnCIENT   PROOF. 


908 


ravisher.  Her  arms  were  not  confined,  and  she  made  an  attempt  to  pull  the 
bonnet  away  from  her  eyes.  She  wan  very  weak  and  very  much  frightened,  and 
notwithstanding  her  resistance,  he  accomplished  his  purpose  and  ravished 
her." 

This  is  her  own  account  of  the  alleged  criminal  act,  and  it  Is  all  we  have  di- 
rectly on  the  subject.  She  proves  no  other  violence  than  enough  to  draw  her 
backwards  by  tlie  shoulders  from  her  seat,  and  to  hold  her  bonnet  over  her  face. 
Her  person  was  examined  by  two  physicians,  and  whilst  they  both  testified  that 
it  was  apparent  that  she  had  had  recent  sexual  intercourse,  they  also  proved 
that  there  was  nothing  to  Indicate  that  It  had  been  accomplished  by  violence; 
"  that  no  bruises  were  found  about  the  face,  arms  or  person  of  the  prosecutrix, 
except  a  small,  almost  imperceptible  bruise  under  each  knee." 

It  was  also  proved  that  Miss  Spencer  was  «<  a  large,  stout  wom«n,"  and  the 
accused  was  a  medium-sized  man,  about  twenty-three  years  old. 

Can  we  say,  upon  such  testimony,  that  the  criminal  act  has  been  establishedf 
It  would  require  a  large  decree  of  charity  and  credulity  to  believe  that  at  noon- 
day, and  within  one  hundred  yards  of  her  father's  house,  and  within  two  or 
three  hundred  yards  of  the  house  of  a  neighbor  (William  Spencer),  a  rape  was 
perpetrated  on  this  large  and  stout  woman,  with  both  her  arms  perfectly  free, 
by  a  medium-sized  man,  who  neither  threatened  her  with  violence  nor  did  any- 
thing to  disable  her,  aud  who,  from  her  own  account,  had  the  use  of  but  one 
arm,  the  other  beidg  employed  in  holding  her  bonnet  over  her  face  whilst  the 
act  was  committed ;  and  that  all  this  had  been  accomplished  with  no  noise  to 
alarm  the  families  which  were  near;  with  not  the  slightest  indication,  from  the 
appearance  of  the  ground,  that  there  had  been  a  scuflic;  and  with  no  scratch  or 
bruise  on  the  person  of  the  female,  to  show  that  her  chastity  had  been  violated 
without  a  struggle!  Such  testimony  we  think  exceedingly  weak,  to  say  the 
least  of  It,  to  show  that  a  rape  had  been  committed  at  all,  especially  when  it 
appears  in  the  record  that  the  accused,  who  lived  at  her  father's  house,  had 
previously,  in  his  kitchen,  attempted  to  take  Improper  liberties  with  Miss 
Spencer,  which  she  does  not  Appear  to  have  disclosed  or  resented. 

But  conceding  the  rape  to  be  established,  the  evidence  to  couu«et  the  accused 
with  the  act  is  yet  more  doubtful  and  unsatisfactory.  Although  the  accused  had 
resided  at  her  father's  house  for  a  year  or  two  previous  to  the  occurrence,  and 
was,  of  course  well  known  to  the  witness  — voice  features,  gestures  and  per- 
son, —yet  she  does  not  swear  to  his  identity.  He  spoke  to  her  with  his  face 
very  near  to  hers,  yet  she  does  not  say  that  she  recognized  his  voice.  She  saya 
she  only  caught  a  "  glimpse  of  the  lower  part  of  his  face,"  aud  only  saw  his  back 
"  at  a  distance  of  about  fifty  or  a  hundred  yards,  running  away."  What  she 
was  doing  from  the  time  he  left  her  person  until  he  reached  the  distance  of 
fifty  or  one  hundred  yards,  does  not  appear;  yet  when  she  did  see  him,  she 
seems  to  have  been  perfectly  cool  and  collected,  for  she  can  tell  that  he  wore  a 
dirty  shirt  and  a  bhick  felt  hat.  She  says  that,  from  the  glimpse  she  had  of  his 
face,  and  the  sight  she  had  of  his  back  as  he  ran  away,  she  believed  it  was  the 
prisoner.  And  this  was  all  the  evidence  of  identity,  except  the  evidence  of 
William  Spencer,  who  lived  about  two  or  three  hundred  yards  from  the  home  of 
the  prosecutrix.  He  proves  that  he  saw,  on  what  day  and  at  what  hour  does  not 
appear,  a  man  whom  he  took  to  be  Wilson  Boxley,  walking  very  rapidly  along 
the  road  leading  from  Bannister  Spencer's,  and  now  and  then  looking  back- 
wards. He  called  to  him  and  asked,  "What's  your  hurry?"  but  received  no 
answer.    He  was  one  hundred  yards  off,  and  witness  was  not  sure  it  was  Bozley . 


904 


CRIMES  AGAINST  THE  PERSONS   OF  INDIVIDUALS. 


••The  man  he  saw  wore  a  white  chip  hat,"  not  a  black  felt  hat,  as  proved  by 
Miss  Spencer  to  have  been  worn  by  the  person  who  assailed  her. 

It  was  further  proved  that  the  accused  lived  about  two  miles  from  the  home 
of  Miss  Spencer,  and  that  he  remained  at  his  worlc  as  usual  for  three  or  four 
days  after  the  occurrence  at  the  spring,  when  he  was  charged  with  this  offense 
by  the  brothers  of  Miss  Spencer,  and  beaten  by  them.  He  then  went  to  the 
court  house  and  caused  a  warrant  to  be  issued  against  them ;  and  it  was  not 
not  until  after  these  proceedings  that  the  present  prosecution  was  commei.ced, 
We  think  the  evidence  wholly  insufBcient  to  Identify  the  prisoner  as  the  guilty 
party.  Were  this  not  so,  the  evidence,  to  say  the  most  of  it,  leaves  the  question 
of  identity  extremely  doubtful,  and,  under  the  circumstances,  the  verdict  of  the 
Jury  should  have  been  set  aside,  and  a  new  trial  awarded,  to  allow  the  accused 
the  privilege  of  introducing  the  testimony  set  forth  in  his  own  affidavit  and 
that  of  Dr.  Melvin,  of  which  he  was  evidently  deprived  by  surprise. 

Dr.  Melvin's  testimony,  as  set  forth  in  his  afflclavit,  would  still  farther  have 
weakened  the  testimony  on  the  question  of  identity.  He  was  the  committing 
magistrate,  and  the  testimony  of  Miss  Spencer,  as  detailed  by  him,  is  materially 
Tariant  from  her  testimony  in  court;  and  the  facts  set  forth  in  the  prisoner's 
afDdavit  satisfactorily  explain  his  failnre  to  have  Dr.  Melvin  before  the  court. 
Under  all  the  circumstances,  this  court  is  of  opinion  that  the  circuit  court  erred 
In  refusing  to  set  aside  the  verdict  and  to  award  the  prisoner  a  new  trial. 

{  670.  "  Abuse  "  of  Oblld.  —  In  a  statute  punishing  the  "  abuse  "  of  a  child, 
the  word  "abuse"  is  restricted  to  injury  of  the  geniul  organs.^ 

{  671.  Assault  with  Intent  to  Commit  Bap* — Intsnt  to  Oommlt  Baps 
must  to*  Proved.  — The  evidence  must  show  an  intent  to  commit  rape  —  that  is 
to  say  that  the  prisoner  intended  to  accomplish  his  purpose  at  all  hazards  and 
to  use  force  and  violence  to  do  so.' 

Where  the  prisoner  uses  force  at  first  but  desists  on  the  woman's  resisting, 
this  is  not  an  assault  with  intent  to  commit  rape.* 

Thus  to  assault  a  woman  with  intent  to  persuade  her  to  have  intercourse 
with  him,  but  with  no  intent  to  force  her  to  it,  is  not  assaalt  with  intent  to 
commit  rape.* 

In  Commonaealth  v.  Fleld$,^  the  prisoner,  a  negro,  was  indicted  for  attempt 
to  rape  a  white  woman.  The  Jury  found  "he  intended  only  to  have  carnal 
knowledge  of  her  while  she  was  asleep;  that  he  made  the  attempt  to  do  so,  but 
used  no  force  except  such  as  was  Incident  to  getting  in  bed  with  her  and  strip- 
ping up  her  night  garment  in  which  she  was  sleeping,  and  which  caused  her  to 
•wake."    The  court  held  that  this  was  not  an  attempt  to  cotaimit  a  rape. 

In  Th(mp$un  v.  State,*  the  defendant  entered  the  room  of  a  domestic  at 
night;  was  seen  to  come  in  by  herself  and  by  a  little  girl  who  slept  with  her. 
He  put  his  hand  on  her  when  she  pulled  up  the  bedclothes,  being  too  fright- 
ened to  scream,  and  the  defendant  immediately  left  the  room.  In  another 
bed  in  the  same  room  three  little  girls  slept,  and  in  a  room  across  the  hall  the 


1  Dawklns  v.  8Ute,  K  Ala.  S7«  (1877). 

S  Com.  V.  MerreU,  U  Gray,  415  (1880) ;  Pet- 
ferUng  V.  State,  40  Tez.  408  (1874) ;   Rhodci 
p.  State,  1  Ccld.  SSI  (1860) ;  Stote  v.  Priestly 
7iXo.94(1861). 

S  Pleasant  «.  State,  IS  Ark.  S71  (185S) ; 
Oharlei  «.  SUte,  11  Ark.  390  (18M). 


«  Thomas  «.  SUte,  18  Tez.  (App.)  M 
(1884).  And  see  PaUnon  v.  State,  14  Tei. 
(App.)  les  (1888). 

>  4  Lciftli,  468  (im). 

«4S  Tez.  088  (1875). 


KwiMiiwn>wiJnw*a'' 


INDIVIDUALS. 

ilack  felt  hat,  as  proved  by 
assailed  her. 

It  two  miles  from  the  home 
c  as  usual  for  three  or  four 
IB  charged  with  this  offense 
them.  He  then  went  to  the 
^inst  them ;  and  it  was  not 
rosecution  was  commei^ced, 
y  the  prisoner  as  the  guilty 
ost  of  it,  leaves  the  question 
imstances,  the  verdict  of  the 
rarded,  to  allow  the  accused 
rth  in  his  own  aflldavit  and 
ived  by  surprise. 
,vit,  would  still  farther  have 
ty.  He  was  the  committing 
letailed  by  him,  is  materially 
8  set  forth  in  the  prisoner's 
Dr.  Melvln  before  the  court. 
I  that  the  circuit  court  erred 
e  prisoner  a  new  trial. 

ling  the  "  abuae  "  of  a  child, 
snital  organs.* 

) — Intent  to  Oommlt  Bap* 

ent  to  commit  rape  —  that  is 
is  purpose  at  all  hazards  and 

Its  on  the  woman's  resisting, 

lade  her  to  have  intercourse 
is  not  assanlt  with  intent  to 

;ro,  was  indicted  for  attempt 
ntended  only  to  have  carnal 
ade  the  attempt  to  do  so,  but 
ng  in  bed  with  her  and  strip- 
ing, and  which  caused  her  to 
mpt  to  cotaimit  a  rape, 
the  room  of  a  domestic  at 
little  girl  who  slept  with  her. 
bedclotheH,  being  too  fright* 
'  left  the  room.  In  another 
in  a  room  across  the  hall  the 

M  V.  Bute,   IS  Tex.  (App.)  Ba» 
id  ice  PeUnon  v.  State,  U  Tes. 

(1888). 

k,  468  (im). 

.088(1875). 


ASSAULT  WITH  INTENT  TO  COMMIT  RAPE. 


905 


rest  of  the  family.  A  conviction  of  assault  with  intent  to  commit  rape  was 
reversed  by  the  Supreme  Court.  "  The  evidence,"  said  Moore,  J.,  "shows  an 
unwarranted  liberty  with  the  person  of  a  female  of  a  gross,  wanton  and  out- 
rageous character,  well  calculated  to  arouse  the  strongest  feelings  of  shame 
mortification  and  indignation  which  was  therefore,  unquestionably  an  aggra. 
rated  assault  on  her.  But  the  manner,  time,  place  and  circumstances  under 
which  the  assault  was  committed,  however  wanton  and  unjustifiable,  were  nut 
such  as  justifies  the  presumption  that  it  was  with  the  Intent  to  accomplish  the 
purpose  for  which  he  may  have  entered  the  room,  without  consent  and  by  means 
ol  force.  To  support  the  verdict  it  is  necessary  that  It  should  appear  that  the 
intent  with  whic'r  the  assault  was  made  went  to  this  extent.  The  improbability 
that  he  could  suppose  that  he  would  be  Ae  to  accomplish  a  design  when  the 
slightest  outcry  would  have  defeated  it,  renders  It  quite  improbable  that  this 
was  his  intention.  But  it  is  not  sufficient  to  support  the  verdict  that  this  pos- 
sibly  may  have  been  the  purpose  and  intent  with  which  he  made  the  assault. 
The  burthen  was  upon  the  State  to  show  beyond  reasonable  doubt  that  such  was 
the  fact,  and  as  this  was  not  done  the  motion  for  a  new  trial  should  have  been 
granted." 

$  672.  Asaatilt  with  Intent  to  Oommlt  Bap* — Bvldenoe  not  SulBolent— 
Saddler  ▼.  State  —  Sanford  ▼.  State.  —  In  Saddler  v.  Slate,^  the  opinion  of  the 
court  was  delivered  by  Winkucr,  J.,  as  follows :  The  appellant  was  charged  by 
the  indictment  with  an  assault  with  ipVnt  to  ravish  and  carnally  know  one 
certain  female  whose  name  is  set  out  in  the  indictment,  "  by  force  and  without 
her  consent." 

The  person  upon  whom  the  assault  In  alleged  to  have  been  committed  was 
the  only  witness  who  testified  at  the  trial.  Her  testimony,  after  stating  that 
she  was  a  widow  and  living  with  her  son,  and  Identifying  the  defendant,  in 
reference  to  the  charge  said :  "  My  son  was  not  at  home  on  the  night  of  the  ISth 
July,  1881 ;  there  was  no  one  there  witli  me  that  night  except  my  little  grand 
child,  about  five  or  six  years  old.  The  defendant  knew  my  son  was  away  from 
home  that  night.  I  slept  under  an  arbor  that  night,  and  some  time  during  the 
night  the  defendant  woke  me  up  by  pulling  up  my  clothes,  and  when  I  looked 
up  he  was  standing  by  my  bed.  I  told  him  to  leave  and  he  stepped  back  a  foot 
or  two  and  stopped  and  looked  back  at  me,  and  said  he  would  leave  when  he 
pleased.  I  ordered  him  three  times  to  leave,  and  he  walked  off  muttering 
something  I  could  not  understand.  The  moon  was  shining  brightly  and  I  recog 
nized  the  defendant  Dick  Saddler.    I  know  him  well." 

It  must  be  conceded  that  agreeably  to  this  testimony  the  condact  of  the 
defendant  was  highly  Improper,  and  perhaps  sufficient  to  subject  him  to  a  con-^ 
viction  for  an  aggravated  assault;  but,  however  reprehensible  his  conduct,  we 
are  constrained  to  say  that  the  testimony  utterly  fails  to  show  any  attempt  on 
bis  part  to  employ  any  force  whatever  in  the  accomplishment  of  his  purpose, 
whatever  that  may  have  been. 

When  rape  is  intended  to  be  accomplished  by  force,  the  force  must  be  such 
as  might  reasonably  be  supposed  sufficient  to  overcome  resistance,  taking  into 
consideration  the  relative  strength  of  the  parties  and  other  circumstances  of 
the  case.*  An  assault  with  intent  to  commit  any  other  offense  is  constituted  by 
the  existence  of  the  facts  which  bring  the  offense  within  the  definition  of  aa 


1  12Tez.  (App.)  194  (188S). 


i  Penal  Code,  art.  S89. 


906 


CRIMES   AGAINST  THE   PERSONS   OF  INDIVIDUALS. 


assault,  coupled  with  an  intention  to  commit  such  other  offense,  as  maiming, 
murder,  rape  or  robbery .1  It  was  perhaps  a  delicate  subject  for  the  trial  judge 
to  deal  with  under  the  circumstances,  but  inasmuch  as  he  refused  a  new  trlul 
on  the  evidence,  which  is  wholly  Insufficient  to  support  the  verdict,  rather  than 
the  case  stand  as  a  precedent  this  court  can  not  do  otherwise  than  reverse  the 
judgment  and  remand  the  case  for  a  new  trial.  ^^^^^^^^  ^^^  ^^^^^^^ 

In  Sanford  v.  -State,*  it  was  held  that  a  conviction  for  an  assault  with  Intent 
to  commit  a  rape  by  force  is  not  warranted  by  proof  that  the  defendant,  against 
the  win  of  the  female.  Indecently  fondled  her  person  with  the  intent  to  hiduce 
her  thereby  to  submit  to  his  embrace.  It  must  appear  that  has  Intent  was  to 
accomplish  his  purpose  by  force  i^pi  against  her  will.  And  the  evidence  was 
held  insufficient  to  sustain  a  conviction  for  an  assault  with  intent  to  commit  a 

rape  by  force. 

The  indictment  charged  that  the  appellant,  an  adult  male,  did,  on  December 
24, 1881,  make  an  assault  on  Zona  Bean,  "  a  female  girl,"  and  did  beat,  wound 
aud  ill-treat  her,  with  Intent,  against  her  will  and  without  her  consent,  to  rape 
and  carnally  know  her.  The  jury  found  the  appellant  guilty  as  charged  in  the 
Indictment,  and  assessed  his  punishment  at  confinement  in  the  penitentiary  for 
»  term  of  five  years.  ^  „    ^ 

Zona  Bean,  for  the  State,  testified  that  she  was  twelve  years  of  age,  and  lived 
with  her  mother  in  the  town  of  Longview,  in  a  house  situated  about  twelve  feet 
from  a  public  highway.    There  was  no  fence  around  the  house,  and  there  were 
several  occupied  houses  close  by;  the  nearest  one  being  about  twenty  feet 
distant.    Early  In  the  day  alleged  in  the  Indictment,  witness'  mother  went  down 
town,  leaving  witness  and  two  other  children  at  the  house.    About  eleven 
o'clock,  and  while  witness  was  standing  at  the  looking-glass,  combing  her  hair, 
the  defendant  came  to  the  house  and  asked  witness  to  come  and  sit  in  his  lap. 
She  told  him  she  would  not,  and  then  he  took  her  by  the  arm,  pulled  her  on  the 
lounge  put  his  hand  under  her  clothes  and  felt  of  her  naked  knee.    Witness  got 
ap  and  was  again  pulled  down  by  the  defendant,  who  offered  her  fifty  cenU, 
then  a  dollar,  and  then  a  dollar  and  a  half.    She  refused  his  offers,  and  then 
he  put  her  on  the  bed  and  placed  his  heart  to  hers.    While  in  this  position  her 
clothes  were  down  and  he  made  no  attempt  to  raise  them,  nor  did  he  unbutton 
his  pants  or  expose  his  person.    His  hands  were  over  her  shoulders  and  resting 
on  the  bed.    When  witness  got  up  from  the  bed  she  immediately  went  out  of  the 
house  and  stood  at  a  fence  which  enclosed  a  negro's  cabin,  about  twenty  feet 
distant.    Defendant,  when  she  had  left  the  house,  soon  came  and  tried  to  get 
her  back  into  the  house.    He  offered  her  a  doUar,  but  she  refused  to  go.    He 
teWrned  to  the  house  and  came  back  two  or  three  times  to  the  witness,  and 
tried  to  get  her  into  the  house  again.    She  continued  to  refuse,  and  remained  at 
the  fence  until  her  mother  came  home,  which  was  between  eleven  and  twelve 
o'clock.    When  her  mother  came,  witness  told  her  In  defendant'  presence  what 
he  had  been  doing.    He  denied  it  and  said  it  wasnot  so,  but  witness'  mother  told 
him  he  had  better  leave ;  and  he  said  all  right  and  did  leave.    Defendant  had  been 
boarding  with  them  for  about  a  month.    The  night  preceding  the  defendant's 
attempt  on  the  witness,  she  sat  in  his  lap  until  her  mother  told  her  to  get  up. 

S.  Camp,  for  the  State,  testified  that  he  lived  close  by  the  house  in  which 
Zona  Bean  lived,  and  about  noon  of  the  day  alleged  In  the  indictment  he  saw 
Zona  out  in  the  yard  crying,  and  observed  the  defendant  go  to  her  and  offer  her 


1  Penal  Code,  art.  6M. 


IUTez.(App.)  196  (1881). 


J 


lAiii 


NDIVIDUAL8. 


ASSAULT  WITH   INTENT  TO  COMMIT   RAPE. 


907 


ther  offense,  as  mblmlug, 
subject  for  the  trial  judge 
as  he  refused  a  new  trial 
:t  the  verdict,  rather  than 
therwise  than  reverse  the 

Reversed  and  remanded. 
tor  an  assault  with  Intent 
hat  the  defendant,  against 
with  the  intent  to  hiduce 
iar  that  has  intent  was  to 
11.  And  the  evidence  was 
It  with  Intent  to  commit  a 

It  male,  did,  on  December 
!irl,"  and  did  beat,  wound 
thout  her  consent,  to  rape 
at  guilty  as  charged  In  the 
lent  in  the  penitentiary  for 

elve  years  of  age,  and  lived 
I  situated  about  twelve  feet 
the  bouse,  and  there  were 
)  being  about  twenty  feet 
vltness'  mother  went  down 
the  house.    About  eleven 
Qg.glass,  combing  her  hair, 
to  come  and  sit  in  his  lap. 
'  the  arm,  pulled  her  on  the 
r  nalced  knee.    Witness  got 
rho  offered  her  fifty  cents, 
sfused  his  offers,  and  then 
While  in  this  position  her 
them,  nor  did  be  unbutton 
ir  her  shoulders  and  resting 
immediately  went  out  of  the 
'8  cabin,  about  twenty  feet 
,  soon  came  and  tried  to  get 
but  she  refused  to  go.    He 
se  times  to  the  witness,  and 
i  to  refuse,  and  remained  at 
between  eleven  and  twelve 
In  defendant'  presence  what 
so,  but  witness'  mother  told 
leave .    Defendant  had  been 
t  preceding  the  defendant's 
mother  told  her  to  get  up. 
slose  by  the  house  in  which 
d  in  the  indictment  he  saw 
kdaut  go  to  her  and  offer  her 


a  dollar  to  go  back  into  the  house.  She  did  not  go,  and  the  defendant  left  her 
and  went  Into  the  house.  People  were  almost  constantly  passing  by  the  house 
aluug  the  public  road. 

Mrs.  Bean,  the  mother  of  Zona,  testified  for  the  State,  and  corroborated  such 
of  the  latter's  statements  as  related  to  what  passed  after  the  witness  returned 
home  on  the  day  in  question. 

The  defence  introduced  no  evidence. 

Winkler,  J.  The  indictment  charges  the  appellant  with  an  assault  with  in- 
tent to  rape  one  Zona  Bean,  who  is  alleged  to  be  a  female  girl. 

The  judge  who  presided  at  the  trial  gave  to  the  jury,  among  other  instmc- 
tlous,the  following:  "  To  constitute  an  assault  to  commit  rape  In  this  case,  the 
purpose  and  Intent  must  have  been  to  have  carnal  knowledge  of  Zona  Bean  by 
force.  If  bis  intent  was  to  try  to  ar<Cv..iplish  his  purpose  by  coarse,  vulgar 
familiarity,  and  the  same  produced  bhame  and  disgust,  but  force  to  have  carnal 
knowledge  was  not  used  or  intended,  the  offense  would  be  an  aggravated  assault 
and  battery."  This  was  substantially  a  correct  charge  and  applicable  to  the 
facts  testified  to  on  the  trial.  A  charge  similar  in  character,  though  couched  In 
language  somewhat  variant,  was  asked  by  the  defendant  and  refuse  by  the  court. 

The  fourth  ground  in  the  motion  for  a  new  trial  Is  as  follows :  <<  Because  the 
verdict  was  contrary  to  the  evidence,  there  being  no  testimony  elicited  upon  the 
trial  of  this  cause  tending  to  show  that  any  force  was  used  upon  the  part  of  this 
defendant  in  attempting  to  commit  the  crime  with  which  he  is  charged  in  the 
indictment."  Tlie  court  overruled  the  motion  for  a  new  trial.  The  testimony 
was  not  suiBcient  to  show  an  assault  with  intent  to  commit  rape,  as  charged  in 
the  Indictment.  The  court  erred  in  refusing  a  new  trial  on  the  fourth  ground  of 
the  motion,  and  for  this  error  the  judgment  must  be  reversed  and  a  new  trial 
awarded.  Other  errors  complained  of  need  not  be  noticed  for  the  reason  that 
they  are  not  likely  to  occur  on  another  trial. 

For  the  error  herein  set  out,  the  judgment  will  be  reversed  and  the  cause 
remanded. 

Reversed  and  remanded, 

§  678 .  Assault  with  Intent  to  Oomnolt  Rape — Evidence  Held  Insufllolent  — 
House  V.  State.  —  In  House  y.  State,^  Whitk,  F.  J.,  said:  Our  statute  de- 
dares  that  <  If  any  person  shall  assault  a  woman  with  intent  to  commit  the 
offense  of  rape,  he  shall  be  punishable  by  confinement  in  the  penitentiary  not 
less  than  two  nor  more  than  seven  years.*  *  Succinctly  given,  the  evidence  in 
the  case  before  us  maybe  stated  as  follows:  On  the  morning  of  the  23d  of 
February,  A.  D.  1880,  Miss  Maggie  Coulter,  the  assaulted  female,  a  white  woman, 
was  washing  clothes  in  the  wash-room  of  a  Mr.  Sturgeon,  at  whose  house  she 
lived,  and  at  about  half-past  five  o'clock  a.  m.  she  went  out  into  the  yard  to  get 
a  bucket  of  water.  Just  as  she  dipped  up  the  water  and  turned  around,  she 
saw  a  negro  man  standing  at  the  corner  of  the  kitchen,  which  was  in  the  same 
building  with  the  wash-room,  the  witness'  bed-room  being  between  the  two 
rooms.  There  were  lights  in  the  kitchen  and  wash-room.  As  the  negro  man 
advanced  from  where  she  first  saw  him,  towards  witness,  he  passed  across  the 
light  from  the  kitchen  door,  which  was  open.  Witness  recognized  him,  and 
knew  it  was  Nathan  House,  the  appelltint,  whom  she  knew  well,  he  having 


1  9  Tex.  (App.)  83  (1880). 


s  Penal  Code,  art  SOS. 


(App.)  196  (isas). 


908 


CRIMES  AGAINST  THE  PERSONS  OF   INDIVIDUALS. 


worked  at  the  same  place  where  she  staid  for  some  time.  Defendant  came 
straight  towards  her,  until  be  got  up  close  enough  to  take  hold  of  her,  when  be 
reached  out  both  hands  as  though  be  would  take  her  in  his  arms.  She  screamed 
aloud,  and  threw  up  the  bucket,  and  ran  into  the  bouse.  Defendant  then  passed 
oat  of  the  gate.  Defendant  did  not  put  bis  bands  on  her,  and  he  said  nothing 
at  all  during  the  occurrence.  It  was  ascertained  that  the  window  of  the  wash- 
room bad  been  raised,  and  a  stick  placed  under  the  sash  to  hold  it  up,  by  some 
one,  before  the  meeting  of  the  parties,  as  we  have  just  detailed  it.  In  brief, 
this  is  the  evidence  for  the  State.  For  the  defence  an  alibi  was  attempted  to  be  . 
proven.  Admit  that  the  facts  above  stated  for  the  prosecution  were  true,  is  the 
offense  of  an  aasanlt  with  intent  to  commit  rape  made  out  with  that  degree  of 
certainty  which  precludes  the  possibility  that  such  motiTe  and  purpose  may  nut 
have  actuated  the  conduct  of  defendant?  We  think  not.  The  cases  of  Thomp- 
son V.  State,*  and  Curry  v.  i9(at«,*  present  much  stronger  inculpatory  circum- 
stances, and  yet,  upon  appeal,  were  both  reversed,  becaase  tbe  facts  were  not 
aufRclent  and  a  new  trial  E^bould  have  been  granted. 
The  judgment  is  reversed  and  tbe  cause  remanded. 

Reversed  and  remanded. 

§  674  Bvldenoe  Inniffldent  to  Show  Intent  —  Dlaaenttnar  Opinion  In  State 
V.  Meely.  —  In  State  v.  Neely,'  on  an  indictment  for  assault  with  intent  to  com 
mit  rape,  the  evidence  was  as  follows :  The  prosecutrix,  a  white  woman,  hav> 
ing  parted  from  a  companion,  started  to  go  home  alone  through  the  woods. 
She  heard  the  respondent,  a  negro,  call  out  to  her  to  "  stop,"  and  saw  him  run- 
ning after  her  about  seventy  yards  away.  She  began  to  run  as  hard  as  she 
could,  and  was  pursued  by  tbe  respondent,  who  called  to  her  to  stop  three 
times,  and  was  catching  up  with  her.  He  pursued  her  about  a  quarter  of  a 
mile  through  the  woods,  when  seeing  a  dwelling  house  near  by,  turned  back 
and  ran  off.  A  majority  of  the  court,  Pearson,  C.  J.,  delivering  a  remarkable 
cinion,*  held  that  there  was  sufBcient  evidence  to  support  the  indictment. 


48  Tex.  S8S. 

»  4  Tex.  (App.)  574. 

S  74  N.  0. 426. 

*  Pbarsom.C.  J.  "Amajority  of  the  court 
are  of  the  opinion  that  there  was  evidence 
to  be  left  to  the  Jury  as  to  the  intent  charged. 
For  my  own  part  I  think  the  evidence  ple- 
nary, ftnd  had  I  been  on  tbe  Jury  would  not 
have  hesitated  one  moment.  I  see  a  ehicken 
coekdrop  hU  wings  and  take  after  a  hen; 
my  experience  and  observation  assure  me 
that  his  purpose  U  sexual  Intercourse ;  no 
other  evidence  !•  needed.  Whether  the 
cock  supposes  that  tbe  hen  Is  running  by  fe- 
male iBStinet  to  Increase  the  estimate  of  her 
favor  and  exeite  passion,  or  whether  the 
cock  intends  to  carry  his  purpose  by  force 
and  against  her  will,  is  a  question  about 
which  there  may  be  some  doubt;  as  for 
Instance,  if  she  is  a  setting  hen  and  "  makes 
light,"  not  merely  amorous  resistance. 
There  may  be  evidence  from  experience 
and  observation  of  tbe  nature  of  the  ani- 
mals, and  of  male  and  female  instincts,  lit 
to  be  left  to  the  jury  upon  all  of  the  circum- 


stanees  and  snrroandlngs  of  tbe  ease.  Was 
the  pursuit  made  with  the  expectation  that 
he  would  be  gratifled  voluntarily,  or  was  it 
made  with  the  intent  to  have  his  wUl  against 
her  win  and  by  force?  Upon  this  ease  of 
the  cock  and  the  hen,  can  any  one  seriously 
Insist  that  a  jury  has  no  right  to  call  to  their 
asBistance  their  own  experience  and  obser- 
vation of  the  nature  of  animals  and  of  mate 
and  female  Instincts.  Again:  I  see  a  dog  in 
hot  pursuit  of  a  rabbit;  my  experience  and 
observation  assure  me  that  the  Intent  of  tlie 
dog  is  to  km  the  rabbit;  no  doubt  about  it, 
and  yet  according  to  the  argument  of  the 
prisoner's  counsel,  there  Is  no  evidence  of 
the  Intent.  In  our  case,  when  the  woman 
leaves  the  railroad  and  starts  for  her  home, 
and  is  unaccompanied,  to  pass  through 
woodland  for  one-fonrth  of  a  mile,  a  negro 
man  calls  her  to  stop ;  he  Is  at  the  distance 
of  seventy-flve  yards ;  she  with  female  in- 
stinot  from  the  tone  of  his  voice,  looks  and 
sees  his  purpose,  and  runs  as  fast  as  she 
can  through  tbe  woodland  and  makes  the 
head  of  the  lane  In  sight  of  the  house  Itefore 


^■te 


IDIVIDUALS. 


ASSAULT  WITH    INTENT   TO   COMMIT  RAPE. 


909 


I  time.  Defendant  came 
like  hold  of  her,  when  he 
his  arms.  She  screamed 
.  Defendant  then  passtd 
ber,  and  he  said  nothing 
the  window  of  the  wash- 
ish  to  hold  It  up,  by  some 
ist  detailed  it.  In  brief, 
alibi  was  attempted  to  be  , 
secutlon  were  true,  is  the 
e  out  with  that  degree  of 
tWe  and  purpose  may  not 
)t.  The  cases  of  Thomp- 
nger  inculpatory  circum- 
icause  the  facts  were  not 


Reversed  and  remanded. 

•entlnff  Opinion  In  State 
issault  with  intent  to  com 
;riz,  a  white  woman,  hav- 
ilone  through  the  woods. 
'  stop,"  and  saw  him  run- 
an  to  run  as  liard  as  she 
Jled  to  her  to  stop  three 
her  about  a  quarter  of  a 
use  near  by,  turned  back 
.,  delivering  a  remarkable 
>  support  the  indictment. 

inroandings  of  the  ease.  Ww 
«de  with  the  expectation  tbtt 
grmtlfled  volunurily,  or  was  it 
I  intent  to  have  his  will  against 
by  force?  Upon  this  case  of 
lb*  hen,  can  any  one  seriously 
iry  has  no  right  to  call  to  their 
ir  own  experience  and  obser- 
satnre  of  animals  and  of  mate 
itincU.  Again:  I  see  a  dog  in 
a  rabbit;  my  experience  and 
■sure  me  that  the  Intent  of  the 
be  rabbit;  no  doubt  aboatit, 
ding  to  the  argument  of  the 
insel,  there  is  no  evidence  of 
n  our  case,  when  the  woman 
Iroad  and  starts  for  her  home, 
eompanied,  to  pass  throngb 
one -fourth  of  a  mile,  a  negro 
'  to  stop ;  he  Is  at  the  distance 
re  yards;  she  with  female  in- 
«  tone  of  bis  voice,  looks  and 
lose,  and  rons  as  fast  as  she 
the  woodland  and  makes  tbs 
AC  In  sight  of  the  house  before 


Rodman,  J.,  delivered  the  following  dissenting  opinion  which  was  concurred 
in  by  Bynum,  J.,  and  which  is  undoubtedly  the  law,>  "  In  the  opinion  of  the 
court  as  delivered  by  the  Chief  Justice,  the  argument  la  that  because  from  cer> 
tain  actions  of  certain  brute  animals,  a  certain  Intent  would  be  inferred,  a  like 
Intent  must  be  inferred  against  the  prisoner  from  like  acts.  It  seems  to  roe 
that  the  illustrations  are  not  in  point  even  if  that  method  of  reasoning  be 
allowable  at  all.  The  chicken  cock  in  the  case  supposed  has  no  intent  of  vlo- 
IbDce.  He  expects  acquiescence,  and,  knows  he  could  not  succeed  without  it, 
and  besides  he  is  dealing  with  his  lawful  wife.  But  the  method  of  reasoning  is 
misleading  and  objectionable  on  principle.  It  assumes  that  the  prisoner  is  a 
a  brute,  or  so  like  a  brute  that  it  is  safe  to  reason  from  the  one  to  the  other ; 
that  he  is  governed  by  brutish,  and  in  his  case,  vicious  passions,  unrestrained 
by  reason  or  a  moral  sense.  This  assumption  is  unreasonable  and  unjust.  The 
prisoner  is  a  man,  and  until  conviction  at  least,  he  must  be  presumed  to  have 
tbe  passions  of  a  man,  and  also  the  reason  and  moral  sense  of  a  man,  to  act  as 
a  restraint  in  their  unlawful  gratification.  Otherwise  he  would  be  non  compoe 
mentis,  and  not  amenable  to  law.  He  is  entitled  to  be  tried  as  a  man,  and  to 
tiave  his  acts  and  intents  inquired  into  and  decided  upon,  by  the  principles 
which  govern  human  conduct,  and  not  brutish  conduct.  Assume  as  the  opinion 
of  the  court  does,  that  the  inquiry  as  to  his  intent  is  to  be  conducted  upon  an 
analogy  from  the  Intents  of  brutes,  you  treat  him  worse  than  a  brute,  because 
what  would  not  be  vicious  or  criminal  In  a  brute  is  vicious  and  criminal  in  him, 
being  a  man.  When  you  assume  him  to  be  a  brute,  you  assume  him  to  be  one  of 
vicious  propensities.  If  that  be- true,  what  need  of  court  and  jury?  Tbe  pris- 
oner is  not  only  feres  naturas  but  caput  lupinutn  whom  any  one  may  destroy  with- 
out legal  ceremony.  The  evidence  of  the  prisoner's  intent  is  circumstantial ; 
the  circumstances  being  the  pursuit  and  its  abandonment  when  he  got  in  sight 
of  White's  house.  It  is  the  admitted  rule  in  such  cases  that  if  there  be  any 
reasonable  hypothesis  upon  which  the  circumstances  are  consistent  with  the 
prisoner's  innt>cence,  the  judge  should  direct  an  acquittal,  for  in  such  cases 
there  is  no  positive  proof  of  guilt.  The  particular  criminal  intent  charged 
must  be  proven.    It  will  not  do  to  prove  that  the  prisoner  had  that  intent  or 


he  is  able  to  catch  her;  he  pursues  to  the 
«nd  of  the  lane,  and  then  flees  and  attempts 
to  escape  in  the  woods.  It  is  said  in  the 
iugenious  argument  of  the  counsel  of  the 
prisoner,  his  intent  may  have  been  to  kill 
the  woman,  or  to  rob  her  of  her  shawl  or  her 
money,  and  if  the  Jury  can  not  decide  for 
which  of  those  intents  he  pursued  ber,  they 
nuglit  to  find  a  verdict  for  tbe  defendant. 
The  fallacy  ot  this  argument  is,  I  conceive, 
in  this:  it  excludes  all  the  knowledge  which 
we  acquire  from  experience  and  observa- 
tion as  to  the  nature  of  man.  Tills  is  the 
corner  stone  on  which  the  institution  of 
trial  )jy  Jury  rests.  To  say  that  a  Jury  are 
not  at  liberty  to  refer  to  their  experience 
ami  observation,  when  a  negro  man,  under 
tlie  circumstances  ot  this  case,  pursues  a 
v/hite  woman,  starting  at,  say  seventy-five 
yarils  and  gaining  on  her,  and  being  near 
when  ahe  gets  in  sight  of  the  house,  when 
he  stops  and  flees  into  the  woods,  is,  as  it 


seems  to  me  to  take  from  a  trial  by  Jury  all 
of  its  recommendations.  Our  case  particu- 
larly called  for  the  observation  and  experi- 
ence ot  tbe  Jurors  as  practical  men.  Tbe 
prisoner  had  some  intent  when  he  pursued  , 
the  woman.  There  is  no  evidence  tending 
to  show  that  his  intent  was  to  kill  her  or  to 
rob  her,  so  that  the  intent  must  have  <  been 
to  have  sexual  intercourse,  and  the  Jury 
considering  that  he  was  a  negro,  and  eon- 
sidering  tbe  hasty  flight  of  the  woman,  and 
the  prisoner  stopping  and  running  into  the 
woods  when  he  got  in  sight  of  the  house, 
and  the  instinct  of  nature  as  between  male 
and  female,  and  the  repugnance  ot  a  white 
woman  to  the  embraces  of  a  negro,  had 
some  evidence  to  find  that  the  intent  was  to 
commit  a  rape." 

1  The  opinion  ot  the  majority  of  tbe  court 
has  been  since  overruled  by  the  same  court. 
Chief  Justice  Pearson  having  subseqaently 
died.    State  v.  Massey,  ant«,  p.  895 


910 


CRIMES   AGAINST  TIIE  PERSONS   OF   INDIVIDUALS. 


Bome  other,  although  the  other  may  have  been  criminal ;  and  especially  If  the 
other,  although  Immoral,  wan  not  criminal.  In  Bex  v.  Lloyd,^  it  was  held  by 
Patteson,  J.,  that  in  order  to  convict  of  assault  with  Intent  to  commit  rape, 
the  Jury  must  be  Matisfled,  not  only  that  the  prisoner  Intended  to  gratify  his 
passions  on  the  prosecutrix,  but  that  he  Intended  to  do  so  at  al'  events  and  not- 
withstanding any  resistance  on  hor  part.<  It  Is  not  proof  of  guilt,  merely, 
that  the  facts  are  consistent  with  guilt ;  they  must  be  Inconsistent  with  Inno* 
ceucc.  It  Is  neither  charity  nor  common  sense,  nor  law,  to  Infer  the  worst 
Intent  which  the  facts  will  admit  of.  The  reverse  s  the  rule  of  Justice  and 
law.  If  the  facts  will  reasonably  admit  the  Inference  of  an  Intent,  which 
though  immoral  is  not  criminal,  we  are  bound  to  infer  that  Intent. 

"  In  the  present  case,  may  not  the  Intent  of  the  prisoner  have  been  merely  to 
•elicit  the  woman,  and  to  desist,  If  she  resisted  his  solicitations?  Or  may  it  not 
be  that  he  had  not  anticipated  resistance,  and  would  desist  In  case  it  occurred? 
Either  hypothesis  will  do,  and  either  Is  consistent  with  every  fact  In  evidence; 
with  the  pursuit  and  with  its  abandonment,  when  the  prisoner  aitprehended 
discovery.  There  is  absolutely  no  evidence  that  the  prisoner  had  formed  the  In 
tent  charged,  viz. :  to  know  the  woman  in  spite  of  resistance  and  at  all  hazardn. 

"  We  are  told  In  the  Sacred  Book  that  "  wLoso  looketh  on  a  woman  to  luttt 
after  her  hath  committed  adultery  In  his  heart;  "  adultery,  not  rape.  In  the 
minds  of  men  there  is  a  wide  space  between  the  Immoral  Intent  to  seduce  a 
woman,  and  the  criminal  Intent  to  ravish  her.  It  is  at  this  point  that  the  infer- 
ence drawn  from  the  assumed  Identity  of  civilized  men,  with  brutes.  Is  moHt 
misleading  and  unfair.  A  man  may  perhaps  be  easily  led  by  his  passions  to 
form  the  Immoral  Intent  to  solicit  a  woman,  and  to  attempt  to  execute  it.  But, 
OB  a  reasoning  being,  he  will  pause  before  he  forms  the  intent,  and  attempts  to 
execute  It,  to  coir  nit  so  hideous  and  penal  a  crime  as  rape;  one  so  certain  of 
detection  and  punishment.  The  moral  sense  which  every  man  has,  in  a  greater 
or  less  degree,  and  the  terrors  of  the  law,  come  In  to  hold  him  back  from  the 
determination  to  commit  the  crime,  and  to  make  him  take  a  period  for  delibera- 
tion, which,  in  the  absence  of  evidence  to  the  contrary,  it  must  be  presumed  he 
availed  himself  of.  Whereas,  in  the  brute,  there  are  no  such  restraints,  as  the 
gratification  of  his  passions  is  neither  a  sin  nor  crime.  Surely  the  same  rules 
of  evidence  can  not  apply  to  beings  so  different  and  acting  under  different  moral 
and  legal  responsibilities. 

"  The  difference  In  color  between  the  prosecutrix  and  the  prisoner,  although  It 
would  aggravate  the  guilt  upon  the  prisoner  upon  conviction,  can  not  Justly 
affect  the  rules  of  evidence,  by  which  his  guilt  Is  inquired  Into.  These  must 
be  the  same  for  all  classes  and  conditions  of  men. 

"  It  seems  to  me  that  the  decision  of  the  court  Is  a  departure  from  what  I  had 
supposed  to  be  a  firmly  established  rule  of  evidence  for  the  nrotectlon  of 
innocence." 

§  676.  Penetration  Provad.  —  On  an  Indictment  for  assault  with  Intent 

to  commit  rape  if  penetration  Is  proved,  the  prisoner  can  not  be  convicted.  ^ 

f  676.  Zntozloatlon  of  Priaoner.  —  It  may  be  shown  in  defence  that  at 

the  time  the  prisoner's  physical  system  was  greatly  weakened  by  drink — u 
rendering  him  Incapable  of  committing  the  crime.* 


>  70.  AP.  SM  (39 B.  O.  L.  B.  MS). 

*  Roseoe  Cr.  Ev.  811. 

S  B.  V.  Nteholls.  2  Cox,  181  (18t7). 


«  Nugent  «.  State.  18  Ala.  6S1)  18S0). 
see  anU,  Vol.  U.,  p.  078. 


And 


^i«to 


NDIVIDUAL8. 


Inal ;  and  especially  If  the 
V.  Lloyd,^  it  was  held  by 
h  Intent  to  commit  rape, 
lur  intended  to  gratify  hiM 
lo  so  at  al'  events  and  not- 
It  proof  of  guilt,  merely, 
be  inconsistent  with  inno- 
>r  law,  to  infer  the  worst 
s  the  rule  of  juHtlco  and 
ence  of  an  Intent,  which 
r  that  intent. 

Boner  have  been  merely  to 
icitations?  Or  may  it  not 
lesistln  case  it  occurred? 
ith  every  fact  in  evidence ; 
the  prisoner  a^^prehended 
trisoner  had  formed  the  in 
istance  and  at  all  hazards, 
tolceth  on  a  woman  to  luttt 
.dultery,  not  rape.  In  the 
mmoral  intent  to  seduce  a 
It  this  point  that  the  infer- 
men,  with  brutes,  is  moHt 
lily  led  by  his  passions  to 
ttempt  to  execute  it.  But, 
Lhe  intent,  and  attempts  to 
as  rape ;  one  so  certain  of 
very  man  has,  in  a  greater 
to  hold  him  back  from  the 
take  a  period  for  delibera- 
ry,  it  must  be  presumed  he 
)  no  such  restraints,  as  the 
ne.  Surely  the  same  rules 
icting  under  different  moral 

nd  the  prisoner,  although  it 

conviction,  can  not  justly 

inquired  into.    These  must 

t  departure  from  what  I  had 
ence  for  the  orotectlon  of 


lent  for  assault  with  intent 
r  can  not  be  convicted.  ^ 

}e  shown  in  defence  that  at 
iy  weakened  by  drink— «« 


PAKT    IV. 


HOMICIDE. 


).  state.  18  Ala.  6S1)  1880). 
.  U.,  p.  878. 


And 


HOMICIDE  — NEW-BORN  INFANT  — INDEPENDENT  LIFE. 

State  v.  Wintheop. 

[43  Iowa,  S19.] 

In  the  Supreme  Court  of  Iowa,  1876. 

An  Inflant  Alttaouvh  Fully  Delivaredi  can  not  be  oonddered  in  law  a  human  being' 
and  the  subject  of  homicide  until  life,  independent  of  the  mother,  exists;  and  the  lite 
of  the  infant  is  not  independent,  In  the  eye  of  the  law,  until  an  Independent  circula- 
tion  has  '  icome  established. 

Indictment  for  murder.     Conviction  of  manslaughter. 

AoAMs,  J.  The  defendant  is  a  physician,  was  employed  by  one  Roxia 
Clayton  to  attend  her  in  child-birth.  The  child  died.  The  defendant 
is  charged  with  producing  its  death.  Evidence  was  introduced  by  the 
State  tending  to  show  that  the  child,  previous  to  its  death,  respired  and 
had  an  independent  circulation.  Evidence  was  introduced  by  the  de> 
fendant  tending  to  disprove  such  facts. 

The  defendant  aslied  the  court  to  give  the  following  instruction:  "To 
constitute  a  human  being,  in  the  view  of  the  law,  the  child  mentioned 
in  the  indictment  must  have  been  fully  born,  and  born  alive,  having  an 
independent  circulation  and  existence  separate  from  the  mother,  but  it 
is  immaterial  whether  the  umbilical  cord  which  connects  it  with  its 
mother  be  severed  or  not." 

The  court  refused  to  give  this  instruction,  and  gave  the  following: — 

"If  the  child  is  fully  delivered  from  the  body  of  the  mother,  while  the 
after-birth  is  not,  and  the  two  are  connected  by  the  umbilical  cord,  and  the 
child  has  independent  life,  no  matter  whether  it  has  breathed  or  not,  or  an 
independent  circulation  has  been  established  or  not,  it  is  a  human  be- 
ing, on  which  the  crime  of  murder  may  be  perpetrated." 

The  giving  of  this  instruction,  and  the  refusal  to  instruct  as  attked^ 
are  assigned  as  error. 

The  court  below  seems  to  have  assumed  that  a  child  may  have  inde- 
pendent life  without  respiratioii  and  independant  circulation.     The  idea- 

C»n) 


5»tti<*» 


912  CRIME8   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

Of  the  court  seems  to  have  been  that  the  life  which  the  child  Uvea  be- 
tie e^tl^  t  mo  of  Its  birth  and  the  time  of  the  establUhment  of  resp.ra. 
iron  and  independent  circulation  is  an  independent   Ife  ;>«.»'«  i;^ 
tion  taken  by  the  attorney-general,  in  his  argument  In  behalf  of  the  htnte, 
r^undame. tally  different     He  says:  '« It  will  probably  not  bo  con- 
ten  Id  hat  independent  life  can  exist  without  independent  c.rcula^on 
a  d  hencethe  existence  of  the  former  necessarily  presumes  the  ex.see 
of  the  latter,  and  so  other  and  further  proof  is  unnecessary.      He  fur- 
Ir  sayt  "  The  instruction  complained  of  amounts  to  noUaing  more 
ianThe  sta  ement  that,  if  the  child  had  an  Independent  life,  then 
was  not  necessary  to  establish  those  facts  upon  which  the  existence  of  Hfe 
Tcess  rlly  depLs."    If  such  w.^  the  meaning  of  the  court  below  the 
ranZge  used  to  expess  it  was  very  unfortunate.    The  court  said  tha  , 
iJtho  fhild  had  independent  life,  it  is  no  matter  whether  an  .ndepend- 
ent  circulation  had  been  established  or  not.    The  attorney-general  says 
1  t  f  Th^^^^^^      had  independent  life,  it  had  -^^^l-^^^rre  thS 
of  course.     But  whether  we  take  the  one  view  or  tlje  other,  we  think 
iTstruction  was  wrong.     We  will  consider  A-^  ^  'e  -.  t^^^^^^^^^^ 
pendent  life  and  independent  circulation  necessarily  co-exist,  and  exam 
ine  the  instruction  as  though  that  were  conceded. 

It  foUows  that,  where  a  child  is  born  alive,  and  the  umb.llcal  cord  is 
not  seve^d    a^d'  Independent  circulation  has  not  been  established  .n- 
Sependert   ife  is  impossible,  and  the  instruction  amounts  to  this.  iU 
tf  the  jury  should  And  independent  life,  under  such  crcumstances  a^- 
fhougUtwould  be  impossible,  they  might  find  the  kill  ng  of  the  ch.W 
lo  bemurder.     Such  an  instruction  could  ^^-^y^o..^n.^^^^^^'l 
and  would  necessarily  involve  the  jury  in  confusion.     It  would 
worse  than  th  ^,-  it  would  tell  the  jury  in  effect  that  they  might  find 
Xendence  of  life  in  utter  disregard  of  the  conditions  m  which  alone 
t  couirexist.     To  show  how  the  defendant  was  prejudiced,  if  the  in- 
Itruc^n  is  to  be  viewed  in  this  light,  we  may  say  that  there  was  ev 
tnce  tharthe  d«c^««  ^steriosns  was  not  closed.     This  evidence  end 
rshow  slightly  at  lest,  that  independent  circulation  had  not  be, 
rJbUrhed     The  instruction  told  the  jury,  by  implication,  that  the; 
h!  .H«Lard^  t^^    eVdence.     But  we  feel  compelled  to  say  that  w 
rlShltraLrney-general'slnterpretationof^^^^^^^^^^ 
ever  occurred  to  the  court  below.     It  is  plain  to  see  that  'he  court  b 
loTmeanTthat  independent  life  |s  not  conditioned  upon  independ. 
rdtion.    The  error,  if  there  Jas  one,  consisted  in  assuming  tha 
was  norThe  question  presented  for  our  determination  is  by  no  mea 
Te  from  difficulty.    Can  the  child  have  an  independent  life,  while  i 
Sculatrnrstill  dependent  on  the  moUier?    There  aretwo  Bensea 
wh   h  ^e  word  independence  may  be  used.     There  .s  actual  indepen 


AA 


INDIVIDUALS. 

dilch  the  child  Uvea  be- 
stablishment  of  respira- 
[lent  life ;  yet,  the  posi- 
nt  In  behalf  of  the  Stnte, 
11  probably  not  bo  con- 
independent  circulation, 
y  presume*  the  existence 

I  unnecessary."  He  fur- 
lounts  to  nothing  more 
independent  life,  then  it 
?hlch  the  existence  of  life 
ig  of  the  court  below,  the 
te.  The  court  said  that, 
ter  whether  an  Independ- 
[•he  attorney-general  says 
[  Independent  circulation, 
!W  or  the  other,  we  think 
!r  first  the  view  that  inde- 
sarlly  co-exist,  and  exam- 
ed. 

and  the  umbilical  cord  is 
i  not  been  established,  in- 
!tlon  amounts  to  this,  tlmt 
er  such  circumstances,  ai- 
lud  the  killing  of  the  child 
erve  no  valuable  purpose, 
confusion.     It  would  do 
effect  that  they  might  find 
B  conditions  la  which  alone 
t  was  prejudiced,  If  the  in- 
nay  say  that  there  was  evi- 
ied.     This  evidence  tended 
i  circulation  had  not  been 
■,  by  Implication,  that  tliey 
si  compelled  to  say  that  we 
rpretatlon  of  the  instruction 
un  to  see  that  Khe  court  be- 
idltiuned  upon  Independent 
lOiisiPted  In  assuming  that  it 
jtermination  Is  by  no  means 

II  independent  life,  while  its 
r?    There  are  two  senses  in 

There  is  actual  independ- 


STATE   V.  M'INTIIROP. 


918 


eiioe,  and  there  Is  potential  indopendenco.  A  child  la  actually  inde- 
|i(Mulent  of  its  father  when  It  is  earning  its  own  living ;  iii  is  potentially 
independent  when  it  Is  capable  of  earning  its  own  living. 

We  think  the  court  below  used  the  word  Independent  In  the  latter  sense. 
While  the  blood  of  the  child  circulates  through  the  jHacenta,  it  is  renov- 
ated through  the  lungsof  the  motiur.  In  suchsense  it  breathes  through 
the  lungs  of  the  mother.*  It  has  no  occasion,  during  that  period,  to 
breathe  through  its  own  lungs.  But  when  the  resource  of  its  mother's 
lungs  is  denied  it,  then  arises  the  exigency  of  establishing  independent 
respiration  and  independent  circulation.  Children,  It  seems,  oftentimes 
do  not  breathe  immediately  upon  being  born,  but  if  the  umbilical 
vord  is  severed,  they  must  then  breatba  or  die.  Cases  are  recorded, 
it  is  true,  where  a  child  has  been  wholly  bcvercd  from  the  mother,  and 
respiration  has  not  apparently  been  established  until  after  the  lapse  of 
several  minutes  of  time.  During  that  time  it  must  have  bad  circulation 
and  the  circulation  was  independent.  Whether  it  had  appreciable  res- 
piration, or  was  in  the  condition  of  a  person  holding  his  breath,  is  a 
question  not  necessary  to  be  considered  for  the  determination  of  this 
case.  It  Is  sufficient  to  say,  that  while  the  clrcilatlon  of  the  child  is 
still  dependent,  its  connection  with  the  mother  may  be  suddenly  severed 
l)y  artificial  means,  and  the  child  not  necessarily  die..  This  is  proven 
by  what  is  called  the  Caesarean  operation.  A  live  child  is  cut  out  of 
a  dead  mother  and  survives.  Such  a  child  has  a  potential  independence 
antecedent  to  its  actual  independence.  So  a  child  which  has  been  bom, 
but  has  not  breathed,  and  is  connected  with  the  mother  by  the  umbili- 
cal  cord,  may  have  the  power  to  establish  a  new  life  upon  its  own 
resources,  antecedent  to  its  exercise.  According  to  he  opinion 
of  tlie  court  below,  the  killing  of  the  child  at  that  time  may  be 
murder.  It  Is  true,  that  after  a  child  Is  born,  it  can  no  longer  be 
called  afoelus,  according  to  the  ordinaiy  meaning  of  that  word.  Beck 
says,  however,  in  his  Medical  Jurisprudence :  *  "It  must  be  evident 
that  when  a  child  Is  born  alive,  but  has  not  yet  respired,  its  condition 
is  precisely  like  that  of  the  foetus  in  utero.  It  lives  merely  because  the 
faital  circulation  is  still  going  on.  In  this  case  none  of  the  organs  un> 
dergo  any  change."  Casper  says,  in  his  Forensic  Medicine,^  "  In /oro 
the  term 'life' must  be  regarded  as  perfectly  synonj'mous  with  'res- 
piration.' Life  means  respiration.  Not  to  have  breathed  is  not  to 
have  lived." 

While,  as  we  have  seen,  life  has  been  maintained  independent  of  the 
mother,  without  appreciable  respiration,  the  quotations  above  made  In- 
dicate how  radical  the  difference  Is  regarded  between /ce/e^  life  and  the 


1  Whart.  ft  8.  Med.  Jar.  toI.  S,  sec  128.  »  vol.  3,  sec.  33. 

'vol.  l,Beo.49S. 

3  Defences.  S8 


914 


CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 


new  life  which  succeeds  upon  the  establishment  of  respiratici  andindc 
pendent  circulation.  If  we  turn  from  the  treatise  on  MedicalJurispri 
dence  to  the  reported  decisions,  we  find  this  difference,  which  is  e 
emphasized  in  the  former,  made  in  the  latter  the  practical  test  fc 
determining  when  a  child  becomes  a  human  being  in  such  a  sense  as  t 
become  the  subject  of  homicide.  In  Rex  v.  Enoch,^  Mr.  Justice  i 
Parke,  said:  ''The  child  might  have  breathed  before  it  was  born,  bi 
its  having  breached  is  not  sufficiently  life  to  make  the  killing  of  the  chil 
murder.  There  must  have  been  an  independent  circulation  in  the  chile 
or  the  child  can  not  be  considered  as  alive  for  tliis  purpose." 

In  Regina  v.  Trilloe^^  Erskine,  J.,  in  charging  the  jury,  said:  •'] 
you  are  satisfied  that  this  child  had  been  wholly  produced  from  tl 
body  of  the  prisoner  alive,  and  that  the  prisoner  willfully  and  of  malic 
aforethought  strangled  the  child  after  it  had  been  so  produced,  an 
while  it  was  alive,  and  while  it  had  independent  circulation  of  its  owi 
I  am  of  the  opinion  that  the  charge  is  made  out  against  the  prisoner." 
It  may  be  asked  why,  if  there  is  a  possibility  of  independent  life,  tl 
killing  of  such  a  child  might  not  be  murder.  The  answer  is,  that  thei 
is  no  way  of  proving  that  such  possibility  existed  if  actual  independenc 
was  never  established.  Any  verdict  based  upon  such  finding  would  b 
the  result  of  conjecture. 

Judgment  reversed. 


mi7bdeb— infanticide— child  must  be  bobn  —  delibebatiol 

Wallace  v.  State. 

[7  Tex.  (App.)  670.] 
In  the  {)ourt  of  Appeals  of  Texas,  1880. 

1.  If  a  Woman  with  a  Sadato  and  deliberate  mind,  before  or  «fterthe  birth  of  her  chi 
formed  the  design  to  take  its  llfe,'and  after  the  parturition  was  complete  and  the  ■ 
born  alive  and  in  existence,  she  executed  her  design  and  took  iti  life.  It  wae  mur 
with  express  malice  and  In  the  first  degree.  But  if  the  design  to  take  the  life  of  1 
child  wae  formed  and  executed  when  her  mind,  by  physical  or  mental  anguish,  was! 
capabio  of  cool  reflection,  and  when  she  had  not  the  ability  to  consider  and  contempf 
the  oonseqnenees  of  the  fatal  deed,  and  she  conceived  and  perpetrated  it  under  a  f 
den,  rash  impulse  after  the  child  had  been  wholly  produced  frem  her  body  and  whil 
had  existence,  the  crime  was  mnrUer  in  the  second  degree. 

9.  If  in  a  Oaae  of  thla  Oharaotar  the  jury  might  have  concluded  from  the  evidence  | 
the  defendant  took  her  infant's  lite  before  its  birth  was  complete,  or  that  she  oauseq 
death  by  means  which  she  used  merely  to  assist  her  delivery ,-it  was  Incumbent  on 
court  to  inatruot  for  acquittal  in  the  event  the  Jury  ahonld  so  find. 


Appeal  from  the  District  Court  of  McLennan, 
the  Hon.  L.  C.  Alexander. 


Tried  below  bef 


1  B  0.  4  p.  639. 
SlC.^U.6Ba 


*  See,  also,  Oreenl.  on  Br.,  vol.  UL,  I 


136. 


INDIVIDUALS. 


WALLACE   V.  STATE. 


915 


t  of  respiratiti  andinde- 
tise  on  Medical  Jurispru- 
1  difference,  which  is  so 
Bf  the  practical  test  lor 
ing  in  such  a  sense  as  to 
.  Enoch,^  Mr.  Justice  J. 
I  before  it  was  born,  but 
ike  the  killing  of  the  child 
nt  circulation  in  the  child, 

this  purpose." 
ging  the  jury,  said:  "H 
wholly  produced  from  the 
ler  willfully  and  of  malice 
id  been  so  produced,  and 
ent  circulation  of  its  own, 
,ut  against  the  prisoner." ' 
ty  of  independent  life,  the 

The  answer  is,  that  there 
stedif  actual  independence 
pon  such  finding  would  be 

Judgment  reversed. 
E  BOBN  — DELIBEBA.TION. 

.] 

^exas,  1880. 

letore  or  sfterthe  birth  of  h«r  eWia. 
urltion  was  complete  and  the  chUd 
jn  and  took  Ub  life.  It  was  murder 
If  the  design  to  take  the  life  other 
phydcal  or  mental  anguUh,  wai  Jn- 
I  ability  to  consider  and  contempUte 
veA  and  perpetrated  It  under  a  and- 
rodneed  from  her  body  and  while  It 
degree. 

re  concluded  from  the  eyidence  that 
was  complete,  or  that  she  caused  iu 
er  delivery  .-It  waa  incumbent  on  the 
r  abottld  10  find. 

jennan.     Tried  below  before 


e,  also,  Oreenl.  on  Bt.,  toI.  UL,  sect 


The  indictment  charged  that  the  appellant,  on  March  21,  1879,  and 
immediately  after  the  birth  of  her  female  infant,  strangled  it  to  death 
by  tying  a  stribg  around  its  throat. 

About  sunset  on  the  day  prior  to  the  infanticide,  the  defendant,  a 
negress,  came  to  the  house  of  Csesar  Williams,  a  negro  who  lived  about 
six  miles  south  of  Waco  in  McLennan  County.  Neither  he  nor  his  wife 
knew  the  defendant,  but  she  was  given  a  bed  and  stayed  all  night  with 
them.  The  indications  of  her  pregnant  condition  were  observed.  The 
next  morning  she  got  up  and  left  the  house,  but  returned  in  about  half 
an  hour,  joined  the  family  at  breakfast,  and  afterwards  went  with  her 
liustess  to  the  cow-pen.  After  remaining  there  a  little  while,  and  com- 
plaining  that  she  was  sick,  she  went  down  to  a  branch  about  a  hundred 
yards  from  the  house.  Caesar's  wife  returned  to  the  bouse ^from  the 
cow-pen,  and  in  about  half  an  hour  observed  the  defendant's  head 
above  the  brusli  and  bushes  near  the  branch.  About  eight  o'clock  the 
same  morning  she  was  seen  on  her  way  to  her  mother's,  some  four  or 
five  miles  distant. 

The  next  day  Caesar's  wife  and  another  negro  woman  found  the 
corpse  of  a  new-born  infant  near  the  branch  where  the  defendant  was 
seen  the  preceding  morning.  A  domestic  string  was  wound  twice 
around  its  neck  and  tied  in  a  hard  knot  behind.  The  child  was  fuU- 
sized,  with  developed  limbs  and  nails  and  a  full  head  of  hair.  Near 
by  was  found  an  apron  worn  by  the  defendant  when  she  came  to 
Csesar' s. 

A  physic^n  who  at  the  instance  of  the  coroner  made  an  examination 
of  the  corpse  described  the  indications  upon  which  he  based  his  pro- 
fessional opinion  that  the  child  had  been  born  alive  and  that  it  was 
strangled  to  death  by  the  string,  which  he  said  was  tight  enough  to 
Lave  strangled  a  grown  person.  He  observed  no  swelling  of  the  face 
or  head.  Another  physician,  testifying  for  the  defence,  said  that  the 
signs  of  strangulation  were  swelling  of  the  head  and  face,  and  that  an 
absence  of  these  signs  would  indicate  that  some  other  cause  than 
strangulation  occasioned  the  death.  He  further  stated  that  there  is  no 
test  enabling  a  medical  expert  to  affirm  that  a  dead  infant  had  or  had 
not  beeu  born  alive.  The  utmost  ascertainable  from  post  mortem 
observation  is  that  the  lungs  had  been  distended  with  air  either  before 
or  after  birth,  and  by  either  a  natural  or  an  artificial  process. 

C.  Stubblefield,  for  the  defence,  testified  that,  about  a  week  before 
the  child  was  found,  the  defendant,  who  bad  been  in  his  employ, 
informed  him  that  he  would  have  to  get  another  servant,  as  she  was 
pregnant  and  would  soon  be  confined,  and  wanted  to  go  to  her  mother's 
for  that  purpose.  He  further  testified  that  he  was  aroused  by  the 
defendant  before  day  m  the  19th  of  March,  who  took  him  to  her  room, 


waii«M«JMll«£ic««£M 


916 


CRIMES   AGAINST  THE   PERSONS   OF  INDIVIDUALS. 


where  another  negro  woman  also  slept.  This  other  negress  was  subject 
to  fits,  and  was  in  great  pain,  going  through  all  manner  of  contortions. 
Witness  quieted  her  and  returned  to  his  bed,  but  was  fiioon  awakened 
by  cries  of  the  defendant.  Going  again  to  her  room,  he  found  her 
greatly  excited,  and  engaged  in  a  violent  struggle  with  the  other 
woman,  who  was  in  another  fit.  The  defendant  was  greatly  frightened, 
and  was  exerting  every  effort  to  get  loose  from  the  grusp  of  the  other 
woman.  Witness  finally  released  her,  and  she  ran  out  of  the  door  and  fell 
down  a  flight  of  four  steps  to  the  ground.  She  left  his  employ  the  same 
evening.     She  had  never  attempted  to  conceal  her  pregnancy  from  him. 

The  jury  found  the  defendant  guilty  of  murder  in  the  second  degree, 
and  assessed  five  years  in  the  penitentiary. 

Williams  Jb  Inge,  for  the  appellant. 

Thomaa  Bill,  Assistant  Attomey-Greneral,  for  the  State. 

Clark,  J.  If  the  defendant,  with  a  sedate  and  deliberate  mind, 
anterior  or  subsequent  to  the  act  of  parturition,  conceived  the  design 
to  take  the  life  of  her  new-born  infant,  and  in  pursuance  of  such 
formed  design  did  take  its  life  in  the  manner  alleged  in  the  indictment, 
and  such  infant  was  wholly  produced  from  the  body  of  its  mother  alive, 
and  was  in  existence  by  actual  birth  at  the  time  the  injuries  causing 
death  were  inflicted,  then  she  would  be  guilty  of  murder  with  express 
malice.  If,  however,  the  design  to  take  its  life  was  formed  and  exe> 
culed  when  her  mind,  by  reason  of  physical  or  mental  anguish,  was 
incapable  of  cool  reflection,  and  she  was  not  sufllciently  self-possessed 
to  consider  and  contemplate  the  consequences  about  to  be  done,  but, 
yielding  to  a  sudden,  rash  impulse,  she  conceived  and  perpetrated  the 
fatal  deed  after  tho  infant  had  been  wholly  produced  from  her  body 
and  had  an  existence  by  actual  birth,  then  she  was  guilty  of  murder  in 
the  second  degree. 

We  can  not  say  that  the  charge  of  the  learned  judge  who  presided  on 
the  trial  below  submitted  these  issues  with  that  accuracy  which  usuuily 
characterizes  his  instructions ;  nor  do  we  feel  an  assurance  that  the 
jury  may  not  have  been  misled  by  the  general  terms  employed  in  defin- 
ing the  ingredients  especially  of  murder  in  the  second  degree.  Ab- 
stractly considered,  the  definition  may  not  be  inaccurate  in  ordinary 
cases,  but  in  this  case  the  better  practice  would  have  been  to  have  sub- 
mitted that  issue  substantially  as  above  indicated.  In  this  particular 
case,  it  is  not  well  conceived  how  any  legal  provocation,  excuse  or  jus- 
tification could  arise,  if  the  defendant  strangled  her  own  child  after 
birth ;  and  the  instruction  was  practically  tantamount  to  an  announce- 
ment that  the  defendant  was  guilty  of  murder  in  the  second  degree  if 
she  voluntarily  and  intentioD&Uy  killed  the  child  by  the  manner  and 
means  alleged. 


IVIOUAL8. 


PEOPLE   V.  ARO. 


917 


negress  was  sabject 
nner  of  contortions, 
was  boon  awakened 
room,  be  found  her 
;gle  with  the  other 
9  greatly  frightened, 
e  grasp  of  the  other 
It  of  the  door  and  fell 
:  bis  employ  the  same 
iregnancy  f rom  him. 
n  the  second  degree, 


le  State. 

ad  deliberate  mind, 

conceived  the  design 

pursuance  of  such 

ed  in  the  indictment, 

y  of  its  mother  alive, 

the  injuries  causing 

murder  with  express 
was  formed  and  ele- 
mental anguish,  was 
ciently  self-possessed 
bout  to  be  done,  but, 
I  and  perpetrated  the 
luced  from  her  body 
s  guilty  of  murder  in 

udge  who  presided  on 
jcuracy  which  usually 
n  assurance  that  the 
ms  employed  in  defin- 

second  degree.  Ab- 
naccurate  in  ordinary 
lave  been  to  have  sub- 
1.  In  this  particular 
cation,  excuse  or  jus* 
d  her  own  child  after 
ount  to  an  announce- 

the  second  degree  if 
i  by  the  manner  and 


We  are  also  of  opinion  that  the  charge  is  materially  defective  in 
another  respect.  The  issue  of  strangulation  before  birth  was  not  sub> 
mitted  to  the  jury.  It  is  true  that  among  other  definitions  the  jury  were 
told  that  "  in  order  that  a  child  be  in  existence  by  actual  birth,  the  par- 
turition must  be  complete,  and  the  body  of  the  child  must  be  expelled 
from  the  mother,  and  it  must  be  alive ;  so  that  the  destruction  of  vital- 
ity in  a  child  before  it  is  completely  born  is  not  murder,  under  what- 
ever circumstances  committed."  But  after  applying  the  law  to  the 
particular  case  with  reference  to  murder  in  the  two  degrees,  it  was  in- 
cumbent upon  the  court  to  do  likewise  with  reference  to  that  phase  of 
of  the  evidence  which  might  tend  to  the  exoneration  of  the  defendant. 
Presented  in  the  form  of  an  abstract  proposition,  it  was  not  brought  to 
the  attention  of  the  jury  with  that  distinctness  which  the  law  demands. 
If  they  believed,  from  the  evidence  that  tlie  defendant  took  the  life  of 
the  deceased,  by  the  means  and  in  the  manner  alleged,  yet  the  same  was 
done  before  the  child  was  completely  bom,  or  if  they  believed  from  the 
evidence  that  the  means  used,  and  which  resulted  in  death,  were  merely 
for  the  purpose  of  assisting  delivery,  in  either  event  they  should  acquit. 

The  instructions  asked  on  circumstantial  evidence  should  also  have 
been  given.  ^ 

The  judgment  is  reversed  and  the  cause  remanded. 

Beveraed  and  remandtd. 


murder  ~  death  must  be  the  result  of  act— time. 
People  v.  Abo. 

[6  Cal.  208.] 
In  the  Supreme  Court  of  California,  1856. 

1.  To  Ocnuititata  Harder,  the  death  moBt  be  the  reanlt  of  the  priioner's  Mt,  and  mntt 
take  place  within  the  time  provided  by  law. 

3.  An  Indlotment  for  Mnrder,  charging  that  the  accneed,  on  or  abont  a  certain  day,  did 
willtuily,  feloniously  and  with  malice  aforethought,  kill,  mnrder  and  put  to  death  a  cer- 
tain person,  with  a  pUtol  and  knife,  without  specify ing  further  the  facte  and  the  manner, 
iB  bad. 

3.  Kurder  a  aoncltulon  of  Z«aw.  — Murder  is  a  conclusion  of  law  drawn  from  certain 
facts. 

i.  In  an  Indiotin«mt  for  Harder,  the  time  of  the  death  must  be  stated,  so  that  It  can  be 
legally  considered  the  consequence  of  the  felony  charged. 

Appeal  from  the  District  Court  of  the  Fourteenth  Judicial  District, 
County  of  Plumas. 

]  Harrison   v.  State,  6  Tex.    (App.)  41; 
Bunt  V.  State,  7  Tex.  (App.)  211. 


BHIffHifhilJiiiliiitiia^ 


918  CHIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

The  defendant  was  tried  and  convicted  of  murder,  on  tlie  foUowing 

indictment :  —  .         *         j 

"Jacinto  Aro  is  accused  by  this  indictment  of  the  crime  of  murde; 
a  felony  committed  as  follows:   The  said  Jacinto  Aro  did,  on  or  abou 
the  second  day  of  November,  A.  D.  1854,  and  before  the  finding  ot 
this  indictment,  at  or  near  a  place  formerly  known  as  the  Rock  River 
House,  in  said  county  of  Plumas,  with  a  Colt's  pistol  and  dirk-knife, 
wiUf uUy,  feloniously  and  with  malice  aforethought,  kiU,  murder  and  do 
to  death  one  (name  unknown)  a  Chinaman,  against  the  form  of  the 
statute  made  and  provided,  and  against  the  peace  and  dignity  of  the 
State  of  California." 
Defendant  appealed. 
Cole  &  Whiting,  for  appellant. 
Wm.  T.  Wallace,  Attorney-General,  for  the  State. 
The  opinion  of  the  court  was  delivered  by  Mr.  Chief  Justice  Mubbat. 
Mr.  Justice  Tebbt  concurred. 

The  record  in  this  case  comes  before  us  in  such  a  loose  and  imperfect 
manner  that  we  are  unable  to  consider  many  of  the  errors  assigned  by 
the  prisoner's  counsel.  There  is  no  statement,  or  bill  of  exceptions, 
properly  authenticated,  and  the  attempted  appeal  upon  the  merits  is 
characterized  by  an  ignorance  of  the  former  rulings  of  this  court,  and  a 
recklessness  of  human  life  reprehensible  in  the  extreme. 

There  is,  however,  one  point  arising  upon  the  judgment  roll,  which 
fully  justifies  a  reversal,  and  an  arrest  of  what  might  otherwise  properly 
be  considered  a  judicial  murder.    It  has  been  erroneously  supposed  by 
many  of  the  profession,  that  the  adoption  of  our  criminal  code  of  pro- 
cedure  worked  an  entire  abolition  of  aU  the  rules  which  the  wisdom  of 
the  common  law  had  thrown  around  criminal  proceedings  for  the  safety 
of  the  citizen,  and  that  the  only  defence  against  a  prosecution  is  to  be 
found  in  the  statute.     Such,  I  apprehend,  was  never  the  intention  of 
.     the  Legislature ;  the  main  object  to  be  obtained  by  them  was  the  sim- 
plification of  practice  and  pleading  in  criminal  cases,  by  removing  the 
rubbish  and  unmeaning  technicalities  resorted  to,,  and  invented  by  the 
judges  in  England  to  shield  the  accused  against  the  rigor  of  punishment, 
which,  though  sanctioned  by  law,  was  relaxed  by  the  humanity  of  the 
bene  h,   and  which,  so  far  from  accomplishing  the  end  proposed,  was 
found  to  defeat  justice  by  permitting  the  escape  of  the  guilty  rp.ther  than 
protecting  the  innocent.     It  was  against  these,  the  age  and  reason  of 
their  employment  having  long  since  passed  away,  that  the  statute  was 
mainly  directed,  leaving  those  rules  which  were  founded  in  principle  to 
a  great  extent  unchanged. 
There  is  littte  or  no  difference  between  the  requirements  of  an  indict- 


^^m 


YIDUAL8. 

>r,  OD  the  following 

e  crime  of  marde; 
iro  did,  on  or  abou 
ifore  the  finding  ot 
n  as  the  Rock  River 
istol  and  dirk-knife, 
kill,  murder  and  do 
.nst  the  form  of  tlie 
and  dignity  of  the 


PEOPLE    ).  ARO. 


919 


lief  Justice  Mubbat. 

El  loose  and  imperfect 
e  errors  assigned  by 
r  bill  of  exceptions, 
1  upon  the  merits  is 
3  of  this  court,  and  a 
reme. 

judgment  roll,  which 
ht  otherwise  properly 
tneously  supposed  by 
criminal  code  of  pro- 
which  the  wisdom  of 
jedings  for  the  safety 
a  prosecution  is  to  be 
ever  the  intention  of 
by  them  was  the  sim- 
lases,  by  removing  the 
3,  and  invented  by  the 
e  rigor  of  punishment, 
y  the  humanity  of  the 
he  end  proposed,  was 
f  the  guilty  rp.tlierthan 
the  age  and  reason  of 
y,  that  the  statute  was 
ounded  in  principle  to 

uirements  of  an  indict- 


ment at  common  law,  and  under  our  statute,  except  in  the  manner  of 
stating  the  matter  necessary  to  be  contained. 

The  indictment  in  this  case  charges  the  accused  with  tlie  crime  of 
murder  "  committed  with  a  Colt's  revolver  and  bowie-knife,"  but  con- 
tained no  description  of  the  offense,  or  statement  that  the  deceased 
came  to  his  death  by  the  wounds  inflicted,  or  the  day  of  his  death. 

Murder  is  a  conclusion  drawn  by  the  law  from  certain  facts,  and  in 
order  to  determine  whether  it  has  been  committed,  it  is  necessary  that 
tbe  facts  should  be  stated  with  convenient  certainty :  "  for  this  purpose 
the  charge  must  contain  a  certain  description  of  the  crime  of  which  the 
defendant  is  accused,  and  a  statement  of  tbe  facts  by  whbh  it  is  con- 
stituted, so  as  to  identify  the  accusation,  lest  the  grand  jury  should 
find  a  bill  for  one  offense  and  the  defendant  be  put  on  his  trial  in  chief 
for  another."  This  is  necessary,  so  that  the  prisoner  may  know  of 
wliat  crime  he  is  accused,  and  have  time  to  prepare  for  his  defence  on 
the  facts.  It  is  also  necessary  that  the  jury  may  be  warranted  in  their 
finding,  the  court  in  its  judgment,  and  the  prisoner  be  protected  against 
any  subsequent  prosecution  for  the  same  offense.^ 

The  nece  'sity  of  a  statement  of  tlie  facts  and  circumstances  constituting 
the  offense  still  exists,  and  is  directly  recognized  by  the  two  hundred  and 
thirty-seventh  section  of  the  statute,  which  provides  that  the  indictment 
shall  contain  "  a  statement  of  the  acts  constituting  the  offense,"  etc.,  as 
well  as  the  precedent  given  in  the  statute  which  points  out  how  such  facts 
shall  be  charged.  In  this  particular,  at  least,  it  may  be  safely  said 
that  our  statute  has  not  altered  the  common  law ;  and  no  one,  I  appre- 
hend, would  maintain,  that  und^r  the  old  system  of  practice,  either  in 
England  or  the  United  States,  the  allegation  of  a  legal  conclusion, 
instead  of  the  facts  which  are  predicate  of  a  conclusion,  ever  has  been 
held  sufficient.  In  addition  to  these  views  it  has  already  been  stated 
the  day  of  the  death  is  not  laid,  which  ought  to  have  been  done,  that 
the  court  could  be  informed  whether  such  death  occurred  in  the  time 
provided  by  law,  so  that  it  might  be  legally  considered  as  the  conse- 
quence of  the  assault  or  felony  charged. 

For  these  reasons  the  judgment  is  reversed  and  the  cause  remanded, 
with  directions  to  the  court  below  to  hold  the  prisoner  in  custody  until 
a  new  indictment  can  be  found. 


1 1  Chltty  Or.  L. 
Scam.  ioi. 


170;  WUUa  «.  PeopU,  1 


920 


CRIMES  AUAIN8T  THE  PERSONS  OF  INDIVIDUALS. 


murder  — time  of  committal— when  fatal  blow  is  struck. 

People  v.  Gill. 

[6  Cal.  687.] 
In  the  Supreme  Court  of  California,  1836. 

1.  The  Crime  of  Harder  is  committed  not  on  tne  day  when  the  Tictim  diet,  bnt  on  the 
day  on  which  bis  injury  was  renelved. 

S.  Where  an  Jkot  ie  Paaeed  Between  the  time  of  the  commission  of  tlie  act  and  the  death 
of  the  victim,  deflniog  the  oifense,  and  providing  for  iu  punishment,  and  providing  that 
upon  trials  tor  crimes  committed  previous  to  Its  enactment,  the  party  shall  be  tried  \)j 
the  laws  in  force  at  the  time  of  the  commission  of  the  crime,  the  prisoner  must  be  tried 
under  the  law  in  force  when  the  vioiation  of  the  law  was  committed. 

Appnal  from  the  District  Court  of  the  Sixth  Judicial  District. 

Thr  J  fendant  was  indicted  for  the  crime  of  murder,  charged  to  have 
bep  .  j'.tted  March  22,  1856.    The  case  was  tried  September  8, 

18.'  .  '  jury  found  a  verdict  of  guilty  of  murder  in  the  second 
degree.  Defendant  moved  for  a  new  trial,  which  was  overruled,  and 
dcf-n^.ant  appealed. 

Biywie  .   ■\  G  ^,  ...,  for  appellant. 

This  is  &a  inuicln.e:it  for  murder,  charged  to  have  been  committed 
by  the  appellant,  on  the  22d  day  of  March,  A.  D.  1856,  upon  the  per- 
son of  one  Allen  McCIory.  .Upon  the  trial  the  jury  found  a  verdict  of 
guilty  of  murder  in  the  second  degree. 

The  crime,  if  committed,  was  committed  on  the  22d  of  March,  A.  D. 
1856,  when  no  such  crime  as  murder  in  the  second  degree  was  known  to 
the  land.  The  act  defining  and  providing  for  the  punishment  of  this 
oftense  was  not  passed  until  April  16, 1856,  —  long  after  the  act  charged 
in  the  indictment  is  alleged  to  have  been  done.  That  act  specially  pro- 
vides that  upon  all  trials  for  crimes  committed  previous  to  its  passage, 
they  shall  be  tried  by  the  laws  in  force  at  the  time  of  their  commission.^ 

This  trial,  then,  was  had  under  a  law  that  had  no  existence ;  the  jury 
found  their  verdict  under  a  misapprehension  of  the  law ;  the  trial  itself 
is  a  nullity,  as  also  is  the  verdict. 

William  T.  Wallace,  Attorney-General,  for  the  People. 

The  prisoner  is  charged  with  the  crime  of  murder,  committed  on  the 
22d  day  of  March,  1856.  The  evidence  shows  that  the  killing  took 
place  on  that  day.  As  the  law  then  stood  he  was  guilty  of  murder,  or 
of  voluntary  manslaughter ;  if  the  latter,  he  might  be  imprisoned  three 
years.* 

But  ou  the  19th  of  April  last  the  law  was  amended.^    Murder  is 


I  See  Stats,  la^6,  |i.  221,  sec.  lOO. 
s  SeeOomp.  Laws,  pp.  6M,  641. 


>  Stats.  18B6,  p.  2M. 


>iyiDUALS. 


PEOPLE  V.  GILL. 


921 


L  BLOW  IS  STRUCK. 


1836. 

the  Tiotim  diet,  bnt  on  tlie 

ton  of  the  act  and  the  death 
Bhment,  and  providing  that 
,  the  party  shall  he  tried  bj 
,  the  prisoner  mutt  be  tried 
nmitted. 

licial  District, 
irder,  charged  to  have 
9  tried  September  8, 
lurder  in  the  second 
h  was  overraled,  and 


have  been  committed 
K  1856,  upon  the  per- 
try  found  a  verdict  of 

22d  of  March,  A.  D. 
degree  was  known  to 
le  punishment  of  this 
;  after  the  act  charged 
rhat  act  specially  pro- 
revious  to  its  passage, 
of  their  commission.^ 
lO  existence ;  the  jury 
le  law ;  the  trial  itself 

People. 

ler,  committed  on  the 
that  the  killing  took 
}  guilty  of  murder,  or 
it  be  imprisoned  three 


divided  into  murder  of  the  first  and  second  degrees —  the  former  is 
punishable  by  death,  the  latter  by  imprisonment,  which  may  extend  to 
life.    Manslaughter  is  made  punishable  by  imprisonment  for  ten  years. 

The  jury  found  the  prisoner  guilty  of  «*  murder  in  the  second  degree," 
and  the  court  sentenced  him  to  ten  years'  imprisonment.  When  the 
deed  was  done  there  was  no  such  ^jffense  as  murder  in  the  second 
degree  —  and  the  state  of  the  law  was  such  that,  if  guilty,  the  prisoner 
must  either  have  been  executed  or  imprisoned  not  exceeding  three 
years.  Under  such  circumstances,  I  do  not  think  that  the  conviction 
can  be  sustained.  The  act  of  April  19,  when  applied  to  this  case, 
becomes  ex  post  facto. 

Mr.  Chief  Justice  Murray  delivered  the  opinion  of  the  court.  Mr. 
Justice  Terry  concurred. 

The  prisoner  was  indicted  for  murder,  charged  to  have  been  commit^ 
ted  on  the  22d  day  of  March,  1856,  and  was  found.  •'  guilty  of  the  crime 
of  murder  in  the  second  degree." 

At  the  time  of  the  killing,  charged  in  the  indictment,  there  was  no 
such  crime  known  to  the  law  as  murder  in  the  second  degree,  and  the 
party  could  only  have  been  convicted  of  murder  or  manslaughter. 

The  act  defining  the  offense  of  which  the  prisoner  is  found  guilty  was 
not  passed  until  the  16th  of  April,  1856,  and  provides  that,  upon  trials 
for  crimes  committed  previous  to  its  passage,  the  party  shall  be  tried  by 
the  laws  in  force  at  the  time  of  the  commission  of  such  crime. 

It  is  supposed,  however,  that  this  case  presents  an  exception  to  the 
rule  thus  established.  The  blow  was  given  before,  but  the  death  ensued 
after,  the  passage  of  the  last  statute.  The  death  must  be  made  to 
relate  back  to  the  unlawful  act  which  occasioned  it,  and  as  the  party 
died  in  consequence  of  wounds  received  on  a  particular  day,  the  day  on 
which  the  act  was  committed,  and  not  the  one  on  which  the  result  of  the 
act  was  determined,  is  the  day  on  which  the  murder  is  properly  to  be 
charged. 

Besides  this,  although  it  is  not  absolutely  necessary  to  state  the  pre- 
cise day  on  which  the  killing  took  place,  still  a  conviction  in  a  case  like  the 
present,  where  the  party  was  called  upon,  by  the  indictment,  to  answer 
an  offense  under  one  statute,  and  was  found  guilty  under  another,  would 
be  bad,  and  ought  to  be  arrested  on  motion. 

The  judgment  is  reversed,  and  the  court  below  directed  to  re-try  the 
prisoner  for  murder. 


mended.  3    Murder  is 


■        IIIIBIII—III 


WBBEsai^illtea^WKataMiti^Baaii^^ 


922  CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 


HOMICIDE -EFFECT  OF  ERRONEOUS  TREATMENT  OF  WOUND  CAUS- 

ino  death. 
Parsons  v.  State. 

[21   Ala.  800.] 
In  the  Supreme  Court  of  Alabama. 

1  If  a  Wound  ia  Inftloted  not  dangeron.  In  Itself,  and  the  death  which  en.uea  wae  en- 

denti,  .cca.loned  by  the  gro..ly  erroneous  treatment  of  It.  the  original  author  wU  not 
be  accountable.  But  If  the  wound  was  mortal  or  dangerous,  the  person  who  Inflicted 
It  cannot  sheler  himself  undar  the  plea  of  erroneous  treatment.  ^...w  ♦™». 

2  The  Bvldanoa  was  OonflicUnir,  a*  to  whether  the  deceased  came  to  his  death  from 

the  effects  of  a  wound  Inflicted  by  the  prisoner,  or  from  the  Improper  treatment  of  llhy 
the  attending  physician  in  sewing  It  up.  The  prisoner's  counsel  requested  the  court  to 
charge  that  if  the  wound  was  not  mortal,  and  It  clearly  appeared  that  the  deceased  came 
to  hUdeath  from  the  erroneous  treatment,  and  not  from  the  wound  they  must  acquit 
Ihe  prisoner.  This  charge  the  court  gave,  with  this  quallflcatlon,  that  If  the  ill  treat- 
ment  relied  on.  was  the  sewing  up  of  the  wound,  the  defendant  would  not  be  excused 
If  otherwise  guUty."    Stld,  that  the  quallflcatlon  was  erroneous. 

Error  to  the  Circuit  Court  of  Dallas.    Tried  before  the  Hon.  E. 

Pickens. 
The  facts  sufficiently  appear  from  the  opinion  of  the  court 
W.  M.  Murphy,  for  the  plaintiff  in  error. 
M.  A.  Baldwin,  Attorney-General,  contra. 

GoLiwHWAiTE,  J.    The  prisoner  was  indicted  for  the  murder  of  one 
Mayo.     On  the  trial  of  the  case  below,  the  evidence  was  conflicting  as 
to  whether  the  deceased  came  to  his  death  from  a  wound  inflicted  by 
the  defendant,  or  from  the  improper  treatment  which  was  resorted  to 
by  the  attending  physicians,  the  wound  not  being  considered  a  mortal 
one.     It  was  what  is  termed  a  "  punctured  wound  "  and  the  improper 
treatment  which  was  reUed  on  was,  the  bringing  of  its  edges  together, 
and  sewing  it   with   stitches.    The  court,   upon  this  evidence,  was 
requested  by  the  counsel  for  the  prisoner  to  charge,  "  that  if  the  wound 
was  not  mortal,  but  by  Ul  treatment  or  unwholesome  application  the 
said  Mayo  died,  if  it  clearly  appears  that  this  treatment,  and  not  the 
wound  was  the  cause  of  his  death,  the  defendant  should  be  acquited." 
This  charge    the  court  gave,  but  with  the  addition,   "that  if  the  ill 
treatment  relied  upon,  was  the  sewing  up  of  the  wound  with  stitches  or 
other  compresses,  that  the  defendant  would  not  be  excused  if  otherwise 
guilty,"  and  this  addition  or  qualification  of  the  charge  is  relied  upon 
as  the  ground  of  reversal.     We  all  agree  that,  ordinarily,  if  a  wound  » 
inflicted,  not  dangerous  in  itself,  and  the  death  was  evidently  occasioned 
by  grossly  erroneous  treatment,  the  original  author  will  not  be  account- 


IVIDUALS. 


PARSONS   V,  STATE. 


923 


T  OF  WOUND  CAU8- 


alh  which  ensues  wm  evi- 
lie  original  author  will  not 
I,  the  person  who  inflicted 
mt. 

Bd  came  to  his  death  from 
mproper  treatment  of  it -by 
nael  requested  the  court  to 
red  that  the  deceased  came 
le  wound,  they  must  acquit 
ition, "  that  if  the  ill  treat- 
lant  would  not  be  excused 
leous. 

,  before  the  Hon.  E. 

f  the  court 


for  the  murder  of  one 
ence  was  conflicting  as 
,  a  wound  inflicted  by 
which  was  resorted  to 
ig  considered  a  mortal 
lid"  and  the  improper 
;  of  its  edges  together, 
3n  this  evidence,  was 
;e,  "  that  if  the  wound 
)lesome  application  the 
treatment,  and  not  the 
it  should  be  acquited." 
tion,   "that  if  the  ill 
wound  with  stitches  or 
be  excused  if  otherwise 
I  charge  is  relied  upon 
rdinarily,  if  a  wound  is 
as  evidently  occasioned 
hot  will  not  be  account- 


able.' The  charge  given  by  the  court  below  asserts  the  general  propo- 
sition that  if  the  wound  was  not  mortal,  and  the  death  properly  to  be 
attributed  to  the  treatment,  the  prisoner  should  be  acquitted,  but  the 
qualification  s  majority  of  the  court  hold  to  be  erroneous,  for  the  reason 
that  it  made  an  improper  exception  to  the  rule  stated  in  the  charge. 
In  other  words,  they  understand  the  charge  as  a  whole  to  assert  the 
proposition,  that  while  the  prisoner  might  be  excused  by  the  erroneous 
treatment  of  the  attending  physician,  yet,  if  such  treatment  consisted 
in  the  sewing  up  of  the  wound,  he  would  be  held  accountable ;  thus 
excluding  from  the  operation  of  the  rule  the  actual  case  which  the  evi- 
dence tended  to  establish.  I  can  not  agree  with  tliis  construction,  and 
while  I  admit  the  charge  is  wanting  in  precision  and  fulness  of  expres- 
sion, I  think  it  states  the  law  correctly. 

The  evidence  being  conflicting  as  to  the  cause  of  the  death,  and 
doubtful  as  to  the  character  of  the  wound,  these  were  matters 
proper  for  the  determination  of  the  jury ;  and  if  the  death  was  the 
natural  consequence  of  the  wound,  or  the  wound  was  mortal,  the 
defendant  was  answerable ;  and,  as  I  understand  the  charge,  it  asserted 
simply  this  propccition.  The  erroneous  treatment  which  was  relied  on 
consisted  in  the  sewing  up  of  the  wound,  instead  of  having  it  open ; 
and  the  presiding  judge,  after  laying  down  the  general  rule,  went  on  to 
inform  the  jury,  that  if  the  defendant  relied  on  the  particular  treatment 
resorted  to,  the  sewing  up  of  the  wound,  it  would  not  operate  to  excuse 
him,  if,  without  reference  to  such  treatment,  he  was  guilty ;  or  in  his 
own  language,  "  if  otherwise  guilty. "  The  construction  placed  by  a 
majority  of  the  court  upon  the  qualification,  gives  no  effect  whatever 
to  the  words  I  have  quoted,  and  strike  out  of  the  charge  the  limitation 
which  qualifies  the  entire  sentence.  Regarding  the  legal  proposition 
asserted  by  the  charge  as  correct,  yet  as  its  tendency  may  have  been  to 
mislead  the  jury,  in  a  case  of  this  character,  I  concur  in  the  reversal  on 
that  ground. 

Let  the  judgment  be  reversed,  and  the  cause  remanded ;  the  prisoner 
to  remain  in  custody  until  discharged  by  law. 

1  1  Hale's  P.  0.  428;  1  EastC.  L.  3M,  sec. 

113. 


dOb 


924 


CRIMES  AGAINST  THB  P£B80N8  CF  INDIVIDUALS. 


HOMICIDE  — INDEPENDENT  ACT  OF  THIRD  PEBSON  INTERVBNING, 

StATR  V.   SCATES. 

[6  Jones  (N.  €.)>  420.] 

In  tht  Supreme  Court  of  North  Carolina^  1858. 

Wh«r«  a  Jndff*  oh»r*«d  the  Jary  that  it  one  person  infllcu  a  mortal  wound,  and  before 
the  aaialled  person  dies,  another  person  kills  him  by  an  independent  aot,  the  former  ii 
guilty  of  murder,  It  was  ktld  to  be  error. 

Indictment  for  murder  tried  before  Saundbbs,  J.,  at  the  Spring  Term, 
1858,  of  Cleveland  Superior  Court.  Tlie  charge  was  for  the  murder  of 
a  small  child  of  the  age  of  about  two  years,  by  burning  and  by  a  blow. 
The  deceased  was  the  child  of  the  prisoner's  wife,  born  previously  to 
his  marriage  with  her,  and  it  was  proved  by  one  Ettress  that  the 
prisoner's  mother  was  greatly  displeased  at  the  marriage,  and  told  the 
prisoner  that,  if  he  did  not  put  the  child  out  of  way,  she  would ;  that 
the  prisoner  was  a  weak-minded  man,  but  considered  as  perfectly  sane. 
This  witness  saw  the  child  a  few  days  after  he  was  burnt,  and  that 
there  was  no  mark,  then,  on  the  forehead,  but  he  saw  such  a  mark  some 
days  before  its  death.  The  burning  took  place  about  the  first  of 
March,  and  the  child  died  about  the  first  of  April. 

Dr.  Hill  saw  the  deceased  about  twenty  hours  after  it  was  burnt 
He  dissected  the  burnt  parts,  and  found  the  injuries  very  extensive, 
the  arms,  back  and  thighs  were  roasted, —  crisped  like  a  piece  of  leather. 
He  stated  that  there  was  a  wound  in  the  forehead,  as  if  from  a  blow ; 
he  was  fully  satisfied  the  burning  in  itself  was  fatal,  and  must  have 
produced  death,  but  he  ''  doubted  as  to  the  immediate  cause  of  death  — 
thought  it  was  produced  by  the  blow." 

He  explained  on  cross-examination  that  he  thought  the  burning  the 
primary  cause  of  the  death,  but  that  it  was  probably  hastened  by  the 
wound  on  the  head. 

The  court  charged  the  jury  that  the  confessions  of  the  prisoner  had 
been  received  by  the  court,  but  it  was  for  the  jury  to  say  whether  they 
were  made,  and  if  made,  how  far  they  were  true ;  that  as  to  the  cause 
of  the  death,  it  was  for  them  to  say  whether  it  had  been  produced  by 
the  burning,  or  other  means,  and  that  if  produced  by  the  burning,' 
they  should  be  satisfied  that  the  burning  was  the  act  of  the  prisoner; 
"  and  even  should  they  share  in  the  doubt  expressed  by  the  doctor,  that 
the  blow  had  caused  its  immediate  death,  yet  if  satisfied  that  the  burn- 
ing was  the  primary  cause  of  the  death,  and  the  blow  only  battered  it, 
it  would  be  their  duty  to  convict." 

Verdict,  guilty.    Judgment  and  appeal  by  the  defendant. 


NDIVIDUALS. 


8TATB  V.  aOATSS. 


92b 


BRSON  nrrERVENIlfO. 


ilina,  1858. 

M  a  mortal  wound,  and  betora 
ndependent  aot,  the  former  It 


J.,  at  the  Spring  Term, 
i  was  for  the  murder  of 
burning  and  by  a  blow, 
rife,  born  previously  to 
f  one  Ettress  that  the 
marriage,  and  told  the 
f  way,  sbo  would ;  that 
lered  as  perfectly  sane, 
tie  was  burnt,  sad  that 
3  saw  such  a  mark  some 
lace  about  the  first  of 
ril. 

lira  after  it  was  burnt 
injuries  very  extensive, 
1  like  a  piece  of  leather, 
ead,  as  if  from  a  blow ; 
s  fatal,  and  must  have 
ediate  cause  of  death  — 

ihought  the  burning  the 
obably  hastened  by  the 

)ns  of  the  prisoner  had 
uiy  to  say  whether  they 
lie ;  that  as  to  the  cause 
had  been  produced  by 
duced  by  the  burning,' 
bhe  act  of  the  prisoner ; 
issed  by  the  doctor,  that 
F  satisfied  that  the  bum* 
e  blow  only  battered  % 


Attorney-Oeneral,  for  the  State. 

Oaither,  for  the  defendant. 

Battle,  J.  (omitting  a  ruling  as  to  confessions).  Upon  the  other 
point  in  the  ease,  we  are  decidedly  of  opinion  that  the  prisoner 
is  entitled  to  a  new  trial.  As  to  the  cause  of  the  death  of  the 
deceased,  his  Honor  charged  the  Jury  that  if  they  "  should  share  in 
the  doubt  expressed  by  the  doctor,  that  the  blow  liad  caused  the  imme- 
diate death,  yet,  if  satisfied  that  the  burning  was  the  primary  cause  of 
the  death,  and  the  blow  only  hastened  it,  it  would  be  tlieir  duty  to 
convict."  This  instruction  was  g  .en  upon  the  supposition  that  the 
blow  was  inflicted  by  another  person,  and  the  proposition  could  be  true 
only  when  the  testimony  connected  tlie  aots  of  such  person  with  the 
prisoner,  so  as  to  make  them  both  guilty,  and  we  at  first  thought  such 
was  the  proper  construction  to  be  put  upon  the  language  used  by  his 
Honor;  but,  upon  reflection,  we  are  satisfied  that  a  broader  proposition 
was  laid  down,  to  wit :  that  if  the  prisoner  infiicted  a  mortal  wound,  of 
which  the  deceased  must  surely  die,  and  then  another  person,  having 
no  connection  with  him,  struck  the  child  a  blow,  which  merely  hastened 
its  death,  the  prisoner  wouid  still  be  guilty.  The  testimony  presented 
a  view  of  the  case  to  which  the  proposition  was  applicable,  and  it 
becomes  our  duty  to  decide  whetlier  it  can  be  sustained  upon  any 
recognized  principles  of  law.  Murder  is  the  killing  with  malice 
prepense,  a  reasonable  being,  within  tlie  peace  of  the  State.  The  act 
of  killing,  and  the  guilty  intent,  must  concur  to  constitute  the  offense. 
An  attempt,  only,  to  kill  with  the  most  diabolical  intent,  may  be  moral, 
but  can  not  be  legal  murder.  If  one  man  inflicts  a  mortal  wound,  of 
which  the  victim  is  languishing,  and  then  a  second  kills  the  deceased  by 
an  independent  act,  we  can  not  imagine  how  the  first  can  be  said  to 
hare  killed  him,  without  involving  the  absurdity  of  saying  that  the 
deceased  was  killed  twice.  In  such  a  case,  the  two  persons  could  not 
be  indicted  as  joint  murderers,  because  there  was  no  understanding,  or 
connection  between  them.  It  is  certain  that  the  second  person  could 
be  convicted  of  murder,  if  he  killed  with  malice  aforethought,  and  to 
convict  the  first  would  be  assuming  that  he  had  killed  the  same  person 
at  another  time.     Such  a  proposition  can  not  be  sustained. 

The  prisoner  must  have  a  new  trial.  This  renders  it  unnecessary  for 
us  to  consider  the  effect  of  the  alleged  erroneous  entry  of  the  verdict. 

Judgment  revtrsed. 


e  defendant. 


MH«.v%^^xr«:.x.'~ ' 


926 


CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 


HOMICIDE -CAUSE   OF   DEATH  -  IMPROPER  TREATMENT   OR  NEO- 
LECT  CONTRIBUTING  THERETO  -  MALICE   NOT  IMPLIED. 

Morgan  v.  State. 

[16  Tex.  (App.)  693.] 

In  the  Court  of  Appeals  of  Texaa,  1884. 

1.  ImPlUd  MnUM-MaUM  not  PM«uin«d.  -  On  atrial  lor  murder  the  Jury  were  in. 
.iruoted  M  follow.:  "  ImpIl'JJ  malice  U  an  Inference  or  conclu.lonol  law  UPOJJ «"""" 
fact,  found  by  the  Jury.  Thus  the  law  Irapllc.  malice  from  the  unlawful  killing  of  a 
hnman  being,  unle..  the  olronm.tance.  make  it  evident  that  the  killing  wa.  e't^er  Inifl. 
liable,  or,  If  not  Ju.tlflable.  waa  ao  mlUgateU  ai  to  reduce  the  offenie  below  murder  In  the 
second  degree."  Meld,  error. 
8.  Oauw  of  ©•»th- Improper  Troatmont  Oontributtn*  to  D«»th-lMM  •tat- 
ut«.  -  The  Texai  code  enact* :  "  The  destruction  of  lUo  mu»t  be  complete  by  Bued  act, 
agency,  procuremout  oromlMlon;  but,  although  the  injury  which  caused  death  might 
not. under  oihcr  circura.tance..  have  proved  fatal,  yet  If  .uch  injury  be  "••«•«»«»« 
death,  without  ita  appearing  that  there  baa  been  any  groii  neglect  or  manlfeatly  Im- 
proper ^eatment  of  the  person  Injured,  it  la  homicide."  Beld,  that  If  the  njury  be  .uch 
that  death  Is  not  a  certain  result-  If  it  be  such  that  human  aid  and  skill  may  prevent 
its  fatal  termination -then  it  ia  such  an  injury  aa  comes  within  the  meaning  of  the 
word,  quoted.  But  If  the  injury  be  such  that  no  human  aid  or  .kill  could  prevent  .t» 
fatal  termination,  then  the  injury  is  not  such  aa  come,  within  the  meaning  of  the  words. 

S.  At  Common  Law.  the  K.Bleot  or  Improper  Treatment  mu.t  produce  the  death 
in  order  to  exonerate  the  person  who  inllicted  the  original  Injuiy.  Cnd  1. 
statute  it  is  not  necessary  that  the  neglect  or  improper  treatment  shall  cont  n 

any  degree  to  the  death,  but  if  there  be  gross  neglect  or  manifestly  improper  ti 

either  In  preventing  or  in  aiding  the  fatal  effect,  of  the  Injury,  the  death  of  th a 

peraon  is  not  homicide  by  the  party  who  Inflicted  the  original  Injury. 

4.  "OroeeHeBlect  and  Improper  Treatment."  a.  construed  by  the  majority  of  the 
court,  are  held  to  mean,  not  only  such  as  produce  the  destruction  of  human  life,  but  a> 
weU  inch  a.  allow,  suffer  or  permit  the  destruction  of  life. 

Appeal  from  the  District  Court  of  Travis  County. 
WaUon  &  Hill  and  Slieeka  &  Sneed,  for  the  appellant. 
J.  H.  Bum,  Assistant  Attorney-General,  for  the  State. 
HcBT,  J.     The  appellant  in  this  case  was  convicted  of  murder  in  the 
second  degree.     A    reversal  of    the  jadgment  is    sought  on    three 

grounds : — 

1.  Error  in  the  admission  of  certain  evidence. 

2.  Defects  in  the  charge  of  the  court  in  two  particulars. 

3.  Error  in  refusing  charges  requested  by  the  defendant. 

first  ground.  The  witness  Cummings,  M.  D.,  stated  that  he  be- 
lieved that  the  wound  in  the  temple,  and  not  that  inflicted  by  the 
trephining  operation,  killed  the  deceased.  He  was  then  asked  by  the 
State's  counsel  if  this  conclusion  was  concurred  in  by  the  other  physi- 
cians present,  viz. :  Tavlor,  Wooten,  Given,  Johnson  and  Gasser.  To 
this  question  the  defendant  objected,  because  the  desired  evidence  was 
heresay.     The  objection  was  overruled,  and  the  witness  answered  that 


T  T 


'  ^ 


WIVIVVALS. 


MORGAN   V,  STATE. 


927 


PREATMENT   OR  NEO- 
S  NOT  IMPLIED. 


I,  1884. 

lor  murder  the  Jury  were  in- 
ncluslon  of  law  upon  certnia 
im  tbe  unlawful  killing  of  a 
at  the  killing  WU8  either  jniti- 
le  offenie  below  murder  in  tlie 

t  to  Ssath-TazM  ttet- 
luit  be  complete  by  Bueh  art, 
y  which  caused  death  might 
t  luch  injury  be  the  cause  oi 
oil  neglect  or  manifestly  Im- 
Beld,  that  it  the  injury  be  such 
inn  aid  and  skill  may  prevent 
es  within  the  meaning  of  the 
aid  or  skill  could  prevent  its 
bin  tbe  meaning  of  the  words. 
.ant  mast  produce  the  death 
original  Injury.  Cnd-  "is 
■  treatment  shall  cont  n 

lanifestly  improper  tt 
ijury,  the  death  ol  thu  ....      i 
Inal  Injury. 

itmed  by  the  majority  of  the 
itruction  of  human  life,  but  b> 


'ounty. 

ppellant. 

r  tbe  State. 

mated  of  murder  in  the 

it  is   sought  on    three 


particulars. 
le  defendant. 
D.,  stated  that  he  be- 
lot  that  inflicted  by  the 
e  was  then  asked  by  the 
3d  in  by  the  other  physi- 
ohnson  and  Gasser.  To 
the  desired  evidence  was 
[le  witness  answered  that 


the  opinion  which  be  hnd  given  as  to  the  cause  of  the  death  was  con- 
curred in  and  agreed  to  by  tlie  other  physicians  before  named  at  the 
time  of  the  post  mortem  cxiimination. 

We  arc  of  the  opinion  that  the  objection  of  the  defendant  should 
have  been  sustained.  This  evidence  was  clearly  heresay,  and  not  ad- 
missible. But,  as  all  of  these  physicians  were  examined  as  witnesses, 
anil  testified  that,  in  their  opinion,  liie  wound  in  the  temple,  and  not  the 
trephining  operation,  caused  the  death  of  the  deceased,  certainly  no 
injury  appears  to  have  been  done  the  defendant  by  its  introduction. 

Second.  Error  in  the  charge  in  the  first  particular,  viz. :  that  in  the 
ninth  subdivision  of  the  charge  implied  rorl".  a  is  explained  as  follows: 
"  Implied  malice  is  an  inference  or  conf^iubiun  of  law  upon  certain  facts 
found  by  the  jury.  Thus  the  law  implies  malice  from  the  unlawful 
kill!-  ;  of  a  human  being,  unless  the  circumstances  make  it  evident  that 
the  killing  was  either  justifiable,  or,  if  not  justifiable,  was  so  mitigated 
as  to  reduce  the  offense  below  murder  in  the  second  degree." 

The  proposition  contained  in  this  charge  is  simply  this :  That  when 
an  unlawful  killing  is  shown,  the  homicide  is  presumed  by  law  to  be 
upon  malice,  and  in  order  to  meet  and  overcome  this  legal  presumption, 
the  evidence  — circumstances  — must  make  it  evident  that  the  killing 
was  justifiable,  or  so  mitigated  as  to  reduce  the  offense  below  murder 
in  the  second  degree.  The  appellant  objected  at  the  time  to  this 
charge.  Is  it  obnoxious  to  the  objection  urged  to  it  in  the  appellant's 
brief?  Does  this  charge  shift  the  burden  of  proof?  We  think  not. 
Does  it  infringe  the  doctrine  of  reasonable  doubt?  We  are  of  the 
opinion  that  it  does,  and  this  is  so,  and  is  susceptible  of  the  clearest 
demiynstration. 

Let  us  illustrate:  A.  is  charged,  and  is  on  trial  for,  the  murder  of 
B.  The  State  proved  that  A.  unlawfully  killed  B.,  and  here  closed. 
A.  adduces  evidence  and  circumstances  tending  to  justify  or  reduce  the 
homicide  below  murder.  Must  his  justification  be  evident?  Or  must 
the  evidence  and  circumstances  render  evident  the  fact  that  the  homi- 
cide was  not  malice,  but  was  manslaughter  or  negligent  homicide? 
Suppose  that  neither  justification,  manslaughter,  nor  negligent  homi- 
cide is  by  the  evidence  made  evident ;  but  suppose  the  evidence  ad- 
duced by  the  State  or  the  defendant  which  tends  to  support  justification, 
manslaughter  or  negligent  homicide  is  suflScient  to  raise  a  reasonable 
doubt  of  the  existence  of  malice,  sutBcient  to  warrant  the  jury  in  call- 
ing in  question  this  legal  presumption.  Should  the  jury  find  malice  and 
convict  of  murder?  Evidently  they  should  not.  A  preponderance  of 
evidence  in  support  of  circumstances  which  tend  to  justify  or  reduce 
is  not  required,  the  correct  proposition  being  that  the  State  must  prove 
malice,  and  that  if  there  be  a  reasonable  doubt  of  its  existence,  either 


T  T 


^28 


CRIMES  AGAINST  THE  PERSONS   OF  INDIVIDUALS. 


from  the  evidence  or  from  any  evidence,  whether  adduced  by  t 
State  or  by  the  defendant,  he  can  not  be  legally  convicted  of  homici 
upon  malice. 

Let  us  view  this  subject  in  another  light.  An  indictment  for  mur<j 
charges  at  least  three  distinct  offenses ;  while  it  charges  others,  thi 
will  suffice  for  the  present  purpose,  to  wit,  murder  in  the  first  degrt 
murder  in  the  second  degree,  and  manslaughter.  Now,  the  defends 
is  notified  and  called  upon  to  answer  each  of  these  offenses.  And  t 
State,  under  these  cliarges,  can  and  must  prove  one  of  these  chargi 
beyond  a  reasonable  doubt,  to  be  entitled  to  a  conviction.  Th( 
charges,  or  one  of  them,  viz.,  murder  in  the  first  degree,  murder  in  t 
second  degree,  and  manslaughter,  though  contained  in  the  same  i 
dictment,  and  though  the  trial  may  be  upon  all  at  the  same  time,  mi 
be  established  by  the  same  character  of  proof — proved  in  the  sai 
manner  —  as  if  the  trial  was  upon  an  indictment  which  charged  but  oi 
And  in  order  to  convict  of  the  highest,  viz.,  murder  in  the  first  degn 
the  burden  is  upon  the  St^te  to  show  that  the  homicide  was  committ 
under  such  circumstances  as  to  constitute  murder  of  the  first  degr« 
And  so  with  murder  of  tlie  second  degree ;  proof  must  be  made  tl 
the  killing  was  upon  malice,  and  this  must  be  shown  beyond  a  reasc 
able  doubt.  Just  what  facts  will  make  such  proof  we  are  not  m 
discussing. 

To  entitle  the  State  to  a  verdict  of  murder  in  the  second  degree,  i 
must  prove  that  the  defendant  took  the  life  of  the  deceased,  and  tl 
the  homicide  was  prompted  by  a  wicked  and  depraved  heart,  void 
social  duty  and  fatally  bent  on  mischief,  that  is,  by  malice.  Th 
facts  are  established  by  proof  of  the  existence  of  the  facts  and  by  pr 
of  the  absence  of  facts. 

Again  let  us  illustrate :  A.  is  upon  trial  for  the  murder  of  B. 
State  finds  that  A.  shot  and  killed  B.    This  would  be  a  very  remarks 
case  if  the  evidence  were  to  step  here  —  such  a  case  as  will  never  i 
if  prosecuted  with  the  slightest  attention,  and  hence  we  will  not  disc 
such  a  case.     But  suppose  that  a  witness  were  to  swear  that  he  san 
standing  on  the  street,  and  that  A.  drew  bis  pistol,  and  while  B. 
standing  on  the  street,  A.  shot  and  killed  him ;  and  here  the  evide 
closed.    This  being  the  case,  all  of  the  case,  very  evidently  A.  w( 
be  guilty  of  homicide  upon  malice,  for  be  who  would  shoot  dow 
human  being  under  these  circumstances,  certainly  would  be  prom] 
by  a  wicked  and  depraved  heart,  a  heart  void  of  social  duty  and  fat 
bent  upon  mischief.    But  suppose  B.  had  been  breathing  out  dei 
threats  against  A.,  of  which  he  had  been  informed,  and  that  Just  be 
be  shot,  B.  did  some  act  showing  an  intent  to  execute  his  thre 
Here  we  find  an  issue  for  the  jury,  viz. :  was  the  homicide  upon  mi 


P  INDIVIDUi^L8. 

whether  adduced  by  the 
silly  convicted  of  homicide 

An  indictment  for  murder 
le  it  charges  others,  three 
murder  in  the  first  degree, 
iter.    Now,  the  defendant 
f  these  offenses.    And  the 
►rove  one  of  these  charges, 
id  to  a  conviction.    These 
s  first  degree,  murder  in  the 
contained  in  the  same  in- 
i  all  at  the  same  time,  must 
roof — proved  in  the  same 
lent  which  charged  but  one. 
murder  in  the  first  degree, 
he  homicide  was  committed 
murder  of  the  first  degree. 
;  proof  must  be  made  that 
be  shown  beyond  a  reason- 
ich  proof  we  are  not  now 

er  in  the  second  degree,  she 
i  of  the  deceased,  and  that 
ind  depraved  heart,  void  of 
that  is,  by  malice.  These 
ice  of  the  facts  and  by  proof 

for  the  murder  of  B.    The 
}  would  be  a  very  remarkable 
ich  a  case  as  will  never  arise 
ind  hence  we  will  not  discuss 
were  to  swear  that  he  saw  B. 
bis  pistol,  and  while  B.  was 
him ;  and  here  the  evidence 
sase,  very  evidently  A.  would 
te  who  would  shoot  down  a 
certainly  would  be  prompted 
roid  of  social  duty  and  fatally 
id  been  breathing  out  deadly 
nformed,  and  that  just  before 
itent  to  execute  his  threats? 
was  the  homicide  upon  malice 


MORGAN  V.  STATE. 


929 


or  in  self-defence?  and  if  there  should  be  a  reasonable  doubt  of  the 
malice,  A.  should  be  given  the  benefit  of  this  doubt  and  acquitted  of 
homicide  upon  malice.  We  could  illustrate  with  reference  to  man^ 
slaughter  and  negligent  homicide,  in  fact,  to  all  offenses  embraced  in 
murder,  but  deem  the  above  sufficient. 

We  are  of  the  opinion  that  the  charge  was  erroneous,  and,  as  it  was 
excepted  to  at  the  time,  we  are  also  of  the  opinion  that  it  contained 
such  error  as  requires  the  reversal  of  the  judgment. 

But  is  urged  that  in  Sharp  v.  State,^  this  precise  charge  was,  by  the 
court,  held  sufficient.  In  this  case  it  does  not  appear  that  the  attention 
of  this  court  was  called  to  the  word  "evident."  In  regard  to  this 
charge  the  learned  judge  (Winkler)  says  that  it  sufficiently  informed 
the  jury  as  to  what  facts  and  circumstances  would  justify  them  in  de. 
scending  from  the  first  degree  and  convicting  of  murder  in  the  second 
degree,  if,  indeed  the  defendant  was  entitled  to  a  charge  on  that  grade 
of  offense  under  the  proofs  adduced.  But  if  it  was  the  intention  of 
this  court  to  hold  that  the  word  "  evident '' was  properly  used,  and 
tliat  in  fact  justii?cation.  or  the  reduction  of  the  offense  to  manslaugh- 
ter, etc.,  VL  Vie  made  evident  by  the  evidence,  then  that  case  is 
overruled. 

But  again  it  is  urged  by  the  State  that  as  the  court  charged  the  jury 
that  if  they  had  a  reasonable  doubt  of  tho  defendant's  guilt  of  murder 
of  the  second  degree  they  must  acquit,  that  therefore  the  error  above 
noticed  was  rendered  harmless.  These  charges  are  in  direct  conflict, 
and  as  defendant  objected  at  the  time,  and  as  we  can  not  say  that  the 
jury  was  not  misled  by  the  erroneous  charge,  we  feel  constrained  to 
reverse  the  judgment. 

The  next  ground  of  complaint  to  the  charge  is  in  reference  to  the 
twelfth  and  thirteenth  subdivisions  of  the  charge.  'On  the  nineteenth 
<lay  of  January,  1883,  the  deceased  was  stabbed  with  a  pocket  knife  in 
the  left  temple.  When  struck  with  the  knife  the  deceased  fell  to  the 
ground,  and,  upon  examination  was  found  in  a  comatose  state,  in  which 
condition  be  remained  up  to  his  death,  which  was  on  the  twenty-fifth 
day  of  January,  1883.  On  the  twentieth  day  of  January  the  surgeons 
performed  the  trephining  operation,  taking  from  the  back  part  of  the 
head  two  pieces  of  the  skull. 

The  autopsy  disclosed  that  the  knife  had  entered  through  the  skull 
and  penetrated  the  brain  about  two  and  a  half  inches,  in  an  inward, 
backward  and  slightly  upward  direction.  Along  the  track  of  this  wound 
in  the  temple  it  was  suppurated.  A  triangular  piece  of  skull,  size  and 
shape  about  one  inch  from  the  base  to  the  apex  of  the  triangle,  was 


1  6  Tex. 


3  DBFBNCEa. 


lApp.)  eso 

69 


f  r 


■auHlH 


mmaem 


930 


CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 


driven  into  the  brain.  Tliere  is  no  reason  for  doubt  tliat  the  woand  in 
dieted  in  the  temple  by  the  defendant  produced  the  death  of  the  d( 
ceased;  all  of  the  surgeons  agree  to  this.  Two  of  the  surgeons 
however,  on  the  twentieth  of  January,  mistaking  an  irregularity,  i 
congenital  malformation  of  the  skull,  for  a  fracture,  operated  by  trc 
phining,  and  two  pieces  of  skull  were  taken  from  the  back  part  of  the  head 
To  the  wound  in  the  temple  nothing  whatever  was  done  except  t 
bandage  and  keep  it  cool,  when  by  proper  treatment  the  piece  of  bon 
could  have  been  removed,  and  a  chance  given  the  deceased  to  recovei 
That  there  is  evidence  in  this  record  tending  strongly  to  show  that  ther 
was  gross  negligence  and  manifestly  improper  treatment  of  the  d( 
ceased  can  not  be  denied  and  must  be  conceded. 

Under  the  above  facts  —  all  of  the  facts  relating  to  the  difteren 
wounds,  their  character  and  the  negligence  and  their  improper  treat 
ment  —  what  instructions  should  be  given  to  the  jury  by  the  tria 
judge?  The  appellant  complains  of  the  charges  of  the  court  touchinj 
this  matter.    What,  therefore,  did  his  honor  below  charge? 

"  3.  Homicide  is  the  destruction  of  the  life  of  a  human  being  by  th 
act,  agency,  procurement  or  culpable  omission  of  another. 

*'4.  The  destruction  of  life  must  be  complete  by  such  act,  agency 
rrocurement  or  omission ;  but,  although  the  injury  which  caused  deatl 
might  not  under  other  circumstances  have  proved  fatal  yet  if  such  in 
jury  be  the  cause  of  death,  without  its  appearing  thai-  ^here  has  bee 
any  gross  neglect  or  manifestly  improper  treatment  of  the  person  in 
jured,  it  is  homicide. 

"  5.  The  neglect  or  improper  treatment  referred  to  has  reference  t 
the  acts  of  some  person  olher  than  he  who  inflicts  the  first  injury, 
the  physician,  nhrse  or  other  attendant. 

"  12.  If  the  jury  find  from  the  testimony  that  the  defendant,  at  til 
time  and  place  as  alleged  in  the  indictment,  with  a  knife  did  inflict  tn 
wound  in  the  head  of  the  said  Joseph  Henderson,  as  charged,  and  th^ 
further  find  from  the  testimony  that  there  has  been  gross  neglect 
manifestly  improper  treatment  of  said  Henderson,  by  any  one  or  m(^ 
of  the  physicians  attending  him,  between  the  i!\fliction  of  the  wound  i 
his  death,  which  Improper  treatment  or  neglect,  if  any,  caused  the  ded 
of  said  Henderson,  then  the  jury  can  not  find  the  defendant  gniltyl 
taking  tiie  life  of  Henderson.  And  if  the  jury  so  find  from  the  tes^ 
mony,  then  they  will  flud  the  defendant  not  guilty.  If  the  wound  f 
shown  by  the  testimony),  inflicted  by  the  defendant  upon  Hender 
was  not  in  itself  mortal,  and  Henderson  died  in  consequence  of  improj 
treatment  by  his  physicians,  and  not  of  the  wound,  then  the  jury ' 
flud  the  defendant  not  guilty. 

''  18.  If  the  testimony  should  show  that  the  woand,  as  alleged, 


»  ? 


INDIVIDUALS. 

ioubt  that  the  wound  in- 
sd  the  death  of  the  de- 
Two  of  the  surgeons, 
aking  an  irregularity,  a 
racture,  operated  by  tre- 
i  the  back  part  of  the  head. 
ver  was  done  except  to 
latment  the  piece  of  bone 
1  the  deceased  to  recover, 
trongly  to  show  that  there 
)er  treatment  of  the  de- 
ed. 

relating  to  the  different 
and  their  improper  treat- 
to  the  jury  by  the  trial 
■ges  of  the  court  touching 
below  charge? 
9  of  a  human  being  by  the 
m  of  another, 
plete  by  such  act,  agency, 
injury  which  caused  death 
roved  fatal  yet  If  such  In- 
•earing  thai,  -here  has  been 
eatment  of  the  person  in- 

eferred  to  has  reference  to 
inflicts  the  first  injury,  u 

that  the  defendant,  at  the 
with  a  knife  did  inflict  the 
erson,  as  charged,  and  they 
has  been  gross  neglect  or 
ierson,  by  any  one  or  more 
i  iafliction  of  the  wound  and 
ect,  if  any,  caused  the  death 
Ind  the  defendant  guilty  of 
jury  so  find  from  the  testl- 
)t  guilty.    If  the  wound  (U 
defendant  upon  Henderson 
1  in  consequence  of  improper 
le  wound,  then  the  Jury  wiU 

t  the  wound,  as  alleged,  wa 


MORGAN   V.  STATE. 


931 


inflicted  by  the  defendant  upon  the  head  of  the  deceased,  and  that  on  a 
subsequent  day,  and  before  the  death  of  said  Henderson,  the  physi- 
cians, in  mistake  as  to  the  nature  of  the  injury,  operated  upon  the  back 
part  of  the  h<tad  of  the  deceased,  and  in  so  operating  inflicted  injuries 
to  the  head  and  brain  of  the  deceased,  and  that  the  death  of  the  said 
Henderson  occurred  on  January  24,  from  the  joint  effect  of  said  wounds 
inflicted  by  defendant  and  by  the  physicians,  then  the  jury  must  be 
satisfied  from  the  testimony  that  the  wound  inflicted  by  the  defendant 
was  clearly  a  sufficient  cause  of  the  death  without  the  concurrence  of 
that  by  the  physicians,  and  if  the  jury  so  find  tliey  will  find  the  defend- 
ant guilty.  But  if  the  death  of  Henderson  is  shown  to  have  been  caused 
by  the  joint  effects  of  said  wound  inflicted  by  the  defendant  and  that  in- 
flicted by  the  physicians,  and  it  should  not  be  made  clearly  and  satis- 
factorily to  appear  that  the  wound  inflicted  by  defendant  was 
sufficiently  a  cause  of  the  death  of  Henderson,  then  the  jury  should 
acquit  the  defendant." 

Do  these  charges  of  the  learned  judge  Inform  the  jury  correctly  of  the 
rule  by  which  they  are.  to  be  governed  in  determining  whether  or  not 
defendant  destroyed  the  life  of  the  deceased,  Henderson?  We  are  of 
the  opinion,  keeping  the  facts  of  the  case  upon  this  point  before  us, 
and  as  durectly  applicable  thereto,  these  charges,  taken  together,  con- 
tain a  full,  clear  and  concise  statement  of  the  law,  and  that  there  Is  no 
error  apparent  to  us. 

But  suppose,  it  may  be  asked,  that  there  was  gross  negligence  or 
manifestly  Improper  treatment  by  the  attending  surgeons,  the  wound 
not  being  necessarily  mortal,  can  the  defendant  be  convicted  of  the 
homicide?  Now,  before  proceeding  to  answer  this  question,  we  desire 
to  make  these  obser\'ations :  — 

1.  A  wound  ic5  moi-tal  when  beyond  the  skill  of  surgery.  It  is  mor- 
tal, because  death  is  inevitable  from  the  nature  of  the  wound. 

2.  A  wound  is  mortal  unless  relieved  by  surgery.  Now,  if  A.  inflicts 
a  wound  upon  B.  from  which  there  is  no  chance  of  recovery,  aided  by 
the  most  skillful  surgeon,  and  B.  dies,  A.  is  guilty  of  the  destruction  of 
B.'b  life.  But  suppose  that  A.  inflicts  a  wound  upon  B.,  from  which 
he  might  be  relieved  by  rational  surgery,  but,  unless  aid  is  given,  B. 
must,  from  the  very  nature  of  the  wound,  die,  and  aid  not  being  given, 
B.  dies,  will  any  rational  mind  question  the  fact  that  A.  destroyed  B.'a 
life?  The  condition  in  which  A.  placed  B.  is  that  which  must  lead  ta 
death,  and  that  which  did  lead  to  death.  Now,  can  it  rationally  be  con- 
tended that,  as  B.,  by  proper  treatment,  might  have  been  relieved, 
therefore  A.  did  not  destroy  B.  's  life  —  that  A.  did  not  kill  B.  ?  Who 
will  assert  such  a  proposition?  If,  therefore,  A.  did  kill  B.,  most  be 
escape  because  of  the  gross  improper  treatment  of  the  surgeons,  when. 


•  V 


■Mi 


932 


CBIMES  AGAINST  THE  PEB80N8  OP  INDIVIDUALS. 


in  fact,  he  destroyed  the  life  of  his  fellow-man?  The  plainest  princi- 
ples of  justice  revolt  at  such  a  conclusion.  On  the  other  hand,  suppose 
that  the  wound  or  injury  inflicted,  in  conjunction  with  the  improper 
treatment,  produced  the  death,  the  wound  not  being  necessarily  mortal, 
should  the  defendant  be  held  responsible  for  the  homicide  ?  Clearly 
not,  nor  is  he  so  held  in  the  charge  of  the  court,  the  jury  being  told  in  the 
chaige,  under  this  state  of  case,  to  acquit. 

Again  it  is  urged,  as  there  is  evidence  tending  to  show  that  the 
wounds  inflicted  by  the  surgeons  weakened  the  patient  and  lessened  his 
-vitality,  that  although  the  wound  inflicted  by  defendant  destroyed  the 
life  of  the  deceased,  that  being  aided  in  this  manner  by  the  wounds 
inflicted  by  the  trephining  operation,  the  defendant  can  not  be  held  re- 
sponsible for  the  homicide.  This  proposition  is  not  supported  to  its  full 
extent  by  evidence.  Doctor  Wooten  swears  that  the  patient  was  weak- 
ened, and  that  his  vitality  was  lessened,  but  he  is  very  clear  and  positive 
that  the  patien'»  died  of  wound  given  by  the  defendant.  And  not  only 
M,  the  evidence  is  conclusive  that  of  this  wound  death  was  inevitable, 
unless  relieved  by  surgery,  and,  to  produce  death,  the  wounds  inflicted 
by  the  surgeons  in  the  trephining  operation  would  have  required  several 
days'  time. 

We  must  not  lose  sight  of  the  piain  and  practical  question,  which  is: 
Did  defendant,  unaided,  destroy  the  life  of  the  deceased  Henderson? 
If  he  did,  he  should  be  held  responsible  for  the  homicide.  If  not,  there 
being  evidence  of  gross  negligence,  and  manifestly  improper  treatment  by 
the  surgeons,  he  should  not.  This  question,  we  think,  in  all  phases  was 
OorreoUy  submitted  to  the  jury  by  the  very  clear  and  concise  charge  of 
the  learned  judge  who  tried  this  case.  It  follows  that,  if  the  charge  of 
the  court  was  correct,  full  and  complete  upon  this  subject,  there  was  no 
error  in  refusing  the  charges  requested  by  the  defendant. 

Other  objections  to  the  charge  have  been  considered  by  us,  but  we  do 
not  think  them  well  taken. 

For  the  error  in  the  chaise  of  the  court  relating  to  implied  malice,  or 
murder  in  the  second  degree,  the  judgment  is  reversed  and  the  cause 
remanded. 

WiLLsoM,  J.  Whilst  concurring  in  the  di^osition  made  of  this  case, 
I  do  not  agree  to  that  portion  of  the  opinion  which  approves  as  correct 
law  the  twelfth  and  thirteenth  paragraphs  of  the  charge  of  the  learned 
trial  judge,  and  which  are  quoted  at  length  in  the  opinion  of  Judge 

HUBT. 

In  order  that  my  views  may  be  properly  presented  and  understood,  I 
will  first  refer  to  and  state  the  common  law  upon  the  subject  embraced  in 
tiie  said  pi^ragraphs  of  said  charge,  and  then  show  wherein,  in  my  judg- 
ment, the  provisions  of  our  code  upon  the  same  subject  prescribes  rules 


WW 


(TIDUALS. 


MORGAN  V.  STATE. 


938 


rhe  plainest  prinoi- 
other  hand, suppose 
with  the  improper 
necessarily  mortal, 
homicide  ?  Clearly 
iry  being  told  in  the 

;  to  show  that  the 
int  and  lessened  his 
dant  destroyed  the 
mer  by  the  wounds 
can  not  be  held  re- 
supported  to  its  full 
B  patient  was  weak- 
ry  clear  and  positive 
ant.  And  not  only 
eath  was  inevitable, 
the  wounds  inflicted 
are  required  several 

question,  which  is: 
iceased  Henderson? 
licide.  If  not,  there 
ipropei'  treatment  by 
ik,  in  all  phases  was 
:d  concise  charge  of 
hat,  if  the  charge  of 
iubject,  there  was  no 
adant. 
red  by  us,  but  we  do 

o  implied  malice,  or 
irsed  and  the  cause 

a.  made  of  this  case, 
i  approves  as  correct 
harge  of  the  learned 
le  opinion  of  Judge 

d  and  understood,  I 
subject  embraced  in 
irherein,  in  my  Judg- 
tject  prescribes  rules 


in  some  respects  essentially  different  from  the  common  law,  and  from  the 
charge  referred  to. 

Mr.  Greenleaf  very  tersely  states  the  rule  of  the  common  law  as  fol- 
lows: "  If  death  ensues  from  a  wound  given  in  malice,  but  not  in  its 
nature  mortal,  but  which  being  neglected  or  mismanaged,  the  party 
died,  this  will  not  excuse  the  prisoner  who  gave  it,  but  be  will  be  held 
guilty  of  the  murder,  unless  he  can  make  it  clearly  and  certainly  appear 
that  the  maltreatment  of  the  wound,  or  the  medicine  administered  to  the 
patient,  or  his  own  misconduct,  and  not  the  wound  Itself,  was  the  sole 
cause  of  his  death ;  for  if  the  wound  had  not  been  given,  the  party  had 
notdietl."! 

Lord  Hale  states  it  thus;  *'  If  a  man  give  another  a  stroke  which,  it 
may  be,  is  not  in  itself  so  mortal,  but  that  with  good  care  he  might  be 
cured,  yet  if  he  dies  within  the  ye^  and  day,  It  is  a  homicide,  or  mur> 
der  as  the  case  is ;  and  so  it  has  always  been  ruled.  But  if  the  wound. 
be  not  mortal,  but  with  ill  applications  of  the  party,  or  those  about  him, 
of  unwholesat  ^  ^  salves  or  medicines,  the  party  dies,  if  it  clearly  appears 
that  the  medicines  and  not  the  wound  was  the  cause  of  the  death,  it 
seems  it  is  not  homicide ;  but  then  it  must  clearly  and  certainly  appear 
to  be  so.  But  if  a  man  receive  a  wound  which  is  not  in  itself  mortal, 
but  for  want  of  helpful  applications  or  neglect  it  turns  to  a  gangrene  or 
a  fever,  and  the  gangrene  or  fever  be  the  immediate  cause  of  the  death, 
yet  this  is  murder  or  manslaughter  in  him  that  gave  the  stroke  or 
wound ;  for  that  wound,  though  it  was  not  the  immediate  diuse  of  the 
death,  yet  if  it  were  the  mediate  cause,  and  the  fever  or  gangrene  the 
immediate  cause,  the  wound  was  the  cause  of  the  gangrene  or  fever,  and 
■o  consequently  causa  causans. "  ^ 

The  foregoing  quoted  texts  are  fully  supported  by  other  distinguished 
authors  upon  criminal  law,  and  by  numerous  adjudged  cases,  both 
English  and  American.' 

This  common-law  doctrine  has  likewise  been  quoted  and  approved  by 
this  court,  but  in  the  cases  in  which  this  was  done  it  does  not  appear 
that  the  question  presented  in  the  case  now  before  us  was  raised  or  con- 
sidered. I  do  not,  therefore,  regard  the  questions  as  having  been 
directly  passed  upon  and  determined  in  either  of  those  cases,  or  in  any 
other  case  decided  by  this  court.  The  two  cases  I  allude  to  are 
Williamay.  State*  and  Powell  V.  State.^ 


1  S  GreeiU.  Et.,  seo.  139. 

3  1  Hale'a  P.  0. 438. 

'  1  Rui«.  on  Cr.  806;  Boscoe't  Cr.  Et. 
717;  1  Biih.  Or.  L.,  see  esS  <t  tag.;  Com.  v. 
Green,  1  Aabm.  889;  State  r.  Scott,  19  La. 
Ann.  274;  Com.  v.  Hatchett,  3  Allen,  ]3«; 
faraona  v.  SUte,  31  Ala.  800;  Llvingiton's 


Oaae,UGrat.B9S;Com.  «.  Fox,7  Onij,M; 
State  V.  Morphy.SS  Iowa,  870;  Reg. «.  Hol- 
land. 3  M.  *  R.  861;  AllUon'a  Or.]:..8eot- 
land.  147. 

«  3  Tex.  (App.)  171. 

•ISTex.  (App.)S44. 


■»▼ 


934 


CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 


As  I  understand  the  twelfth  and  thirteenth  paragraphs  of  the  charge 
of  the  court,  which  are  approved  by  Judge  Hurt,  they  are  a  substantial 
enunciation  of  the  common  law  upon  the  subject  under  consideration. 
This  being  the  case,  the  same  are  correct,  unless  the  common  law  has 
been  changed  by  the  provisions  of  our  code.  I  will  new  proceed  to 
point  out  wherein,  in  my  opinion,  the  common  law  with  reference  to  this 
subject  has  been  materially  changed,  modified 'and  ameliorated  by  our 
statute.  I  will  first  quote  at  length  the  articles  of  our  Penal  Code  bear- 
ing upon  the  question.    They  are  as  follows :  — 

**  Article  546.  Homicide  is  the  destruction  of  the  life  of  one  human 
being  by  the  act,  agency,  procurement  or  culpable  omission  of  another. 

"Article  547.  The  destruction  of  life  must  be  complete  by  such  act, 
agency,  procurement  or  omission ;  but,  although  the  injury  which  caused 
death  might  not  under  other  circumstances  have  proved  fatal,  yet  if 
such  injury  be  the  cause  of  death,  without  its  appearing  that  there  has 
been  gross  neglect  or  manifestly  improper  treatment  of  the  person  in- 
jured, it  is  homicide. 

"Article  548.  The  foregoing  article,  in  what  is  said  of  gross  neglect 
or  improper  treatment,  has  reference  to  the  acts  of  some  person  other 
than  him  who  inflicts  the  first  injury,  as  of  the  physician,  nurse  or  other 
attendant.  If  the  person  inflicting  the  injury  which  makes  it  necessary 
to  call  aid  in  preserving  the  life  of  the  person  injured,  shell  willfully 
fail  or  neglect  to  call  such  aid,  he  shall  be  deemed  ' '  -^y  gaUty  as  if 
the  injury  ^ere  one  which  would  inevitably  lead  tc> .     .._." 

It  is  to  be  noticed  that  there  Is  a  difference,  though  perhaps  not  a 
very  material  one,  between  the  definition  given  at  common  law  of  "  homi- 
cide,"  and  that  given  in  our  code.  Blackstone  defines  it  as  "  the  kill- 
ing any  human  creature."  ^  Hawkins  defines  it "  the  killing  of  a  man 
by  a  man."'  Our  code  is  more  specific,  and  states  it  to  be  the  de- 
struction of  the  life  of  one  human  being,  by  the  act,  agency,  procure- 
ment or  omission  of  another.  And  it  goes  still  further  and  requires  that 
the  destruction  of  life  must  be  complete ;  not  only  so,  but  must  be  com- 
plete by  the  act,  agency,  procurement  or  omission  aforesaid  —  that  is, 
it  must  be  complete  by  the  act,  etc.,  of  the  defendant.  I  find  no  such 
special  requirement  as  this  in  the  common  law,  though  it  may  perhaps 
be  embraced  within  the  general  rules  on  the  subject.  I  have  merely 
called  attention  to  these  differences  to  show  that  our  code  upon  this 
subject  is  by  no  means  an  exact  copy  from  the  common  law,  but  con- 
tains some  tilings  which  are  not  expressed  so  fully,  if  expressed  at  all, 
by  the  common-law  writers. 

I  come  now  to  the  most  material  points  involved  in  this  contention. 


1  4  Bl*.  Com.  m. 


1 1  Hawk.  PI.  Or.,  oh.  8,  see.  1 


;;  .1 


•  V 


^■^ 


DIVIDUAL8. 

igrapha  of  the  charge 

they  are  a  substantial 

under  consideration. 

the  common  law  has 

■wiU  new  proceed  to 

■  with  reference  to  this 

id  ameliorated  by  our 

'  our  Penal  Code  bear- 

the  life  of  one  human 
B  omission  of  another, 
complete  by  such  act, 
lie  injury  which  caused 
e  proved  fatal,  yet  if 
pearing  that  there  has 
lent  of  the  person  in- 

I  said  of  gross  neglect 
of  some  person  other 
ysician,  nurse  or  other 
lich  makes  it  necessary 
injured,  shell  willfully 
le-^  -  liy  guilty  as  if 
tC'  -     .«»-. 

though  perhaps  not  a 
common  law  of  "  homi- 
deflnes  it  as  "  the  kill- 
; "  the  killing  of  a  man 
lates  it  to  be  the  de- 
e  act,  agency,  procure- 
urther  and  requires  that 
ly  so,  but  must  be  com- 
ion  aforesaid  —  that  is, 
endant.  I  find  no  such 
,  though  it  may  perhaps 
abject.  I  have  merely 
lat  our  code  upon  this 
s  common  law,  but  con- 
illy,  if  expressed  at  all, 

;lved  in  this  contention. 

n.  Or.,  oh.  8,  aeo.  S. 


MORGAN   V.  8TATE. 


935 


What  is  meant  by  the  words  *'  but  although  the  injury  which  caused 
death  might  not,  under  other  circumstances,  have  proved  fatal,"  used 
in  article  547  above  quoted?    In  my  judgment,  they  refer  to  all  injuries 
which  are  not  of  themselves  inevitably  fatal,  or  which  are  not  inflicted 
under  circumstances  which  make  them  inevitably  fatal.    In  other  words, 
all  injuries  which  under  the  circumstances  of  the  particular  case  are  not 
necessarily  fatal,  but  which  may  cause  death.    An  injury  which  must 
cause  death  under  any  state  of  circumstances,  such  as  the  severance  of 
the  head  from  the  body,  the  severance  of  the  carotid  artery,  or  the 
breaking  of  the  neck,  would  not  come  within  the  meaning  of  the  words 
quoted.     For  injuries  of  this  character  no  legislation  is  required,  be- 
cause they  can  not  be  affected  either  by  cure  or  negligence,  skillful  or 
unskillful  treatment.    They  produce  death  in  spite  of  any  human  aid. 
But,  if  the  injury  be  such  that  death  is  not  a  certain  result  thereof,  if  it 
be  such  that  human  aid  and  skill  may  prevent  its  fatal  termination,  then 
it  is  such  an  injury  as  the  words  quoted  refer  to.     I  need  no  better  il- 
lustration of  the  idea  I  am  endeavoring  to  express  than  the  case  before 
us.    In  this  case,  the  wound  inflicted  upon  the  deceased  by  the  defend- 
ant was  a  mortal  wound,  but  it  was  not  necessarily  fatal ;  it  would  not 
surely  and  inevitably  produce  death ;  it  was  within  the  power  of  human 
aid  and  skill,  perchance,  to  prevent  it  from  terminating  fatally.     It 
was,  therefore,  in  the  language  of  the  statute,  "  an  injury  which  might 
not,  under  other  circumstances,  have  proved  fatal."    That  is,  this  in- 
jury, if  it  had  been  properly  treated,  skillfully  attended  to,  by  those 
called  to  treat  it,  might  have  been  cured  and  the  life  of  the  deceased 
saved.    But  if  it  had  nevertheless  produced  the  death,  although  by 
proper  and  timely  aid  and  treatment  death  might  have  been  prevented, 
still  it  would  be  homicide  by  the  act  of  the  defendant,  unless  it  should 
appear  that  there  ht.d  been  gross  neglect  or  manifestly  improper  treat- 
ment of  the  person  injured  by  some  other  person  than  the  defendant. 
In  my  opinion,  just  here  is  the  important  change  made  by  our  statute 
in  the  common  law.    At  common  law  the  negleot  or  improper  treatment 
must  produce  the  death  in  order  to  relieve  the  person  who  inflicted  the 
original  in j  ury  from  the  homicide.    Such  neglect  or  improper  treatment, 
and  not  the  wound,  says  Mr.  Oreenleaf ,  must  appear  to  be  the  sole 
cause  of  the  death.     Our  statute,  as  I  interpret  it,  does  not  require  that 
the  neglect  or  improper  treatment  should  produce  the  death,  either  in 
whole  or  in  part.     If  there  be  gross  negleot,  or  manifestly  improper 
treatment,  either  in  preventing  or  in  aiding  the  fatal  effects  of  the 
injury,  the  death  of  the  injured  person  is  not  homicide  by  the  party  who 
inflicted  the  original  injury.    To  illustrate :  If  A.  should  cut  B.  with  a 
knife,  severing  a  small  artery,  this  wound  would  not  be  necessarily  fatal, 
yet  it  would  certainly  prove  so  unless  properly  and  promptly  attended 


WW 


■""^mmmmUm 


936 


CRIMES  AGAINST  THB  PERSONS  OF  INDIVIDUALS. 


to.  Thfl  injured  party  would  surely  bleed  to  death  in  a  short  time  if 
left  without  the  proper  aid,  but  with  proper  treatment  the  artery  would 
be  closed,  the  flow  of  blood  thereby  stopped,  and  death  prevented. 
Now,  suppose  a  surgeon  is  called  to  treat  this  wound,  and  instead 
of  attempting  in  any  way  to  stop  the  flow  of  blood,  be  administers 
to  the  wounded  man  chloroform,  and  leaves  him  to  bleed  to  death. 
Here  would  be  gross  negligence,  manifestly  improper  treatment  of  the 
injured  person,  and  yet  the  death  of  such  person  would  be  the  result 
solely  of  the  wound,  and  not  of  the  neglect  or  improper  treatment.  At 
common  law  this  would  be  homicide  in  A.  who  inflicted  the  wound, 
but  it  would  be  homicide  in  the  surgeon  who  permitted  the  man  to 
bleed  to  death,  when,  by  the  exercise  of  proper  care,  and  the  use  of 
well  known  and  effective  means,  he  could  have  prevented  it.  I  think 
'*  gross  neglect  and  improper  treatment,"  as  used  in  our  statute,  are 
not  only  such  as  produce  the  destruction  of  life,  but  are  such,  also^ 
as  allow,  suffer  or  permit  such  destruction  of  life. 

In  this  connection,  and  in  support  of  my  construction  of  these  provi»> 
ions  of  the  Code,  I  call  attention  particularly  to  that  portion  of  article 
548,  which  provides:  "  If  the  person  inflicting  the  injury  which  makes 
it  necessary  to  call  aid  in  preserving  the  life  of  the  person  injured  shall 
willfully  fail  or  neglect  to  call  such  aid,  he  shall  be  deemed  equally 
guilty  as  if  the  injury  were  one  which  would  inevitably  lead  to  death." 
I  find  no  such  provision  as  this  in  the  common  law.  What  is  the  object 
of  this  provision?  Manifestly  it  is  to  cause  the  person  who  inflicts  a 
personal  injury  upon  another  to  furnish  such  aid  as  may  be  necessary  to 
prevent  a  fatal  result  of  such  injury.  What  is  the  effect  of  the  provis* 
ion?  If  the  party  who  inflicts  the  injury  wiUfully  fails  to  furnish  tlie 
aid  necessary,  and  the  injured  party  dies  from  the  injury,  the  injury  is 
regarded  as  inevitably  fatal,  and  no  question  as  to  neglect  or  improper 
treatment  can  arise  in  the  case  as  a  matter  of  defence.  In  such  case  he 
who  inflicted  the  injury  would  not  be  excused  of  the  homicide,  even  liad 
the  death  in  fact  been  produced  solely  by  the  gross  negligence  or  mani* 
festly  improper  treatment  of  those  who  hrd  the  treatment  of  the  case. 
But,  on  the  other  hand,  suppose  there  is  no  such  willful  neglect  of  the 
defendant  to  call  aid ;  suppose  he  promptly  calls  a  surgeon  who  has  the 
reputation  of  being  learned  and  skillful  in  his  profession,  and  suppose 
this  surgeon  grossly  neglects  the  case  or  treats  it  in  a  manner  manifestly 
improper,  what  then  is  the  meaning  and  effect  of  this  provision?  In 
such  case,  in  my  opinion,  the  homicide  is  shifted  from  the  defendant  to 
the  surgeon,  and  I  can  not  read  these  articles  of  the  code  in  any  other 
light.  The  provision  I  have  last  quoted,  it  seems  to  me,  is  inoonsist* 
ent  with  the  oommon>law  rule,  but  harmonizes  with  and  makes  perfect 
the  rule  which,  I  think,  is  prescribed  by  the  code. 


•  y 


i^iJm 


miVIDUALS. 


MOROAK  V.  STATE. 


987 


eath  in  a  abort  time  if 
meat  tlie  artery  would 
and  death  prevented. 
1  wound,  and  instead 
blood,  be  administers 
im  to  bleed  to  deatli. 
roper  treatment  of  the 
>n  would  be  the  result 
proper  treatment.    At 

>  inflicted  the  wound, 
permitted  the  man  to 
r  care,  and  the  use  of 
prevented  it.  I  think 
Bed  in  our  statute,  are 
(e,  but  are  such,  also, 

• 

■uction  of  these  provis* 
I  that  portion  of  article 
ihe  injury  which  makes 
he  person  injured  shall 
tall  be  deemed  equally 
vitably  lead  to  death." 
w.    What  is  the  object 

>  person  who  inflicts  a 
as  may  be  necessary  to 
he  effect  of  the  provis* 
illy  fails  to  famish  the 
tie  injury,  the  injury  is 

to  neglect  or  improper 
tence.  In  such  case  he 
the  homicide,  even  had 
OSS  negligence  or  mani> 
i  treatment  of  the  case, 
ih  willful  neglect  of  the 
I  a  surgeon  who  has  the 
)rofession,  and  suppose 
b  in  a  manner  manifestly 
t  of  this  provision?  In 
1  from  the  defendant  to 
t  the  code  in  any  other 
ems  to  me,  is  inconsist- 
•rith  and  makes  perfect 
le. 


If,  as  contended,  the  author  of  the  code  merely  intended,  in  the 
three  articles  quoted,  to  declare  the  common-law  rule  upon  the  subject, 
be  certainly  did  not  do  so  very  clearly  or  forcibly,  and  yet  among  all 
the  great  productions  there  is  not  perhaps  a  more  perfect  work  than 
our  Penal  Code.  I  am  sure  that  those  articles  are  intended  to,  and  do, 
modify  the  common-law  rule,  and  to  the  extent  that  I  have  suggested, 
and  consequently  beyond  the  limits  of  the  charge  given  to  the  jury  in 
this  case.  In  this  connection  I  will  say  that  our  Supreme  Court,  in  the 
case  of  Broum  v.  State,^  in  referring  to  said  articles  of  our  Code,  said : 
"  Our  law  undoubtedly  changes  the  rule  of  the  common  law,  the  theory 
of  which  was  that  he  who  caused  the  first  injury  should  be  held  guilty." 
The  subject  is  not  discussed  in  that  opinion,  nor  are  the  changes  re- 
ferred to  pointed  out,  and  the  case  is  only  valuable  for  the  purpose  of 
showing  that  this  is  not  the  first  time  that  the  common-law  rule  upon 
this  subject  has  been  challenged,  and  denied  to  be  the  law  of  this  State. 
I  do  not  wish  to  be  understood  as  approving  the  changes  in  the  common- 
law  rule  which,  in  my  opinion,  have  been  effected  by  our  statute.  It  ia 
no  business  of  mine  whether  such  changes  are  wise  or  impolitic.  My 
duty  and  my  desire  is  to  arrive  at  an  understanding  of  the  case  as  it  i8» 
not  the  law  as  I  might  wish  it  to  be. 

It  is  not  a  consequence  of  this  view  of  our  law  that  the  defendant 
would  escape  all  punishment  for  his  criminal  act.  While  he  might  not 
be  guilty  of  homicide,  he  might  yet  be  guilty  of  an  assault  with  intent 
to  murder,  and  might  properly  be  convicted  of  such  offense  under 
the  indictment  in  this  case.' 

I  think  that  the  learned  trial  judge  should  have  instmoted  the  jary 
upon  the  law  of  the  offense  of  assault  with  intent  to  murder,  even 
under  his  view  of  the  other  law  of  the  case.  I  presume  he  did  not  give 
such  instructions  because  they  were  not  requested,  and  for  the  further 
reason,  perhaps,  that  he  did  not  think  the  evidence  justified  them.  I 
do  not  regard  the  evidence  as  so  conclusive  in  its  nature,  in  regard  to 
the  cause  of  the  death,  as  to  exclude  that  issue  from  the  consideration 
of  the  jury.  It  was  a  part  of  the  defence  that  it  was  the  gross  neglect 
and  the  manifestly  improper  treatment  of  the  surgeons  that  produced 
the  death,  and  not  the  wound  inflicted  by  the  defendant.  This  was 
one  uf  the  issues  presented  by  the  defence.  The  State  proved  by  a 
number  of  physicians  and  surgeons  who  had  examined  the  case,  that, 
in  their  opinions,  the  wound  inflicted  by  the  defendant  was  the  sole 
cause  of  the  death.  Tliis  evidence,  it  is  true,  was  competent  and  suf- 
ficient, but  it  was  not  conclusive.  It  might  be  met,  and,  perhaps  in 
the  estimation  of  the  jury,  he  wholly  overthrown  by  other  evidence  ia 
the  case.    The  jury  were  the  judges  of  the  credibility  of  the  witnesses, 


lasTez.  48i. 

>  Code  Crim.  Fr.,  art.  718;  FMenoB  •. 


Bute,  13  Tex.   (App.)  8B0;  Supp*.  BtStS^ 
8  Tex.  (App.)  188. 


•"  y 


938 


CRIMES  AGAINST  THE  PRR80N8  OF  INDIVIDUALS. 


and  of  tbo  weight  of  the  testimony.  Some  of  these  expert  witnesses 
who  gave  it  as  their  opinion  that  the  wound  inflicted  by  defendant  aloDe 
causedthe  death,  had  themselves  inflicted  mortal  wounds  upon  the  de> 
ceased.  They  had  sawed  twice  into  the  back  portion  of  the  deceased's 
skull,  and  had  taken  out  two  pieces  of  the  skull  bone.  These  surgical 
wounds  were  in  a  very  vital  portion  of  the  skull,  and  where  the  skuU 
was  perfectly  sound.  All  the  expert  witnesses  admit  that  these 
wounds  were  unnecessary,  and  were  perhaps  mortal  wounds,  but  that, 
in  their  opinions,  they  did  not  cause  the  death.  It  seems  to  me  that 
this  evidence  should  have  been  submitted  to  the  Jury  for  their  opinion 
in  connection  with  instructions  as  to  the  law  of  assault  with  intent  to 
murder.  Under  the  chaige  as  given  to  the  Jury,  they  had  but  one 
alternative,  and  that  was  to  convict  the  defendant  of  homicide,  or 
acquit  him  of  any  offense  whatever.  The.  charge  of  the  court  did  sub- 
mit to  the  Jury  the  issue  as  to  the  cause  of  the  death.  Having  done 
this,  it  seems  to  me  to  follow,  as  a  matter  of  course,  that  instructions 
as  to  assault  with  intent  to  murder  should  have  followed. 

I  must  say,  further,  that  I  do  think  the  charge  upon  justiflable  homi* 
oide  is  entirely  correct.  It  required  the  defendant  to  resort  to  all  other 
means  except  flight  of  preventing  the  threatened  injury  to  himself  before 
taking  life,  regardless  of  the  imminence  of  his  peril.  I  think  the  law  upon 
this  subject  has  been  settled  otherwise  by  several  decisions  of  this  court' 

White,  J.  I  have  read  with  much  consideration  and  great  interest 
the  very  able  opinions  of  my  brethren  as  to  the  proper  construction  to 
be  given  the  language  of  articles  547  and  548  of  th )  Penal  Code.  My 
conclusions  are  that  the  views  expressed  by  Judge  Willson  are  correct 
I  am,  therefore,  constrained  to  concur  in  bis  opinion,  however  much  I 
may  doubt  the  wisdom  or  the  policy  of  a  statute  which,  in  my  humble 
Judgment,  properly  admits  only  of  such  construction.  It  does  occur  to 
me  that  if  the  injury  which  causes  the  death  under  the  conditions  named 
in  the  statute  would  only  amount  to  homicide,  without  its  appearing 
that  there  has  been  any  gross  neglect  or  improper  treatment  of  the  per« 
son  injured,  that  then  the  converse  of  this  proposition  must  also  follow 
inevitably,  viz. :  that,  if  it  does  not  appear  that  there  has  been  any 
gross  neglect  or  improper  treatment  of  the  party  injured,  by  the  phys- 
ician, nuro.'j,  or  other  attendant,  it  is  not  homicide  in  him  who  inflicts 
the  first  injury.  Our  business  is  to  interpret  the  law  as  we  And  it  in 
the  code.    With  its  policy  we  have  nothing  to  do. 

For  the  additional  reasons  stated  in  Judge  Wnxsox's  opinion,  tb« 
Judgment  should  be  reversed  and  the  cause  remanded. 

Reverted  and  remanded. 


1  K«ndaU  «.  StaU.  8  Tex.  (App).  869; 
Voiterv.  SUte,  11  Tex.  (App.)  lOB;  King  «. 
StoU.  IS  Tex.  (App.)  2n. 


•■■y 


INDIVIDUALS. 


BULOFF  V.  PEOPLE. 


989 


r  these  expert  witnesses 
ioted  by  defendant  alone 
t\  wounds  upon  the  de- 
ortion  of  the  deceased's 
U  bone.  These  surgical 
[ill,  and  where  the  skuU 
issea  admit  that  these 
lortal  wounds,  but  that, 
ti.  It  seems  to  me  that 
lie  Jury  for  their  opinion 
}f  assault  with  intent  to 
jury,  they  had  but  one 
endant  of  homicide,  or 
ge  of  the  court  did  sub* 
he  death.  Having  done 
course,  that  instructions 
B  followed. 

ge  upon  justifiable  homl- 
ilant  to  resort  to  all  other 
1  injury  to  himself  before 
)ril.  I  think  the  law  upon 
d  decisions  of  this  court.' 
ration  and  great  interest 
be  proper  construction  to 
of  th )  Penal  Code.  My 
dge  WiLLSON  are  correct 
opinion,  however  much  I 
;ute  which,  in  my  humble 
uction.  It  does  occur  to 
ider  the  conditions  named 
ie,  without  its  appearing 
per  treatment  of  the  per^ 
tposition  must  also  follow 
that  there  has  been  any 
,rty  injured,  by  the  phys- 
nicide  in  him  who  inflicts 
i  the  law  as  we  find  it  in 
)  do. 

;e  Willson's  opinion,  the 
imanded. 
iever$ed  and  remanded. 


HOMIOmS— CORPUS  DELICTI  MUST  BE  PROVED. 

RuLOFF  V.  People. 

[18  N.Y.  179.] 
In  th«  Court  of  AppefiUa  of  New  York,  1858. 

1  To  Wftrnuit »  Oonvlotlon  of  MoMtmr  there  muet  be  direct  proof  either  of  the  de»th,  u 
by  the  fludlng  »nd  Identtfloatlon  of  the  corpse,  or  of  orlminal  violence  adequate  to  pro- 
duce death  and  exerted  In  anoh  a  manner  a*  to  account  for  the  dUappearaneo  of  th« 
bodj. 

I  The  Oorpos  DsUoti,  in  Mnrdar,  has  two  eomponento,  death  aa  the  reenlt  and  crim- 
inal agency  of  aroiher  ai  the  meant.  It  la  only  where  there  U  direct  proof  ol  one  th«t 
the  other  can  be  eiUblUhed  by  circnmatentlal  evidence. 

3.  The  &ul«  o<  Lord  Halo.i  forbidding  a  eonvlctlon  of  murder  or  manilaughter  unleie  the 
fact  be  proved  to  be  dona,  or  at  leaat  the  body  found  dead,  commented  upon  and  afBrmed. 

Writ  of  error  to  the  Supreme  Court.  The  appellant  was  indicted 
in  Tompkins  County  for  the  murder  of  his  infant  child  by  various 
means,  —  stabbing,  choking,  drowning,  iwisoning,  etc.,  set  forth  in  dif- 
ferent counts.  The  indictment  was  brought  by  certiorari  into  the 
Supreme  Court,  and,  the  venue  having  been  changed,  was  tried  at  the 
Tioga  Circuit  in  October,  1856,  before  Mr.  Justice  Masom.  The  pris- 
oner having  been  convicted,  moved  for  a  new  trial  upon  a  bill  of  excep- 
tions, which  was  denied,  and  having  been  sentenced  at  general  term  in 
the  Sixth  District,  brought  the  case  l.>  the  court  by  writ  of  error. 
The  exceptions  and  facta  material  thereto  are  sufficiently  stated  in  the 
following  opinion. 

Francis  M.  Fine*,  for  the  plaintiff  in  error. 

Danid  S.  Dickiraon,  for  the  People. 

By  the  Court,  Johnson,  C.  J.  At  the  opening  of  the  trial  the  coun- 
sel for  the  prosecution,  in  answer  to  a  question  of  the  prisoner's  coun- 
sel, stated  that  he  did  not  propose  to  prove  by  any  direct  evidence, 
that  the  infant  daughter  of  the  prisoner,  with  whose  murder  he  was 
charged  by  the  indictment,  was  dead  or  had  been  murdered,  or  that  her 
dead  body  had  been  found  or  seen  by  any  one,  but  that  from  the  lapse 
of  time  since  the  child  and  her  mother  were  last  seen,  and  from  other 
facts  and  circumstances,  he  should  ask  the  jury  to  infer  and  presume 
and  ilnd  that  the  infant  daughter  was  dead  and  that  she  was  murdered 
by  the  prisoner.  "  The  prisoner's  counsel,  on  this,  moved  the  court  to 
stop  the  trial,  for  want  of  proof  of  the  corpus  delicti;  that  the  rule  laid 
down  by  Lord  Hale,  that  no  person  should  be  convioted  of  murder  or 
manslaughter  unless  the  facts  were  proved  to  be  done  or  at  least  the 
body  found  dead,"  is  the  rule  universally  acted  upon  by  our  courts,  and 

I  2  p.  C.  390. 


m-w 


940 


CRIMES   AOAIN8T  TMB  PERSONS  OF  INDIVIDUALS. 


should  never  be  departed  from.    The  judge  reserved  the  question  ti 
the  evidence  should  be  closed. 

The  prosecution  gave  proof  tending  to  show  that  the  prisoner  di 
not  live  happily  with  his  wife ;  that  his  wife  and  infant  daughter  wei 
seen  alive  and  well  on  the  evening  of  June  24,  1845,  by  a  woman  wli 
lived  across  the  road  from  Ruioft's  house.  No  person  shows  tbi 
either  of  them  has  been  seen  since.  The  next  day  Ruloft  borrowed 
wagon  from  a  neighbor  and  took  into  it  a  box  from  his  own  hou* 
which  the  neighbor  helped  him  to  place  in  the  wagon ;  he  drove  oft  wii 
it — where,  is  not  shown;  on  the  following  day  he  returned  with  tl 
wagon  and  box.  It  was  shown  that  he  had  in  his  possession  a  rii 
which  his  wife  had  worn  on  the  twenty-fourth,  and  a  shawl  and  son 
other  articles  of  her  apparel ;  that  he  told  stories  as  to  her  being 
sundry  places  where  she  was  proved  not  to  have  been,  and  general 
conducted  himself  in  such  a  way  as  to  lead  strongly  to  the  inferen 
that  he  was  the  author  of  whatever  had  happened  to  his  wife  and  chil 
if  anything  had,  in  fact,  happened  to  them.  In  the  house  clothes  we 
found  lying  about  in  disorder,  dishes  unwashed,  a  skirt  lying  in  a  cir< 
at  the  foot  of  the  bed,  and  shoes,  stockings  and  diapers.  It  was  swo 
that  Ruloff  had  a  east  iron  mortar  of  twenty-five  or  thirty  poum 
weight,  and  flat  irons,  which  on  searching  the  house  were  not  foun 
He  absconded  and  was  in  Chicago,  early  in  August,  under  afal 
name ;  there  said  his  wife  and  child  had  died  six  weeks  before  on  t 
Illinois  River,  in  niinois,  and  left  a  box  containing  books,  papers  a 
articles  of  woman's  apparel,  which  had  belonged  to  Mrs.  Ruloff, 
paper  on  which  were  the  words,  "  Oh,  that  dreadful  hour !  "  and  a  lo 
of  light  brown  hair  in  another  paper,  labeled  "  A  lock  of  [Harriet's 
Mary's]  hair ;  "  the  witness  thought  the  word  was  "  Harriet's." 

At  the  close  of  the  evidence,  the  prisoner's  counsel  renewed 
motion,  made  at  the  opening  of  the  cause,  and  insisted  that,  as  it  n 
appeared  that  no  direct  evidence  of  the  death  or  the  murder  of  I 
infant  daughter  had  been  given,  no  conviction  for  murdes  could 
properly  had  or  allowed,  and  that  the  jury  should  be  so  advised  a 
and  instructed,  and  should  be  directed  to  find  a  verdict  of  not  guil 
The  judge  refused  so  to  advise,  direct  and  instruct  the  jury,  and  to 
refusal  the  prisoner's  counsel  excepted. 

The  judge  then  charged  the  jury.    After  explaining  t*  j  legal  ueii 
tion  of  murder,  and  the  legal  presumption  of  in'  in  favor  of 

prisoner,  and  the  duty  of  the  prosecution,  befc  j  could  right  f 

ask  a  conviction,  not  only  to  prove  the  allegi      nurder,  but  alsu 
establish  by  evidence  the  guilt  of  the  prisoner  beyond  auy  rsasona 
doubt,  he  proceeded  as  follows:  "The  first  branch  of  the  case, 
corpus  delicti,  as  it  is  termed  in  the  law,  by  which  is  meant  the  b( 


3F  INDIVIDUALS. 


RULOFF  V.  PEOPLE. 


e4i 


e  reserved  the  question  till 

show  that  the  prisoner  diil 
e  and  infant  daughter  wen 
24,  1845,  by  a  woman  who 
se.  No  person  shows  that 
next  day  Ruloft  borrowed  a 
a  box  from  his  own  houM, 
le  wagon ;  he  drove  off  with 
ig  day  he  returned  with  the 
ad  in  his  possession  a  ring 
urth,  and  a  shawl  and  some 
d  stories  as  to  her  being  at 
0  have  been,  and  generally 
d  strongly  to  the  inference 
)pened  to  his  wife  and  child, 
In  the  house  clothes  were 
ihed,  a  skirt  lying  in  a  circle 
and  diapers.  It  was  sworn 
wenty-five  or  thirty  pounds 
:  the  house  were  not  found. 

Y  in  August,  under  a  false 
jied  six  weelcs  before  on  the 
lontaining  books,  papers  and 
belonged  to  Mrs.  Ruloff,  a  1 
;  dreadful  hour  I  "  and  a  lock 
ed  "  A  lock  of  [Harriet's  or 
ord  was  *•  Harriet's." 
(Oner's  counsel  renewed  bis 

and  insisted  that,  as  it  nov 
leath  or  the  murder  of  the 
iction  for  murdes  could  be 

Y  should  be  so  advised  and 
find  a  verdict  of  not  guilty. 
instruct  the  jury,  and  to  bis 

r  explairing  tt  j  legal  uiimi- 
of  ir'^  in  favor  of  the 

befc  J  could  right  f    j 

allegi  nurder,  but  alsu  to 
soner  bc}  uod  auy  reasonable 
irst  branch  of  tbe  case,  tbe 
by  which  is  meant  the  body 


of  the  crime,  the  fact  that  a  murder  has  been  committed,  must  be 
clearly  and  conclusively  proved  by  the  government.    The  corpus  delicti 
\%  mads  up  of  two  things :  first,  of  certain  facts  forming  the  basis  of 
the  corpus  delicti,  by  which  is  meant  the  fact  that  a  human  being  has 
been  killed ;  and  secondly,  the  existence  of  criminal  and  human  agency 
as  the  cause  of  the  death.     Upon  this  first  branch   of  the  case,  the 
prifmner's  counsel  Insists  that  it  can  only  be  proved  by  direct  and 
positive  evidence ;  that  the  government  must  prove  the  fact  of  death  by 
1  witnesses  who  saw  the  killing,  or  at  least  the  dead  body  must  be  found. 
It  has  been  said  by  some  J  dges,  that  a  conviction  for  murder  ought 
never  to  be  permitted  unless  the  killing  was  positively  sworn  to,  or  the 
I  dead  body  was  found  and  identified.     This,  as  a  general  proposition,  is 
undoubtedly  correct,  but,  like  other  general  rules,  has  its  exceptions. 
It  may  sometimes  happen  that  the  dead  body  can  not  be  produced, 
I  although  the  proof  of  death  is  clear  and  satisfactory.     A  strong  case  in 
illustration  is  that  of  a  murder  at  sea,  when  the  body  is  thrown  over- 
board in  a  dark  and  stormy  night,  at  a  great  distance  from  land  or  any 
vessel.     Although  the  body  can  not  be  found,  nobody  can  doubt  that 
the  author  of  such  crime  is  guilty  of  murder.     In  such  a  case  the  law 
permits  the  jury  to  infer  that  deatli  lias  ensued  from  the  facts  proved ; 
the  circumstances  being  such  as  to  exclude  the  least,  if  not  almost 
every  probability,  that  such  a  person  could  have  escaped  with  life ;  and 
yet  there  is  a  bare  possibility  in  suoh  a  case  that  the  person  may  have 
I  escaped  with  life. 

'I  am  of  opinion  that  the  rule,  as  understood  in  this  country,  does 
I  not  require  the  fact  of  death  to  be  proved  by  positive  and  direct  evi- 
dence in  cases  where  the  discovery  of  the  body,  after  the  crime,  is 
I  impossible.     In  such  cases  the  fact  may  be  established  by  circumstances 
where  the  evidence  is  so  strong  and  intense  as  to  produce  the  full  cer- 
tainty of  death.     By  the  proof  of  a  fact  by  presumptive  evidence,  we 
are  to  understand  the  proof  of  facts  and  circumstances  from  which  the 
existence  of  such  fact  may  be  justly  inferred.    The  facts  and  circum- 
stances to  establish  the  death  in  the  case  of  murder,  in  the  absence 
of  any  positive  evidence,  must  be  so  strong  and  intense  as  to  produce 
the  full  certainty  of  death,  or,  as  Mr.  Wills  says,  '  the  death  may  l)e 
inferred  from  such  strong  and  unequivocal  circumstances  as  render  it 
morally  certain,  and  leave  no  ground  for  reasonable  dbubt.'    The  gov- 
I  emment  claim  that  they  have  proved  the  body  of  the  crime,  in  the  case 
under  consideration,  up  to  the  strictest  requirements  of  the  rule.    This 
I  is  for  you  to  determine.    The  determination  of  it  involves  the  examina- 
I  tion  of  all  the  facts  and  circumstanoes  disclosed  by  the  evidence  in  the 
case." 
Aftc-   then,  observing  briefly  upon  some  parts  of  the  evidence,  the 


-  t»iimtKnmmmmm.mm 


942 


CRIMES  AGAINST  THE  rSBSONS  OF  INDIA'IDUALS. 


judge  coDcluderl  bis  charge  by  stating  the  rule  that  should  gov 
in  their  ultimate  conclusion,  as  follows:  "  In  regard  to  the  fin 
of  the  case,  the  establishment  of  the  corpus  delicti,  the  bod; 
crime,  before  you  find  it  against  the  prisoner  you  must  be  satis: 
the  evidence  in  the  case  that  it  is  established  by  presumptivo 
of  the  most  cogent  and  irresistible  kind,  that  is,  established  bj 
stances  proved,  so  strong  and  intense  aa  to  produce  the  full  cci 
death. 

"  In  regard  to  the  second  branch  of  the  case,  by  which  we 
traverse  between  the  government  and  the  prisoner,  as  to  the 
of  his  guilty  agency  in  the  commission  of  the  alleged  murd 
this  question,  the  rule  is,  that  the  government  are  required,  be 
can  claim  a  conviction,  to  prove  by  their  evidence  the  guilt  of 
oner,  beyond  any  rational  doubt.  If,  upon  a  full  and  delibe 
sideration  of  all  the  evidence  in  thf  o'ase,  doubts  remain  in  t 
of  the  jury,  it  is  their  duty  to  acquit.  Upon  this  branch  of 
the  doubts,  however,  which  require  an  acquittal,  should  be 
doubts.  They  are  not  doubts  which  may  arise  in  a  speculati 
after  the  reason  and  judgment  are  thoroughly  convinced  in  thi 

The  defendant's  counsel  excepted  to  so  much  and  such  pai 
charge  anO  instructions  given  to  the  jury  as  submits  to  then 
presu'ue  and  find,  with  ut  direct  proof,  the  death  and  the  i 
the  infant  daughter  of  the  defendant. 

llie  question  presented  to  us,  therefore,  is  whether  there  is 
law.,  in  respect  to  the  proof  in  cases  of  homicide,  which  does  r 
a  conviction  without  direct  proof  of  the  death,  or  of  the 
or  other  act  of  the  dej  ;ndant  which  ia  alleged  to  have  produc 

If  it  be  objected  .that  such  a  rule  may  compel  the  acquit 
whom  the  jury  are  satisfied  is  guilty,  the  answer  is,  that  the 
exists,  must  be  regarded  as  part  of  the  humane  policy  of  th 
law,  whicU  aflSrms  that  it  is  bettt^r  that  many  guilty  should  es 
that  one  innocent  should  sufier;  and  that  it  may  have  its 
foundation  in  the  idea,  t\:,n  where  direct  proof  is  absent,  as  1 
fact  of  death  and  of  criminal  violence  capable  of  producing 
evidence  can  rise  to  the  degree  of  nroral  certainty,  that  the 
is  dead  by  criminal  intervention,  or  even  lead  by  direct  in 
those  results ;  and  that  where  the  fact  of  death  is  not  certs 
tained,  all  mere  inculpatory  moral  evidence  wants  the  key 
for  its  satisfactory  interpretation,  and  can  not  be  depended 
nish  liiore  than  probable  results.    It  may  be  also,  that  such 
some  reference  to  the  dangerous  possibility  that  a  genei 
ception  of  guilt,  or  a  general  excitement  of  popalar  feeling, 
in,  to  lupply  the  evidence,  if,  upon  other  than  direct  proo^ 


5N8  OF  INDIVIDUALS. 


RULOFF  V.  PEOPLR. 


943 


the  rule  that  should  govern  them 
1 :  "In  regard  to  the  first  branch 
corpus  delieth  the  body  of  the 
-isoner  you  must  be  satisfied  from 
Wished  by  presumptive  evidence 
d,  that  is,  established  by  circum-  j 
as  to  produce  the  full  certainty  of  I 

t  the  case,  by  which  we  mean  the  | 
d  the  prisoner,  as  to  the  question 
on  of  the  alleged  murder ;  as  to  1 
remment  are  required,  before  they  I 
leir  evidence  the  guilt  of  the  pris- 1 
f ,  upon  a  full  and  deliberate  con- 
'  jase,  doubts  remain  in  the  minds  | 
it.    Upon  this  branch  of  the  case, 
I  an  acquittal,  should  be  rational  I 
1  may  arise  in  a  speculative  mind, 
oroughly  convinced  in  the  cause." 
to  so  much  and  such  parts  of  the 
B  jury  as  submits  to  them  to  infer, 
roof,  the  death  and  the  murder  of  | 

pfore,  is  whether  there  is  a  rule  of 
at  homicide,  which  does  not  permit 
of  the  death,  or  of  the  violence 
is  alleged  to  have  produced  death. 
le  may  compel  the  acquittal  of  one 
f,  the  answer  is,  that  the  rule,  if  it 
'  the  humane  policy  of  the  common 
hat  many  guilty  should  escape  than 
md  that  it  may  have  its  probable 
lirect  proof  is  absent,  as  to  both  the 
nee  capable  of  producing  death 
iroral  certainty,  that  the  Individual 
»r  even  lead  by  direct  inference  tc 
fact  of  death  is  not  certainly  ascer- 
evidence  wants  the  key  necessary 
and  can  not  be  depended  on  to  fu^ 
It  may  be  also,  that  such  a  rule  h*" 
possibUity  that  a  general  precon- 
Bment  of  popuUtt  feeling,  may  creep 
a  other  than  direct  proof  of  death, 


or  a  cause  of  death,  a  jury  are  permitted  upon  whatever  evidence  may 
be  presented  to  them,  competent  on  any  part  of  the  case,  to  pronounce 
a  defendant  guilty. 

I  proceed,  therefore,  to  consider  whether  any  such  rule  Is  to  be  found 
in  the  common  law.  Lord  Hale  says:  "  I  would  never  convict  any 
person  of  murder  or  manslaughter  unless  the  fact  were  proved  to  be 
done,  or  at  least  the  body  found  dead,  for  the  sake  of  two  cases  —  one 
mentioned  in  my  Lord  Coke's  Fleas  of  the  Crown,^  a  Warwickshire 
case;  ai^otber,  that  happened  in  my  remembrance,  in  Staffordshire, 
where  A.  was  long  missing,  and  upon  strong  presumptions  B.  was  sup- 
posed to  have  murdered  bim,  and  to  have  consumed  him  to  ashes  in  an 
oven  that  he  should  not  be  found,  whereupon  B.  was  Indicted  for  mur- 
der, and  convicted  and  executed,  and  within  one  year  after  A.  returned, 
being,  indeed,  sent  beyond  sea  by  B.,  against  his  will,  and  so,  though 
B.  justly  deserved  death,  yet  he  was  really  not  guilty  of  that  offense 
for  whicb  he  suffered."'  It  forms  part  of  the  chapter  in  which  he 
treats  of  "  evidence  requisite,  or  allowed  by  acts  of  Parliament,  and 
presumptive  evidence. ' '  Considering  the  law  of  evidence  first  in  treason, 
requiring  two  witnesses,  then  upon  indictment  for  murder  against  the 
mother  of  a  bastard  child,  where  by  act  of  Parliament  the  mother  of 
such  a  child,  concealing  its  death,  was  to  suffer  as  in  murder,  unless  she 
proved  by  one  witness  that  the  child  was  born  dead,  and  next,  the  sub- 
ject of  presumptive  evidence,  he  says:  *' In  some  cases  presumptive 
evidences  go  far  to  prove  a  person  guilty,  though  there  be  no  express 
proof  of  the  fact  to  be  committed  by  him ;  but  then  it  must  be  very 
warily  pressed,  for  it  is  better  five  guilty  persons  should  escape  unpun- 
ished than  one  innocent  person  should  die."  This  observation  he  fol- 
lows by  a  case  illustrative  of  his  meaning,  where  one  was  executed  for 
stealing  a  horse,  which  was  proved  to  have  been  stolen,  the  prisoner 
was  found  in  possession  of  the  horse,  "  a  strong  presumption  that  he 
stole  him,"  and  yet  it  afterwards  appeared  that  another  person  stole  the 
horse,  and  that  the  prisoner's  possession  was  innocent.  He  'proceeds : 
"  I  would  never  convict  any  person  fo.'  stealing  the  goods  oi  a  person 
unknown,  merely  because  he  would  not  g  fe  an  account  how  he  came  by 
them,  unless  there  were  due  proof  made  that  a  felony  was  committed  of 
these  goods."  Then  follows  the  passage  first  cited,  which  is  the  earliest 
statement  of  the  doctrine  for  which  the  defendant  contends. 

When  this  was  written,  a  prisoner  charged  with  murder  or  any  in- 
ferior felony,  was  neither  allowed  the  advantages  of  sworn  wltneiset, 
or  the  full  aid  of  counsel,  and  it  is  therefore  quite  apparent  upon  the 
whole  passage  that  Lord  Hale  was  here  stating,  not  what  prudential 


iom>.iM,p.53a. 


*S  Hale's  p.  O.SM. 


944 


CBIME8  AGAINST  THE  PERSONS  OF   INDIVIDUALS. 


ii' 


principles  ought  to  govern  the  action  of  individual  jurors  in  weighing 
evidence,  but  what,  acting  as  judge,  and  exercising  the  control  which 
Judges  were  then  uccustomed  to  exercise,  he  would  govern  them  by. 

The  case  cited  in  Coke  was  of  an  uncle  who  brought  up  his  niece, 
whose  heir  at  law  he  was.  He  correcting  her  on  some  occasion  she  was 
heard  to  cry  out,  "Good  Uncle,  kill  me  not,"  and  afterwards  disap- 
peared and  could  not  be  found.  He  was  arrested  on  suspicion,  and  to 
avert  this,  produced  as  his  niece  another  child  of  similar  appearance. 
The  imposition  was  detected,  and  he,  being  indicted,  was  on  trial,  con- 
victed on  these  circumstances  and  executed.  The  niece  afterwards 
made  her  appearance,  and  was  proved  to  be  the  true  child.  Lord  Coke 
reports  this  case,  as  he  says,  to  the  end  that  judges,  in  case  of  life  and 
death,  judge  not  too  hastily  on  bare  presumption. 

In  Hindmarah'a  Caae,^  the  indictment  for  murder  of  a  ship  oaptidn 
contained  two  counts,  one  for  killing  by  beating,  the  other  for  drown- 
ing. The  fact  happened  at  sea ;  a  witness  proved  that  he  was  awakened 
at  midnight  by  a  violent  noise ;  that  on  reaching  the  deck,  be  saw  the 
prisoner  take  the  captain  up  and  throw  him  overboard  into  the  sea,  and 
that  he  was  not  seen  or  heard  of  afterwards.  Another  witness  proved 
that  the  witness  proposed  to  one  Atkyns  to  kill  the  captain;  and 
another  proved  that  on  the  deck,  near  where  the  captain  was  seen,  a 
billet  of  wood  was  found,  and  that  the  deck  and  part  of  the  prisoner's 
dress  were  stained  with  blood.  Oarrow,  of  counsel  for  the  prisoner 
contended,  citing  the  passage  from  Hale,  that  the  prisoner  was  entitled 
to  be  acquitted  for  want  of  proof  of  the  death,  as  he  might  have  been 
picked  up  by  some  other  ship.  He  cited  a  case  before  Justice  Gould, 
iHiere  the  mother  and  reputed  father  of  a  bastard  child  took  it  to  the 
margin  of  a  dock  in  Liverpool,  stripped  it  and  threw  it  in.  The  body 
of  the  child  was  not  afterwards  seen ;  and  as  the  tide  ebbed  and  flowed 
in  the  dock,  the  judge,  observing  to  the  jury  that  the  tide  might  have 
carried  out  the  living  infant,  directed  them  to  acquit  him.  The  court, 
which  consisted  of  Sir  James  Marriott,  Judge  of  Admirality,  Mr. 
Justice  Ashurst,  Baron  Hotham,  and  others,  admitted  the  general  rule 
of  law ;  and  Mr.  Justice  Ashurst  left  it  to  the  jury,  on  the  evidence, 
to  say  whether  the  captain  was  not  killed  before  his  body  was  thrown 
into  the  sea.  The  jury  found  the  fact  to  be  so.  The  case  came  aftti- 
wards  before  all  the  judges,  who  held  the  conviction  to  be  right,  and 
the  prijioner  was  executed. 

Blaokstone  says,'  all  presumptive  evidence  of  felony  should  be  ad* 
mitted  cautiously,  for  the  law  holds  that  it  is  better  that  ten  guilty 
persons  escape  than  that  one  innocent  sutler ;  and  Sir  Matthew  Hale,  in 


iSIiMOli'aOr.L.S«e. 


>  i  Com.  SB8. 


fDIVIDUALS. 


BULOFF  V.  PEOPLE. 


949 


lual  jurors  iu  weighing 
sing  the  control  which 
\ld  govern  them  by. 
brought  up  his  niece, 
some  occasion  she  was 
and  afterwards  disap. 
id  on  suspicion,  and  to 
•f  similar  appearance, 
ited,  was  on  trial,  con- 
The  niece  afterwards 
;rue  child.    LordColce 
l^es,  in  case  of  life  and 
I. 

rder  of  a  ship  captain 
f,  the  other  for  drown- 
d  that  he  was  awaliened 
g  the  deck,  he  saw  the 
board  into  the  sea,  and 
Mother  witness  proved 
kill  the  captain;  and 
le  captain  was  seen,  a 
I  part  of  the  prisoner's 
iunsel  for  the  prisoner 
le  prisoner  was  entitled 
as  he  might  have  been 
before  Justice  Gould, 
rd  child  took  it  to  the 
hrew  it  in.     The  body 
tide  ebbed  and  flowed 
it  the  tide  might  hare 
quit  him.    The  court, 
>  of  Admirality,  Mr. 
kitted  the  general  rule 
lury,  on  the  evidence, 
his  body  was  thrown 
The  case  came  after- 
iction  to  be  right,  and 

felony  should  be  ad> 
letter  that  ten  guilty 
1  Sir  Matthew  Hale,  in 


partionlar,  lays  down  two  rules  most  prudent  and  necessary  to  be  ob- 
served: (1)  Never  to  convict  a  man  for  stealing,  etc. ;  and  (2)  never  to 
convict  any  person  of  murder  or  manslaughter,  till  at  least  the  body  be 
found  dead. 

In  Regina  v.  Hopkina,^  a  won?  an  was  indicted  for  the  murder  of  her 
illegitimate  child.  It  was  born  March  23,  and  sent  to  a  nurse, 
where  it  remained  until  April  7,  when  the  prisoner  took  it  away, 
stating  an  intention  to  go  to  her  father's.  She  was  seen  the  next  day 
at  several  times,  the  latest  being  at  six  in  the  evening,  with  the  child  in 
her  arms  on  the  way  to  her  father's.  Between  eight  and  nine  she 
arrived  there  without  the  child.  The  dead  body  of  a  child  was  found 
on  the  13th,  in  a  river  near  the  place  where  she  was  last  seen  with  her 
child,  which  upon  proof  of  its  age  and  appearance  was  shown  not  to  be 
her  child.  Lord  Abdtoer,  after  stating  the  particulars  of  this  latter 
proof,  added,  "  with  respect  to  the  child  which  really  was  the  child  of 
the  prisoner,  she  can  not  by  law  be  called  upon  (hither  to  account  for  It 
or  say  where  it  is,  unless  there  be  evidence  to  show  that  her  child  it 
actually  dead,"  and  directed  an  acquittal. 

In  bhe  Case  of  Videtto,''  Walworth,  C.  J.,  sajrs:  "  One  rule  which 
ought  never  to  be  departed  from  is,  that  no  one  should  be  convicted 
of  murder  upon  circumstantial  evidence,  unless  the  body  of  the  person 
supposed  to  have  been  murdered  has  been  found,  or  there  be  other 
clear  and  irresistible  proof  that  such  person  is  actually  dead." 

It  docs  not  appear  that  this  direction  was  material  on  that  trial,  and 
it  is  cited  only  to  show  how  constantly  the  doctrine  has  been  receiyed 
as  clear  and  undisputed  law. 

In  the  Case  of  WUson,^  the  cook  of  the  steamer  Endora  was  indicted 
for  the  murder  of  the  captain  upon  Long  Island  Sound;  after  five 
months  a  body  floated  on  shore,  which  the  prosecution  claimed  was 
shown  to  be  that  of  the  murdered  man.  Strong,  J.,  who  presided  at 
the  trial,  charged  the  jury,  "  that  ordinarily  there  could  be  no  convic« 
tion  for  murder  until  the  body  of  the  deceased  was  discovered.  That 
there  were  several  exceptions  to  the  rule,  however,  as  where  the  murder 
has  been  on  the  high  seas,  at  a  greaf  distance  from  the  shore,  and  the 
body  had  been  thrown  overboard,  or  where  the  body  had  been  entirely 
consumed  by  flre,  or  so  far  that  it  was  impossible  to  identify  it  But, 
in  the  present  case,  the  scene  of  the  supposed  tragedy  was  near  the 
shore,  and  there  was  strong  reason  to  suppose  that  if  a  murder  had 
been  committed,  the  body  of  the  deceased  would  be  discovered.  The 
exception  to  the  rule  is  therefore  inapulicable,  and  the  jury  must  be 


18C.AP.S91. 

ssPuk-ooe. 


S8PMrk.0r.  B.a07. 


946 


CRIMES   AGAINST  THE   PEK30N8   OF  IXDIVIDUALS. 


satisfied  that  the  body  discovered  was  that  of  the  murdered  captain, 
before  they  could  convict  the  prisoner." 

In  Tawell's  Case,^  Baron  Parke,  told  the  jury,  that  "  the  only  fact 
which  the  law  requires  to  be  proved  by  direct  and  positive  evidence  is 
the  death  of  the  party  by  finding  the  body,  or,  when  such  proof  is 
absolutely  impossible,  by  circumstantial  evidence  leading  closely  to 
that  result  —  as  where  a  body  was  thrown  overboard,  far  from  land, 
when  it  is  quite  enough  to  prove  tliat  fact  without  producing  the  body." 
These  are  the  cases  in  which  the  rule  contended  for  by  the  defendant 
has  been  recognized  as  the  clearly  acliuowledged  law  regulating  the  pro- 
duction of  evidence,  in  cases  of  homicide.  No  case  is  to  be  found 
which  has  been  determined  the  other  way.  That  no  more  reported  cases 
contain  the  rule,  is  to  be  accounted  for  on  the  ground  that  the  doctrine 
baa  been  universally  acted  on  and  acquiesced  in,  while  it  is  equally 
certain  that  any  case  departing  from  the  rule  would  not  have  escaped 
observation. 

A  great  deal  of  strong  general  language  has  been  used  by  judges  in 
respect  to  the  power  of  clroumstantial  evidence  to  afford  suflacient 
ground  to  warrant  conviction,  and  many  instances  of  this  have  been 
cited  and  are  relied  on  by  the  prosecution.  Most  of  those  expressions 
have  been  used,  in  answer  to  the  position  that  circumstantial  evidence 
ought  not  to  be  relied  on  to  prove  any  part  of  the  case  for  the  prose- 
cution. But  I  have  not  found  any  case  in  which  a  judge,  speaking 
directly  to  the  point  here  involved,  has  said  that  without  direct  evidence 
on  either  branch  of  the  corpus  delicti  a  conviction  for  murder  could  be 
allowed. 

The  cases  contained  in  The  Theory  of  Presumptive  Proof,  for  a  con- 
siderable time  after  its  publication,  formed  the  basis  of  repeated  attacks 
upon  the  value  of  circumstantial  evidence  for  any  purpose  of  inc  ilpa- 
tion  in  criminal  cases.  It  was  to  dispel  this  error  that  judges  often  had 
occasion,  and  sometimes  took  occasion,  to  vindicate  its  employment. 
But  that  the  general  language  thus  employed  was  not  intended,  by 
those  who  used  it,  to  conflict  with  the  rule  for  which  the  defendant  in 
this  case  contends,  is  fairly  to  be  inferred. 

In  Cowen  &  Hill's  Notes  to  Phillips,'  after  a  review  of  the  cases  con- 
tained in  The  Theory  of  Presumptive  Proof,  and  sustaining  in  the 
strongest  manner,  the  general  value  and  importance  of  circumstantial 
evidence  against  the  attacks  upcn  it,  as  well  those  contained  in  the  work 
mentioned  as  those  founded  upon  the  cases  which  that  work  first  col- 
lected, the  authors  say :  '*  In  these  cases  of  homicide,  the  precaution  of 
Lord  Hale  seems  to  be  enough  for  laying  the  foundation  of  circumstan- 


1  WUl'B  Cir.  Et.  (Sd  ed.)  181. 


3  Vol.  1,  p.  304. 


9. 

ed  captain, 

e  only  fact 
evidence  is 
sh  proof  is 
;  closely  to 
from  land, 
tliebody." 
e  defendant 
ling  the  pro- 

0  be  found 
ported  cases 
the  doctrine 
t  is  equally 
ive  escaped 

>y  judges  in 
rd  sufficient 
t  have  been 
expressions 
:ial  evidence 
r  the  prose- 
;e,  spealiing 
■ect  evidence 
ier  could  be 

if,  for  a  con- 
iated  attacks 
B  of  inci  lipa- 
ses often  had 
employment, 
intended,  by 
iefendant  in 

le  cases  con- 
fining in  the 
ircumstantial 

1  in  the  work 
ork  first  col- 
)recaution  of 
!  circumstan- 


RULOFF  V.  PEOPLE. 


947 


tial  evidence,  citing  in  terms  the  rule.  A  departure  from  this  important 
suggestion,  which  is  now  universally  acted  upon,  was  a  capital  error  in 
Miles'  Case,  before  cited  from  the  above  named  work.  The  body  being 
afterwards  found,  it  plainly  appeared  that  the  death  was  accidental. 
The  judge  should  have  stopped  the  pro&ecution.  In  the  two  illustra- 
tive cases  cited  by  Hale,  one  of  the  persons  supposed  to  have  been 
murdered,  was  sent  on  a  long  sea  voyage,  and  the  other  had  run  away. 
The  rule  that  th^  body  must  be  found  dead,  is  adhered  to  with  great 
strictness  in  the  English  courts." 

No  one  was  better  qualified  than  Judge  Cowen,  both  by  long  experience 
and  great  learning,  to  speak  of  what  rules  were  universally  acted  on  in 
the  courts  of  England  and  of  this  country.  It  is  quite  plain,  too,  that 
his  general  remarks  on  the  value  of  circumstantial  evidence  must  in  his 
own  view  have  been  consistent  with  the  rule  which  he  thus  lays  down 
and  approves. 

In  the  next  place,  I  proceed  to  consider  the  principal  cases  relied  on 
for  tlie  People. 

Mr.  Justice  Washington,  in  United  States  v.  Johns,^  says:  "That 
the  prisoner  perpetrated  the  act,  or  directed  or  procured  it  to  be  done, 
positive  evidence  is  not  necessary.  Circumstantial  evidence  is  suffi- 
cient, and  is  often  more  persuasive  to  convince  the  mind  of  the  exist- 
ence of  a  fact  than  the  positive  evidence  of  a  witness,  who  may  be 
mistaken ;  whereas  a  concatenation  and  a  fitness  of  many  circumstances 
made  out  by  different  witnesses,  can  seldom  be  mistaken,  or  fail  to 
elicit  the  truth.  But  then  those  circumstances  should  be  strong  in 
themselves,  should  each  of  them  tend  to  throw  light  upon  and  to  prove 
each  other,  and  the  result  of  the  whole  should  be  to  leave  no  doubt  upon 
the  mind  that  the  offense  has  been  committed,  and  that  the  accused  and 
no  other  could  be  the  person  who  committed  it."  The  defendant  was 
on  trial  for  casting  away  a  ship.  That  augur  holes  had  been  found  in 
her  bottom,  which  nearly  sunk  her,  was  proved  by  pumping  her  out 
and  bringing  her  to  port.  The  whole  question  of  fact  was  the  personal 
guilt  of  the  accused.  The  remarks  are  just;  indeed  they  are  cited  by 
Judge  Cowen  with  approbation  in  the  same  note  before  referred  to,  and 
are  followed  by  his  statement  of  the  rule,  in  cases  of  homicide,  as  to 
proof  of  the  fact  of  death. 

The  same  remarks  are  applicable  also  to  Jacobson's  Case,^  where  Mr. 
Air.  Justice  Livingston  is  reported  to  have  srid :  "  The  rule  in  this  court, 
even  in  capital  cases,  is,  that  should  the  circumstances  of  a  case  be  suffi- 
cient to  convince  the  mind  and  remove  every  rational  doubt,  the  jury  is 
bound  to  place  as  much  reliance  on  such  circumstances  as  on  direct 


1  1  Wash.  C.  C.  388. 


!aCit7HanU«e.l31,14S 


948  CRIMES   AGAINST  THE   PERHONS   OF   INDIVIDUALS. 

and  positive  proof,  for  facts  and  circumstances  can  not  lie."  Tliis  was 
also  in  a  case  of  casting  away  a  ship,  and  the  only  question  was  of  the 
personal  guilt  of  the  defendant.  It  was  no  way  necessary  for  the 
judge's  argument,  nor  required  by  fairness  to  the  defendant,  that  he 
should  stop  to  state  an  exception  as  to  the  fact  of  death  in  murder. 

In  the  Case  of  Burdelt^he  question  was  whether  a  libel  had  been 
published  in  a  certain  place ;  and  the  observations  of  the  judges  are,  of 
course,  to  be  construed  >vith  reference  to  the  point  before  them.     All 
the  judges  speak  of  the  necessity  of  a  resort  to  presumptive  evidence, 
and  recognize  the  fact  that,  even  in  cases  of  murder,  a  great  part  of  the 
convictions  rest  upon  that  sort  of  evidence  to  establish  the  guilt  of  the 
accused;  but  Abbott,  C.  J.,  only  notices  that  kind  of  nroof  in  its 
application  to  the  fact  of  death.     Speaking  of  the  ca«;e8  of  supposed 
murder  mentioned  by  Lord  Hale,  which,  as  he  says,  have  sinoo  oper- 
ated as  a  caution  to  all  judges,  he  observes:  "  In  those  cases  there  was 
no  actual  proof  of  the  death  of  the  person  supposed  to  have  been  slam, 
and  consequently  no  proof  that  the  crime  of  murder  had  been  commit 
ted  "     From  nothing  which  is  said,  or  omitted  to  be  said,  in  that  case 
can  it  be  fairly  inferred  that  any  of  the  judges  denied  the  correctness 
of  the  rule  stated  by  Lord  Hale.        What  was  said  by  Mr.  Justice 
Best  comes  nearest  to  the  purpose  for  which  it  was  cited  on  the  part  of 
the  People.    He  said :  "  Until  it  please.^  Providence  to  give  us  means 
beyond  those  our  present  faculties  afford  of  knowing  things  done  in 
secret,  we  must  act  on  presumptive  proof,  or  leave  the  worst  crimes 
unpunished.    I  admit,  where  presumption  is  raised  as  to  the  corp«» 
ddicti,  that  it  ought  to  be  strong  and  cogent."    The  corpus  dehcU,  in 
murder,  is  a  compound  fact,  made  up  of  death  as  result,  and  criminal 
agency  of  another  person  as  means;  and,  therefore,  if  he  had  been 
speaking  of  murder,  he  might  have  employed  this  expression  without 
intending  to  deny  the  rule  that  as  to  one  or  the  other  branch  of  the 
crime  there  must  be  direct  evidence.    But  it  was  in  no  way  necessary, 
or  conducive  to  the  argument  he  had  in  hand  that  he  should  be  minutely 
accurate  on  the  point  before  us,  for,  in  the  case  of  which  he  was  speak- 
ing  the  corpus  delicti,  the  publication  of  the  libel  by  the  defendant,  was 
acbnitted,  and  the  presumptive  proof  which  he  had  sustained  related 
only  to  the  place  of  publication. 

What  was  said  by  Mr.  Justice  Park,  in  Rex  v.  Thurtell,  tried  for 
the  murder  of  Wenrc,  which  is  quoted  in  the  opinion  of  Mr  Justice 
Mason,  was  said  in  a  case  where  the  body  of  the  defendant  had  been 
found  recently  dead,  and  was  intended  to  answer  the  address  of  Thur- 
teU  to  the  jury,  which  had  mainly  turned  on  certain  cases  which  we 


1  4  Barn.  &  Aid.  liil. 


^rfa 


.8. 


RULOFF   V.  PEOPLE. 


949 


"  This  was 
1  was  of  the 
sary  for  the 
lant,  that  he 
murder. 
)el  had  been 
udges  are,  of 
)  them.  All 
ive  evidence, 
xt  part  of  the 
3  guilt  of  the 

nroof  in  its 

of  supposed 
e  sino'j  oper- 
aes  there  was 
ire  been  slain, 
been  commit 
I,  in  that  case 
e  correctness 
y  Mr.  Justice 
Dn  the  part  of 
five  us  means 
hings  done  in 

worst  crimes 
to  the  corpus 
rpus  delicti,  in 
,  and  criminal 

he  had  been 
ession  without 
branch  of  the 
vay  necessary. 
Id  be  minutely 
he  was  speak- 
lefendant,  was 
itained  related 

urtell,  tried  for 
of  Mr  Justice 
ddant  had  been 
dress  of  Thur- 
;ases  which  we 


read,  exhibiting  the  fallibility  of  circumstantial  evidence.'    It  affords 
uo  inference  that  he  denied  the  rule  of  Lord  Hale. 

In  United  States  v.  Gilbert,^  an  indictment  for  robbery  on  the  high 
seas,  Judge  Story,  in  summing  up,  adverted  to  certain  cases  which  had 
been  cited  to  show  tlie  danger  of  relying  on  presumptive  evidence,  in 
capital  cases,  as  sufficient  proof  of  guilt.  He  says:  "They  are 
brouglit  to  establish  these  propositions  on  trials  for  murder:  (1)  That 
there  ought  to  be  no  conviction  for  murder  unless  the  murdered  body 
is  actually  found;  (2)  that  men  have  been  convicted  of  murder  on 
false  testimony.  The  first  proposition  certainly  can  not  be  admitted  as 
correct,  in  point  of  common  reason  or  of  law,  unless  courts  of  justice 
are  to  establish  a  positive  rule  to  screen  persons  from  punishment, 
who  may  be  guilty  of  the  most  flagitious  crimes.  In  the  case  of  mur- 
ders on  the  high  seas  the  body  is  rarely  if  ever  found,  and  a  more  com- 
plete encouragement  and  protection  for  the  worst  offenses  of  this  sort 
could  not  be  invented  than  a  rule  of  this  strictness.  It  would  amount 
to  a  universal  condonation  of  all  murders  committed  on  the  high  seas." 
Strong  as  this  language  is,  I  find  in  it  no  support  for  the  idea  that,  in 
the  absence  of  ahy  direct  evidence  showing  that  anybody  has  been 
killed,  and  accounting  for  the  absence  of  the  dead  body,  it  is  to  be  put 
to  a  jury  to  find,  according  to  their  belief,  that  a  murder  has  or  has 
not  been  committed. 

The  other  cases  cited  for  the  prosecution,  People  v.  Tliorn,^  Com' 
monwealth  v.  Harman,*  State  v.  Turner^  and  Commonwealth  v.  Web- 
ster,^ except  that  last  mentioned,  were  cases  in  which  the  fact  of  death 
was  clearly  established  by  finding  the  body ;  and  in  Webster's  Case 
the  identification  of  the  remains  as  those  of  Dr.  Parkman  was  the  vital 
fact  on  which  the  success  of  the  prosecution  depended. 

I  proceed  to  consider  briefly  what  has  been  written  by  elementary 
writers  on  this  subject. 

Mr.  Starkie,''  under  the  rule  which  he  lays  down,  that  it  is  essential 
that  the  circumstances  should  to  a  moral  certainty  actually  exclude 
every  hypothesis,  but  the  one  proposed  to  be  proved,  says,  "Hence 
results  the  rule  in  criminal  cases,  that  the  coincidence  of  circumstances 
tending  to  Indicate  guilt,  however  strong  and  numerous  they  may  be, 
avails  nothing,  unless  the  corpus  delicti,  the  fact  that  the  crime  has  been 
actually  perpetrated,  be  first  established.  So  long  as  the  least  doubt 
exists  as  to  the  act,  there  can  be  no  certainty  as  to  the  criminal  agent. 
Hence,  upon  charges  of  homicide,  it  is  an  established  rule  that  the 


1 8  Ohron.  of  Crime,  Lond.  1841,  p.  85.  •  1  Wright,  90. 

>  3  Snmn.  27.  •  S  Cnah.  810. 

>  6  L.  R.  M.  T  1  stwk.  Bt.  S7S. 
4  4  Banr.  968. 


950 


CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 


accused  shall  not  be  convicted  unless  tlie  deajih  be  first  distinctly  proved 
either  by  direct  evidence  of  tlie  fact  or  by  inspection  of  the  body  —  a 
rule  warranted  by  melancholy  experience  of  the  conviction  and  execu- 
tion of  supposed  offenders,  charged  with  the  murder  of  persons  yho 
survived  their  alleged  murderers ;  as  in  the  case  of  tlie  uncle,  cited  bj- 
Sir  Edward  Coke  and  Lord  Hale." 

On  the  subsequent  page  of  the  same  work,  when  speaking  of  the 
proof  of  the  death  of  the  person  specified  in  the  indictment,  as  having 
been  murdered,  he  says:  "  It  has  been  laid  down  by  Lord  Hale,  as  a 
rule  of  prudence  in  cases  of  murder,  that,  to  warrant  a  conviction, 
proof  should  be  given  of  the  death,  by  evidence  of  the  fact,  or  the  actual 
finding  of  the  body.  But  although  it  be  certain  that  no  conviction  ought 
to  take  place  unless  there  be  most  full  and  decisive  evidence  as  to  the 
death,  yet  it  seems  that  actual  proof  of  the  finding  and  identifying  ofltbe 
body  is  not  absolutely  essential.  And  it  is  evident  that  to  lay  down  a 
strict  rule  to  that  extent  might  be  productive  of  the  most  horrible  con- 
consequences."  ^  Hindmdrsh'a  Case  is  then  stated  by  him,  thus  illus- 
trating the  meaning  of  the  expressions  he  has  just  employed,  and  the 
allowable  exposition  of  the  terms  of  Lord  Hale's  rule. 

Having  finished  the  discussion  of  the  proof  of  the  corpus  delicti,  he 
proceeds:  "When  it  has  been  clearly  established  that  the  crime  of 
willful  murder  has  been  perpetrated,  the  important  fact  whether  the 
prisoner  was  the  guilty  agent  is,  of  course,  for  the  consideration  of 
the  jury,  under  all  the  circumstances  of  the  case."  *  It  is  in  this  con- 
nection, and  with  reference,  I  think,  mainly,  if  not  exclusively,  to  this 
branch  of  the  inquiry  that  he  observes  that  "it  is  essential  to  the 
security  of  mankind  that  juries  should  convict,  when  they  can  do  so 
safely  and  conscientiously,  upon  circumstantial  evidence  which  excludes 
all  reasonable  doubt,  and  that  it  should  be  .well  known  and  understood 
that  the  secrecy  with  which  crimes  are  committed  will  not  secure  im- 
punity to  the  criminal. ' '  ^  Specifying,  under  this  head,  among  the 
topics  of  circumstantial  evidence  pertinent  to  the  inquiry,  the  conduct 
of  the  prisoner  in  seeking  for  opportunities  to  commit  the  offense,  or 
in  using  means  to  avert  suspicion  and  remove  material  evidence,  he 
adds:  "The  case  cited  by  Lord  Coke  and  Lord  Hale  is  a  melancholy 
instance  to  show  how  cautiously  proof  arising  by  inference  from  the 
conduct  of  the  accused  is  to  be  received,  when  it  is  not  satisfactorily 
proved  by  other  circumstances  that  a  murder  has  been  committed ;  and 
even  when  satisfactory  proof  has  been  given  of  the  death,  it  is  still  to 
be   recollected  that   a  weak,  inexperienced   and   injudicious  person 


1  2  stark.  Ev.  710. 
*  I*.  719. 


>  Id.  720. 


,s. 

ictly  proved 
le  body  —  a 
and  execu- 
lersons  rho 
le,  cited  by 

king  of  the 
t,  as  liaving 
,  Hale,  aa  a 

conviction, 
tr  the  actual 
iction  ought 
ce  as  to  the 
fying  oflthe 

lay  down  a 
lorrible  con- 
I,  thus  illus- 
fred,  and  the 

19  delicti,  he 
;he  crime  of 
whether  the 
ideration  of 
in  this  con- 
vely,  to  this 
ntial  to  tlie 
y  can  do  so 
lich  excludes 
I  understood 
it  secure  im- 
,  among  the 
the  conduct 
e  offense,  or 
evidence,  he 
k  melancholy 
ice  from  the 
latisfaetorily 
raitted;  and 
,  it  is  still  to 
iious  person 


RULOFF  V.  PEOPLE. 


9S1 


will  often,  in  hope  of  present  relief,  have  recourse  to  deceit  and 
misrepresentations."  * 

Having  explained  himself  fully  as  to  the  proof  of  the  corpus  delicti 
in  another  place,  it  was  not  necessary,  to  avoid  misconception,  for  him 
to  inweave  that  distinction  into  this  passage,  and  it  ought  not  to  be 
talsen  to  qualify  what  has  been  before  carefully  stated.  Indeed,  his 
language,  attentively  considered,  requires  no  modification,  for  he  dis- 
tinguishes between  the  proof  of  the  murder  —  of  both  branches  of  the 
corpus  delicti  —  and  proof  of  the  death  alone. 

In  Russell  on  Crimes,"  it  is  said:  "  It  has  been  holden  as  a  rule  that 
no  person  should  be  convicted  of  murder,  unless  the  body  of  the  de- 
ceased has  been  found ;  and  a  very  great  judge  says :  '  I  would  never 
convict  any  person  of  murder  or  manslaughter,  unless  the  fact  were 
proved  to  be  done,  or  at  least  the  body  be  found  dead.'  But  this  rule, 
it  seems,  must  be  taken  with  some  qualifications ;  and  circumstances 
may  be  sufficiently  strong  to  show  the  fact  of  the  murder,  though  the 
body  has  never  been  found." 

The  rule  which  is  thus  qualified  is  that  which  prohibits  a  conviction 
unless  the  body  be  found,  not  tiie  rule  stated  by  Lord  Hale.  This 
appears  by  what  immediately  follows  in  illustration,  a  statement  of 
Hindmarsh's  Case,  which  tlie  defendant's  counsel  admits  to  be  cor- 
rectly decided.  In  that  case  the  violent  noise  which  awakened  the 
witness,  the  blood  on  the  deck  and  the  prisoner's  clothes,  the  billet  of 
wood  lying  by,  and  the  actual  casting  into  the  sea,  made  a  satisfactory 
case  of  prodf  under  Lord  Hale's  rule. 

Greenleaf  says:  ^  "It  is  seldom  that  either  the  corpus  delicti  or  the 
identity  of  the  prisoner,  can  be  proved  by  direct  testimony,  and,  there- 
fore, the  fact  may  lawfully  be  established  by  circumstantial  evidence, 
provided  it  be  satisfactory.  Even  in  the  case  of  homicide,  though 
ordinarily  there  ought  to  be  the  testimony  of  persons  who  have  seen 
and  identified  the  body,  yet  this  is  not  indispensably  necessary  in  cases 
where  the  proof  of  death  is  so  strong  and  intense  as  to  produce  the 
full  assurance  of  moral  certainty." 

For  this  proposition.  Wills  on  Circumstantial  Evidence,*  is  referred 
to,  and  Hindmarsh's  Case  is  cited  as  an  example.  Such  judicial  obser- 
vations as  are  referred  to,  in  the  places  cited  in  Wills,  were  made  by 
judges  with  reference  to  the  further  proofs  of  crime,  after  the  fact  of 
death  had  been  fully  established  by  direct  and  unequivocal  evidence. 
The  only  case  cited  in  which  any  rcl^ation  of  the  rule  —  that  the  body 
must  be  found — has  taken  place,  is  Hindmarsh's,  and  that,  as  we  have 
seen,  stands  upon  satisfactory  grounds,  there  being  direct  and  unequivo- 


1  Id.  790. 

»  TOl.  I.,  p.  473. 


8  s  Greenl.  Ev.,  see.  tO. 
<  pp.  UT,  163. 


952 


CRIMES   AGAINST  THE  PERSONS  OF  INDIVIDUALS. 


cal  proof  of  what  was  done  with  the  man  or  his  body.  He  proceeds: 
"  But  it  must  not  be  forgotten  that  the  books  furnish  deplorable  cases 
of  the  conviction  of  innocent  persons,  from  the  want  of  sufficiently 
certain  proofs,  either  of  the  corpus  delicti,  or  of  the  identity  of  the 
prisoner.  It  is  obvious  that,  on  this  point,  no  precise  rule  can  be 
laid  down,  except  that  the  evidence  '  ought  to  be  strong  and  cogent,' 
and  that  innocence  should  be  presumed  until  the  case  is  proved  against 
the  prisoner,  in  all  its  material  circumstances,  beyond  any  reasonable 

doubt."  I 

'♦The  corpus  delicti,  or  the  fact  that  a  murder  has  been  committed,  is 
BO  essential  to  be  satisfactorily  proved,  that  Lord  Hale  advises  that  no 
person  be  convicted  of  culpable  homicide  unless  the  fact  were  proved  to 
have  been  done,  or  at  least  the  body  found  dead.  Without  tliis  proof, 
a  conviction  would  not  be  warranted,  though  there  were  evidence  of 
conduct  of  the  prisoner  exhibiting  satisfactory  indications  of  guilt. 
But  the  fact,  as  we  have  already  seen,  need  not  be  directly  proved,  it 
being  sufficient  if  it  be  established  by  circumstances  so  strong  and 
intense  as  to  produce  the  full  assurance  of  moral  certainty."  ^ 

"  §  132.  The  most  positive  and  satisfactory  evidence  of  the  fact  of 
death  is  the  testimony  of  those  who  were  present  when  it  happened,  or 
who,  having  been  personally  acquainted  with  the  deceased  in  his  life- 
time, have  seen  and  recognized  his  body  after  life  was  extinct.  This 
evidence  seems  to  be  required  in  the  English  House  of  Lords,  in  claims 
of  peerage,  and,  a  fortiori,  a  less  satisfactory  measure  of  proof  ought 
not  to  be  required  in  a  capital  trial. 

♦'  §  133.  But  though  it  is  necessary  that  the  body  of  the  deceased  be 
satisfactorily  identified,  it  is  not  necessary  that  this  be  proved  by  direct 
and  positive  evidence,  if  the  circumstances  be  such,  as  to  leave  no  rea- 
sonable doubt  of  the  fact.  Where  only  mutilated  remains  have  been 
found,  it  ought  to  be  clearly  and  satisfactorily  shown  that  they  are  the 
remains  of  a  human  being,  and  of  one  answering  to  the  size,  age  and 
description  of  the  deceased ;  and  the  agency  of  the  prisoner  in  their 
mutilation,  or  in  producing  the  appearances  found  upon  them,  should  be 
established." 

The  question  will  be  found  further  discussed  in  Best  on  Presump- 
tions,3  Wharton's  American  Criminal  Law,*  Wills  on  Circumstantial 
Evidence,^  and  in  Burrill  on  Circumstantial  Evidence.«  The  last  writer 
states,  as  his  conclusion,  that  the  fact  of  death,  when  the  body  can  not 
be  found,  may  be  proved  by  circumstances.  It  may  be  inferred,  says 
Mr.  Wills,  from  such  strong  and  unequivocal  circumstances  of  jwe- 


1  8  Greenl.  Et.,  Bee.  SO. 
*  S  Greenl.  Ev.,  see.  131. 
3  pp.  271-276. 


«  pp.  283-287. 
»  pp.  1S6-170. 
•pp.«78-68l>. 


L8. 


STATE   V.  GERMAN. 


953 


[e  proceeds: 
lorable  cases 
f  BUfQciently 
sntity  of  tlie 
rule  can  be 
and  cogent,' 
■oved  against 
ly  reasonable 

;ommitted,  is 

Ivises  that  no 

ere  proved  to 

jt  this  proof, 

i  evidence  of 

ns  of    guilt. 

tly  proved,  it 

>  strong  and 
.»  a 

)f  the  fact  of 
happened,  or 
;d  in  his  life- 
xtinct.  This 
rds,  in  claims 
f  proof  ought 

e  deceased  be 
)ved  by  direct 

leave  no  rea- 
ins  have  been 
t  they  are  the 

size,  age  and 
isoner  in  their 
lem,  should  be 

,  on  Fresump> 
Circumstantial 
rhe  last  writer 
body  can  not 
inferred,  saya 
tances  of  {re- 


sumption OH  render  it  morally  certain,  and  leave  no  ground  for  reason- 
able  doubt."  In  illustration  Hindmarah'a  Case  is  again  referred  to, 
and,  it  may  be  assumed,  to  show  what  is  meant  by  the  expression  so 
constantly  used,  "  such  strong  and  unequivocal  circumstances  of  pre- 
sumption as  render  the  fact  morally  certain,  and  leave  no  ground  for 
reasonable  doubt."  He  says,  further:  •'  A  dead  body,  or  its  remains, 
having  been  discovered  and  identified  as  that  of  the  person  charged  to 
have  been  slain,  and  the  basis  of  a  corpus  delicti  being  thus  fully  estab- 
lished, the  next  step  in  the  process,  and  tlie  one  which  serves  to  com* 
plete  the  proof  of  the  indispensable  preliminary  fact,  is  to  show  that  the 
death  has  been  occasioned  by  the  criminal  act  or  agency  of  another  per- 
son. This  may  always  be  done  by  means  of  circumstantial  evidence, 
including  that  of  the  presumptive  kind ;  and  for  this  purpose  a  much 
wider  range  of  inquiry  is  allowed  than  in  regard  to  the  fundamental  fact 
of  death ;  and  all  the  circumstances  of  the  case,  including  facts  of  con- 
duct on  the  part  of  the  accused  rotiy  be  taken  into  consideration.^ 

If  what  is  said  by  these  writers  is  to  be  taken  as  intimating  their 
opinion  that  Lord  Hale's  rule  may  be  departed  from,  I  find  no  judicial 
authority  warranting  the  departure.  The  rule  is  not  founded  in  a  denial 
of  the  force  of  circumstantial  evidence,  but  in  the  danger  of  allowing 
any  but  unequivocal  and  certain  proof  that  some  one  is  dead  to  be  the 
ground  on  which,  by  the  interpretation  of  circumstances  of  suspicion, 
an  accused  person  is  to  be  convicted  of  murder. 

We  are  of  opinion  that  the  judge,  at  the  trial,  erred,  and  that  he 
should  have  directed  an  acquittal. 

Roosevelt,  J. ,  dissented. 

Judgment  reversed  and  new  trial  ordered. 


homicide  — corpus  delicti  must  be  fboved— confessions. 

State  v.  German. 

[54  Mo.  526;  14  Am.  Rep.  481.] 
In  the  Supreme  Court  of  Missouri^  1874. 

I.  A  Oonvlotion  of  Mnrder  is  not  warranted  when  there  la  no  proof  of  the  eorpiu  dttteHt 
bat  the  nnoorroborated  extra-Jndicial  oonfasBlon  of  the  accnied. 


Burr,  on  Oir.  Et.  682;  Best  on  Presom., 
see.  SOS :  WUIa'  Olr.  Et.  168. 


2U  CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 

..  Defendant  wa.  Indicted  for  t,.c  --J'-:^;;/,"  r„ro^T.rart^or^^^^^^^^ 
,„re.    NO  remain,  of  0.  wore  found^  nor  w«.  '^^^^^;'^"^^J^^^^  ,„,.,«  to  the  offloor 

the  confession  was  not  ailmlaalble. 

Indictment  for  murdor.    The  opinion  states  the  case. 
Jamea  F.  Hardin  and  D.  A.  Harrison,  for  plaintiff  in  error. 
1.  The  court  erred  in  admitting  any  evidence.    There  was  no  proof 
offered  tending  to  prove  that  Canaday  was  dead,  and  w.thout  proo    of 
the  death,  there  could  be  no  conviction.^    The  confession  could  n..t  be 
used  to  prove  the  corpns  delicti.     See  above  cases.  ,    ,.„   , 

2    The  court  erred  in  admitting  the  evidence  of  confessions  testified 
to  by  the  witness,  C.  W.  Mallory." 

H  Clay  Etoing,  Attorney-General,  for  defendant  In  error. 
Waoker  J.     The  defendant  was  Indicted  In  the  Circuit  Court  for 
Jj:Zl': first  degree, in  killing  one  Canaday.     On  the  «rst  trial  Ije 
was  convicted  of  the  offense  with  which  he  stood  charged  but  on  h 
motion  that  conviction  was  set  aside,  and  being  again  put  upon  his 
trial  he  was  found  guilty  of  murder  in  the  second  degree 

The  testimony,  as  preserved  In  the  bill  of  exceptions,  shows,  in  brief, 
that  the  defendant  and  Canaday  lived  together,  C«°;f  ^  ^^^^^  "^"^^ 
defendant's  wife's  mother ;  that  on  the  day  on  which  Canaday  disap- 
peared,  the  two  started  together  In  a  wagon,  to  a  corn  field  where  they 
were  working,  about  two  miles  distant.  In  the  evemng,  when 
defendant  r^urned,  he  was  alone,  and  when  Inquired  of  concerning 
Canaday,  he  said  that  a  couple  of  men  came  along  where  they  we.  e  at 
work,  and  gave  the  old  man  a  drink  of  whisky,  and  he  went  off  with 
Them  Thfre  was  nothing  unusual  about  defendant's  actions  a„d 
appearance,   and  he  uniformly  told  the  same  story  in  reference  to 

"^  A^tC Crof  several  months.  In  the  woods  betwc      the  house 
where  defendant  lived  and  the  field  where  he  went  to  work  when  he 
was  accompanied  by  Canaday,  a  pair  of  old  boots  and  some  other 
Ithingwere  found  and  also  some  bones.     An  attempt  was  made  to 
identify  the  boots  and  clothing  as  those  belonging  to  and  worn  by  Cana- 
day,  but  the  evidence  only  showed  that  they  were  similar,  no  witness 
swearing  to  a  positive  Identification.     Nothing  was  done  toward  arrest- 
ing the  defendant  or  fastening  the  alleged  crime  upon  bim,  and  in  about 


1  Whart.  Am.  Or.  L.,  sees.  746, 746 ;  State  v. 
Robinson,  12  Mo.  692;  SUte  ».  Scott,  89  Id. 
429;  1  Chit.  Or.  L.  663;  8  /d.730;  1  KusB.  on 
Or.  667,  B68;  I  Greenl.  Bv.,  sec.  217. 

2  iQreenl.  Ev.,»oc8.  213,  26S;  People  v. 
■Ward,  15  Wend.  231;  State  v.  Hector,  2  Mo. 


166 •  1  Phil.  Ev. 644  and  caaei  there  cited; 
Archbold'a  Cr.  PI.  125,  126;  Roscoe's  Or. 
Ev.  34;  Joy  on  Confessions,  38  Law  Lib.  59, 
61  ■  7  Ired.  (K.  C.)239;  2  Humph.  (Tenn.1  37; 
State  V.  Scott,  39  Mo.  424;  State  v.  Robinson, 
12  Id.  692 ;  Stata  v.  Brockman,  46  Id.  866. 


.s. 


STATE   V.  OKKMAN. 


955 


line  month*  be- 
th, other  than  a 
lie  to  the  offlcor 
ihat  evidence  of 


rror. 

was  no  proof 
lOUt  proof  of 
could  not  be 

iions  testified 

jr. 

uit  Court  for 
e  first  trial  be 
kI,  but  on  his 
put  upon  bis 

lows,  in  brief, 
^aving  married 
anaday  disai)- 
jld  where  tliey 
jvening,  wben 
of  concerning 
■e  they  were  at 
went  off  with 
s  actions  and 
1  reference  to 

vc  -  the  house 
work  when  he 
ad  some  other 
)t  was  made  to 
.  worn  by  Cana- 
ilar,  no  witness 
5  toward  arrest- 
n,  and  in  about 


;  caae*  there  cited; 
,,  126;  RoBCoe's  Or. 
Ions,  38  Law  Lib.  59, 
Humph.  (Tenn.l  87 ; 
[ ;  State  V.  Robinaon, 
kmau,46/(l.  966. 


eight  months  after  Canaday's  disappearance  ho  ohangod  his  residence, 
going  into  Kansas,  forty  miles  distant  from  where  he  previously  rusldi  d. 
A  warrant  was  afterwards  sued  out  against  liim,  in  Jasper  County, 
charging  him  with  the  murder  of  Canaday,  and  an  officer  went  and 
arrested  him,  in  his  own  house.  He  accompanied  the  officer  baclc  to 
Jasper  Coimty,  without  any  kind  of  assistance  and  on  the  way  he  was 
told  by  one  of  them  that  it  would  be  better  for  him  to  confess. 

After  he  was  placed  in  prison,  the  officer  who  arrested  him  and  was 
deputy  sheriff  had  several  conversations  with  him.  The  otHcer  says 
that  those  conversations  were  confidential ;  and  upon  occasion  he  says 
that  he  had  the  prisoner  completely  «' broke."  At  one  of  these  con- 
versations, and  only  one,  the  prisoner  made  the  confession  to  him,  which 
was  given  in  evidence.  From  the  officer's  statement  it  seems  that  the 
prisoner  labored  under  the  impression  that  there  were  certain  witnesses 
who  were  going  to  swear  that  he  committed  the  crime.  He  evidently 
believed  that  they  would  convict  him,  and  ho  told  the  officer  that  he 
liad  made  up  his  mind  not  to  put  the  county  to  any  more  expense,  and 
that  he  would  plead  guilty,  and  that  he  killed  Canaday.  There  was  a 
mere  admission  of  killing ;  no  time,  place,  or  circumstances  were  given. 
He  wanted  the  officer  to  see  the  judge  and  use  bis  influence  to  have  his 
punishment  as  light  as  possible,  and  then  to  get  up  a  petition  to  have 
him  pardoned.  The  officer  promised  that  he  would  get  up  the  desired 
petition,  and  told  him  4hat  he  thought  he  coidd  be  got  out  of  the  peni- 
tentiary, after  he  had  been  there  a  reasonable  time.  At  the  time  this 
confidential  interview  was  had,  it  appears  that  this  same  officer  was 
engaged  with  others  in  procuring  counsel  to  assist  in  prosecuting  the 
accused  to  a  conviction,  for  the  purpose  of  obtaining  a  reward  that  had 
been  offered.  It  appears  abundantly  clear  that,  when  the  prisoner 
proposed  to  plead  guilty  and  confessed  the  crime,  he  supposed  tliat  he 
could  plead  guilty  of  murder  in  the  second  degree,  and  that  no 
higher  punishment  than  imprisonment  in  the  penitentiary  could  be  in- 
flicted upon  him  under  the  indictment.  But  when  he  afterward  saw  the 
indictment  and  became  aware  that  it  was  for  murder  in  the  first  degree, 
and  that  a  conviction  thereon  might  lead  to  an  execution,  he  changed 
his  mind,  and  declared  that  he  would  not  plead  guilty,  but  would  stand 
his  trial.  Such  is  substantially  the  evidence  as  shown  by  the  record. 
It  will  be  observed  that  there  was  no  evidence  whatever  that  Canaday 
was  murdered  except  the  confession  of  defendant,  and  that  was  made 
under  circumstances  which  rendered  it  inconclusive  and  questionable 
indeed  whether  it  should  have  been  admitted  at  all. 

Confessions  are  divided  into  two  classes,  namely,  judicial  and  extra- 
judieial.  Judicial  confessions  are  tliose  which  are  made  before  the 
magistrate  or  in  court,  in  due  course  of  legal  proceedings,  and  it  is 


956 


CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 


essential  that  they  be  made  of  the  free  will  of  the  party,  and  with  full 
and  perfect  knowledge  of  the  nature  nnd  consequences  of  the  confes- 
sion. Of  this  kind  are  the  preliminary  exan^inations,  taken  in  writing 
by  the  magistrate,  pursuant  to  statutes,  aud  tuo  plea  of  guilty  made  in 
open  court  to  an  indictment.  Either  of  these  is  sufficient  to  found  a 
conviction  upon,  even  if  it  be  followed  by  sentence  of  death,  they  being 
deliberately  made,  with  the  advice  of  counsel,  and  under  the  protecting 
caution  and  oversight  of  the  judge.  Extra-judicial  confessions  are 
those  which  are  made  by  the  party  elsewhere  than  before  tiie  magistrate, 
or  in  court,  this  term  embracing  not  only  explicit  and  enpress  confes- 
8ionc>  of  crime,  but  all  those  admissions  of  the  accused  from  which  guilt 
may  be  implied. ^ 

Whether  extra-judicial  confessions,  uncorroborated  by  any  other 
proof  of  the  corptis  delicti,  are  of  themselves  sufficient  to  found  a  con- 
viction of  the  prisoner  upon,  has  not  only  been  doubted,  but,  in  the 
best  considered  cases,  denied.  "In  the  United  States,"  saya  Green- 
leaf,  "  the  prisoner's  confession,  when  the  corpua  delicti  is  not  otherwise 
proved,  has  been  held  insufficient  for  liis  conviction ;  and  this  opinion 
certainly  best  accords  with  the  humanity  of  the  v;riminal  code,  and  with 
the  great  degree  of  caution  applied  in  receiving  and  weighing  the  evidence 
of  confessions  in  other  cases ;  and  it  seems  countenanced  by  approved 
writers  on  this  branch  of  the  law."  *  Wharton,  in  his  treatise  on  crim- 
inal law,  lays  down  the  doctrine  it>  equally  emphatic  terms,  and  says 
that  proof  of  the  corpi^  delicti,  by  jlear  and  satisfactory  evidence,  must 
always  precede  a  conviction.  He  approvingly  quotes  the  language  of 
Lord  Hale,  where  that  great  judge  says:  "  I  would  never  convict  any 
jjerson  for  stealing  the  goods  of  a  person  unknown,  merely  because  he 
would  iiot  give  an  account  hdw  he  came  by  them,  unless  there  were  due 
proof  made  that  a  felony  had  betn  committed.  I  would  never  convict 
any  person  of  murder  or  manslaughter  unless  the  fact  were  proved  to 
be  done,  or  at  least  the  body  found  dead."^  A  writer  of  standard 
excellence  has  said :  "  It  may  be  doubted  whether  justice  and  policy 
ever  SRnctioned  a  conviction  where  there  is  no  other  proof  of  the  corp\is 
delicti  than  the  uncorroborated  confession  of  the  party."  **  In  murder 
trials  the  rule  laid  down  by  Lord  Hale  has  been  generally  followed, 
uamdy  that  the  fact  of  death  should  be  shown  either  by  witnesses  who 
Wire  present  when  the  murderous  act  was  done,  or  by  roof  of  the  body 
having  been  seen  dead ;  or  if  found  in  a  state  of  decomposition,  or 
reduced  to  a  skeleton,  that  it  be  identified  by  tests  of  the  most  clear  and 
cogent  character.    These  authorities  have  free  uently  received  the  ap- 


I  1  Greenl.  Ev.,  teo.  313. 
1  Id.,  800.  217. 


8  1  Whart.  Or.  L.,  leoc  74S,  740. 
*  WiUa  on  Oir.  Bv.,  lee.  <. 


[DUALS. 


STATE   V.  GERMAN. 


957 


irty,  and  with  full 
ces  of  the  confes- 
,  taken  in  writing 
of  guilty  made  in 
Bcient  to  found  a 
:  death,  they  being 
ider  the  protecting 
al  confessi'jns  are 
ore  the  magistrate, 
id  express  confes- 
jd  from  which  guilt 

ited  by  any  other 
mt  to  found  a  con- 
oubted,  but,  in  the 
ites,"  says  Green- 
licti  is  not  otherwise 
n ;  and  this  opinion 
linal  code,  and  with 
eighing  the  evidence 
nanced  by  approved 
his  treatise  on  crim- 
itic  terms,  and  says 
3tory  evidence,  must 
otea  the  language  of 
i  never  convict  any 
?.,  merely  because  he 
inless  there  were  due 
would  never  convict 
fact  were  proved  to 
L  writer  of  standard 
r  justice  and  poUcy 
?r  proof  of  the  corpiis 
party."*    In  murder 
1  generally  followed, 
her  by  witnesses  who 
■by   roof  of  the  body 
of  decomposition,  or 
of  the  most  clear  and 
sntly  received  the  ap- 

.  L..  sees.  74S,  748. 
r.  Ev.,  B«o.  6. 


probation  of  tliis  court.  In  Robinson  v.  State,^  Judge  Rylund,  after 
examining  many  of  the  cases,  laid  it  down  as  a  settled  rule,  that  the 
confession  of  a  defendant,  not  made  in  open  court,  or  on  an  examina- 
tion before  a  committing  court,  but  to  an  individual,  uncorroborated  by 
circumstances,  and  without  proof  aliunde  that  a  crime  has  been  com- 
mitted, would  not  justify  conviction.  In  the  case  of  State  v.  Scott,^ 
which  was  an  indictment  for  robbery,  while  the  evidence  showed  that 
the  prisoner  was  riding  in  company  with  an  old  man,  and  he  declared 
that  he  intended  to  get  into  a  "  fuss  "  with  the  old  man  and  take  his 
liorse  f  .'om  him,  and  afterward  he  was  seen  riding  the  horse,  and 
he  said  he  had  got  into  a  "fuss"  with  the  old  man  and  took  his 
horse,  this  was  held  to  be  insufficient  evidence  to  wairant  a  conviction, 
because  there  was  no  corroborative  testimony  that  a  crime  had  been 
committed.  This  doctrine  was  also  recognized  in  the  case  of  State  v. 
Lamb,^  where  a  conviction  for  murder  was  sustained  upon  a  judicial 
confession  by  the  prisoner,  which  constituted  the  only  actual  proof  of 
the  commission  of  the  crimo.  But  there  was  a  claim  of  corroborative 
circumstances  from  which  th.  vidence  of  guilt  was  irresistible.  In  the 
case  at  bar  there  is  an  utter  failure  to  prove  the  corpus  delicti. 

All  the  circumstances  proved  by  the  State,  outside  of  the  confession, 
xa^y  well  exist,  and  still  be  entirely  consistent  with  the  fact  that  Can- 
aday  was  never  murdered,  and  that  he  is  still  alive ;  that  a  pair  of  coarse 
boots  were  found  similar  to  his  is  really  no  evidence.  All  boots  bought 
of  the  store  as  his  were  will  look  alike  when  worn ;  so  with  the  clothes. 
The  belt,  which  it  was  fint  thought  was  his,  upon  a  close  examination, 
proved  not  to  be  his.  Ms.  Davi«-  the  witness  with  whom  he  had  lived 
when  be  was  working  on  tne  railroad,  and  who  had  mended  it  for  him, 
when  she  inspected  it,  said  that  his  belt  was  lined  by  her  with  a  piece 
from  an  old  calico  dress,  and  that  the  belt  produced  and  found  was 
lined  with  bed.  ticking  and  was  not  his.  The  confession  was  made  out 
of  court,  and  lacks  the  necessary  corroboration. 

It  further  appears  that  it  was  made  under  a  misapprehension,  au>! 
that  the  prisoner  did  not  have  a  full  knowledge  of  all  the  facts,  and  w..: 
the  consequences  that  would  result  therefrom.  It  is  undeniable  that 
the  officer  to  whon.  the  confession  was  made  was  in  the  prisoner's  con- 
fidence, and  exerted  a  great  influence  over  him,  and  it  may  be  well 
doubted  whether  it  was  properly  admitted  in  evidence. 

I  think  that  the  demurrer  tendered  to  the  evidence  by  the  defendant's 
counsel  should  have  been  sustained,  and  that  the  judgment  i^bould  be 
reversed  and  the  cause  remanded. 

The  other  judges  concur. 

Judgmei^  reversed. 


1  12  Mo.  692. 


>  34  Mo.  424. 


I  Ho.  318. 


958 


CBIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 


HOMICIDE— INTENT  TO  CAUSE  DEATH  OB  BODILT  HABM  ESSEN- 
TIAL. 

Wellar  V.  People. 


[30  Mich.  276.] 
In  the  Supreme  Court  of  Michigan,  1874. 

m  a  ProMoution  for  Komiolde,  where  it  appears  that  no  weapon  was  nsed,  but  that 
death  resulted  from  a  blo\v  or  a  kick  not  likuly  to  cause  death,  the  offense  is  man- 
slaughter and  not  murder,  although  the  assault  be  unlawful  and  nalicions,  unless  the 
respondent  did  the  act  with  intent  to  cause  death  or  grieTous  bodily  harm,  or  to  per- 
petrate a  felony,  or  some  act  inyolving  all  the  wickedness  of  a  felony. 

Erbor  to  Saginaw  Circuit. 

William.  H.  Sweet  and  William  A.  Clark,  for  plaintiff  in  error. 

Isaac  Marston,  Attorney-General,  for  the  People. 

Campbell,  J.  Plaintiff  in  error  was  convicted  of  the  murder  of 
Margaret  Campbell,  by  personal  violence  committed  on  July  25,  1873. 
They  had  lived  together  for  several  months,  and  on  the  occasion  of  her 
death,  she  had  been  out  on  an  errand  of  her  own  in  the  neighborhood, 
and  on  coming  back  into  the  house,  entered  the  front  door  of  the  bar- 
room, and  fell,  or  was  knocked  down  upon  tlie  floor.  While  on  the 
floor,  there  was  evidence  tending  to  show  that  Wellar  told  her  to  get  up, 
and  kicked  her,  and  that  he  drew  her  from  the  bar-room,  through  the 
dining-room  into  a  bed-room,  where  he  left  her,  and  where  she  after- 
wards died.  The  injury  of  which  she  died  was  inflicted  on  her  left 
temple,  and  the  evidence  does  not  seem  to  have  been  clear  how  she 
received  it,  or  at  what  specific  time.  It  was  claimed  by  the  prosecution 
to  have  been  inflicted  by  a  blow  when  she  first  came  in,  and  if  not, 
then  by  a  blow  or  kick  afterwards.  Ail  of  the  testimony  is  not 
returned,  and  the  principal  questions  arise  out  of  rulings  which  depend 
on  the  assumption  that  the  jury  ini^ht  find  that  her  death  wns  caused 
by  some  violent  act  of  Wellar' s ;  which  they  must  liave  done  to  convict 
him.  There  can  be  no  question  but  that,  if  she  so  camd  to  her  death, 
he  was  guilty  of  either  murder  or  manslaughter.  The  complaint  made 
against  the  charge  is  that  a  theory  was  put  to  the  jury,  on  which  they 
were  instructed  to  find  as  murder  what  would,  or  at  least  might,  be 
manslaughter. 

There  was  no  proof  tending  to  show  the  use  of  any  weapon,  and,  if 
we  may  judge  from  the  charge,  the  prosecution  claimed  the  fatal  injury 
came  from  a  blow  of  Wellai-'s  fist,  given  as  she  entered  the  house.  The 
judge  seems  to  have  regarded  it  as  shown  by  a  preponderance  of  proof, 
that  the  injury  v  .s  invisible  when  she  was  in  the  bar-room,  and  that  the 
principal  dispute  was  as  to  how  it  was  caused,  whether  by  a  blow,  or 


The  disi 
coiisidci 
the  disti 
human 


WELLAR   V.  PEOPLE. 


95» 


tM  £SS£N- 


B  used,  bnt  that 
offense  Ismin- 
iouB,  nnleiB  tbe 
iarm<  or  to  per- 


1  error. 

B  murder  of 
uly  25,  1878. 
icasion  of  her 
eighborhood, 
or  of  the  bar- 
While  on  the 
her  to  get  up, 
1,  through  the 
lere  she  after- 
sd  on  her  left 
clear  how  she 
le  prosecution 
,  and  if  not, 
imony  is  not 
which  depend 
,tb  was  caused 
one  to  convict 
I  to  her  death, 
jmplaint  made 
on  which  they 
east  might,  be 

reapon,  and,  if 
the  fatal  injury 
le  house.  The 
ranee  of  proof, 
n,  and  that  the 
by  a  blow,  or 


kick,  or  by  accident.  It  also  appears  that,  if  inflicted  in  that  room,  it 
did  not  produce  insensibility  at  the  time,  if  inl!!cted  before  the  prisoner 
dragged  her  into  the  bed-room.  It  does  not  api  zt  from  the  case  at 
what  hour  she  died. 

It  may  be  proper  to  remark  that,  while  it  is  not  desirable  to  introduce 
all  the  testimony  into  a  bill  of  exceptions,  in  a  criminal  case,  it  is  im> 
portant  to  indicate  in  some  way  the  whole  chain  of  facts  which  tbe 
evidence  tends  to  prove.  Without  this,  we  can  not  fully  appreciate 
the  relations  of  many  of  the  rulings,  or  know  what  instructions  may  be 
necessary  to  be  ^er.u  down  to  the  court  below.  The  bill  before  us  is 
full  upon  some  things,  but  leaves  out  some  things  which  it  would  have 
been  bettor  to  include. 

T^iion  iiy  of  the  theories  presented,  there  is  no  difficulty  in  seeing 
that  if  Wellar  killed  tbe  deceased,  and  if  he  distinctly  intended  to  kill 
her,  his  crime  was  murder.  It  is  not  claimed  on  his  behalf  that  there 
was  any  proof  which  coulr*.  reduce  the  act  to  manslaughter,  if  there  waa 
a  specific  design  take  life.  Upon  this  the  charge  was  full  and 
pointed,  and  is  not  complained  of.  There  was  no  claim  that  be  had 
been  provoked  in  such  a  way  or  to  such  an  extent  as  to  mitigate  tb& 
intentional  slaying  to  anything  below  one  of  the  degrees  of  murder. 

But  it  i^  cu..inod  that  although  the  injury  given  was  fatal,  yet,  if  not 
intended  i  r*  vtuce  any  such  results,  it  was  of  such  a  character  that 
the  jury  might,  and  probably  should,  have  considered  it  as  resting  on 
different  grounds  from  those  which  determine  responsibility  for  acts 
done  with  deadly  weapons  used  in  a  way  likely  to  produce  dangerous^ 
consequences.  But  the  charge  of  the  court  did  not  permit  them  to 
take  that  view. 

It  will  be  found,  by  careful  ir  pection  of  the  charge,  that  the  court 
specifically  instructed  the  jury,  that  if  Wellar  committed  :he  homicide 
at  all,  it  would  be  murder,  and  not  manslaughter,  unless  it  was  com- 
mitted under  such  extreme  provocation  as  is  recognized  in  the  authori> 
ties  as  sufficient  to  reduce  intentional  and  voluntary  homicide, 
committed  with  a  deadly  weapon,  to  that  degree  of  time.  And  in  thia 
connection,  the  charge  further  given  that,  if  the  intent  of  the  respond* 
ent  was  to  commit  bodily  harm,  he  was  responsible  for  the  result, 
because  he  acted  willfully  and  maliciously  in  doing  the  injury,  neces- 
sarily led  to  a  conviction  of  murder,  because  there  was  no  pretense  of 
any  provocation  of  that  kind. 

T-Tanslaughter  is  a  very  serious  felony,  and  may  be  punished  severely. 
The  discretionary  punishment  for  murder  in  the  second  degree  comes 
considerably  short  of  the  max  mum  punishment  for  manslaugliter.  But 
the  distinction  is  a  vital  one,  resting  chiefly  on  tbe  greater  disregard  of 
human  life  shown  in  the  higher  crime.     And  in  determining  whether  a 


960 


CRIMES  AGAINST  THE  FEPSONS  OF  INDIVIDUALS. 


person  who  has  killed  another,  without  meaning  to  kill  him,  is  guilty 
of  murder  or  manslaughter,  the  nature  and  extent  of  the  injury  or 
wrong  which  was  actually  Intended  must  usually  be  of  controlling  im- 
portance., 

It  is  not  necessary  in  all  cases  that  one  held  for  murder  must  have 
intended  to  take  the  life  of  the  person  he  slays  by  Lis  wrongful  act.  It 
is  not  always  that  he  must  have  intended  a  personal  injury  to  such 
person.  But  it  is  necessary  that  the  intent  with  which  he  acted  shall  be 
equivalent  in  legal  character  to  a  criminal  purpose  aimed  against  life. 
<jri  ^erally  the  intent  must  have  been  to  commit  either  a  specific  felony, 
or  at  least  an  act  involnng  all  the  wickedness  of  a  felony.  And  If  the 
intent  be  directly  to  produce  a  bodil}'  injury  it  must  be  such  an  Injury  as 
may  be  expected  to  involve  serious  consequences,  either  periling  life  or 
leading  to  great  bodily  harm.  There  is  no  rule  recognized  as  authority 
which  will  allow  a  conviction  of  murder  where  a  fatal  result  was  not 
intended,  unless  the  injury  intended  was  one  of  a  very  serious  charac- 
ter, which  might  naturally  and  commonly  involve  loss  of  life,  or  grievous 
mischief.  Every  assault  involves  bodily  harm.  But  any  doctrine 
which  would  bold  every  assailant  as  a  murderer,  where  death  follows  his 
act,  would  be  barbarous  :^nd  unreasonable. 

The  language  used  in  most  of  the  statutes  on  felonious  assaults  is, 
an  intent  to  do  "griev-xiii  bodily  harm."^  And  even  such  an  assault, 
though  "  unlawfully  and  maliciously  "  made,  is  recognized  as  one  where, 
death  followed,  the  result  would  not  necessarily  have  been  murder.^ 
Our  own  statutes  have  made  no  provision  for  rendering  such  assault 
ielonious,  unless  committed  with  a  dangerous  weapen,  or  with  an  intent 
to  commit  some  felony. 3 

In  general,  it  has  been  held  that  where  the  assault  is  not  committed 
with  a  deadly  weapo.:.  the  intent  must  be  clearly  felonious,  or  the 
death  will  subject  only  to  the  charge  of  manslaughter.  The  presump- 
tion arising  from  the  character  of  the  instrument  of  violence  is  not 
oonclusive  in  either  way,  but  where  such  weapons  are  uted  as  do  not 
usually  kill,  the  deadly  intent  ought  to  be  left  in  no  doubt.  There  are 
cases  an  record  where  death  by  beating  and  kicking  has  been  held  to 
warrant  a  verdict  of  murder,  the  murderous  intent  being  found. 
But  where  there  vras  no  such  intent,  the  ruling  has  been  otherwise.  In 
JState  V.  McNab,*  it  is  held  that  unless  the  unlawful  act  of  violence  in- 
tended was  felonious,  the  offense  was  manslaughter.  The  same  doctrine 
Is  laid  down  in  State  v.  Smith^.  That  is  the  statutory  rule  in  New  York 
«nd  in  some  other  States. 


I  Ottrr.  Sop.  S37. 

*ld. 

a  Comp.  L.,  ch.  S44. 


«tON.  H.  ISO. 
*  S2  Ma.  M9. 


Seel 
a. fee 
thekcrraj 
State  V. 
waa  with  | 
Humph. 
Rex  V.  Kd 
■aoertalo 

8 


9. 

n,  is  guilty 
e  injury  or 
itrolling  im- 

must  have 
;ful  act.  It 
uryto  such 
;ted  shall  be 
against  life, 
sdflc  felony, 

And  if  the 
an  Injury  as 
riling  life  or 
as  authority 
suit  was  not 
•ious  charac- 
s,  or  grievous 
iny  doctrine 
h  follows  his 

IS  assaults  is, 
h  an  assault, 
as  one  where, 
een  murder.^ 
such  assault 
irith  an  intent 

ot  committed 
nious,  or  the 
rhe  presump- 
olence  is  not 
i£,ed  as  do  not 
t.  There  are 
s  been  held  to 
being  found, 
•therwise.  In 
)f  violence  in- 
same  doctrine 
I  in  New  York 


WELLAR  V.  PEOPLE. 


961 


The  willful  use  of  a  deadly  weapon,  without  excuse  or  provocation, 
in  such  a  manner  as  to  imperil  life,  is  almost  universally  recognized  as 
showing  a  felonious  intent.i  But  where  the  weapon  or  implement  used 
is  not  Ukely  to  kill  or  to  maim,  the  killing  is  held  to  be  manslaughter, 
unless  there  is  an  actual  intent  which  shows  a  felonious  purpose.^  In 
Darry  v.  People,^  the  distinctions  are  mentioned  and  relied  upon,  and 
in  the  opinion  of  Parker,  J,,  there  are  some  remarks  very  applicable. 
In  the  case  of  Commonwealth  v.  Webster,*  the  rulings  of  which  have  been 
regarded  as  going  beyond  law  in  severity,  this  question  is  dealt  with  in 
accordance  with  the  same  views,  and  quotations  are  given  from  East  to 
the  same  purport. 

The  case  of  death  in  a  prize  fight  is  one  of  the  commonest  illustra- 
tions of  manslaughter,  where  thera  is  a  deliberate  arrangement  to  fight, 
and  where  great  violence  is  always  to  be  expected  from  the  strength  of 
the  parties  and  the  purpose  of  fighting  till  one  or  the  other  is  unable  to 
continue  the  contest.  A  duel  with  deadly  weapons  renders  every  kill- 
ing  murder;  but  a  fight  without  weapons,  or  with  weapons  not  deadly, 
leads  only  to  mahslaughte'-,  unless  death  is  intended,  s 

The  case  of  Commonwealth  v.  Fox,^  is  one  resembling  the  present  in 
several  respects,  in  which  the  offense  was  held  manslaughter. 

The  jury  were  sufficiently  and  rightly  charged  upon  the  extent  of 
the  respondent's  liability  for  any  intended  killing.  And  if  respondent 
wiUfully  and  violently  kicked  the  deceased  in  such  a  way  as  he  must 
have  known  would  endanger  her  life,  and  her  life  was  destroyed  in  that 
way,  an  actual  intention  of  killing  would  not  be  necessary,  as  in  such 
case  the  death  woula  have  been  a  result  he  might  fairly  be  held  to  re- 
gard as  likely.  But  it  was  certainly  open  to  him  to  claim  that  what- 
ever may  have  been  the  cause  of  death  he  did  nothing  which  was  de- 
signed to  produce  any  serious  or  fatal  mischief,  Pia  that  the  injury 
from  which  the  deceased  came  to  her  death  was  not  intentionally 
aimed  at  a  vital  spot,  or  one  where  the  consequences  would  be  probably 
or  manifestly  dangerous.  We  have  no  right  to  say  that  there  was  no 
room  for  a  verdict  of  manslaughter,  and  the  effect  of  the  charge  was  to 
deny  this. 

[Omitting  rulings  on  other  points.] 


See  Bith.  Cr.  L.,  8eca.  680, 681. 
»  Mo  Torner's  Ca«e,  1  Raym.  144,  where 
the  kirrant  wm  hit  on  the  head  with  a  clog; 
State  V.  Jarrott,  1  Ired.  76,  where  the  blow 
wae  with  a  hickory  itick ;  Holly  v.  State,  10 
Humph.  141,  where  a  boy  threw  a  stone; 
Rex  V.  Kelly,  1  Moo.  C.  C.  113,  where  It  wat 
■neertain  whether  a  person  waa  killed  by 
8  Defbkces.  Ktl 


a  blow  with  the  flet,  which  threw  him  on  a 
brick  or  by  a  blow  from  a  brick,  and  the 
court  held  it  a  clear  case  of  manglauchter. 
3  10  N.  Y.  HO. 

*  6  Cash.  895. 
»  1  East's  P.  0.  270;  Murphy's  Case,  6  O.  A 

P.  108;  HartraTe's  Case,  S  Id.  110. 

•  7  Gray,  S85. 


962  CRIMES   AGAINST  THE  PERSONS  OF   INDIVIDUALS. 

The  judgment  must  be  reversed,  and  a  new  trial  granted.    The  re 
gpondent  to  be  remanded  to  the  custody  of  the  sheriff  of  Saginaw 

County. 
CooLET  and  Chbistunct,  JJ.,  concunred. 
Gbaves,  C.  J. ,  did  not  sit  in  this  case. 


MURDER  BY  POISON  -  KNOWLEDGE  -  CIKCUMSTANTIAL  EVIDENCE. 

People  v.  Stokes. 

[2  N.  Y.  Crim.  Rep.  883.] 
In  the  Court  of  Oyer  and   Terminer  —  Jefferson  County,  June,  1882. 

defendantthat  the  article  was  notentiMlyhwmleB..  is  notanfflclont. 

•I  T«  Jtt.tiiv  a  Conviction  upon  circumstantial  evidence,  not  only  must  »»•««» 
'pro'"!l!rconsi8Unt  "ith  and  point  to  the  defendant's  gallt  beyond  •  rea«.nal,le 

doubt,  but  they  must  be  Inconsistent  with  his  innocence. 
«.  Wh-r.  th*  Cue  Depend,  on  clrcntnsUntlal  eyidence.  which  points  to  »P*rtl«"»'" 
••  TJrtrn  a?  the^m^a'na  motive  on  the  part  o.  that  person  to  commit  the  crime,  much 

fortifies  the  probabilities  created  by  the  other  evidence. 

Motion  by  defendant  WilUam  Stokes  for  anew  trial  under  section 

The  defendant  was  indicted  with  one,  Martha  Hovey,  for  murder  in 
the  first  degree,  in  poisoning  his  wife,  on  March  27,  1882.  He  pleaded 
not  guilty,  and  was  brought  to  trial  at  the  June  Oyer  and  Termmer, 
held  in  Jefferson  County,  Justice  Merwin  presiding. 

The  evidence  showed  that  the  defendant,  his  wife,  a  half-witted  son 
and  Martha  Hovey  resided  together  in  an  old  store  house  at  Sackett 
Harbor,  and  they  were  all  much  addicted  to  the  use  of  intoxicating 
liquors,  and  that  on  various  occasions  the  defendant  had  been  seen 
shipping  his  wife  and  dragging  her  outdoors  by  her  hair,  and  also 
chasing  her  in  the  streets,  her  face  being  more  or  less  «,veredwith 
blood.     On  several  occasions,  when  under  the  influence  of  liquor,  the 
defendant  had  threatened  to  kill  his  wife.     On  the  evening  of  March 
25,  defendant's  wife  was  heard  in  the  house,  screaming  that  he  wou  d 
kill  her.     She  arose  on  the  morning  of  March  27,  in  her  usual  health 
and  commenced  to  wash.     About  two  o'clock  in  the  afternoon  defend- 
ant went  to  Dr.  Tyler,  and  reported  that  his  w'fe  was  very  sick.    Dr. 


1  Subd. «,  7,  Code  of  Or.  Pr. 


PEOPLE   V.  STOKES. 


908 


There- 
Saginaw 


IVIDENCB. 


une,  1882. 

by  defendant 
Knowledge  ot 

an*t  the  fsott 
i  a  reaMoable 

to  a  partlonlar 
lie  crime,  much 


[ider  section 

)r  murder  in 

He  pleaded 

id  Terminer, 

If-witted  son 
at  Sackett'* 
intoxicating 
id  been  seen 
lair,  and  also 
covered  vith 
of  liquor,  the 
ingot  March 
that  he  would 
usual  health 
moon  defend- 
jiy  sick.    Dr» 


Tyler  immediately  called,  and  found  her  vomiting  almost  constantly, 
and  holding  her  hand  to  her  throat.  She  complained  of  a  burning  pain 
in  her  throat,  stomach  and  bowels.  The  doctor  observed  that  her 
throat  was  very  red,  and  asked  her  what  she  had  been  taking.  She  re- 
plied she  had  taken  nothing  except  what  they  (meaning  defendant  and 
Martha  Hovey)  bad  given  her.  The  defendant  then  stated  to  the 
doctor  that  he  had  given  her  a  drink  of  whisky  in  the  morning,  and  th;it 
after  she  was  taken  sick,  he  gave  her  two  or  three  slings  with  milk  and 
castor  oil.  The  doctor  further  observed  that  her  mouth  frothed  and 
that  she  vomited  a  mucous  substance ;  that  her  skin  was  cold,  pulse 
rapid,  respiration  frequent,  face  bloated,  and  that  she  complained  of 
great  thirst.     She  grew  rapidly  worse,  and  died  the  same  afternoon. 

A  coroner's  jury  was  imprneled,  before  which  the  defendant  testified 
that  his  wife  was  well  in  the  morning;  that  he  gave  her  some  whisky 
before  breakfast;  that  slie  had  breakfast  about  nine  o'clock ;  that  she 
was  taken  sick  about  eleven  o'clock ;  that  he  was  out  in  his  shop  talking 
with  a  man,  and  Martha  Hovey  called  to  him  that  his  wife  was  sick ; 
that  she  called  three  times  before  he  went  to  see  her ;  that  he  went  into 
the  house  and  gave  her  a  hot  whisky ;  that  she  complained  of  severe  pain 
in  her  stomach  and  bowels :  that  be  then  got  some  milk  and  gave  her  a 
sling  with  milk,  castor  oil  and  black  pepper ;  that  she  continued  to  get 
worse,  and  he  called  Dr.  Tyler.  The  evidence  showed  that  about  two 
o'clock  the  defendant  went  down  to  a  ship-yard  and  told  his  son  if  be 
wanted  to  see  his  mother  alive  he  must  come  up  at  once  to  the  house. 
That  he  called  on  one  Bobbins  about  noon,  and  complained  that  the 
tenant's  in  Robbin's  block  bad  been  throwing  water  upon  his  premises, 
and  wanted  Robbins  to  call  at  once  at  his  house.  After  the  death  of 
his  wife,  the  defendant  repeatedly  stated  that  he  desired  »n  tnvestiga- 
t!on.  A  post  mortem  examination  was  made,  and  oesophagus  was  found 
vc.yred  and  much  inflamed.  The  stomach  was  also  much  inflamed, 
ant  of  a  dark  red  color,  filled  with  dark  spots.  About  half  a  pint  of 
fluid  was  found  in  the  stomach,  of  a  darkish  color,  filled  with  mucous 
and  light  flakes.  The  throat  was  very  red  from  irritation ;  the  piloric 
orifice  and  the  duodenum*  were  also  very  red.  The  other  organs 
were  healthy,  and  the  body  well  nourished.  The  doctors  testified  that,  in 
their  judgment,  death  was  caused  from  swallowing  some  corrosive  sub* 
stance.  A  chemical  analysis  showed  the  stomach  to  contain  a  quantity 
of  nitrate  of  mercury,  which  was  proved  to  be  a  deadly  poison.  A  pint 
whisky  bottle  was  found  in  defend  ant's  house  the  next  day  after  she  died 
with  a  liquid  substance  in  it,  which  upon  analysis  proved  to  be  nitrate 
of  mercury.  Defendant  said  he  didn't  know  what  it  was  or  where  it 
came  from.  He  afterwards  testified  before  the  coroner's  jury  that  it 
was  a  preparation  for  silver  washing  one  Crouch  had  brought  to  hit 


'Vr^JTi--?  (»*>^"  - 


964 


CRIMES  AGAINST  THG  PERSONS   OF   INDIVIDUALS. 


house  some  time  before.  Stokes  was  a  tinsmith,  and  it  was  stiown  that 
he  was  present  when  Crouch  prepared  the  mixture.  It  smoked  so  that 
he  declared  himself  afraid  of  it. 

Martha  Hovey  was  a  married  woman  who  did  not  live  with  her  hus- 
band. She  had  resided  with  Stokes  some  time.  She  had  had  difficulty 
with  Mrs.  Stokes  on  several  occasions.  On  one  occasion  she  was  out 
with  the  defendant  and  introduced  him  as  her  brother.  Deceased  had 
la  bank  at  the  time  of  her  death  $4,600  recently  received  from  the  es- 
tate of  a  deceased  relative. 

The  jury  found  the  defendant  guilty  of  murder  in  the  second  degree. 

The  defendant's  counsel  thereunpon  made  this  motion  for  anew 
trial  under  subdivision  6,  section  465,  Code  of  Criminal  Procedure. 

E.  C.  Emerson,  District- Attorney,  and  P.  C.  Williams,  for  People. 

W.  F.  Porter  and  Watson  M.  Rogers,  for  defendant. 

Mebwin,  J.  On  the  pait  of  the  defendant  it  is  claimed  among  other 
things  that  the  verdict  is  clearly  against  the  evidence,  and  that,  there- 
fore, under  the  provisions  of  subdivision  6,  section  465.  of  Code  of 
Criminal  Procedure  a  new  trial  should  be  granted. 

Upon  this  proposition  it  is  suggested  that  there  is  no  evidence  that 
the  defendant  knew  that  the  mixture  which  apparently  operated  to  pro- 
duce the  death  was  poisonous.  In  Wharton's  Criminal  Evidence,^  it 
is  laid  down  that  in  order  to  convict  of  murder  there  must  be  a  knowl- 
edge of  the  dangerous  character  of  the  poison.  Very  evidently  this  is 
necessary  in  order  to  show  an  intent  to  kill.  In  the  present  case  there 
is  no  evidence  that  defendant  knew  that  the  mixture  was  poisonous. 
He  did  not  buy  it  himself ;  he  is  not  shown  to  have  known  of  what  ingre- 
dients it  was  composed.  A  recipe  was  referred  to  on  the  trial,  but  it 
was  not  in  evidence  or  shown  to  be  in  defendant's  possession.  The 
mixture  was  prepared  by  Crouch  and  used  by  him  for  an  honest  pur- 
pose, and  for  the  same  purpose  which  he  stated  to  the  druggist.  It 
was  used  in  December  previous  to  the  death,  and  what  was  then  done 
with  it  or  who  had  it,  does  not  appear,  except  that  it  was  found  the 
day  after  the  death  in  the  room  in  which  the  post  mortem  had  been  held. 
Assuming  that  defendant  knew  that  in  the  mixture  there  were  mercury 
and  nitric  acid,  it  is  not  shown  that  he  knew  the  dangerous  character 
of  these  elements  or  of  the  compound.  It  is  said  he  was  a  tinsmith, 
and  therefore  must  have  known  it.  That  sequence  does  not  follow. 
It  is  not  shown  that  as  a  tinsmith  he  dealt  in  those  articles  or  tad  any 
occasion  to  use  them.  This  can  not  be  inferred.  He  was  present  when 
Crouch  made  up  the  compound.  The  packages  which  Crouch  had  re- 
ceived of  the  druggist  were  not  marked  by  the  druggist  as  poisonous. 


1  (8th  ed.),  BbC.  TM. 


u 

Whart.  ( 


PEOPLi:   V.  8TOKE8. 


965 


shown  that 
ked  so  that 

ith  her  hus- 
id  difficulty 
she  was  out 
sceased  had 
from  the  es- 

ond  degree, 
a  for  anew 
ocedure. 
,  for  People. 

among  other 
1  that,  there- 
of Code  of 

mdence  that 
rated  to  pro- 
Evidence,^  it 
t  be  a  knowl- 
Ldently  this  is 
jnt  case  there 
as  poisonous. 
»f  what  iugre- 
le  trial,  but  it 
session.    The 
m  honest  pur- 
druggist.     It 
was  then  done 
was  found  the 
lad  been  held. 
!  were  mercury 
reus  character 
ras  a  tinsmith, 
oes  not  follow. 
es  or  bad  any 
IS  present  when 
Crouch  had  re- 
t  as  poisonous. 


The  particular  manifestations  at  the  time  they  were  mixed  would  indi- 
cate that  the  articles  were  not  entirely  harmless.  It  would  also  indicate 
that  a  change  then  took  place ;  and  whether  the  compound  was  danger- 
ous or  not,  a  person  unskilled  or  unacquainted  would  not  be  expected 
to  know.  A  knowledge  that  the  compound  might  not  be  entirely 
harmless  might  be  reasonably  inferred,  but  the  character  or  extent  of 
the  harm  would  be  entirely  a  matter  of  speculation. 

In  cases  of  this  kind  the  purchase  or  possession  of  poison  under  false 
pretenses  and  a  knowledge  of  its  properties  are  deemed  among  the  most, 
if  not  the  most  material  circumstances.^  Their  absence  in  this  case  is 
a  matter  to  be  seriously  considered. 

As  bearing  upon  the  knowledge  of  the  defendant  of  the  character  of 
the  mixture  as  well  as  upon  his  connection  with  the  act  itself,  it  is  said 
that  defendant  stated  differently  about  his  knowledge  of  the  mixture  at 
the  time  of  its  discovery  and  at  the  time  he  testified  before  the  coroner 
a  few  days  after  its  discovery.  At  the  time  of  its  discovery  he  said  he 
did  not  know  what  was  in  the  bottle  or  where  it  came  from  or  anything 
about  it.  Before  the  coronor  be  testified  that  he  didn't  know  what  was 
in  the  bottle ;  that  it  came  fiom  Camp's ;  that  Crouch  got  it  for  silver 
washing.  The  variance  will  be  noticed.  If  it  be  true  that  nothing 
had  been  done  about  this  mixture  by  the  defendant  after  the  experi- 
ments of  Crouch  in  December,  then  it  would  not  be  strange  for  the 
defendant  to  fail  to  identify  it  at  the  time  when  first  suddenly  called  on 
about  it,  and  then  afterwards  before  testifying  have  ascertained  or 
recalled  to  memory  the  fact  that  it  was  got  by  Crouch  at  Camp's  for 
silver  washing.  In  other  words,  the  variance  may  be  accounted  for 
consistently  with  defendant's  innocence.  Whether  it  can  be  done  so 
reasonably,  depends  largely  upon  what  other  circumstances  there  may 
be  in  the  case  that  are  of  doubtful  construction  and  which  may  raise 
grounds  for  suspicion.  A  single  circumstance  involving  a  slight  sus- 
picion may  be  woi-thless  and  deserve  no  consideration,  while  several 
of  that  kind,  based  on  distinct  evidence,  may  lead  the  mind  far  toward 
the  presumption  of  guilt. 

We  oome,  then,  to  the  consideration  of  other  circumstances  which 
are  claimed  to  be  suspicious.  It  is  said  that  when  he  was  informed 
of  the  sickness  of  his  wife  he  delayed  to  give  her  attention  and  delayed 
sending  for  the  doctor ;  that  he  was  too  ready  in  his  explanations  to  the 
doctor ;  that  he  knew  her  fatal  condition  before  he  saw  the  doctor,  as 
indicated  by  bis  remark  to  his  son  in  the  presence  of  Clifton ;  that  he 
saw  Bobbins  about  noon  too  ostentatiously ;  that  after  the  death  he  was 
too  ready  for  investigation.     As  to  these  matters,  I  have  carefully  con- 


1  1  Arcbb.  Cr.  Pr.  &  PI.  (8th  ed.)  856;  3 
Wbart.  Cr.  L.  (7lh  ed),  sec  3494,  a. 


966  CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

sldered  the  evidence,  and  I  find  nothing  which  can  not  be  e^Pjaine;^ 
consistently  with  innocence.     She  had  previously  been  troubled  with 
indigestion  and  had  bad  spells  sometimes,  and  was  general  y  costive. 
She  was  on  the  morning  in  question  as  well  as  usual,  and  insisted  upon 
Koing  to  work.    The  information  given  the  defendant  by  Mrs.  Hovey 
L  to  her  being  sick  might  fairly  be  attributed  to  one  of  her  usual 
spells,  and  would  not  require  him  to  drop  everything  in  order  to  see  to 
her.    How  long  the  delay  was  does  not  appear.     It  was  not  long.     He 
then  gave  her  the  usual  remedies,  so  far  as  it  appears ;  they  not  giving 
relief  he  went  for  the  doctor.     His  manner  then  was  natural  for  an 
innocent  man.    When  the  doctor  came  he  asked  the  deceased  what  she 
had  been  taking.    This  might  refer  either  to  what  ^^\^'^J''^*'l^ 
relieve  her  sickness,  or  to  what  she  had  taken  that  produced  it.    The 
doctor  did  not  ask  her  what  brought  on  or  caused  her  sickness,    bhe 
replied  to  the  doctor's  question  that  she  had  taken  nothing  but  what 
they  had  given  her.    The  defendant  then  stated  what  he  had  given 
her ;  no  part  of  his  statement  was  contradicted  by  o^er  evidence.^ 
He  was  certainly  called  on  to  state  what  he  had  given.    Had  he  refused 
or  stated  untruly  or  hesitated,  it  would  have  been  much  more  sus- 
picious.    The  time  of  day  in  which  he  spoke  to  the  boy  m  presence 
of  Clifton  is  concededly  so  uncertain  upon  the  evidence  that  no  pa 
ticular  weight  is  to  be  given  to  it.     So  the  occurrence  testified  to  I. 
Bobbins  looks  to  me  as  quite  insignificant,  as  well ««  uncertam  in  time, 
with  reference  to  the  time  that  the  wife  was  sick.    The  distance  to  the 
defendant's    store  to  where  Bobbin's  was,  was  short.    The  act  of 
defendant  was  brief,  and  it  might  readily  have  happened  before  the 
sickness  of  the  deceased  assumed  apparently  a  dangerous  form,     rhe 
readiness  of  defendant  to  have  an  investigation  looks  to  me  far  from 
having  a  guilty  tendency.     In  weighing  these  circumstances  the  ques- 
tion  Is  not  whether  they  are  consistent  with  his  guilt.    If  there  were 
other  circumstances  which  authorized  the  presumption  of  his  guilt, 
then  the  question  would  be  whether  there  was  anything  else  in  the  case 
that  was  inconsistent  with  his  guilt;  but  when  we  weigh  the  circum- 
stances themselves  from  which  the  guilt  is  sought  to  be  inferred  we 
must  assume  and  start  with  the  presumption  of  innocence.    If  all  the 
circumstances  shown  are  consistent  with  innocence,  then  there  can  be 
no  conviction.    If  they  are  not,  then  the  question  is  whether  they 
point  to  guilt  so  clearly  and  distincUy  as  to  satisfy  the  mind  be- 
vond  a  reasonable  doubt.    The  facts  proved  must  all  be  consistent 
with  and  point  to  the  defendant's  guilt  not  only,  but  they  must  be 
inconsistent  with  his  innocence.*    If  equally  susceptible  of  two  inter- 


1  B«z  *.  Jones,  3  O.  ft  P. 


s  Per  Churoh.O.  J.,  In  People  v.  Bennett, 
49  N.  Y.  144. 


s. 


PEOPLE  V.  STOKES. 


967 


e  ezplaineu 
)ubled  with 
illy  costive, 
isisted  upon 
Mrs.  Hovey 
if  her  usual 
ler  to  see  to 
t  long.     He 
y  not  giving 
bural  for  an 
led  what  she 
ad  taken  to 
ced  it.    The 
ikness.    She 
ng  but  what 
e  had  given 
er  evidence.' 
id  he  refused 
ih  more  sus- 

in  presence 
that  no  pa 
jstified  to  I, 
rtain  in  time, 
istance  to  the 

The  act  of 
d  before  the 
s  form.    The 

me  far  from 
ices  the  ques- 
If  there  were 

of  his  guilt, 
se  in  the  case 
h  the  circum- 
e  inferred,  we 
se.  If  all  the 
n  there  can  be 
whether  they 

the  mind  be- 

be  consistent 

they  must  be 
e  of  two  inter- 

Peop]e  V.  Bennett, 


pretations,  one  innocent  and  one  not,  the  innocent  one  must  be  taken.  ^ 
So,  it  is  said  that  if  it  be  shown  that  either  the  defendant  or  s  third 
person  committed  the  deed,  but  it  can  not  be  distinctly  ascertained 
which  one,  the  defendant  can  not  be  convicted.'  The  same  author  3 
lays  it  down  as  established  by  many  adjudications  that  the  test  of  the 
sufficiency  of  circumstantial  evidence  is  that  the  facts  proved  can  be 
reasonably  accounted  for  on  no  hypothesis  which  excluded  the  defend- 
ant's guilt;  that  with  the  theory  of  his  guilt  they  are  harmonious  and 
consistent,  and  that  they  point  to  it  so  clearly  and  distinctly  as  to 
satisfy  the  jury  of  it  beyond  a  reasonable  doubt. 

The  trouble  in  this  case  is,  to  be  able  to  say  that  the  facts  proved  are 
inconsistent  with  defendant's  innocence ;  that  they  can  not  be  accounted 
for  reasonably  on  any  hypothesis  which  excludes  the  defendant's  guilt* 
The  question  in  my  mind  is  whether  upon  the  evidence  here,  there  are 
not  two  hypotheses  which  at  least  are  as  reasonable  as  that  of  defend- 
ant's  guilt. 

I  have  thus  far  not  referred  to  the  evidence  on  the  subject  of  motive. 
There  is  much  in  the  case  on  that  subject.  Motive,  however  strong,  does 
not  prove  the  crime.  Its  oifBce  is  to  aid  in  the  application  of  other  cir- 
cumstances that  point  toward  guilt.  It  is  said  to  be  a  minor  or  an 
auxiliary  fact  from  which,  when  established  in  connection  with  other 
necessary  facts,  the  main  or  primary  fact  of  guilt  n^ay  be  inferred.^ 
When  the  case  depends  upon  circumstantial  evidence,  and  the  circum- 
stances point  to  any  particular  person  as  the  criminal,  the  case  against 
him  is  much  fortified  by  proof  that  he  had  a  motive  to  commit  the  crime ; 
and  where  the  motive  appears,  the  probabilities  created  by  the  other 
evidence  are  much  strengthened.^ 

In  the  present  case  the  evidence  discloses  a  very  unpleasant  state  of 
things  in  the  family  of  the  defendant.  I  have  no  doubt  the  situation 
In  this  regard  has  had  a  tendency  to  his  prejudice.  Quarrels  between 
husband  and  wife  are  said  to  be  entitled  to  but  little  weight  unless  con- 
nected in  some  way  with  the  fatal  wound."  That  probably,  however, 
depends  upon  the  intensity  and  permanency  of  the  feeling  engendered 
in  iiuch  quarrels.  The  evidence  here  does  not  show  any  permanent  feel- 
ing in  the  defendant  against  his  wife,  herself,  nor  any  feeling  at  all  against 
her  upon  the  day  in  question.  The  question  for  the  court  to  determine 
on  this  motion  is  whether  the  evidence  pointing  to  the  guilt  of  the  de- 
fendant was  sufficiently  strong  to  authorize  the  jury  to  say  that  he  was 
guilty.     Does  the  evidence  authorize  that  finding?    If  it  does,  then  the 


1  PoUook  V.  Pollock,  71 N.  T.  137;  Schultx 
«.  Hoagland.  85  N.  Y.  464. 

<  1  Bigh.  Or.  Pr.  (3d  ed.),  seo.  1106. 
3  sec.  1079. 


*  Pienon  v.  People,  IS  Hun,  233. 

»  Earl,  J.,  In  Pieraon  v.  People,  79  N.  T. 
436. 

•  Whart.  Cr.  Et.,  see.  788. 


968 


CRIMES  AGAINST  THE  PERSONS  OF   INDIVIDUALS. 


verdict  must  stand,   althougli  the  court  might  Imve  to  come  to  a 

different  conclusion.    If  it  does  not,  tlien  the  verdict  would  be  clearly 

against  evidence,  and  should  be  set  aside.     In  the  case  of  People  v. 

Bennett,^  cited  by  the  counsel  for  the  People,  the  ill-treatment  by  the 

defendant  o(  his  wife  was  connected  with  the  occurrence  of  the  fatal 

wound.     There  was  evidence  that  she  could  not  have  inflicted  it  herself. 

He  knew  of  her  bleeding  profusely,  but  did  nothing  to  help  her.     In 

that  case  the  court  were  divided  on  the  question  whether  the  verdict 

was  against  evidence,  but  it  was  set  aside  on  anotlier  ground. 

Having  in  view  the  proposition  laid  down  in  the  Bennett  Case,  that 

the  facts  proved  must  all  be  consistent  with  and  point  to  his  guilt  not  only, 

but  they  must  be  inconsistent  with  his  innocence,  or  as  it  is  put  in 

Poole  V.  People,^  be  inexplicable  upon  the  theory  of  innocence ;  and 

having  in  view  the  want  of  connection  shown  between  the  defendant 

and  the  poison  producing  the  death,  I  am  of  the  opinion  that  the  \er- 

dict  is  not  authorized  by  the  evidence. 

Motion  granted. 


HOMICIDE  — POISONING  — INTENT  TO  TAKE  LIFE  ESSENTIAL. 

Ann  v.  State. 

[11  Humph.  159.] 
In  the  Supreme  Court  of  Tennessee. 

1.  On  as  Andlotment  lor  the  Kurder  of  an  Infant  by  the  adminlgtratlon  of  landanum. 
the  judKe  charged  the  Jury,  that  ■•  if  Ann,  a  slave,  without  authority,  administered  lan- 
dannm  to  the  Infant,  with  the  intent  to  prodace  unnecessary  sleep,  and  contrary  to 
her  expectations  it  caused  death,  she  would  be  guilty  of  murder."  Beld,  erroneous. 
If  an  act  unlawful  in  Itself  be  done  with  a  deliberate  intent  to  effect  mischief,  and 
death  ensues,  though  against  the  Intention  of  the  party,  it  will  be  murder  i  if  the  act 
be  done  heedlessly  and  incautiously  without  such  intent,  it  will  bo  manslaughter  only. 

S.  The  Administration  ->f  Laudanum  was  not  per  ««  unlawful,  and  the  charge  excluded 
from  the  Jury  the  consideration  of  the  facts,  whether  the  defendant  intended  serious 
mischief  to  the  Infant  or  not,  and  whether  the  offense  amounted  to  murder  or  man- 
slaughter. 

1 

This  indictment  was  prosecuted  in  the  Circuit  Court  of  Williamson 
County.     The  defendant  was  found  guilty  and  appealed,    Mamet, 

Judge,  presiding. 

Marshall  &  Figures,  for  the  plaintiff  in  error. 

Attorney-General,  for  the  State. 

McKiKMET,  J.,  delivered  the  opinion       ihe  court. 


149N.T.187. 


3  80N.  Y.64S. 


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The  pi 
Tom,  in 
B.  Marr, 
acquittec 
'.3  indie 
judgracn 
has  beer 
we  have 
outline  y^ 
determin 
prisoner' 
convictec 
death  ws 
prisoner, 
eral  comi 

The  p 
murder, 
the  inf an 
tion  and 
day  of  tl 
to  some  I 
care  of  t 
supposes 
child  sur 
but  did  I 
and  his  ( 
that  the 
a  drop  w 

The  p 
infant, 
upon  the 
by  the  p< 
was  put 
after  the 
Nicliols, 
lived  on 
where  tt 
him,  "  h( 
her  to  sii 
it  had  k 
Tom  ha( 
would  gi 
she  had 


^^ 


ANN   V.  STATE.  969 

The  plaintiff  in  error  was  indicted  jointly  with  another  slave  named 
Tom,  in  the  Circuit  Court  of  Williamson,  for  the  murder  of  Mary  E. 
B.  Marr,  the  infant  child  of  their  master  and  mistress.  The  jury 
acquitted  Tom,  and  found  the  plaintiff  in  error  guilty  as  charged  in 
'.  3  indictment.  The  court  refused  to  grant  a  new  trial,  and  pronounced 
judgment  of  death  upon  the  prisoner,  from  which  an  appeal  in  error 
has  been  prosecuted  to  this  court.  It  is  not  necessary,  in  the  view 
we  have  taken  of  the  case,  to  state  the  evidence  in  detail ;  a  mure 
outline  will  be  sufficient  to  raise  the  questions  of  'aw  presented  for  our 
determination,  except  the  question  in  relation  to  the  admissibility  of  the 
prisoner's  confession.  The  infant,  of  whose  murder  the  prisoner  stands 
convicted,  was  of  extremely  tender  ngc,  only  five  weeks  old  ;  and  the 
death  was  caused  by  an  overdose  of  laudanum  administered  by  the 
prisoner,  without  the  knowledge  of  any  one,  and  contrary  to  the  gen- 
eral command,  not  to  give  the  child  anything  whatever. 

The  prisoner  is  of  immature  age,  being  at  the  time  of  the  alleged 
murder,  not  over  fifteen  years.  A  day  or  two  preceding  the  death  of 
the  infant,  the  prisoner  was  taken  from  the  negro  quarter  on  the  planta- 
tion and  put  in  the  house  to  serve  in  the  capacity  of  nurse.  On  the 
day  of  the  infant's  death,  Mrs.  Marr  went  into  another  room  to  attend 
to  some  of  her  domestic  affairs,  leaving  the  child  asleep  in  the  cradle  in 
care  of  the  prisoner.  She  remained  absent  about  fifteen  minutes  as  she 
supposes,  during  which  time  the  laudanum  was  administered.  The 
child  survived  about  four  hours.  A  physician  was  immediately  sent  for 
but  did  not  arrive  until  about  two  hours  after  the  laudanum  was  given, 
and  his  efforts  to  counteract  its  effects  were  unavailing.  He  states, 
that  the  death  was  caused  by  an  overdose  of  laudanum  and  that  half 
a  drop  was  as  large  a  dose  as  the  infant  could  have  borne. 

The  prisoner  for  some  time  denied  having  given  laudanum  to  the 
infant.  Her  master  was  much  excited  ;  inflicted  blows  with  his  hand 
upon  the  prisoner ;  threatened  to  shoot  her,  but  was  induced  to  desist 
by  the  persuasion  of  his  wife,  and  sent  her  off  to  the  quarter,  where  she 
was  put  in  chains  around  her  body  and  neck.  On  Saturday  evening 
after  the  death  of  the  child,  which  happened  on  the  preceding  day, 
Nichols,  the  overseer  of  Marr  and  Giles,  the  overseer  of  Perkins,  who 
lived  on  an  adjoining  farm,  went  together  after  night  to  the  house 
where  the  prisoner  was  confined.  Giles  states,  that  she  was  asked  by 
him,  "how  she  came  there,"  seemed  slow  in  speaking.  Nichols  told 
her  to  speak.  She  then  said  she  had  given  laudanum  to  the  baby  and 
it  had  killed  it.  He  then  asked  hor  how  she  came  to  do  it?  She  said 
Tom  had  been  at  her  to  meet  him  out  at  night,  and  told  her  if  she 
would  give  it  laudanum  it  would  sleep  until  she  could  get  back ;  that 
she  had  asked  him  if  it  would  hurt ;  he  said  no,  he  had  given  it  many 


970  CRIMES  AGAINST  THE  PERSONS   OP  INDIVIDUALS. 

times  to  bis  wife  Eliza,  and  it  never  Imrt  lier.     Slie  was  told,  slie  had 
better  come  out  and  tell  the  truth—  it  would  be  better  for  her.     She 
was  asked  if  she  would  make  the  same  statement  before  Tom,  that  she 
had  made  to  witness  and  Nichols ;  she  said  she  would.     Witness  and 
Nichols  then  went  to  Tom's  house  and  took  him  into  the  house  where 
prisoner  was,  and  told  her  to  tell  her  tale  again.     She  said  Tom  had 
recommended  her  to  give  it,  and  it  would  make  the  baby  sleep  till 
she  could  get  back ;  and  she  asked  him  if  it  would  hurt.    Tom  denied 
all  this.     She  said  she  thought  she  would  try  and  see  if  it  would  make 
it  sleep,  and  had  poured  some  in  her  hand  and  give!i  it.     That  since  she 
had  been  chained  Tom  had  been  there  and  told  her  she  had  given  it 
wrong;  that  she  ought  to  have  put  some  brandy  in  it,  and  sweetened  it, 
and  warmed  it,  md  then  the  child  would  not  have  died  in  several  days ; 
that  he  told  her  she  must  admit  she  had  given  it,  but  not  to  call  his  name, 
or  he  would  shorten  her  days.     Tom  denied  all  this.     Witness  further 
stated  that  "  in  the  first  talk  with  her  he  told  it  would  be  better  for  her 
to  come  out  and  tell  the  truth."     Nichols'  statement  of  the  prisoner's 
confession  is  somewhat  different  from  that  of  Giles ;  but  we  have 
thought  proper  to  take  the  latter  as  probably  the  more  coiTcct  and 

reliable  statement. 

There  is  proof  in  the  record  of  an  improper  intimacy  having  existed 
between  Tom  (who  was  of  mature  age)  and  the  prisoner  for  some  weeks 
previous  to  the  removal  of  the  latter  from  the  quarter  to  the  house. 
The  witness,  Nichols,  speaks  of  one  occasion  when  he  detected  them, 
but  he  says  "  he  passed  on  and  said  nothing,  as  it  was  no  business  of 
his,  and  he  did  not  care  what  he  did." 

Judging  from  the  avowal  of  the  overseer,  the  morals  of  the  slaves 
under  hia  dominion  were  in  bad  keeping ;  and  it  is  not  much  to  be  won- 
dered  at  that  the  prisoner  —  who  was  brought  up  at  the  quarter  —  had 
a  more  imperfect  sense  of  the  obligations  of  morality  and  common 
decency  than  is  even  usual  among  those  of  her  own  caste  and  social 

condition. 

The  circuit  judge,  in  his  introduction  to  the  jury—  after  stating  the 
general  definition  of  murder  and  malice,  and  laying  down  some  general 
principles,  the  correctness  of  which  is  not  questioned  —  said :  "  If  Ann, 
the  prisoner,  by  force  poured  laudanum  into  the  mouth  of  Mary  E.  B. 
Marr,  such  act,  unless  excused  or  justified  by  the  evidence,  would 
amount  to  a  battery,  and  she  would  be  responsible  in  law  for  the  natural 
effects  of  the  laudanum,  although  they  may  have  been  more  serious 
than  she  designed  or  expected. 

"If  Ann  was  the  slave  of  Nichols  Marr,  the  witness,  and  was 
employed  by  him  to  attend  to  Mary  E.  B.  Marr ;  and  if  she  was  ordered 
by  her  master  not  to  administer  anything  to  the  said  Mary  E.  B.  Llarr; 


DUALS. 

iras  told,  she  had 
er  for  her.  She 
tre  Tom,  that  she 
d.     Witness  and 

the  house  where 
Ihe  said  Tom  had 
B  baby  sleep  till 
irt.  Tom  denied 
if  it  would  make 
;.  That  since  she 
r  she  had  given  it 
and  sweetened  it, 
i  in  several  days ; 
it  to  call  his  name, 

Witness  further 
i  be  better  for  her 
of  the  prisoner's 
les;  but  we  have 
more  coiTect  and 

icy  having  existed 
er  for  some  weeks 
Birter  to  the  house, 
[le  detected  them, 
ras  no  business  of 

rals  of  the  slaves 
)t  much  to  be  won- 
the  quarter  —  had 
ality  and  common 
m  caste  and  social 

—  after  stating  the 
down  some  general 

—  said:  *'If  Ann, 
•uth  of  Mary  E.  B. 
le  evidence,  would 
1  law  for  the  natural 
been  more  serious 

I  witness,  and  was 
I  if  she  was  ordered 
I  Mary  E.  B.  Llarr; 


ANN   V.  STATE. 


971 


if  she,  without  authority,  willfully  administered  laudanum  to  said  Mary, 
intending  thereby  to  produce  unnecessary  sleep,  and,  contrary  to  her 
expectations,  it  caused  death,  she  would  be  guilty  of  murder." 

The  first  question  for  our  consideration  is,  was  the  confession  of  the 
prisoner,  which  was  objected  to,  properly   admitted  as  evidence  to 
the  jury?    This  is  a  question  which  admits  of    no  discussion.    All 
the  authorities  concur,  that  a  confession,  to  be  admissible  as  evidence, 
must  have  been  freely  and  voluntarily  made,  and  not  under  the  influ- 
ence of  promises  or  threats.     As  to  what  is  such  a  promise  or  threat  as 
wiU  exclude  a  confession,  it  is  laid  down,  that  saying  to  a  prisoner  it 
will  be  worse  for  him  if  he  do  not  confess ;  or  that  it  will  be  better  for 
Lim  if  he  do,  is  sufficient  to  exclude  the  confession.  ^    So  where  a  sur- 
geon called  to  see  a  prisoner  charged  with  murder,  said  to  her,  "  you 
are  under  suspicion  of  this,  and  you  had  better  tell  all  you  know,"  the 
confession  was  held  inadmissible. «    So,  where  it  was  said  to  the  pris- 
oner, "  it  would  have  been  better  if  yon  had  told  at  first,"  the  confes- 
sion was  rejccted.3    It  would  be  a  useless  labor  to  multiply  authorities 
upon  a  point  in  respect  to  which  there  is  no  substantial  disagreement  to 
be  found  in  the  books.     Nor  would  it  be  more  profitable  to  indulge  in 
speculation  as  to  the  probable  influence  of  such  a  promise  or  threat  in 
a  particular  case ;  certainly  not  in  the  case  of  a  timid  girl,  of  tender 
age,  ignorant  and  illiterate,  a  slave  and  in  chains,  whose  life  had  been 
threatened  by  her  master,  and  against  whom  the  hand  of  every  one, 
even  those  of  her  own  color  and  condition,  seem  to  have  been  raised. 
In  such  case,  and  in  all  cases,  the  law  presumes,  and  conclusively  pre- 
sumes, that  an  influence  was  exerted  upon  the  mind  of  the  prisoner, 
and,  therefore,  all  inquiry  upon  the  subject  is  precluded. 

2d.  The  next  question  is,  was  the  law  correctly  stated  to  the  jury? 
We  think  not.  The  errors  of  the  charge  will  be  obvious  from  the  mere 
statement  of  a  few  plain  elementary  principles. 

To  constitute  the  crime  of  murder  by  the  common  law,  and  by  that 
law  this  case  is  to  be  governed,  the  killing  must  be  with  malice  afore- 
thought; no  matter  by  which  of  the  thousand  means  adequate  to  the 
destruction  of  life,  the  death  may  have  been  effected. 

Malice,  in  its  legal  sense,  is  the  sole  criterion  by  which  murder  is  dis- 
tinguished from  every  other  species  of  homicide.  The  malice  essential 
to  constitute  the  crime  of  murder,  however,  is  not  confined  to  an  inten- 
tion to  take  away  the  life  of  the  deceased ;  but  includes  an  intent  to  do 
any  unlawful  act  which  may  probably  result  in  depriving  the  party  of 
life.  It  is  not,  in  the  language  of  Blackstone,  so  properly  spite  or 
malevolence  to  the  individual  in  particular,  as  an  evil  design  in  general, 


1  3  East's  P.  0. 6S9. 


»  4  C.  *  P.  387. 


»  6  C.  4  P.  175. 


972 


CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 


the  dictate  of  a  wicked,  depraved,  and  malignant  heart;  r.nd  it  may 
be  cither  express  or  implied  in  hiw.'  ' 

If  an  action,  unlawful  in  itself,  be  done  deliberately  and  with  inten- 
tion of  mischief,  or  great  bodily  harm,  to  particulars,  or  of  mischief 
indiscriminately,  fall  where  it  may,  and  death  ensue,  against,  or  beside 
the  original  intention  of  the  party,  it  will  be  murder,  But  if  such  mis- 
chievous intention  do  not  appear  (which  is  matter  of  fact  to  be  collected 
from  the  circumstances),  and  the  act  was  done  heedlessly  and  incau- 
tiously, it  will  be  manslaughter  only.*  But  if  the  death  ensue  in  the 
performance  of  a  lawful  act,  it  may  amount  either  to  murder,  man- 
slaughter, or  misadventure,  liccording  to  the  circumstances  by  which 
it  is  accompanied.  3 

These  general  principles  apply  as  much  to  a  case  where  death  ensues 
by  means  of  a  medicine  of  poisonous  qualities,  as  to  any  other  species 
of  homicide.  It  is  true,  that  where  one  willfully  poisons  another,  from 
such  deliberate  act,  the  law  presumes  malice,  though  no  particular 
enmity  can  be  proved.*  But  this  presumption  may  be  displaced  in  a 
case  of  death  from  poison,  as  in  other  cases,  by  direct  proof,  or  by  the 
circumstances  of  the  particular  case. 

If,  as  Blackstone  says,  the  poison  -  re  willfully  administered,  that  is, 
with  intent  that  it  should  have  the  effect  of  destroying  the  life  of  the 
party;  or  if,  in  the  language  of  Foster,  the  act  were  "  done  deliber- 
ately and  with  intention  of  mischief,  a  great  bodily  harm,"  and  death 
ensue,  it  will  be  murder.  But  if  it  were  not  willful,  and  such  deliberate 
mischievous  intention  do  not  appear ;  and  the  act  was  done  heedlessly 
and  incautiously,  it  will  be  only  manslaughter  at  most. 

Testing  the  charge  by  these  familiar  principles,  it  is  manifestly  incor- 
rect in  several  respects.  It  assumes,  that  if  the  prisoner  administered 
the  laudanum  in  violation  of  her  master's  order,  for  the  purpose  of 
'» producing  unnecessary  sleep,"  and  death  ensued,  contraiy  to  her 
intention,  she  is  guilty  of  murder.  This  is  not  law.  In  the  first  place, 
the  charge  puts  the  disobedience  to  the  master's  order,  on  the  same 
footing  with  a  violation  of  a  command  or  prohibition  of  the  law.  This 
is  a  great  mistake.  Such  violation  of  the  master's  order,  is  not  an 
«♦  unlawful  act "  in  the  sense  of  the  rule  above  stated. 

It  is  no  offense  against  the  law  of  the  land ;  nor  is  it  cognizable  by 
any  tribunal  created  by  law.  It  is  an  offense  simply  against  the  private 
authority  of  the  master  and  is  cognizable  and  punishable  alone  in  the 
domestic  forum.  Again ;  the  criminality  of  the  act  is  made  to  depend 
upon  an  intent,  with  reference  to  the  deceased  infant,  which  may  be  in 
law,  if  not  positively  innocent,  at  least  comparatively  so. 


1  4  Bla.  Com.  199, 200. 
■  FoBt.  261. 


3  /d.  262 ;  1  Hale,  472 :  4  Bla.  Com   192. 
*  i  Bla.  Com.  199. 


^tfi 


^IDUALS. 

heart ;  r.Dd  it  may 

ely  and  with  inten- 
irs,  or  of  mischief 
against  or  beside 
But  if  such  mis- 
fact  to  be  collected 
ediessly  and  incau- 
death  ensue  in  the 
r  to  murder,  man- 
ustances  by  which 

sphere  death  ensues 
0  any  other  species 
isons  another,  from 
)ugh  no  particular 
ly  be  displaced  in  a 
act  proof,  or  by  the 

Iministered,  that  is, 
•ying  the  life  of  the 
ere  ' '  done  deliber- 
r  harm,"  and  death 
and  such  deliberate 
nras  done  heedlessly 
>st. 

is  manifestly  incor- 
■isoner  administered 
for  the  purpose  of 
id,  contraiy  to  her 
In  the  first  place, 
order,  on  the  same 
n  of  the  law.  This 
's  order,  is  not  an 
ed. 

r  is  it  cognizable  by 
y  against  the  private 
lishable  alone  in  the 
i  is  made  to  depend 
nt,  which  may  be  in 
i\y  so. 

s,  472 :  4  Bla.  Com   192. 


ANN  V.  STATE. 


973 


The  laudanum  may  have  been  given  by  the  prisoner  in  utter  ignorance 
of  the  fact  that  it  possessed  any  poisonous  quality;  and  there  may  have 
been  a  total  absence  of  any  intention  to  do  serious  injury,  or  indeed 
injury  of  any  sort,  much  less  to  destroy  the  life  of  the  child.  If  tlie 
prisoner's  purpose  really  wm,  to  superinduce  a  state  of  temporary 
quietude  or  sleep,  without  more,  in  order  to  afford  better  opportunit\ , 
or  greater  facility,  for  carrying  on  her  own  illicit  intercourse  with  Tom, 
this,  however  culpable  in  morals,  would  not  involve  her  in  the  guilt  of 
murder.  The  tenderest  of  mothers  might  administer  laudanum  to  her 
infant  incautiously,  in  order  to  be  enabled  to  attend  to  some  pressing 
call  of  her  household  affairs,  which  admitted  of  no  delay ;  or  a  gay 
and  thoughtless  matron,  devoted  to  the  pursuit  of  pleasure,  though  not 
♦'evoid  of  natural  affection  for  her  infant,  might  give  a  similar  dose  in 
order  to  bave  opportunity  to  attend  the  theater  or  ball-room  for  a  time. 
And  although  in  both  the  latter  cases  the  motive,  so  far  as  respects  the 
actors.  Is  different,  and  less  offensive  to  morals  or  propriety,  yet  the  pur- 
pose or  intention,  with  reference  to  the  effect  to  be  produced  uix)n.the 
child,  is  the  same  in  kind  at  least,  that  is,  in  the  language  of  the  charge, 
to  "  produce  unnecessary  sleep."  And  yet,  perhaps,  no  one  would 
contend  that,  had  death  ensued,  in  either  case,  the  mother  would  have 
been  guilty  of  either  murder  or  manslaughter. 

In  the  case  of  the  prisoner,  her  relation  as  a  slave,  taken  in  connection 
with  her  disregard  of  her  mrster's  positive  direction,  and  the  gross  heed- 
lessness  and  incautiousness  of  the  act,  might  constitute  her  offense 
manslaughter,  but  certainly  nothing  more. 

The  charge  of  the  couri  then,  is  not  only  erroneous  in  excluding 
from  the  jury  the  questions  of  fact,  whetiier  or  not  the  prisoner  had 
knowledge  of  the  poisonous  quality  of  laudanum,  and  whether  or  not 
there  exisited  in  the  mind  of  the  prisoner  an  intent  to  kill,  or  to  do 
serious  injury  to  the  deceased ;  but  likewise,  in  not  submitting  it  to  the 
jury  to  determine  the  grade  of  offense,  whether  murder  or  man- 
slaughter. 

If  the  offense  amounted  to  no  more  than  manslaughter,  as  we  hold 
to  be  clear,  then  the  Circuit  Court  had  no  jurisdiction  of  the  case. 
[Omitting  another  point.] 

Judgment  reversed. 


974  CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 

HOMICIDE  BY  POISONING  —  PROOF— SYMPTOMS. 

Joe  v.  State. 

[6  ¥la.  671 ;  65  Am.  Dec.  679.] 
In  the  Supreme  Court  of  Florida,  1856. 

•ymptonu  of  ThenneWe.  are  Insufficient  to  .u.Uln  a  conviction  for  adminlrtering 
poiBon.  The  Indirect  proof  considered  BRtiifactorj  in  auch  cmm  it  that  of  cbemleal 
analysia  and  tests  of  the  contents  of  the  stomach  and  bowels. 

Indictment  for  administering  poison.     The  facts  are  stated  in  the 

opinion. 
A.  L.  Woodward,  for  the  appellant. 
M.  D.  Papy,  Attorney-General,  for  the  State. 
By  the  court,  Baltzell,  C.  J.    This  is  an  appeal  from  a  conviction 
and  sentence  of  death  passed  upon  the  prisoner  Joe,  on  a  charge  of 
having  administered  poison  and  white  arsenic  to  a  negro  woman, 
Rebecca.     She  did  not  die  from  the  alleged  eftects,  but  is  examined  as 
the  only  witness  to  the  facts  of  the  case,  excepting  the  medical  attend- 
ant.    But  little  complaint  is  made  of  the  instructions  given  to  the  jury 
which  seem  to  have  been  drawn  with  exceeding  care  and  caution  on 
the  part  of  the  judge  below,  and  are  on  the  whole,  liberal  to  the  pris- 
oner.    Reliance  is  placed  in  this  court  on  a  motion  for  a  new  trial,  pre- 
sented to  and  overruled  by  the  court  below,  and  the  broad  position 
assumed  that  the  facts  of  the  case  do  not  establish  a  case  of  guilt. 

It  is  rather  a  singular  circumstance  that  new  trials  were  nevor  granted 
until  within  a  recent  period,  in  England,  in  cases  of  felony,  this  object 
being  in  some  degree  attained  by  the  judge,  reserving  a  point  of  diffi- 
culty for  the  decision  of  the  court  above.  The  courts  of  this  country 
have  maintained  a  different  practice,  even  granting  a  new  trial  where 
the  case  was  either  against  the  weight  of  the  evidence  or  not  sustained 
by  it.  Appeals  are  not  often  allowed  in  criminal  cases,  and  if  per- 
mitted, the  assignment  of  error  is  usually  confined  to  questions  of  law. 
In  this  State  the  appeal  is  not  only  allowed,  but  the  duty  is  imposed 
upon  the  court  of  examining  into  the  correctness  of  the  ruling,  as  to 
the  refusal  of  a  new  trial. 

The  crime  of  poisoning  is  of  so  shocking  a  character,  so  revolting  to 
every  sentiment  of  our  nature,  so  far  exceeding  all  others  in  atrocity, 
that  we  have  not  been  able  to  yield  a  willing  ear  to  the  accusation  or  to 
admit  it  with  ready  facility.  If  true,  the  punishment  of  the  law  would 
not  be  by  any  means  too  severe.  With  a  due  sense  of  its  importance, 
as  well  to  the  public  as  to  the  prisoner,  not  at  all  diminished  by  the 
fact  that  the  individual  implicated  is  a  free  man  of  color,  we  approach 


IDUALS. 


FTOMS. 


'6. 

lotion  for  adminiiterinr 
••••  !•  thatof  obamiMl 


are  stated  in  the 


from  a  conviction 
0€,  on  a  charge  of 

a  negro  woman, 
but  is  examined  as 
\,he  medical  attend- 
}  given  to  the  jury 
re  and  caution  on 
liberal  to  the  pris- 
'or  a  new  trial,  pre- 
tbe  broad  position 
,  case  of  guilt, 
were  nevor  granted 
felony,  this  object 
ing  a  point  of  diffl- 
arts  of  this  country 
g  a  new  trial  where 
:e  or  not  sustained 

cases,  and  if  per- 
lO  questions  of  law. 
he  duty  is  imposed 
of  the  ruling,  as  to 

eter,  so  revolting  to 
others  in  atrocity, 
the  accusation  or  to 
nt  of  the  law  would 
B  of  its  importance, 
1  diminished  by  the 
color,  we  approach 


JOE  V.  STATE. 


975 


the  consideration  of  the  subject.  The  cases  to  be  found  in  the  books, 
both  medical  and  legal,  exhibit  abundant  evidence  of  the  absence  of 
proper  skill  and  acquaintance  with  the  subject,  creating  the  fearful  im- 
pression that  many,  very  many,  innocent  persons  have  been  sacrificed 
to  prejudice  and  ignorance  rather  than  to  actual  guilt. 

Modern  science,  with  its  pervading  power,  has  removed  this  diflaculty 
by  substituting  certainty  in  place  of  the  obscurity  that  has  so  long  pre- 
vaibd.    To  the  philosopher,  the  man  of  science,  and  physician,  the 
world  is  indebted  for  important  aid  in  judicial  investigations  through 
means  of  chemical  tests  applied  to  matter  ejected  from  the  stomach  and 
bowels,  and  to  the  different  parts  of  the  body.    A  remarkable  instance 
of  the  certainty  attending  such  an  examination  is  given  in  the  Edinburgh 
Medical  Journal  of  Science  as  having  occurred  in  Paris.     The  head, 
trunk,  and  two  lower  extremities  of  a  man  were  found  in  different  and 
distant  parts  of  the  city,  and  were  subjected  to  the  scrutiny  and  ex- 
amination of  physicians,  wlio,  applying  to  them  the  results  of  science 
and  skill,  came  to  the  conclusion  that  the  individual  was  killed  during 
sleep,  a  sleep  induced  by  artificial  means ;  that  this  was  the  result  of 
drunkenness  or  the  effect  of  some  narcotic ;  that  the  throat  must  have  been 
cut,  and  an  immense  quantity  of  blood  lost;  that  the  decapitation  and 
cutting  off  of  the  limbs  must  have  beenimmediatelyperformedby  a  per- 
son accustomed  to  such  operations ;  that  the  instrument  was  sharp-edged 
and  long ;  that  the  person  committing  the  act  must  have  been  a  vigorous 
person  and  the  incisions  made  by  the  same  hand,  but  the  murderer 
became  nervous  at  the  close  of  the  deed.    They  then  examined  the 
internal  parts,  and  came  to  the  conclusion  that  the  deceased  labored 
under  no  disease.    In  examining  the  contents  of  the  stomach,  they 
found  a  small  quantity  of  alcohol  and  prussic  acid.    A  few  weeks  after- 
wards the  murderer  delivered  himself  up  and  confessed,  confirming  in 
a  remarkable  degree  these  various  opinions  of  the  physicians.^    The 
German  and  French  authors  on  medical  jurisprudence  hold  that  poison- 
ing can  never  be  completely  established  unless  the  particular  poison  be 
found,  a  doctrine  not  adopted  in  English  jurisprudence.^    Yet  this 
accomplished  author  says:  "Upon  general  principles,  it  can  not  be 
doubted  that  courts  of  law  would  require  chemical  evidence  of  the 
poisoning  whenever  it  was  attainable,  and  it  is  believed  that  no  modern 
case  of  satisfactory  conviction  can  be  adduced  where  there  has  not 
been  such  evidence,  or  in  its  absence  the  equivalent  of  confession. "» 
"The  most  decisive  and  satisfactory  evidence  of  poisoning,"  says  this 
author,  "  is  the  discovery  by  chemical  means  of  the  existence  of  poison 
in  the  body,  in  the  matter  ejected  from  the  stomach,  or  in  the  food  or 


1  wills,  on  Cir.  Et.  144. 
3  7d.  21S,216. 


•  Id.  221. 


97r.  CRIMKS   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

drinks  of  which  tbe  sufferer  has  pnrtalcen."  »  "  It  is  even  maintained 
tbLt  r.virtion  can  not  l>e  eonsiaercl  natisfactory  where  c.rcumstances 
of  su^ci  n  von  are  Mended  with  the  scientific  testimony  unless  the 
^rimo  be  establi.l.ed  by  adequate  evidence  independently  of  moral  cu- 

""rcase'^before  us  there  was  no  examination  of  a  ay  kind  made. 
Th    c^^t^nTs  of  the  stomach  and  bowels  were  not  even  noticed  unt.    a 
^^  afTrwards,  and  this  material  part  of  evidence,  so  important  to  the 
as  ertah  ment  of  truth,  is  wholly  wanting.     In  the  symptoms,  and  the  e 
abne       there  evidence  of  guilt.     Before  noticing  these  it  .s  proper  to 
rorr  to  the  weight  and  consequence  assigned  to  such  evidence  m  books 
of  au  Wy.Tegal  as  well  as  medical.     "  Medical  writers  appear  to  be 
agreed  in  o^inLi,  that  the  symptoms  and  post  sorter,  -amination, 
wbTch  are  commonly  incident  to  cases  of  poisoning,  are  such  as  in  gen- 
eral mav  be  produced  by  other  cases."  »  ,  .  .  .        .  ,„ 
The  Penny  Cyclopedia,^  in  an  elaborate  article  contaming    a  re- 
Jw  of  treTubiJct  says :  "  It  is  evident  from  these  circum^tance^^^t 
]n  a  fatal  case  of  suspected  poisoning  by  an  irritant  subject,  it  wil  sel- 
dom be  poss  We  to  decide  upon  the  evidence  of  the  symptoms  alone, 
men  poron  has  actually  been  taken,  the  symptoms  are  sometimes  so 
modTfieS  by  circumstances  peculiar  to  the  case,  that  even  wliere  they 
rvebeencarefullyobserved,muchdoubtbas^ 

cause-  and.  on    the  other  hand,  the  symptoms  of  natu.ally  excited 
TeaVe,  In  too  closely  resemble  those  of  Po^-n,  to  permit  a  positrv 
conclusion  being  arrived  at.     The  circumstances  that  usually  flist  ex 
Te  suJ^°.on  of  poison  having  been  taken  are,  that  the  person  affected 
i    sudd    ly  attacked  by  symptoms  of  severe  illness    which  come  on 
soon  a  ter  eating  or  ddnking,  without  any  premomtory  mdicatmns 
Teh  regularly  increase  in  severity  without  undergoing  any  important 
Th  fge  in  the  Character,  and  which  rapidly  prove  fatal    AllUiese.  how- 
ever, are  far  from  affording  sufficient  evidence  of  P^^^^^g  .  f  "^^ 
denness  of  attack  is  common  to  many  disorders,  as  c^o  era,  whethe 
ordhiary  or  Asiatic,  plague,  perforating  ulceration  of  the  digest  v 
cala   Tpoplexy  and  epUepsy;  and  even  in  some  cases  of  fever    h 
TremXy  s/mptoms  are  too  slight  to  attract  the  attention  of  the 

'th"ist.  then,  symptoms,  as  a  general  rule,  may  not  be  -lie^  -^ - 
2ivin^  satisfactory  evidence  of  the  use  or  presence  of  poison  the  ques 
Srjet  arises:    May  not  symptoms,  in  the  specific  case  of  poisoning 
by  a^enic.  by  irritant  subjects,  when  applied  to  those  proved  to  exist 

3  Wills,  on  Cir.  Ev.  211 ;  Whart.  Or.  L.  (3d 

ed.)  3»l. 

«  vol.  18,  p.  307. 


1  Id.  21B. 

3  /<(.233,234. 


J 


:  DUALS. 

(  even  maintained 
lire  circumstances 
mony,  unless  tlic 
ntly  of  moral  cir- 

if  a  ay  kind  made, 
en  noticed  until  a 
o  important  to  the 
mptoms,  and  these 
lese  it  is  pioper  to 
evidence  in  books 
Titers  appear  to  be 
\rtem  examination, 
are  such  as  in  gen- 

5  containing    a  re- 
circumstances  that 
subject,  it  will  sel- 
le  symptoms  alone. 
IS  are  sometimes  so 
lat  even  where  they 
Qed  respecting  their 
[  naturally  excited 
to  permit  a  positive 
that  usually  first  ex- 
;  the  person  atfectcd 
;s3,  which  come  on 
lonitory  indications, 
going  any  important 
ital    All  these,  how- 
of  poisoning.     Sud- 
as  cholera,  whether 
on  of  the  digestive 
J  cases  of  fever  the 
the  attention  of  the 

r  not  be  relied  on,  as 
B  of  poison,  the  ques- 
ific  case  of  poisoning 
those  proved  to  exist 

r.  Ev.  211;  Whart.  Cr.  L.  (3d 
7. 


JOE   V.  STATE. 


P77 


in  the  ease  under  consideration,  sustain  the  conviction  and  establish  the 
yt'ilt  of  tlie  prisoner?  It  is  much  to  be  regretted,  that  in  the  solution 
of  these  important  questions,  we  have  not  the  aid  of  the  intelligent  phy- 
sicians who  gave  to  the  jury  a  desoriplion  of  the  symptoms  usual  in 
cases  of  poisoning  by  arsenic,  their  statement  not  lieing  fully  incor- 
porated in  the  record,  and  only  a  few  symptons  deserihed  by  one  of 
them;  and  thus,  we  are  necessarily  thrown  ui)on  our  own  imperfect 
knowledge  and  researches  in  prosecuting  our  investigation  upon  the  au- 
thorities cited  in  the  brief  of  the  prisoner's  counsel,  the  positions 
assumed,  and  the  views  presented  in  his  argument.  It  is  true,  the  at- 
tending i)hysieian  expresses  iiis  opinion  that  the  case  exhibited  specific 
symptoms  of  poisoning  by  arsenic,  yet,  with  all  respect  for  his  intelli- 
gence and  learning,  we  should  n(jt  deem  that  we  had  discharged  our 
duty,  in  relying  upon  that  alone,  without  a  more  extended  examination. 
It  must  be  remembered,  too,  that  his  evidence  is  necessarily  imperfect, 
as  he  saw  none  of  the  symptoms  of  the  first  day,  nor  noticed  the  appear- 
ances of  matter  ejected  from  the  stomach  and  bowels  at  this  period, 
most  important  and  interesting  of  all  others  to  the  true  understanding 
of  the  subject.  The  witness  speaks  a  o  of  symptoms  not  specified  in 
the  record,  from  which  we  infer  that  some  possibly  essential  to 
the  formatioa  of  a  riglit  judgment,  are  omitted.  If  this  be  so,  it  is 
deeply  to  be  regretted,  as  the  court  must  decide  the  case  upon  the  facts 
set  forth  in  the  record  and  are  not  permitted  to  presume  any  not  pre- 
sented. 

Let  us  now  refer  to  the  facts  developed  by  the  evidence  in  the  case 
under  consideration.  "The  prisoner  and  the  person  complaining  of 
being  poisoned,  a  slave  named  Rebecca,  were  at  work  at  Mrs.  Gerard's 
in  Tallahassee,  both  engaged  in  getting  breakfast  —  the  woman  for  the 
white  family.  The  prisoner  handed  Rebecca  some  cow  haslet  which  he 
had  been  cooking  in  an  iron  pot,  asking  lier  to  eat.  She  ate  about  six 
mouthfuls,  and  immediately  felt  a  pain  in  the  heart  — can  not  express 
tiie  rest  of  her  feelings  ;  felt  as  if  she  wanted  to  throw  up,  but  could  not 
just  then.  Commenced  vomiting  about  eleven  o'clock  of  that  day  ;  was 
blind  when  the  misery  was  on;  had  great  pain  in  breast,  then  all  over. 
For  two  or  three  months  was  unable  to  work  much  at  anything ;  had 
not  been  sick  before  eating  the  haslet;  felt  effects  immediately  after 
eating,  felt  as  if  going  to  die;  had  painful  and  bloody  discharges." 
This  is  the  statement  of  Rebecca  herself.  A  physician  was  not  called 
in  until  the  second  day ;  he  speaks  of  the  appearance  of  the  patient  as 
follows:  "There  was  frequent  vomiting  and  discharges  from  the 
bowels,  both  tinged  with  blood ;  legs  partially  paralyzed ;  great  tender- 
ness about  the  stomach ;  patient  a  week  under  treatment." 
Do  these  facts,  as  detailed  by  the  witnesses,  of  themselves  afford 
3  Defences.  62 


978  CRIMES   AOA1N8T  THE  PEnSONS   OF   INDIVIDUALS. 

sufficient  ana  satisfactory  evidence  of  l^^-^-'^'^^l:?^:::^^^ 

z  remove  uii  rea.ona.io  <^^;;!;^j:::r::s^:^^:^iu 

duced  tl.e  symptoms  eKlub. ted      ^^   "^    "  ^^  ,^  ^^,,  ^,  imperfect 
especially  tl.is  particular  k.nd,  .n  -y  7^;;^^^^^  in  a  bad  state 

of  prtservation,  V099'|>'y  «^^«  j.^^^  ^^^^^^a  as  ti.e  con- 

alone?  „„  ♦i.o  nonal  avmntoms  in  cases  of 

Medieal  writers  give  the  following  as  the    »"«^    '^1^  administra- 
•    .     i» '!'».«  r'liief  svmptoms  caused  by  the  inierni»i  »uui 
poisoning:       Ihe  chief  m  ^^.^^^.„„  ^^  gome  or  all 

tion  of  irritant  poisons  are  ^^^f  ^^/^^^^^^^n     .^^ite  burning,  heat, 
parts  of  the  aH-ntary  jaL     Jhey  ,J.e^a  _ y^  ^^  ^^^  ^.^.^^^  ^^,  ^,^^ 

redness  and  -«^-g'  ^^^  ^^^^^^  ,,  ,,,„oW.ng,  burning  pain  of 
throat,  mouth  and  to"g"e,  cum  j  ^^^jting,  tenderness  on  press- 
the  stomach,  with  nausea,     tclug^^^^^^^^  g,^^^^      ^^^  ^^^^^^^ 

ure,  ami  tension  otl^  'PP^Jf  ^^^^.^^  ,,„,ents  of  the  stomach, 
vomited  consist,  first,  of  the  'ooci  o  ^^^^^  ^.j^. 

and  afterwards  of  tough  -^-^^^-^^^^^l^Zl  accompanied  by  severe 
t.e  .cUness  is  almo^^^^^^^^^^^  -mU  along  a  part 

suffering.     The  pain  coma  o    j  tpndorness  on  pressure,  and 

or  the  whole  of  the  digesUve  ^^^^^^^^^Z^'Z  loss  of  blood, 
usually  constant  and  painful  d'^^^^';;''  ^  prostration  of  strength. 
The  pulse  is  quick  and  feeble ;  there  i    f^-'^  ,,  ,,,,. 

excessive  burning,  tinrst  -^  ^^^^^J^J^^^^-^^U   of  breathing." 
tcnance  and  manner,  and  of  ten  considerame  y  ^^^.tj^n 

The  most  general  -^^'\'>' ^'^'XirmZl^J^iol  be  regarded  as 
of  the  stomach,  and  its  adm.nist  a  on  ^^^^^l^'J^^^^^^^  the 

highly  probable  in  -.V  ««««!" '^^"f.;  stomach  a-ing  Hfe,  and  its 

sifns  of  an  acute  ^•;«--^-J^^^ 

effects  after  ^-^^.   ^  /°  7;;;,:"a  directly  after  the  poison  is  taken, 

^z  :«:^  "-  -J^ --^  -  --  ^'^-  ^"  ^^ "'  ^^'^"^- 


"I 


'•^^Beck  represents  the  symptoms  of  ^^l^^^l  "^^sta  Is 
„.arkable  as  not  to  be  confounded  -^'^^^^^^JZZo-t  to  the  rec- 
them  to  be,  «'  marks  of  irr  taUon  -f,  ^  °f j;^,^^^^^^^^^  ,,  passing 
tum,  the  difflcnlty  in  ^-f^^''^^J'\Z7oJ^^^  bloody  diarrhea, 
iTm^r:: '•  ''  Z !rtir ;r  usL  eamest  symptoms, 


1  Penny  Cyclopedl*.  Poison,  307. 


2  2  Beck's  Med.  Jur.4n. 


UALS. 

ure  they  such  as 
•thing  else,  pro- 
mal  food  itself, 
Lse  of  imperfect 
)r  in  ft  had  atato 
1  of  the  storaacli, 
isted  as  Uie  con- 
jn  of  any  Icind? 
id  must  they  he 
destructive  thing 

ptoms  in  cases  of 
ernftl  administra- 
n  of  some  or  all 
te  burning,  heat, 
the  lining  of  tl»e 
,  burning  pain  of 
iderness  on  press- 
en.     The  matters 
s  of  the  stomach, 
)t  blood  and  bile ; 
mpanied  by  severe 
jmach  along  a  part 
}  on  pressure,  and 
ind  loss  of  blood, 
ration  of  strength, 
le  anxiety  of  coun- 
jr  of  breathing." 
acute  inflammation 
ore  be  regarded  as 

observer  finds  the 
luring  life,  and  its 
poisoning  a  burning 
the  poison  is  taken, 

the  act  of  swallow- 

'  arsenic,  "  as  so  re- 
iseases."  He  states 
ihe  throat  to  the  rec- 
!  bladder  in  passing 
and  bloody  diarrhea, 
le  earliest  symptoma, 

Jur.417. 


.TOE   V,  STATE. 


979 


sickness  or  fnintness,  succeeded  hy  pain,  in  the  region  of  the  stomach, 
most  commonly  of  a  burning  liind,  mucli  aggravated  by  pressure,  drv- 
nt'HS,  heat,  and  tightness  in  tlie  throat  creating  nn  incessant  desire  for 
(hink,  hoarseness  and  difHculty  of  speech,  matter  vomited  greenish  or 
yellowish,  but  scmietimes  streaked  or  mixed  with  blood.  The  burning 
of  tlio  throat  not  always  present,  sometimes  so  severe  ns  to  be  attended 
by  fits  of  suffocation  and  convulsive  vomiting.  Diarrhea  generally,  not 
always ;  when  this  is  severe,  the  rectum  is  excoriated,  and  burning  heat 
felt  there  and  along  the  whole  of  the  alimentary  canal ;  mouth  and  lips 
inflamed,  and  present  dark  specks  and  blisters,  lungs  affected,  short- 
ness of  breatli,  tightness  across  the  chest,  and  in  a  few  cases  actual  in- 
flammation, etc.!  When  life  is  prolonged  several  days  or  saved,  the 
early  symptoms  are  of  the  inflammatory  variety  as  just  described.  The 
subsequent  ones  arc  referable  to  nervous  irritation.  'i!,.v  vary  from 
coma  to  an  imperfect  palsy  of  the  arms  and  legs,  and  be  i  ween  these 
extremes  are  observed  epileptic  fits  or  tetanus.  Among  occasional  re- 
suits  where  life  is  saved  are  irritability  of  the  ston  M.h,  att-nded  wifli 
constant  vomiting  of  food,  loss  of  the  hair,  and  desquamation  of  the 
cuticle,  soreness  and  inflammation  of  the  eyes,  etc.'' 

It  will  be  clearly  perceived,  we  thiak,  that  the  case  ))ofore  us  is  de- 
'"v  v'tive  in  many  of  the  most  prominent  distinctive  symptoms  described 
by  the  authors  above  quoted  as  most  reliable  in  discriminating  cases  of 
poisoning  by  arsenic  from  those  of  disease  produced  by  othcT  causes. 
The  symptoms  exhibited  in  the  present  case  are  very  few,  and  l)y  no 
means  create  the  clear  and  distinct  impression  upon  the  mind  which  is 
mad«  by  those  described  hy  authors  on  medical  jurisprudence  as 
peculiar  to  this  particular  kind  of  poisoning. 

Passing  this  branch  of  the  subject,  we  next  proceed  to  the  inquiry 
whether  there  are  other  circumstances  in  the  case  regarded  as  giving 
weight  and  force  to  the  accusation.  "  There  are  particulars  of  moral 
conduct,"  says  the  writer  so  often  quoted,  that  "  by  writers  on  circum- 
stantial evidence  are  considered  as  leading  to  important  and  well 
grounded  presumptions  as  motives  to  crime,  declarations  indicative  of 
intentions,  preparations  for  the  commission  of  crime,  possession  of 
the  fruits  of  crime,  refusal  to  account  for  appearances  of  suspicion, 
or  unsatisfactory  explanation  of  such  appearances  with  evidence  in- 
directly confessional."  3  if  it  be  proved  that  a  party  charged  with 
crime  has  been  placed  in  circumstances  which  commonly  operate  as  in- 
ducements to  commit  the  act  in  question  ;  that  he  has  so  far  yielded  to 
the  operation  of  those  inducements,  as  to  have  manifested  the  dispo- 
sition to  commit  the  particular  crime ;  that  he  has  possessed  the  requisite 


1  Id.  870. 


s  Id.  372. 


'  WiUs.  on  Cir.  Ev.  86. 


980  CRIMES   AGAINST   THE   PERSONS   OP   INDIVIDUALS. 

means  ar.l  opportunities  of  effecting  the  object  of   his  wishes;  that 
Recently  after  the  comn^ission  of  the  act  in  question  he  has  become  pos- 
ses ec«f  the  fruits  or  other  consequential  advantages  of  the  crime,  . 
Tbe  Identified  with  the  cor,.,  .e...  by  any  conolus  ve  mod.nica 
circumstance,  as  by  the  impression  of  hi.  footsteps   etc. ,  u  the.e  be 
r   ev^t  app  arances  of  suspicion  connected  with  h.s  conduct  etc  ; 
sth  as  he  might  reasonably  be  presumed  to  be  able  to  account  for 
but  which  he  will  not  and  can  not  explain,  etc.  -  the  concurrence  of 
all  or  n.any  of  tl,ese  urgent  circumstances  naturally,  reasonably   and 
satisfactorily  establishes  the  moral  certainty  of  his  personal  guilt,  if  not 
wth  the  same  degree  of  assurance  as  if  he  had  been  seen  to  commit  the 
Ted!  aVleast  with  all  the  assurance  which  the  nature  of  the  case,  and 
the  vast  maioritv  of  human  actions  admit.^ 

Now  U^is  pait  of  the  case  is  not  only  deficient  and  -nting  in  every- 
thing  to  create  a  presumption  unfavorable  to  the  prisoner,  but  the  proof 
of  tL  person  alleged  to  be  poisoned  removes  and  prevens  a  supposi- 
tion of  ths  even.  "  She  and  the  prisoner  never  h-^d  a  falhng  out,  and 
we^ealway;  on  good  terms."  She  was  a  slave,  too;  had  no  money  to 
Tmnt  her  destruction.     There  was  nothing  to  gain ;  no  fear  of  loss. 

Hav  ng  tlms  considered  the  facts  of  the  case,  and  the  law  connected 
thfrS  it  may  aid  in  the  consideration  of  cases  depending  «l,on  cir- 
cu  sranUal  evidLce  to  refer  to  the  rules  and  maxims  which  philosophic 
wUdom  and  judicial  experience  have  laid  down  as  safeguards  of  truth 
Td  justice  with  respecl  to  evidence  in  general,  and  which  apply  with 
Deculiar  force  to  cases  of  the  present  cliaracter. 

^  -The  facts  alleged  as  the  basis  of  the  inference  must  be  strictly  con- 
nected with  the  factum  probandum-  «    The  circumstances  proved  must 
lead  to  and  establish  to  a  moral  certainty  the  particular  bypothesis  as- 
signed, to  account  for  them.     In  other  words,  the  facts  must  be  of  such 
aTatu  e  that  their  existence  is  absolutely  inconsistent  w.th  the  non-ex^ 
fstence  of  their  alleged  moral  cause,  ana  that  they  can  not  be  explained 
uTon  any  oi^er  reasonable  explanatir^n.     The  conclusion  drawn  from 
?he  piemises  assigned  as  its  basis  must  satisfactorily  explain  and  ac 
cLToTa    the  facts  to  the  exclusion  of  every  other  -asonable  solu- 
Z  ''3     "If  the  circumstances  are  equally  capable  of  solution  upon 
he  hypothesis  of  innocence  as  upon  thatof  guilt,  they  ought  to  receive 
a  favorable  construction,  and  to  be  discarded  as  presumptions  of  guilt, 
'if  tire  be  any  reasonable  doubt  as  to  the  proof  of  the  corp'.JeUc^ 
or  as  to  the  reality  of  the  connection  of  circumstances  of  evidence  with 
irflmprolaLn,  or  as  to  the  proper  conclusion  to  be  drawn  from 


1  Id.  250. 

S  WllU.  onCir.  Ev.  177. 


3  Id.  187. 
«  Id.  187, 188. 


IVIDUAL8. 

of   his  wishes;  that 
,  he  has  become  pos- 
ges  of  the  crime ;  if 
nolusive  mechanical 
sps,  etc.,  if  there  be 
i  his  conduct,  etc.  ; 
able  to  account  for, 
-the  concurrence  of 
ally,  reasonably,  and 
personal  guilt,  if  not 
in  seen  to  commit  the 
ture  of  the  case,  and 

ind  wanting  in  every- 
risoner,  but  the  proof 
i  prevents  a  supposi- 
h-d  a  falling  out,  and 
00 ;  had  no  money  to 
a  ;  no  fear  of  loss, 
ind  the  law  connected 
3  depending  upon  cir- 
dms  which  philosophic 
as  safeguards  of  truth 
and  which  apply  with 

e  must  be  strictly  con- 
jmstances  proved  must 
irticular  hypothesis  as- 
le  facts  must  be  of  such 
istent  with  the  non-ex- 
>y  can  not  be  explained 
;onclusion  drawn  from 
ctorily  explain  and  ac- 
f  other  reasonable  solu- 
ipable  of  solution  upon 
t,  they  ought  to  receive 
)resumptions  of  guilt."  * 
)of  of  the  corpus  delicti, 
stances  of  evidence  with 
ilusion  to  be  drawn  from 


SMITH   V.  STATE, 


981 


these  circumstances,  it  is  safer,  and  therefore   better,  to  err  in  acquit- 
ting than  in  convicting."  ^ 

These  rules  arc  not  needed  to  the  conclusion  wc  have  arrived  at  in 
the  present  case. 

It  lias  been  seen  very  clearly  that  there  is  no  direct  proof  of  poison 
traced  to  the  prisoner  from  the  beginning  to  tlie  end  of  this  transaction, 
none  of  the  fact  of  poisoning  ;  that  the  indirect  proof  considered  salis-  ^ 
factory  in  such  cases  — that  of  chemical  analysis  and  tests  applied  to 
the  matter  ejected  through  tiie  influence  of  the  poison  from  tiie  stomach 
and  bowels,  and  of  all  moral  circumstances,  is  wanting ;  that  tlic  only 
fact  relied  upon,  that  of  symptoms  admitted  in  cases  of  this  nature,  to 
be  unsa'asfaclory  and  unreliable,  in  thij  case  is  particularly  defective 
and  unsatisfactory.  Where,  then,  is  tliere  ground  for  conviction? 
Without  saying  tliat  there  is  none,  we  are  clearly  of  opinion  that  there 
is  not  sufficient  to  justify  the  conviction,  and  that  the  prisoner  is  right- 
fully entitled  to  a  new  trial. 

The  judgment  will  be  reversed,  and  the  cause  remanded  for  a  new 
trial,  and  other  proceedings  to  be  had. 


HOMICIDE- 


■INTENT  TO  COMMIT  MISDEMEANOR  ONLY  — MAN- 
SLAUGHTER  AND  NOT  MURDER. 

Smith  v.  State. 


[S3  Me.  48;  54  Ara.  Dec.  007.] 
In  the  Supreme  Court  of  Maine,  1851. 

1.  Where  an  Act  is  Done  with  Intent  to  Commit  a  Misdemeanor  and  death  ensnes 
it  is  not  murder. 

'I.  An  Indictment  Alleged  Ihftt  the  inisoner  caused  the  death  of  a  pregnant  woman  by 
an  operation  performed  Ijy  him  with  intent  to  procure  a  miscarriage.  The  prisoner  was 
convicted  of  murder.    Held,  error  as  the  intent  was  not  to  commit  a  felony. 

Indictment  for  murder. 

Clifford,  for  the  plaintiff  in  error 

Tallmnn,  for  the  State. 

Texnet,  J.  Tlie  record  shows  that  the  Jury  found  a  verdict  of 
guilty  of  murder  in  the  second  degree  against  the  prisoner  upon  the 
third  count  of  the  indictment.  Thereupon  judgment  was  rendered  and 
sentence  that  he  be  punished  by  confinement  to  hard  labor  for  the  term 
of  his  natural  life,  'n  the  State  prison,  was  pronounced. 

1  Id.  188, 190. 


982  CRIMES   AGAINST   THE   PERSONS   Or   INDIVIDUALS. 

The  seventeenth,  eighteenth  and  nineteenth  causes  of  error  assigned 
Jtlmttr  charge  in  the  third  count  of  the  indictment  is  manslaughter 
and  not  murder  in  the  second  degree  and  that  the  Judgment  and  sen- 
tanfo  ihiTcuDon  are  erroneous. 

The  tS  count  in  the  indictment  charges  the  P-o-r  -Uh  hanng 
felon  ously,  wilfully,  knowingly,  and  inhumanly  forced  -^^  Jh  "st  a 
wre  up  in  o  the  womb  and  body  of  one  Bermgera  D.  ^aswc  he 
Te  na  then  pregnant  and  quick  with  child,  with  a  wvked  and  mal  c.ous 
und  ;Ss  Lent  to  cluse  and  procure  her  to  miscarry  and  brxng 
forth  a  child,  of  which  she  was  then  pregnant  and  quick. 

And  it  is  harged  that  by  means  of  forcing  and  thrusting  the  sa.d 
wife  into  her  womb  and  body,  she  did  bring  forth  tlve  said  ch.U  of 
ILTch  she  was  pre<^nant  and  quick,  dead.  And  it  is  further  charged 
lat  bv  the  fordn/and  thrusting  of  the  said  wire  by  defendant  into  her 
that  by  t»^«  ;«^^"^=-  afterwards  became  sickened  and  distempered  in 
Tbo";':  same  means  so  used  she  suffered  and  languished 
an' aSwardsby  reason  theieofshedied.  And  it  is  averred  m  the  same 
:Lt  the  indictment,  that  the  defendant  in  manner  and  f orm  ^ 
aforesaid,  feloniously,  wickedly  and  of  his  malice  aforethought,  did  k.U 
and  murder  contrary  to  the  form  of  the  statute,  etc. 

ItuVrnportant  to  decide,  whether  in  this  count  the  prisoner  is 
direcUy Tu  ed  of  having  inflicted  violence  upon  the  mothe^  and 
therebv  caused  her  death,  or  whether  in  putting  into  execution  an  un- 
lawful'd"gu  death  took  place  collaterally   or  beside  the  principal 

"iftTdicine  is  given  to  a  female  to  procure  an  abortion  which  kills 
her  the  party  administering  it  will  be  guilty  of  her  murder.^     fh  s    s 
ipon  the  g  omid  that  the  party  making  such  an  attempt  with  or  without 
Checo  seft  of  the  female  Is  guilty  of  murder,  the  act  bemg  done  with- 
out laTful  purpose  and  dangerous  to  life,  and  malice  will  be  ^™P"ted.^ 
'  W  In  delthlnsues  in  the  pursuit  of  an  unlawful  «^-g".  -f -*  ^^ 
intention  to  kill,  it  will  be  either  murder  or    -->-|^t-    us  t  e 
.  *     1  .1  ..ffonop  is  felonv  or  only  a  misdemeanor. »    Thus  it  a  man 
T'flfnoSvo   another  with  intent  merely  to  kill  them,  which  is  only 
t:lTl^I^lyTn..n  by  accident,  it  will  be  manslaughter ;  but  if 
heXded  to  steal  them  when  dead,  which  is  felony,  he  will  be  guilty 

^Tcommon  law  it  was  no  offense  to  perform  an  operation  upon  a 
orelrnrwoman  by  her  consent,  for  the  purpose  of  procuring  an  abor- 
?"n,  a'dllLby   uccceed  in  the  intention,  unless  the  woman  wasquick 


J  2  Ch.  Cr.  L.  729 ;  1  Halo's  P.  C.  429. 
J  Com.  V.  Parker. 9  Sleto.  263  (43  Am.  Dec 
896) ;  1  BU88.  OB  Cr.  484. 


!  roster,  268.  ^..    „     t 

*  Rex  ».Plammer,  Kel.  117;  2  Ch.  Cr.  L. 


720. 


dak 


ALS. 

error  assigned 
1  manslaughter 
rment  and  sen- 
ior with  liaving 
]  nnd  thrust  a 
).  Caswell,  she 
i  and  malicious 
jivrry  and  bring 

rusting  the  said 
le  said  cliihl  of 
further  charged 
fcndant  into  her 
I  distempered  in 
and  languished 
trred  in  the  same 
ler  and  form  as 
thought,  did  kill 

the  prisoner  is 
;he  mother,  and 
ixecution  an  un- 
de  the  principal 

)rtion  which  kills 
lurder.i    This  is 
)t  with  or  without 
being  done,  with- 
.11  be  imputed.* 
sign,  without  any 
[laughter,  aa  tlie 
Thus  if  a  man 
icm,  which  is  only 
[Slaughter;  but  if 
,  he  will  be  guilty 

operation  upon  a 
rocuring  an  abor- 
woman  was  quick 

Kel.  117;  2  Ch.  Cr.  L. 


SMITH   V.  STATE. 


983 


with  child. 1  And  under  the  ancient  common  law,  if  a  woman  be  "  quick 
with  child,  and  by  a  potion  or  otherwise,  killeth  it  in  her  womb;  or  if 
a  man  beat  her  whereby  the  child  dieth  in  her  body,  and  she  be  deliv- 
ered of  a  dead  ohild,  this  is  a  great  misprison,  but  no  murder."  *  In 
both  these  instances  the  acts  may  be  those  of  the  mother  herself,  and 
they  are  criminal  only  as  they  are  intended  to  affect  injuriously,  and  do 
90  affect  the  unborn  child.  If  before  the  mother  has  become  sensible 
of  its  motion  in  the  womb,  it  was  not  a  crime ;  if  afterwards,  when  it 
was  considered  by  the  common  law  that  the  child  had  a  separate  and 
Independent  existence,  it  was  held  highly  criminal. 

Similar  acts  with  similar  intentions  by  another  than  the  mother  were 
precisely  alike  criminal  or  otherwise,  according  as  they  were  done  be- 
fore or  after  quickening,  there  being  in  neither  the  least  intention  of 
taking  tlie  life  of  the  mother.  If  in  the  performance  of  these  operationa 
and  with  these  designs  an  abortion  took  place,  and  in  consequence  of 
the  abortion  the  mother  became  sick  and  death  thereupon  followed,  it 
was  not  murder,  because  the  death  was  collateral  and  aside  of  the  prin- 
cipal design,  and  success  in  the  principal  design  did  not  constitute  a 
felony.  This  distinction  is  very  clearly  expressed  in  the  case  of  United 
States  V.  Rons.^ 

"  If  a  number  of  persons  conspire  together  to  do  any  unlawful  act,  and 
death  happen  from  .nything  done,  in  the  prosecution  of  the  design,  it 
is  murder  in  all  who  take  part  in  the  same  transaction.  If  the  design 
be  to  commit  a  trespass,  the  death  must  ensue  in  prosecution  of  the 
original  design  to  make  it  murder  in  all.  If  to  commit  a  felony,  it  la 
murder  in  all,  although  the  death  take  place  collaterally  or  beside  the 
principal  design.  More  especially  will  the  death  be  murder,  if  it 
happen  in  the  execution  of  an  unlawful  design,  which  if  not  felony,  ia  of 
80  desperate  a  character  that  it  must  ordinarily  be  attended  with  great 
hazard  to  life ;  and  a  fortiori,  if  death  be  one  of  the  events,  within  the 
obvious  expectation  of  the  conspirators. " 

In  the  third  count  of  the  indictment,  the  prisoner  is  charged  with  no 
assault  upon  the  mother  of  the  child.  There  is  therein  no  allegation 
tliat  any  wound  of  any  description  had  been  inflicted  upon  her,  or  any 
injury  done,  suited  of  itself  to  cause  death.  It  ia  manifest  that  of 
whatever  he  is  accused  in  reference  to  the  intention  of  causing  miscar- 
riage, and  the  measures  employed  to  cairy  out  that  intention,  and  the 
success  attending  it,  it  was  by  the  consent  of  the  mother,  if  "  ot  by  her 
procurement. 

Thia  count  alleges  the  design  to  cause  the  miscarriage  by  meana  of 
the  forcing  and  thrusting  up  into  tlie  womb  of  the  wire,  and  the  subse- 

1  Com.  t>.  Bangs,  9   Mass.  887 ;  Com.   v.  !  3  Inst.  50. 

Parker,  before  cited.  si  Gall.  621. 


984  CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

nusnt  miscarriage;  also  the  sickness  and  distemper  ensuing  immedi- 
ately  afterwards,  followed  by  the  death  of  the  mother.  It  is  alleged 
that  the  means  used  to  procure  the  miscarriage  were  the  cause  of  death, 
but  it  was  evidently  intended  to  be  charged  as  the  remote  cause.  The 
charge  substantially  is,  that  the  miscarriage  was  the  proximate  cause 

of  the  death.  .    . 

In  the  case  of  Commonwealth  v.  ParTcer,  the  indictment  is  in  very 
nearly  the  s-ime  language  as  that  emi.loyed  in  the  count  we  are  now 
considering,  as  touching  the  charge  of  the  subordinate  offense,  except- 
ing  in  that  there  was  no  allegation  that  the  mother  was  -  quick  with 
child  "  whereas  in  this  it  is  so  alleged.  By  reason  of  that  omission  it 
was  hold,  and  we  think  properly,  that  no  offense  at  common  law  was 
char<red.  Consequently  in  this,  so  far  as  it  regards  the  subordinate  of- 
fense, the  defendant  is  chargc.l  with  what  at  common  law  was  an  offense, 
by  causing  the  abortion  of  a  child  so  far  advanced  in  its  uterine  life 
that  it  was  supposed  capable  of  au  existence  separate  from  the  mother ; 
and  not  with  any  crime  arising  from  an  injury  to  the  mother  herself. 

The  conclusion  is,  therefore,  that  in  this  count  the  defendant  is  ac- 
cused  of  causing  death  in  the  pursuit  of  an  unlawful  design,  without 
intending  to  kill;  and  that  the  death  was  not  in  the  execution  of  that 
unlawful  design,  but  was  collateral  or  beside  the  same. 

That  part  of  the  indictment  upon  which  the  judgment  and  sentence 
against  the  prisoner  is  based  is  for  a  violation  of  the^tatute,  which  has 
in  this  respect  essentially  ch.inged  the  common  law.  T'>cre  is  a  re- 
moval  of  the  unsubstantial  distinction,  that  it  is  no  offence  to  procure 
an  abortion  before  the  mother  becomes  sensible  of  the  motion  of  the 
child,  notwithstanding  it  is  then  capable  of  inheriting  an  estate ;  and 
immediately  afterwards  is  a  great  misdemeanor.  It  is  now  equa  ly 
criminal  to  produce  abortion  before  and  after  quickening.  And  the 
unsuccessful  attempt  to  cause  the  destruction  of  an  unborn  child  is 
a  crime,  whether  the  child  be  quick  or  not.^ 

We  now  come  to  the  consideration  of  the  question  whether  the  subor- 
dinate offense,  as  charged  in  the  third  count  in  the  indictment,  is  a  felony 
or  otherwise,  under  the  statute. 

By  the  Revised  Statutes,*  the  term  "felony,"  when  used  in  any  chap- 
ter in  the  title  of  "  Crimes  and  Offenses,"  etc.,  shall  be  construed  to 
include  murder,  rape,  arson,  robbery,  burglary,  maims,  larceny,  and 
every  offense  punishable  with  death  or  by  imprisonment  in  the  State 

prison.  ..t  •  i.    4.  * 

Every  person  who  shall  use  and  employ  any  instrument  with  intent  to 
destroy  the  child  of  which  a  woman  may  be  pregnant,  whether  such 
child  be  quick  or  not,  and  shall  thereby  destroy  such  child  before  ita 

1  Rev.  Stots.,  ch.  100,  seca.  18.  M.  *  <>•».  167,  ••0. 2. 


UAL8. 

ensuing  immedi- 
.  It  is  alleged 
1  cause  of  death, 
ote  cause.  The 
proximate  cause 

,ment  is  in  very 
3unt  we  are  now 
offense,  exccpt- 
Yas  "  quick  with 
:  that  omission  it 
ioinmon  law  was 
J  subordinate  of- 
(V  was  an  offense, 
n  its  uterine  life 
rom  the  mother ; 
nother  herself, 
defendant  is  ac- 
[  design,  without 
execution  of  that 

lent  and  sentence 
tatute,  which  has 
T'lcre  is  a  re- 
flense  to  procure 
the  motion  of  the 
ig  an  estate  ;  and 
;t  is  now  equally 
cenin;;.  And  the 
I  unborn  child  is 

yhethor  the  subor- 
itment,  is  a  felony 

used  in  any  chap- 
,11  be  construed  to 
kims,  larceny,  and 
nent  in  the  State 

nent  with  intent  to 
ant,  whether  such 
!h  child  before  ita 


SMITH   V.  STATE. 


985 


birth,  shall  be  punished  by  imprisonment  in  the  State  prison,  not  more 
than  five  years,  or  by  fine,  etc.* 

It  is  obvious  if  the  prisoner  be  charged  with  the  murder  of  the  mother 
in  proper  form,  in  the  commission  of  the  subordinate  crime,  and  the 
subordinate  crime  U  such  as  is  described  in  the  statute  referred  to,  and 
that  is  properly  charged,  the  judgment  and  sentence  upon  this  count  is 
authorized,  and  there  is  no  error  therein.  But  if  the  subordinate  offense 
as  charged,  does  not  constitute  a  felony  under  the  statute,  the  judgment 
and  sentence  are  errroneous. 

The  offense  described  in  the  statute,"  is  not  committed  unless  the  act 
be  done  with  an  "  intent  to  destroy  such  child  "  as  is  there  referred  to, 
and  it  be  destro^-eil  by  the  means  used  for  that  i)urpose.  It  is  required 
by  established  rules  of  criminal  pleading  tliat  the  intention  which 
prompted  the  act  that  caused  the  destructiou  of  the  child,  as  well  as  the 
act  itself,  and  the  death  of  the  child  thereby  produced,  should  be  fully 
set  out  in  the  indictment  in  order  to  constitute  a  crime  punishable  by 
imprisonment  in  the  State  prison,  under  the  statute.  The  allegation 
that  a  certain  instrument  was  used  upon  awomm  pregnant,  and  that 
the  use  of  that  instrument  caused  her  to  bring  forth  the  child  dead,  is 
not  a  charge  that  the  one  using  the  instrument  intended  to  destroy  the 
child.  The  inference  of  such  design,  from  the  use  of  the  instrument 
and  its  effect,  is  by  no  means  necessary. 

Tlie  third  count  in  tiie  imlictraent  alleges  the  act  to  have  been  done 
with  the  intent  to  cause  and  procure  the  deceased  to  miscarry  and  bring 
forth  the  child  of  which  she  was  then  pregnant  and  quick ;  and  that  by 
means  of  that  act  she  brought  forth  the  child  dead.  But  tiiere  is  no 
allegation  that  the  act  was  done  with  the  intention  that  she  should  bring 
forth  her  child  dead,  or  with  an  intent  to  destroy  it,  unless  the  words 
''miscarry"  and  "bring  forth  the  child"  necessarily  include  its 
destruction. 

"The  expulsion  of  the  ooum  or  embryo  within  the  first  six  weeks 
after  conception  is  technically  miscarriage ;  between  that  time  and  the 
expiration  of  the  sixth  month,  when  the  ciiild  may  be  positively  alive, 
it  is  termed  abortion ;  if  the  delivery  be  soon  after  the  sixth  month  it 
is  termed  premature  labor.  But  the  criminal  attempt  to  destroy  the 
foetus  at  any  time  before  birth  is  termed  in  law  a  miscarriage,  varying, 
as  we  have  seen,  in  degree  of  offease  and  punishment,  whether  the 
attempt  were  before  or  after  the  child  had  quickened."  ^  Other  writers 
on  the  subjCwC  give  a  similar  definition  of  the  term  "miscarriage."^ 


I  Rev.  stats.,  ch.  160,  see.  13. 
3  Chit.  Med.  Jur.  410. 
S  cb.  160,  sec.  IS. 


1  Hobljrn's  Dictionary  of  Terms  Used  in 
Medicine  and  other  Collateral  Sciences. 


986 


CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 


The  converse  of  the  last  proposition  can  not  be  true,  as  there  are 
undoubtedly  many  miscarriages  involving  no  moral  wrong. 

If  the  term  "  miscarriage  "  were  to  be  understood  in  the  indictment 
in  its  most  limited  sense,  it  can  not  be  denied  that  in  effect  it  must  be 
identical  with  the  destruction  of  the  fiutus.  But  this  indiutmcut  itself 
has  given  to  tlie  word  "  miscarriage  "  the  more  general  signifu  ition.  It 
charges  that  the  miscarriage  was  of  the  woman  who  was  pregnant  and 
*' quick  with  child."  The  term  "  quick  with  child  "  is  a  term  known 
to  the  law,  and  courts  are  presumed  to  understand  its  meaning.  A 
woman  can  not  be  "  quick  with  child  "  until  a  period  much  later  than 
six  weeks  from  the  commencement  of  the  term  of  gestation.  The 
more  general  mearlng  of  the  word  "  miscarriage  "  must,  therefore,  be 
applied.  The  indictment  charges  no  time,  after  the  quickening,  when 
the  miscarriage  took  place.  It  may  have  been  at  any  period  when  the 
birth  would  have  been  premature.  The  language  of  the  indictment, 
when  taken  together,  construed  in  the  ordinary  or  in  its  technical  and 
legal  signification,  does  not  forbid  this.  And  labor  is  premature  if  it 
take  place  at  any  period  before  the  completion  of  the  natural  lime. 

It  is  admitted  by  Dr.  Paris,  a  writer  of  high  repute  on  medical  juris- 
prudence, from  the  number  of  established  cases,  it  is  p  ssible  that  the 
foetus  may  survive  and  be  reared  to  maturity,  though  be  .i  at  very  early 
periods.  Many  ancient  instances  are  stated  of  births  even  at  four 
months  and  a  half  with  a  continued  life  even  till  the  age  of  twenty-four 
years.  And  the  Parliament  of  Paris  decreed  that  an  infant  at  five 
months  possessed  the  capacity  of  living  to  the  ordinary  period  of  hu- 
man existence ;  and  it  has  been  asserted  that  a  child  delivered  at  the 
age  only  of  five  months  and  eight  days  may  live ;  or  according  to  Beck 
and  others,  if  born  six  months  after  conception.'^  Many  of  the  facts 
upon  which  the  opinions  of  writers  upon  medical  jurisprudence  are 
founded  may  be  erroneous  and  the  opinions  incorrect.  We  can  not 
take  judicial  notice  of  either.  But  it  is  not  too  much  to  say  that  a 
child  may  be  born  living,  when  its  birt'i  may  be  so  soon  after  conception, 
that  it  is  premature.  The  f ojtus  may  be  expelled  by  unlawful  means  so 
soon  after  conception  that  extra  uterine  life  can  not  continue  for  any 
considerable  length  of  time,  and  yet  afterbirth  it  may  onca  ej:eroise  all 
the  functions  of  a  living  child.  We  have  found  no  author '  ;  .<i^.ii!H 
may  not  be  termed  a  miscarriage,  if  the  word  is  not  c:-i.  'o  ).t3 
most  limited  meaning.  And  if  it  be  so,  it  is  not  perceived  cb  :t  oeases 
to  be  correct,  if  the  life  of  the  child  prematurely  born  is ..  iher  pro- 
longed. It  is  quite  clear,  therefore,  that  the  word  "miscarriage" 
in  its  legal  acceptation,  and  as  iised  in  this  indictment,  does  not,  nec- 


aCbit.  Med.  Jur.  410,411. 


ALS. 

,  as  there  are 

g- 

the  indictment 

feet  it  must  be 
idiftmcut  itself 
jnifu  ition.     It 
9  pregnant  and 
a  term  known 
}  meaning.     A 
luch  later  than 
;estation.     The 
t,  therefore,  be 
ickening,  when 
leriod  when  the 
Lhe  indictment, 
3  technical  and 
premature  if  it 
itural  lime. 
1  medical  juris- 
ssible  that  the 
.1  at  very  early 
i  even  at  four 
of  tweniy-four 
infant  at  five 
■y  period  of  hu- 
delivered  at  the 
jording  to  Beck 
my  of  the  facts 
isprudence  are 
t.     We  can  not 
'h  to  say  that  a 
fter  conception, 
awful  means  so 
ontinue  for  any 
incfl  e3:eroise  all 
ttio."         «i  ^aia 


ed  cb 

nis. 

"  miscarriage 

,  does  not,  neC' 


^t  oeases 
her  pro- 


STATE   V.  COLEMAN. 


987 


essarily  include  the  destruction  of  tlie  child  before  its  birth  ;  and  a  de- 
sign to  cause  its  miscarriage  is  not  the  same  thing  as  a  design  to  destroy 
the  child. 

The  other  term  used  in  the  indictment  "to  bring  forth  said  child," 
does  not  iraplj'  even  a  premature  birth.  Consequently  it  gives  no  addi- 
tional strength  to  the  charge. 

It  follows  that  the  indictment,  not  containing  an  allegation  of  a 
design  which  is  an  essential  ingredient  in  the  offense  first  charu;ed  in  the 
third  count  to  make  it  a  felonj',  the  subsequent,  and  principal  accusation, 
is  that  of  manslaughter  only ;  and  the  seventeenth,  eighteenth  and  nine- 
teenth errors  are  well  assigned. 

Man}-  other  errors  are  assigned  and  relied  upon.  In  the  discussion  of 
the  principles  involved  in  the  question  raised,  the  counsel  for  the  plain- 
tiff in  error  and  the  attorney-general  have  exhibited  great  research, 
learning  and  ability. 

It  might  be  desirable  to  the  profession,  and  [>articularly  to  those  inter- 
ested in  criminal  pleading,  that  there  should  be  an  opinion  upon  each 
of  the  errors  assigned,  but  it  is  unnecessary  for  a  disposition  of  the 
case. 

Judgment  reversed  and  the  court  order  that  the  prisoner  be  dis- 
charged from  his  imprisonment  and  go  thereof  without  day. 


murder  —  presumption  op  malice. 
State  v.  Coleman. 

[G  Rich.  (S.  C.)  185.] 
In  the  Supreme  Court  of  South  Carolina,  1875. 

1.  Where  there  are  Sui&oient  Facts  before  the  Jury  to  enable  them  to  inter  malice,  or 

the  want  of  it,  a»  a  fact,  directly  from  the  evidence,  recourse  should  not  be  had  to  anj 
legal  presumption  of  malice  which  may  arise,  in  the  absence  of  direct  proof,  from  the 
fact  of  homicide. 

2.  Where  there  is  full  Evidence  a*  to  the  Surrotmdins  Ciroumatancea,  this  pre- 

Bumption  can  not  be  allowed  to  deprive  the  prisoner  of  the  benefit  of  any  reasonable 
doubt,  but  the  Jury  should  find  the  malice  as  an  inference  from  the  facts,  if  at  all.  It 
was  erroneous,  therefore,  to  charge  "  that  all  homicide  is  presumed  to  bo  malicious,  and 
amounting  to  murder  until  the  contrary  appears  from  circumstances  of  alleviation,  ex- 
cuse or  Justification,  and  that  It  is  incumbent  upon  the  prisoner  to  make  out  such  cir- 
cumstances to  the  satisfaction  of  the  court  and  Jury,  unless  they  arise  out  of  the 
evidence  produced  against  him." 

WiLLARD,  A.  J.     The  prisoner  was  convicted  of  murder.     The  circuit 
judge  charged  as  follows:  "That  all  homicide  is  presumed  to  be  mail- 


988 


CR1MK8   AGAINST   TUB   PERSONS   OF    INDIVIDUALS. 


cious.  una  nmounting  to  mnrdor  until  the  contrary  appears  from  eir- 
cuinstances  of  alleviation,  excuse  or  justification,  and  tluit  it  is 
incumbent  ui)on  tlie  prisoner  to  muke  out  such  circnrast.inces  to  the  sat- 
isfaction of  the  court  and  jury,  unless  they  arise  out  of  the  evidence 
produced  against  him." 

The  authorities,  undoubtedly,  support  the  proposition  that  the  law 
presumes  malice  from  the  mere  fact  of  homicide.'  But  this  presumption 
is  not  applicable  where  the  facts  and  circumstances  attending  the  homi- 
cide arc  disclosed  in  evidence,  so  as  to  draw  a  conclusion  of  m-'ice,  or 
want  of  malice,  as  one  of  fact  from  the  evidence.  Pre8umi)tion  of  this 
class  are  intended  as  substitutes  in  the  absence  of  direct  proofs,  and 
are,  in  their  nature,  indirect  and  constructive. 

The  best  evidence  of  the  state  of  mind  attending  any  act  is  what  was 
said  and  done  by  the  person  whose  motive  is  sought  for. 

The  motive  that  impels  to  the  taking  of  human  life  is  no  exception  to 
this  rule,  and  the  importance  of  the  consequences  that  depend  u|)on  the 
accurate  ascertainment  of  its  nature  in  such  cases,  affords  the  strongest 
ground  for  limiting  indirect  and  constructive  proofs  to  the  narrow 
grounds  within  which  they  belong, 

In  the  present  ease,  the  evidence  disclosed  tlie  fact  that  the  deceased 
came  to  his  death  by  a  blow,  from  a  stick  in  the  hands  of  the  prisoner, 
fallini?  upon  the  back  of  his  neck. 

It  appears  from  the  record  before  us,  that  the  proofs  embraced  a 
statement  of  the  origin  of  the  difficulty  between  the  parties ;  their  con- 
duct towards  each  other  down  to  the  time  of  the  killing,  and  to  some 
extent,  the  subsequent  conduct  of  the  prisoner.  When  the  evidence  is 
of  such  a  character;  it  must  be  presumed  eufflcient  to  enable  the  jury 
to  draw  from  it  a  conclusion  of  fact  one  way  or  the  other.  Under  such 
circumstances,  there  was  no  necessity,  and,  therefore,  no  propriety,  in 
resorting  to  any  general  presumption  arising  by  operation  of  law.  If 
the  evidence  did  not  warrant  the  conclusion  of  malice,  the  jury  should 
have  so  found,  uninfluenced  by  any  presumptions  from  the  naked  facts 
of  a  homicide.  If  an  obscurity  as  to  the  motive  of  the  party  arose  from 
the  circumstances  detailed  in  the  evidence,  it  was  not  competent  to 
resort  to  the  presumptions  in  order  to  solve  the  obscurity. 

It  was  material  to  the  solution  of  the  question  of  malice,  as  one  of 
fact  under  the  evidence,  to  ascertain  whether  the  stick  employed  was  a 

deadly  weapon. 

In  determining  this  fact,  regard  should  be  had  to  the  character  of  the 
weapon,  the  mode  of  its  use,  and  the  strength  and  position  of  the  per- 
son against  whom  it  was  used.     If,  considering  all  these  circumstances. 


1  4  Bla.  Com.  201 ;  State  v.  Toobey,  MSS. 


UALS. 

ipears  from  cii- 
111(1  tliiit  it  is 
iinccsto  llie  sat- 
)f  tlie  evidence 

m  tliat  the  law 
his  presumption 
niling  the  homi- 
on  of  m-'icc,  or 
sumption  of  this 
eet  proofs,  and 

act  is  wliat  was 
r. 

no  exception  to 
tk'pend  upon  the 
rds  llie  strongest 
J  to  tlie  narrow 

hat  the  deceased 
i  of  the  prisoner, 

jofs  embraced  a 
uties ;  their  con- 
ing, and  to  some 
n  tlie  evidence  is 

0  enahlo  the  jury 
ler.  Under  such 
,  no  propriety,  in 
ation  of  law.  If 
!,  the  jury  should 
n  tlie  naked  facts 

1  party  arose  from 
lot  competent  to 
lity. 

malice,  as  one  of 
k  employed  was  a 

e  character  of  the 
isition  of  the  per- 
!se  circumstances^ 


STATE   V.  COLEMAN. 


089 


death  was  a  c  nsequoneo  reasonably  to  be  apprcheniled,  thru  tin*  jury 
are  warranted  in  drawiiig  tlie  infeteiice  of  malice,  if  that  inference  be 
in  harmony  with  the  otlier  proofs. 

The  size,  form  and  weight  of  the  stick,  and  the  amount  of  force  em- 
ploj'cd  l»y  the  prisoner,  in  giving  the  blow,  do  not  appear  by  the  record, 
Imt  it  is  to  be  presumed  that  some  evidence  on  these  points  was  sub- 
mitted to  the  jiuy. 

The  charge  of  the  judge,  quoted  above,  failed  to  present  to  tht?  jury 
the  nature  of  llair  duties  as  to  the  issue  of  fact  involved,  and  maj'  have 
led  them  to  conclude  that  they  might  disregard  uncertainties  in  the  evi- 
dence, and  place  their  conclusions  on  the  ground  of  the  legal  presump- 
tions alone.  Although  the  charge  allows  them  to  8(  ek  for  ground  for 
rebutting  such  presumi>tions  in  the  evidence  of  what  took  place,  still 
it  left  their  minds  in  a  position  to  conclude  that  the  benolit  of  a  reason- 
able doubt  arising  from  the  evidence  ought  to  be  given  to  the  State 
instead  of  the  prisoner. 

Where  the  circumstar  es  preceding  and  attending  an  act  of  this 
character  are  full,  as  in  the  present  case,  the  prisoner  is  entitled  to 
the  benefit  of  any  doubt  that  may  arise,  and  can  not  be  deprived  of 
such  benefit  by  any  presumption  of  guilt  arising  b}'  operation  of  law 
from  the  naked  fact  of  a  homicide. 

A  charge  may  be  erroneous,  although  the  propositions  of  which  it  is 
composed  may  severally  be  conformable  to  recognized  authority,  if  in 
its  scope  and  bearing  in  the  case  it  was  likely  to  lead  to  a  misconcep- 
tion of  the  law. 

An  objection  was  taken,  on  the  argument,  to  the  panel  of  grand  and 
petit  jurors,  but  it  does  not  appear  that  such  question  was  raised,  or 
an  exception  taken  upon  it  in  tiie  court  below.  We  are  not  called  upon 
to  decide,  at  the  present  time,  whether  matters  can  be  alleged  as 
grounds  of  appeal  in  circumstances  that  were  not  the  subject  of  except 
tion  in  the  Circuit  Court,  for  under  no  circumstances  would  this  cour- 
pass  upon  a  question  that  was  not  raised  in  the  Circuit  Court,  where 
such  question  was  not  indispensable  to  the  appeal.  It  appearing  that 
the  prisoner  is  entitled  to  a  new  trial  on  the  ground  of  a  misdirection, 
the  object  of  the  appeal  is  accomplislied,  and  it  is  not  essential  that  the 
question  as  to  the  legality  of  the  panel  should  be  considered. 

There  should  be  a  new  trial. 

MosES,  C.  J.,  and  Wright,  A.  J.,  concurred. 


1 


990 


CUIMKS   AOAINST  THE   PERSONS  OF   INDIVIUUAT-S, 


lIOMICIDlC-FiaONIOUS  II()MICII)K-NO    INTENT  TO  TAKE  LIFE- 

WANTUXNKSS. 

Dakky  V.  People. 

[10  N.  Y.  120.] 
In  the  Court  of  Appeola  of  Nev>  York,  1854. 

Onder  a  Statute  Defining  the  Crime  of  Murder  and  enacting  (among  other*)  that 
killing  »houia  bo  imirat..-  "wl.c..  pcTpetratcd  by  any  not  imnilnunlly  ilniigerous  to 
other"  ami  evincing  a  .leprnv.d  mlml,  ngaraiesMo  bumnn  life,  altl.ough  without  any 
promodllntcd  design  to  ntfect  the  dcnth  of  any  i.urti.uh.r  Individual,  a  kdllng  without 
premeditated  di'-ign  to  take  life,  though  perpetated  by  nueh  acts  as  are  i™""nently 
dangerous  to  the  person  killed,  and  evince  a  depraved  mind,  regardless  ol  the  lite  of 
the  deceased,  is  not  murder. 

Wkit  ok  Euuou  to  the  Supreme  Court,  sitting  in  tlie  Eighth  District, 
where  a  conviction  of  the  plaintiff  in  error,  of  the  munler  of  bis  wife, 
in  tlie  Court  of  Oyer  and  Terminer  of  Erie  County,  hud  been  affirmed, 
on  certiorari,  and  sentence  of  d^atli  pronounced  upon  him.  Tlie  Gov- 
ernor respited  the  execution,  to  enable  the  prisoner  to  have  a  review  in 

this  court. 

The  indictment  contained  five  counts,  charging  the  killing  to  have 
been  effected  by  the  prisoner,  by  striking  and  beating  the  deceased, 
with  his  hands  and  feet,  and  with  a  chair,  and  by  kicking  her ;  the  first 
two  cliarged  the  murder  to  have  been  committed  with  malice  afore- 
thought, in  the  common-law  form ;  the  others  alleged  that  it  was  done, 
with°a  premeditated  design  to  effect  the  death  of  the  deceased. 

On  the  trial,  the  prosecuting  attorney  gave  evidence  tending  to  prove 
that  the  deceased  died  on  the  14th  August,  1852,  of  injuries  and  bruises 
inflicted  upon  her  by  the  prisoner,  a  few  days  previously.  It  also 
appeared,  that  the  prisoner,  during  a  portion  of  the  time  in  which  the 
injuries  were  inflicted,  was  partially  under  the  influence  of  licpior.  No 
provocation  on  the  part  of  the  deceased  was  shown,  but  on  the  con- 
trary, she  made  little  or  no  resistance  to  the  attack  of  the  i)risoD.er,  save 
by  way  of  expostulation.  The  prisoner  had  several  times  threatened 
to  kill  his  wife  ;  and  they  were  alone  together  in  their  room,  when  the 
injuries  were  inflicted;  but  her  parents  and  brother  who  occupied 
another  part  of  the  house,  heard  her  cries,  and  had  witnessed  many  of 
his  acts  of  violence. 

The  dying  declarations  of  the  deceased  were  given  in  evidence  by 
the  prosecution,  to  the  effect,  that  on  the  8th  of  August,  after  she  and 
the  prisoner  had  retired  to  bed,  he  coram. need  striking  her  in  the  pit 
of  the  stomach  with  his  fist,  and  that  he  repeated  it,  on  the  two  follow- 
ing nights;  that  he  struck  her  upon  the  head  with  his  fists,  and  on  one 


UAT,s. 


I  TAKE  LIFE  — 


\4. 

(among  others)  that 
luiilly  ilniigerous  to 
Itliough  without  any 
il,"  a  kilUng  without 
g  ns  are  imminently 
»rdle88  of  the  lite  ot 


Eighth  District, 
rder  of  his  wife, 
d  been  affirmed, 
him.  The  Gov- 
have  a  review  in 

e  killing  to  have 
ig  the  deceased, 
iiig  her  ;  the  first 
th  malice  afore- 
that  it  was  done, 
leceascd. 
tending  to  prove 
juries  and  bruises 
viously.     It  also 
;ime  in  which  the 
•e  of  li(iiior.    No 
,  but  on  the  con- 
the  i)risoD.er,  save 
times  threatened 
r  room,  when  the 
ler  who  occupied 
r-itnessed  many  of 

sn  in  evidence  by 
list,  after  she  and 
iug  her  in  the  pit 
)n  the  two  f  oUow- 
fists,  and  on  one 


DARRY   r.  PKOrLR. 


091 


of  these  nights,  with  a  chair.  A  sui<ieon,  who  had  examined  the  body, 
tesitilied,  tliiit  in  liis  opinion,  her  deatli  was  caused  by  the  blows  upon 
her  stomach,  but  tiiat  those  on  her  head  weio  not  mortal. 

The  piisoiier's  coimsel  maintained  th.-it  t!ie  eviilenee  did  not  prove  a 
premeditated  design  on  the  part  of  the  i)risoner  to  effect  the  dcatli  of 
the  dccciised,  and  that  he  was  not  gtiilty  of  nuinler. 

The  statute  dcllning  the  crime  of  murder,  provides  as  follows:  — 

§  4.  The  killing  of  a  human  being  witliont  the  authority  of  Jaw,  by 
poison,  shooting,  stabbing,  or  any  other  mca^s,  or  in  any  otlier  manner, 
is  either  muider,  manslaugliter  or  excusable  .>r  jiistiliable  homicide, 
according  to  tiie  facts  and  circumstances  of  each   -ase. 

§  5.  Such  killing,  unless  it  be  manslaughtiT,  or  excusable  or  justifi- 
able liomicide,  as  hereinafter  provided,  shall  be  murder,  in  tiie  follow- 
ing cases : — 

1.  When  perpetrated  from  a  premeditated  design  to  effect  the  death 
of  the  person  killed,  or  of  any  iiuman  being. 

?,.  When  perpetrated  by  any  net  imminentl}'  dangerous  to  others, 
and  evincing  a  depraved  mind,  regardless  of  human  life,  altiiough  with- 
out any  premeditated  design  to  effect  the  death  of  anv  oarticular  indi- 
vidual. 

3.  When  perpetrated,  without  any  design  to  effect  death,  by  a  per- 
son engaged  in  the  commission  of  a  felony.* 

The  court  charged  the  jury,  vder  alia,  that,  in  order  to  convict  the 
prisoner  of  the  crime  of  murder,  it  was  not  necessary  tliat  they  should 
be  satisfied  that  the  prisoner,  at  the  time  of  inflicting  the  injuries  upon 
the  deceased,  entertained  a  premcdiated  design  to  effect  her  death  by 
means  of  those  injuries ;  according  to  the  first  subdivision  of  section  5 
of  the  title  of  the  Revised  Statutes  respecting  crimes  punishable  with 
death  ;  but  that  if  they  should  find,  upon  the  evidence,  that  the  pris- 
oner designedly  inflicted  the  injuries,  that  they  were  inflicted,  without 
provocation,  and  not  in  the  heat  of  passion,  but  were  perpetrated  by 
such  acts  as  were  imminently  dangerous  to  the  life  of  the  deceased, 
and  evincing,  on  the  part  of  the  prisoner,  a  depraved  mind,  regardless 
of  human  life,  although  without  any  premeditated  design  to  t  ffect  the 
death  of  the  deceased ;  that  then  the  offense  woidd  come  within  the 
statute  defining  the  crime  of  murder.  The  prisoner's  counsel  excepted 
to  this  portion  of  the  charge. 

The  prisoner  was  found  guilty  of  murder,  and  the  cause  having  been 
removed  to  the  Supreme  Court,  by  certiorari,  on  a  certificate  of  proba- 
ble cause  made  by  the  presiding  judge,  was  there  argued  on  the  bill  of 
exceptions,  and  judgment  rendered  in  favor  of  the  People ;  whereupon, 

I  2  Rev.  state.  65C,  657. 


992  CllIMKS   A<»AIXST  TIIK   rKllSOXS   OF   IxniVllMTALS. 

the  prisoner  9U0.1  out  tl.i.  writ,  nnd  tl.c  aovcrnc.r  rospltcl  tl.eoxec.ition. 
On  tl.o  first  arjium.-nt,  in  IXM,  tl.c  momlurH  ..f  tl.e  cuurt  were  tqufthy 
divid.d  in  opinion;  antl  a  rcur-rnnicnt  was  ordered. 
/////,  for  llio  plaintiff  in  imtoi.' 
S'lwin,  District-Attornoy,  for  tlu-  People. 

SicLUi-N,  J.  Tlio  Bubstitntion  ..f  new  and  original  phraseology  in  our 
statute  dinning  tlio  crime  of  luMidei ,»  was  tl.o  re^ilt  of  nn  effort  to 
clear  tlio  subject  of  the  obscurity  wl.ieli  grew  out  of  the  inaccurate 
mo  of  Borao  of  tl.e  terms  of  the  cnimon  law.  To  render  this  effort 
Buccessfid,  lb  IsneccBsai-y  so  const  rue  the  new  terms  used  according 
to  their  natural  import.  A  resort  to  tho  rejected  terms,  in  oi.b-r  to  in- 
terpret those  newly  adopted,  would  obviously  ninvest  tho  subjc.  t  with 
much  of  tho  pievious  uncertainty,  and  render  abortive  this  i.ttempt  nt 
elucidation.  When,  therefore,  it  is  said,  as  has  been  said  by  seviral 
of  our  Judges,  that  tho  first  subdivision  of  section  T)  of  our  natntc  was 
intende.l  to  define  murder  from  cxi)rc8s,  and  tho  second  and  third, 
from  implied  malice,  no  light  whatever  is  thrown  upon  tho  true  inter- 
pretation of  tho  section. 

A  glance  at  the  law  of  murder,  as  it  existed  prior  to  the  Revised 
Statutes,  make  it  evident,  that  the  U-rms  express  and  implied  malice, 
an<l  malice  aforethought,  used  so  copiously  in  every  definition  of  mur- 
der nt  common  law,   must  have   been  intentionally  excluded  from  the 
statute ;  and  I  think  it  equally  clear,  in  view  of  the  great  looseness  and 
inaccuiacy  with  which  these  terms  had  b-^en  used,  that  this  exclu- 
sion was  wise.     There  is  no  diiferenco  '.n  the  nature  or  degree  of  the 
malice  inten.lcd,  whether  it  bo  called  express  or  implied,  when  these 
terms  ai-e  used  in  their  most  appropriate  sense.     If  properly  iippHcd, 
they  refer  only  to  the  evidence  by  wh.ch  the  existence  of  malice  is  es- 
tablished.    Both  alike,  the  one  no  less  than  the  other,  mean  actual 
malice,  malice  shown  by  the  proof  to  have  really  existed.     It  is  called 
implied  malice,  when  it  is  inferred  from  the  naked  fact  of  the  homicide, 
and  express,  when  established  by  other  evidence.     That  this  Is  the 
true  original  meaning  of  these  terms,   when  used  in  connection  with 
this  crim^e,  is  ai)parent,  I  think,  from  the  natural  import  of  the  words 
themselves,  as  well  as  from  their  accustomed  use  in  other  branches  of 
the  law.     They  are  appropriate  terms  to  express  diffcient  modes  of 
proof,  and  are  habitually  used  for  that  purpose,  but  are  not  adapted  to 
the  description  of  different  degrees  of  malicious  intent.     The  phrase, 
"implied  malice,"  is  properly  applied  to  a  case  where  the  evidence 
shows  that  the  accused  did  the  act  which  caused  the  death,  but  where 
there  is  no  other  proof  going  to  show  the  existence  or  want  of  malice. 


1  This  case  was  also  reported  in  2  Park. 


2  2  Rev.  Stats.,  p.  6Sl,  Bee.  9. 


lALS. 


DARItr   V.  PEOPLE. 


993 


[  thoi'xt'Ciition. 
ii't  were  fqufilly 


■ast'ology  in  our 
of  nil  effort  to 
tlio  inacciirnte 
jikKt  lliia  effort 
uhimI  nc'conling 
,  in  01  (lor  to  lu- 

iiO   8Ul)jf<  t  witli 

I  tliiH  nttfinpt  ftt 

8!ii<l  l)y  BfVi'nil 

our  statute  was 

joiiil  niul  third, 

1  the  true   Inter- 

r  to  tlie  Revised 
impliotl  malice, 
I'dniliou  of  mur- 
cliKlod  from  tlie 
sat  looseness  and 
that  this  cxclu- 
or  degree  of  the 
lied,  wlien  these 
properly  nppHcd, 
e  of  niiilice  is  es- 
lier,  mean  actual 
sted.     It  is  called 
;  of  the  homicide, 
That  tills  Is  the 
J  connection  with 
)ort  of  the  words 
jtlier  branches  of 
iffcrent  modes  of 
re  not  adapted  to 
jnt.     The  phrase, 
lere  the  evidence 
deatli,  but  where 
»r  want  of  malice. 


In  such  cases,  the  law  docs  cot  impute  a  malicious  intent,  irrespective 
of  its  real  existence,  but  it  presumes,  in  «ccordan<-e  with  the  sctiied 
rules  of  evidence,  that  such  an  intent  did  actually  exist. 

York's  Case '  was  a  case  of  this  description,  an<l  the  rule,  as  well  as 
the  reason  upon  which  it  rests,  are  there  stated  by  Chief  Justice  Shaw. 
In  speaking  of  the  mere  act  of  destroying  life,  he  says :  "The  natural 
and  necessary  conclusion  and  inference  from  such  an  act,  willfully 
done,  without  apparent  excuse,  arc,  that  it  was  done  malo  anmo,  in 
pursuance  of  a  wrongful,  injurious  purpose,  previously,  though  perhaps 
suddenly,  formed,  and  is,  therefore,  a  homicide  with  malice  afore- 
thought, which  is  the  true  definition  of  murder ;  and  it  apptnra  to  us, 
that  this  is  not  a  forced,  arbitrary,  technical  or  artificial  presumption 
of  law,  but  a  natural  and  necessary  inference  from  the  fact."  Again, 
he  says:  "A  sane  man,  a  voluntary  agent,  acting  upon  motives,  must 
be  presumed  to  contemplate  and  intend  the  necessary,  natural  and  pro- 
bablo  consequence  of  his  own  act." 

This  case  and  this  reasoning  afforded  a  clear  illustration  of  what  '.s 
properly  meant  by  the  term  implied  malice.  But  the  same  tern^  has 
also  been,  frequently,  but  as  I  maintain,  inappropriately,  used,  to  ex- 
press a  different  meaning.  It  has  been  extensively  applied  to  cases  of 
constructive  murder,  that  is,  to  those  cases  where,  although  the  want  of 
any  actual  intent  to  take  life  is  conceded,  yet  the  law,  in  view  of  some 
other  malicious  or  criminal  intent,  punishes  the  offense  as  murder ;  and 
to  cases  of  death  produced  through  an  utter  wantonness  and  recklessness 
as  to  life  in  general,  as  well  as  to  cases  where  the  life  of  an  ofHcer  is 
unintentionally  taken,  when  engaged  in  the  performance  of  his  duty.' 

Now,  what  is  meant  by  this  application  of  the  term  implied  malice, 
indiscriminately,  to  all  cases  arising  under  either  of  these  several  cases  ? 
It  is  opparent,  that,  so  far  as  any  actual  criminal  intent  exists,  it  may 
be  expressly  proved  in  these  eases,  as  well  as  any  otbers.  It  follows, 
therefore,  that  in  cases  where  sncb  proof  is  given,  implied  malice,  if  it 
means  anything,  must  mean  malice  which  has  no  existence  in  fact,  but 
which  the  law  imputes  to  the  guilty  party.  This  implication  of  a  species 
of  malice  which  did  not  exist,  seems  to  have  been  invented  for  the  pur- 
poses of  bringing  cases  of  constructive  murder,  so-called,  within  what 
was  supposed  to  be  the  legal  definition  of  the  crime.  It  was  evidently 
supposed,  that  tho  word  malice  meant,  in  all  cases,  ill-will  toward  some 
person  or  persons,  and  hence,  that  the  phrase,  malice  aforethought, 
used  in  indictments  for  murder,  necessarily  imputed  a  charge  of  pre- 
meditated design  to  kill.  To  meet  this  averment,  which,  in  cases  of 
constructive  murder,  was   not  required  to.  be  proved,  the  law  was  said 


351,  Bee.  B. 


1  •  Mete.  93.  V.  Oneltj,  2  Ld.  Baym.  U88 ;  People  v.  Enoch, 

3  15  Viner's  Abr.,  title  "  Murder,"  E ;  Rex      13  Wend.  1S9,  per  Nelson,  J. 
8  Defences.  C3 


994  CRIMES   AGAINST  THE  PEK80N8  OF   INDIVIDUALS. 

to  imply,  that  is,  to  supply  by  mere  fiction,  the  requisite  degree  of 
malice.  There  was,  however,  in  truth  not  the  slighest  necessity  for 
this  fiction  •  the  interpretation  of  the  word  -  malice  "  on  which  it  was 
founded,  being  entirely  erroneous.  .^„„^e 

The  idea  that  the  terra  "  malice  "  necessarily  imports  ill-wiU  towards 
another,  when  used  in  a  legal  sense,  is  abundantly  refuted  by  Mr.  Jus- 
tice Bayley,  in  the  case  of  Bromage  v.  Prosser;  ^  he  says :  "  Malice,  in 
common  acceptation,  means  ill-will  against  a  person,  but  in  its  legal 
sense,  it  means  a  wrongful  act,  done  intentionally,  without  just  cause 
or  excuse.     If  I  give  a  perfect  stranger  a  blow,  likely  to  produce  death, 
I  do  it  of  malice,  because  I  do  it  intentionally,  and  without  just  cause 
or  excuse.     If  I  maim  cattle,  without  knowing  whose  they  are,  if  I 
poison  a  fishery,  without  knowing  the  owner,  I  do  it  out  of  malice,  be- 
cause  it  is  a  wrongful  act,  and  done  intentionally.     If  I  am  arraigned 
of  felony,  and  willfully  stand  mute,  I  am  said  to  do  it,  of  mahce,  be- 
cause it  is  intentional  and  without  just  cause  or  excuse. " 

This  passage  is  cited  and  approved  by  Chief  Justice  Shaw  in  Torks 
Case,^  and  there  are  many  otheT  authorities  to  the  same  effect.    To 
show  that  the  view  here  presented  is  in  entire  accordance  with  the 
ancient  law,  I  will  quote  a  passage  or  two  from  Foster,  one  of  the  ear- 
liest and  clearest  writers  on  crimind  law.^    He  says:  "  When  the  law 
maketh  use  of  the  term  malice  aforethought,  as  descriptive  of  the  crime 
of  murder,  it  is  not  to  be  understood  in  that  narrow,  restrained  sense 
to  which  the  modem  use  of  the  word  malice  is  apt  to  lead  one,  a  print:- 
pie  of  malevolence  to  particulars;  for  the  law,  by  the  term  malice,  la 
this  instance,  meaneth  that  the  fact  hath  been  attended  with  such  cir- 
cumstances as  are  the  ordinary  symptom  s  of  a  wicked,  depraved,  malig- 
nant spirit."     Again,  he  says:  "And  l  believe  that  most,  if  not  all, 
the  cases  which  in  the  books  are  ranged  under  the  head  of  implied 
malice,  will,  if  carefully  adverted  to,  be  found  to  turn  upon  this  single 
point  that  the  fact  hath  been  attended  with  such  circumstances  as  carry 
in  them  a  plain  indication  of  a  heart  regardless  of  social  duty,  and 
fatally  bent  on  mischief."  *»,  *  ♦k^ 

This  is  a  precise  doctrine  for  which  I  contend.  It  shows  that  the 
resort  to  a  fictitious  imputation  of  a  specsies  of  malice,  having  no  exist- 
ence in  fact,  called  impliei  malice,  was  gratuitous  and  unnecessary; 
and  being  so,  it  could  hardly  fail  to  be  pernicious.  It  tended  to  mtro- 
duce  confusion,  through  the  indiscriminate  use  of  the  word  implied  in 
two  conflicting  sentences;  one  importing  an  inference  of  actual  malice 
from  facts  proved,  the  other  an  imputation  of  fictitious  mahce,  without 
proof. 


14B.&C.2S5. 


1  »lleU. 


*  Fott.  Or.  li.  336,257. 


VIDUAL8. 

requisite  degree  of 
rhest  necessity  for 
e"  on  which  it  was 

orts  ill-will  towards 
refuted  by  Mr.  Jus- 
isays:  "Malice, in 
ion,  but  in  its  legal 
,  without  just  cause 
ly  to  produce  death, 
1  without  just  cause 
whose  they  are,  if  I 
it  out  of  malice,  be- 
,  If  I  am  arraigned 
do  it,  of  malice,  be- 
luse." 

stice  Shaw  in  York's 
tie  same  effect.    To 
accordance  with  the 
ister,  one  of  the  ear- 
,ys:  "When  the  law 
icriptive  of  the  crime 
row,  restrained  sense 
to  lead  one,  a  print:- 
J  the  term  malice,  in 
tended  with  such  cir- 
ked,  depraved,  malig- 
that  most,  if  not  &\\y 
the  head  of  implied 
turn  upon  this  single 
ircumstances  as  carry 
}  of  social  duty,  and 

d.  It  shows  that  the 
ilice,  having  no  exist- 
tus  and  unnecessary ; 
>.  It  tended  to  intro- 
if  the  word  implied  in 
ence  of  actual  malice 
bitious  malice,  without 


*  Fott.  Or.  U  336,207. 


DARKY   V.  PEOPLE. 


996 


In  putting  a  constrnction,  therefore,  upon  our  statute,  we  should  lay 
aside  entirely  the  common-law  terms  of  express  and  implied  malice,  as 
calculated  to  mislead  and  to  engender  false  ideas,  and  interpret  the 
phraseology,  as  before  insisted,  according  to  its  ordinaiy  import. 

Looking,  then,  at  the  statute  itself,  and  conutruing  it  in  this  spirit, 
what  is  its  real  scope  and  meaning?  In  endeavoring  to  answer  this  in- 
quiry, it  '"  important  to  keep  in  view  certain  rules,  which  reason  and 
experience  have  established,  as  calculated  to  aid  in  the  just  interpreta- 
tion of  statutes. 

If  the  enactment  be  subdivided,  each  subdivision  should  be  construed 
so  as  to  provide  for  a  separate  and  distinct  class  of  cases,  and  bo  as 
to  include  all  the  cases  it  is  intended  to  embrace,  and  to  exclude  all 
others.  Each  clause  is  also  to  be  construed  in  the  light  of  all  the  rest, 
and  so  as  to  give  force  and  effect  to  every  sentence  and  word ;  and  such 
a  construction  is  to  be  put  upon  the  whole,  if  possible,  that  no  case  or 
class  of  casrs  will  fall  within  more  than  one  branch  of  the  act.  These 
rules  are  necessary  in  order  to  attain  that  precision  and  certainty 
which  is  the  object  of  the  subdivision. 

There  is,  I  believe,  no  great  contrariety  of  opinion  as  to  the  meaning 
of  the  first  subdivision  of  section  5  of  the  statute  in  question.  If  there 
is  any  diificulty  in  this  respect,  it  is  in  ascertaining  whether  the  Inst 
clause  of  that  subdivision,  viz.,  "or  of  any  human  being,"  was  in- 
tended to  provide  solely  for  cases  where  the  premeditated  design,  al- 
though not  aimed  at  the  person  actually  killed,  was  nevertheless  directed 
to  some  particular  individual ;  or,  whether  it  also  includes  oases  where 
it  was  aimed  indiscriminately  at  a  multitude  of  persons,  or  at  human 
life  in  general.  That  the  former  is  the  true  interpretation  was  insisted 
by  the  prisoner's  counsel,  upon  the  argument,  for  several  reasons.  He 
urged,  first,  that  upon  comparison  of  section  5  of  our  statute  with  the 
description  of  murder  from  malice  aforethought  express,  as  given  in 
East's  Plem  of  the  Crown,^  and  considering  that  the  revisers  in 
their  m  ■  to  section  5,  expressl"  ay,  that  it  was  compiled  partly  from 
East,  it  is  apparent,  that  the  two  first  subdivisions  of  section  5  were 
copied  ei  ibstantially  from  the  definition  given  by  East ;  the  only  mate- 
rial difference  being,  that  the  two  first  subdivisions  of  East  are, 
in  our  statute,  condensed  into  one,  and  that  as  both  subdivisions  of 
East  are  plainly  and  expressly  confined  to  cases  of  malice  to  a  particu- 
lar individual,  tLo  corresponding  subdivision  in  our  statute  ^aould 
receive  the  same  construction.  Again,  he  contended,  that,  as  the  first 
clause  of  this  subdivision  was  clearly  confined  to  cases  of  particular 
malice,  the  last,  being  directly  connected  with  It,  should  be  held  to  be- 

1  p.  288,  MO.  10. 


996  CUIMES   AGAINST  THE   PERSONS   OF  INDIVIDUALS. 

long  to  the  same  class,  agreeable  to  the  maxim  noscitur  a  sociis.^  I 
have  very  little  hesitation  in  adopting  the  construction  of  this  subdi- 
yisioa  thus  cont.'nded  for,  not  only  for  the  reasons  given  by  the  coun- 
sel,  but  for  others  which  will  appear  when  we  take  into  consideration 
the  second  subdivision. 

This  biin<rs  us  to  the  difficult  part  of  our  task- that  of  interpreting 
the  second  "subdivision  of  the  section  in  question.  This  subdmsion 
was  incidentally  and  partially  considered  in  People  v.  /Jecfor,^  and  in 
People  V  White.^  But  the  examination  given  to  it  in  those  cases  was 
cursory  merely,  and  no  attempt  was  made  to  subject  it  to  that  rigid 
analysis  which  is  indispensable  to  the  development  of  its  true  meaning. 
It  becomes  necessary,  therefore,  in  my  view,  to  look  at  the  subject  as 
an  original  question.  In  doing  so.  I  shall  inquire,  first,  whether  an 
actual  intent  to  destroy  life  is,  in  all  cases,  essential  to  constitute  the 
crime  of  murder,  under  this  subdivision.  ,     ,   ,  ^ 

The  affirmative  of  this  question  was  very  strenuously  contended  for 
by  the  counsel  for  the  prisoner  upon  the  argument,  and  great  learning 
and  ability  were  displayed  in  the  efforts  to  maintain  it.     He  cont<>nded 
that  there  was  a  substantial  identity  of  design  and  object  between  our 
statute  and  that  of  Pennsylvania  passed  in  1794 ;  and  that  as  the  latter 
statute  had  been  construed  to  limit  murder,  to  those  cases  in  which  an 
actual  intent  to  take  life  exists,  ours  should  receive  the  same  construc- 
tion ;  and  insisted,  that  the  first  subdivision  of  section  5  being  intended 
to  provide  for  all  cases  where  the  hostile  intent  was  specially  aimed  at 
thelife  of  some  one  individual,  the  second  subdivision  was  designed  to 
embrace  only  those  cases  excluded  from  the  first,  where  the  intent,  al- 
thoucrh  deadly,  does  not  single  out  its  object. 

But  there  are  serious  objections  to  taking  this  view  of  the  latter  sub- 
division, conceding  the  construction  thus  put  upon  the  first  to  be,  as  1 
think  it  is  correct.     Of  what  use,  upon  this  supposition,  are  the  words 
•'  imminently  dangerous  to  others ?  "     Are  they  not  rendered  mere  un- 
meaning verbiage,  by  assuming  that  an  actual  intent  to  take  life  is 
essential  to  the  crime  under  this  subdivision?    Again,  if  such  an  intent 
is  necessary,  the  requirement  must  be  found  in  the  defimtion  of  the 
crime  given  by  the  statute.     The  only  affirmative  words  indicative  of 
the  intent  rcciuired  are  these,  "  a  depraved  mind,  regardless  of  human 
lifp  ••    These  words  describe  the  state  of  mind  which  must  accompany 
the  act ;  do  they  express  a  formed  intent  to  destroy  life  ?    Clearly  not ; 
no  sound  reason  can  be  given,  why  the  Legislature  should  have  resorted 
to  such  equivocal  and  circuitous  phraseology,  to  express  that  simple 
intent.     Such  an  intent  is  expressed  in  clear  terms,  in  the  subdivision 


1  Broom'*  Leg.  Max.  294;  Evans  v.  Ste 
Tens,  4  T.  R.  22S. 


2  19  Wend.  869. 

3  U  Id,  S20. 


AL3. 

%r  a  sociis,^    I 

of  tliia  subdi- 

n  by  the  coun- 

>  consideration 

of  interpreting 
lis  subdiAision 
Rector,'^  and  in 
hose  cases  was 
t  to  that  rigid 
\  true  meaning, 
the  subject  as 
rst,  whether  an 
I  constitute  the 

ir  contended  for 
i  great  learning 
He  cont(>nded 
ect  between  our 
liat  as  the  latter 
ises  in  which  an 
!  same  construc- 
I  being  intended 
>ecially  aimed  at 
nras  designed  to 
re  the  intent,  al- 

)f  the  latter  sub- 
first  to  be,  as  I 
n,  are  the  words 
sndered  mere  un- 
it to  talce  life  is 
if  such  an  intent 
definition  of  the 
ards  indicative  of 
irdless  of  human 
must  accompany 
fe?    Clearly  not; 
iild  have  resorted 
press  that  simple 
in  the  subdivision 


DARRY   V.  PEOPLE. 


907 


which  precedes,  as  well  of  that  which  follows,  the  one  under  review ; 
would  they  not  have  expressed  the  same  intent  in  the  same  way  in  this, 
if  that  was  what  was  meant?  Would  they  have  resorted  to  phraseology, 
not  only  peculiar,  but  such  as  does  not  import  what,  upon  this  suppo- 
sition, they  intended?    It  seems  to  me,  not. 

But  tliis  is  not  all :  The  piiraseology  of  the  subdivision  is  taken  sub- 
stantially from  the  writers  upon  the  common  law.  An  absolute  intent 
to  take  life  was  not  necessary,  at  common  law,  to  constitute  the  crime 
described  by  tliis  phraseology ;  as  to  this,  there  is  no  room  for  doubt. 
Tlie  first  general  division  of  homicide,  as  given  by  East,  is  as  follows: 
"  From  malice  aforethought,  express;  where  the  deliberate  purpose  of 
the  perpetrator  was  to  deprive  another  of  life,  or  to  do  him  some  great 
bodily  harm."  ^  This  general  division  of  homicide  is  again  divided  by 
East  into  three  subdivisions,  in  the  next  section,  as  follows:  1.  From 
a  particular  malice  to  the  person  killed.  2.  From  a  particular  malice 
to  one,  which  falls  by  mistake  or  accident  on  another.  3.  From  a  gen- 
eral malice  or  depraved  inclination  to  mischief,  fall  where  it  may. 
Now,  as  this  third  subdivision  is  obviously  a  specification  of  the  nature 
of  the  cases  falling  within  the  last  clause  of  the  previous  general  divis- 
ion, it  is  entirely  clear  that  it  was  intended  to  describe  a  class  of  cases 
in  wliicb  a  deadly  intent  is  not  required  to  make  out  the  crime. 

It  has  been  already  intimated  that  the  first  subdivision  of  section  5 
of  our  statute  appears  to  be  a  virtual  transcript  of  the  first  two  subdi- 
visions just  given  from  East.  It  is,  I  tliink,  equally  apparent  that  the 
second  subdivision  in  our  statute  was  taken  substantially  from  the  third 
subdivision  of  East,  although  not  a  literal  transcript  of  it.  The  infer- 
ence from  this  is  very  strong  that  it  was  intended  to  describe  tlie  same 
class  of  cases ;  and  if  so,  tlien  it  follows,  from  what  has  already  been 
said,  that  a  deadly  intent  is  not  necessary  to  constitute  the  crime  of 
murder  under  it. 

But  tliere  is  an  important  clause  added  to  the  second  subdivision  in 
our  statute  which  does  not  appear  at  all  in  East ;  and  it  becomes  indis- 
pensable to  ascertain  its  design  and  object.  If  we  can  discover  the  true 
object  of  introducing  tliis  clause,  we  have  a  key  to  the  interpretation 
of  tlie  whole  section.  The  words  are,  "  although  without  any  premedi- 
tated design  to  effect  the  death  of  any  particular  individual."  These 
words  must  have  been  introduced  for  some  purpose ;  what  was  it? 

I  remark,  first,  that  they  were  not  designed  to  show  that  a  particular 
deadly  intent  is  not  essential  to  constitute  the  crime,  because  tliey  could 
not  have  been  deemed  at  all  necessary  for  that  purpose.  The  idea  of 
such  a  necessity  seems,  as  we  liave  already  shown,  to  be  excluded  by 

1  1  Eaet'a  P.  C.  222,  Bee.  9. 


998 


CRIMES    AGAINST   THE    PERSONS   OF   INDIVIDUALS. 


the  whole  phraseology  of  the  subdivision.  No  corresponding  language 
is  contained  in  East's  definition  of  this  class  of  murders ;  he  evidently 
considered  the  definition  complete  and  perfect  without  it.  Besides,  if 
this  clause  was  introduced  for  that  purpose  the  plain  implication  would 
be,  that  a  general  deadly  intent,  not  aimed  at  any  particular  individual, 
is  necessary.  This  would  be  repugnant  to  all  our  previous  reasoning, 
and  would  exclude  from  the  operation  of  the  subdivision  the  very  cases 
which,  at  common  law,  marked  the  class.  This  view  of  the  clause 
would  also  effectually  exclude  the  case  at  bar  from  the  subdivision. 
But  I  consider  it  clear,  from  what  has  been  heretofore  said,  that  this 
could  not  have  been  the  object  of  the  clause. 

There  is  but  one  other  purpose  which  this  clause  could  have  been  in- 
tended to  subserve.  Although  the  terms  of  the  second  subdivision  do 
not  require  a  deadly  intent,  to  make  out  the  crime,  yet,  independent  of 
the  clause  in  question,  they  do  not  exclude  it.  Hence,  the  second  sub- 
division  mi-ht  be  construed  to  embrace  most,  if  not  all,  the  cases  pro- 
vided for  in  the  first.  This  would  defeat  the  very  object  of  the 
classification,  which  was,  to  draw  a  clear  line  of  distinction  between  the 
different  classes,  and  prevent  confusion  by  their  merger. 

The  plain  object,  therefore,  of  the  last  clause  of  the  second  subdivis- 
ion, and  the  only  conceivable  object,  I  hold  to  have  been,  to  mark  the 
distinction  between  that  subdivision  and  the  first,  by  at  once  excluding 
from  the  former  all  cases  of  particular,  and  at  the  same  time  stating  that 
it  was  not  intended  to  exclude  cases  of  general  deadly  intent.  Assum- 
ing this  to  have  been  its  object,  it  is  apparent,  that  force  and  signifi- 
cancy  is  given  to  every  word  of  the  clause  in  question;  and  that  each 
of  these  subdivisions  is  made  to  stand  out,  isolated  and  distinct,  with 
boundaries  clearly  marked,  and  with  no  tendency  to  fusion  with  each 

other.  •  ,  J.  •  •      4. 

It  will  be  seen  that  this  view  necessarily  limits  the  first  subdivision  to 
cases  of  particular  malice,  from  the  antithetical  relation  between  that 
subdivision  and  the  last  clause  of  the  second.     This  will  be  made  more 
apparent,  by  reading  the  two  clauses  in  connection,  omitting  the  inter- 
mediate significant  words,  thus:  "when  perpetrated  from  a  premedi- 
tated design  to  effect  the  death  of  the  person  killed,  or  of  any  human 
beinc^;  or  when  perpetrated"  (in  a  certain  way),  "although  without 
any  premeditated  design  to  effect  the  death  of  any  particular  individ- 
ual "     I  doubt,  whether  any  other  reading  can  be  adopted,  which  will 
atonce  give  scope  and  meaning  to  every  word  of  both  subdivisions,  and 
at  the  same  time  accomplish  the  object  of  drawing  a  definite  and  clear 
line  of  demarcation  between  the  two.     We  have,  then,  the  precise  clas- 
sification of  East;  the  only  difference  being  that  in  our  statute  it  is 
simplified,  by  reducing  the  first  two  subdivisions  into  one,  and  rendered 


ALS. 

iding  language 
;  he  evidently 
it.  Besides,  if 
[)Ucatio;i  would 
liar  individual, 
ious  reasoning, 
I  the  very  cases 
of  the  clause 
he  subdivision. 
i  said,  that  this 

d  have  been  in- 
subdivision  do 
independent  of 
the  second  sub- 
l,  the  cases  pro- 
object  of  the 
tion  between  the 

second  subdivis- 
!en,  to  mark  the 
;  once  excluding 
time  stating  that 
intent.  Assum- 
orce  and  signifi- 
i ;  and  that  each 
nd  distinct,  with 
fusion  with  each 

pst  subdivision  to 
on  between  that 
■ill  be  made  more 
mitting  the  inter- 
from  a  premedi- 
or  of  any  human 
although  without 
larticular  individ- 
opted,  which  will 
subdivisions,  and 
definite  and  clear 
I,  the  precise  claa- 
our  statute  it  is 
one,  and  rendered 


DARRY   V.  PEOPLE. 


999 


a  little  more  definite  by  the  express  exclusion  from  the  last  subdivision 
of  all  cases  embraced  in  the  first. 

What,  then,  are  the  cases  which,  upon  this  construction,  were  intended 
to  be  included  in  the  second  subdivision?  In  considering  this  question 
it  is  clearly  proper,  in  the  first  place,  to  inquire  what  kind  of  cases  were 
embraced  in  the  corresponding  class,  as  defined  by  East.  The  words 
in  East  are:  "  From  a  general  malice,  or  depraved  inclination  to  mis- 
chief, fall  where  it  may."  The  word  "  general  "  here  used  and  the  last 
words  of  the  s  atence,  leave  no  doubt  as  to  the  nature  of  the  cases  con- 
•  templated  by  this  subdivision ;  they  were  cases  of  depraved  and  reck- 
less conduct,  aimed  at  no  one  in  particular,  but  endangering 
indiscriminately  the  lives  of  many,  and  resulting  in  the  death  of  one  or 
more. 

If  this  be  not  clear  upon  the  words  themselves,  the  comments  of  Mr. 
East  upon  this  subdivision  woulrl  seem  to  put  tlie  matter  at  rest.*  In 
illustrating  this  subdivision,  he  says:  "The  act  must  be  unlawful,  at- 
tended with  probable  serious  danger,  and  must  be  done  with  a  mischiev- 
ous intent  to  hurt  people,  in  order  to  make  the  killing  amount  to  murder 
in  these  cases;  "  and  the  instance"  ^  ■  gives  are  as  follows:  *'  If  a  per- 
son breaking  in  an  unruly  horse,  willfully  ride  among  a  crowd  of  persons, 
the  probable  danger  being  great  and  apparent,  and  death  ensue  from  the 
viciousness  of  the  animal,  it  is  murder."  Again,  "  so,  if  a  man,  know- 
ing that  people  are  passing  along  the  street,  throw  a  stone  likely  to 
create  danger,  or  shoot  over  the  house  or  wall,  with  intent  to  do  hurt  to 
people,  and  one  is  thereby  slain,  it  is  murder."  These  are  the  only 
examples  given,  and  they  accord  perfectly  with  the  language  of  the  sub- 
division, and  show  that  the  latter  was  intended  to  embrace  those  cases 
of  general  malice  only  where  the  lives  of  many  were  or  might  be  in 
jeopardy.  The  inference  is  very  strong  that  the  subdivision  of  our 
statute  which  we  are  considering  was  intended  to  provide  for  the  same 
cases  as  that  of  East,  from  whtch  it  was  substantially  taken.  But  the 
argument  in  favor  of  this  construction  is  by  no  means  confined  to  this 
inference. 

It  is  clear,  I  think,  from  what  has  been  already  said  that  the  subdivis- 
ion in  question  does  embrace  those  cases  where  an  intent  to  take  life 
exists,  which  is  not  directed  to  any  particular  individual,  but  is  general 
and  indiscriminate.  The  language  of  the  subdivision,  however,  at  the 
same  time,  shows  that  it  was  not  intended  to  be  confined  to  those  cases, 
but  was  designed  to  include  another  class  closely  akin  to  and  almost 
identical  with  those  in  which  death  is  produced  by  acts  putting  the  lives 
of  many  in  jeopardy,  under  circumstances  evincing  great  depravity  and 

1  1  East's  p.  C.  2U,  sec.  18. 


I. 


1000  CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

fire  into  a  crowd  with  the  view  of  destroying  life,  and  he  may  do  so  for 
Z  me  purpose  of  producing  alarm,  although  at  the  i^--^^^^^^^^^^^ 
Z  he  knows,  of  killing  some  one.  Again,  he  may  open  the  drawbudge 
"f  araillawith  intfnt  to  destroy  the  lives  of  the  P-^f"'- ^^ 
may  do  it  for  the  sole  purpose  of  effecting  the  destruction  of  the  prop- 
71  of  the  rlilroad  company.  The  subdivision  in  question  was  |ntended 
to  provide  for  all  these  and  similar  cases  indiscriminately,  inUtmg  them 
uprthe  same  footing,  without  regard  to  the  particular  intent.  The 
Phrases  "imminently  dangerous  to  others,"  and  "depraved  mmd,  re- 
gardless oZman  life,"  have  an  apt  and  intelligible  meaning  when  used 

in  regard  to  such  cases.  .     ,    ,      „„„„  «#  thin  *le- 

If,  then,  the  subdivision  was  intended  to  include  cases  of  th  8  de 

scri^tion,  t  would  seem  to  follow,  upon  the  plainest  P"-;?^-;'  «;"; 
8?^ction  that  cases  of  death  produced  by  acts  affec  uig  a  smg^ 
n^i  iLl  only  are  excluded.  It  would  be  r^V^^^^^^ ^oj^Usr^ln^^^ 
of  interoretatlon  to  associate  under  the  same  clause  of  a  statute  groups 
of  caseTsoTssimilar  as  those,  examples  of  which  I  have  ust  g.ven 
and  ordinary  homicides;  especially  where,  as  in  the  preseu  instance, 
^n  attempt  iL  been  made,  in  framing  the  statute,  at  a  precise  classifi- 
cation  of  the  cases  arising  under  it.  ...       v.„ 

The  examples  which  I  have  given  as  falling  within  tbe  prov-on  b^ 
lone  to  a  class  having  marked  features,  easily  distinguishable  from  all 
o^his    and  tLre  is  no  difficulty  in  so  construing  the  subdivision  in 
:Son:st::Lludecasesnotb'elongingtotln^ 
time  so  as  to  include  aU  cases  falling  properly  withm  it.     For  these 
re^ons  I  am  entirely  satisfied  that  this  subdivision  was  <Jes.gTied  to 
Z7Z  for  that  class  of  cases  and  no  others,  where  the  acts  resulting 
rdeathrcalculated  to  put  the  lives  of  many  persons  in  jeopardy 
:ittut  being  aimed  at  any  one  in  particular,  and  ^^eV^^^^^;:^^ 
a  full  consciousness  of  the  probable  consequences.     Such  acts  may  well 
L  sL  to  "vince  that  reckless  disregard  of  and  -differenc^^^^^^^^ 
life  which  is  fully  equivalent  to  a  direct  design  to  dest.oy  it.    The 
moraT  sense  of  mankind  distinguishes  between  ^f  ^V'?--;^'"^.*"' 
Tdely  dangerous  character  and  ordinary  cases  of  individual  homicide, 
ftn<1  SO  in  mv  iudement,  does  the  statute. 

Buttierrfs  anldditi;nal  reason  for  putting  this  construction  upon 
the  Subdivision  in  question.  If  it  can  be  so  construed  -  «  -dji^^^^^^^ 
case  at  bar  and  others  of  a  similar  description,  we  are  left  wholly  with 
out  anv  line  of  distinction  between  murder  and  manslaughter  except 
I  loose  and  uncertain  opinion  of  a  Jury  as  to  whether  the  act  which 
produced  death  did  or  did  not  evince  a  "  depraved  mmd,  regardless  of 
Cmriife."    There  is  scarcely  a  case  of  manslaughter  which,  upon 


.^te 


QALS. 

?.  mfty  do  80  for 
iminent  hazard, 
the  drawbridge 
issengers,  or  he 
on  of  the  prop- 
on  was  intended 
ly,  putting  them 
lar  intent.  The 
»raved  mind,  re- 
aning  when  used 

ases  of  this  de- 
rinciples  of  con- 
necting a  single 
to  all  sound  rules 
a  statute  groups 
have  just  given, 
present  instance, 
a  precise  classifi- 

the  provision,  be- 
uishable  from  all 
he  subdivision  in 
i,  and  at  the  same 
in  it.     For  these 

was  designed  to 
the  acts  resulting 
•sons  in  jeopardy, 
!  perpetrated  with 
»uch  acts  may  well 
Eference  to  human 
,  destroy  it.     The 

this  sweeping  and 
iividual  homicide. 


construction  upon 
id  as  to  include  the 
re  left  wholly  with- 
anslaughter  except 
;ther  the  act  which 
nind,  regardless  of 
ighter  which,  upon 


DARRY  V.   PEOPLE. 


1001 


utter  recklessness  in  regard  to  human  life.  For  instance,  a  man  may 
this  construction,  may  not  be  brought  witiiin  tlie  definition  of  murder 
and  punished  as  sucli,  provided  a  jury  can  be  found  to  say  that  the  act 
which  produced  death  evinced  a  "  depraved  mind,  regardless  of  human 
life;"  because  the  othe?  clause,  to  wit,  "imminently  dangerous  to 
others,"  if  it  can  apply  to  this,  would  apply  to  every  case  of  homicide, 
as  the  result  would  always  prove  tlie  imminently  dangerous  nature  of 
the  act ;  and  because,  upon  this  construction,  cases  of  homicide  com- 
mitted unintentionally,  in  the  heat  of  passion,  would  not  be  excluded, 
as  such  a  case  might  very  well  evinoe  a  depraved  mind,  regardless  of 
human  life,  in  the  opinion  of  a  jury.  Tliis  construction  then  would 
throw  us  upon  that  sea  of  uncertainty  which  it  was  the  special  object  of 
the  reviserr,  in  framing,  and  of  the  Legislature,  in  adopting,  the  section 
in  question  to  avoid. 

My  conclusion,  therefore,  is  -that  the  only  construction  which  is  con- 
sistent with  the  language  of  the  section  as  a  whole,  with  the  object 
aimed  at  in  its  adoption,  with  the  precision  and  certainty  of  the  law, 
and  with  the  convenient  and  safe  administration  of  justice,  is  that  which 
1  have  already  given. 

I  omit  to  express  any  opinion  as  to  the  particular  degree  of  man- 
slaughter within  which  this  case  is  embraced,  it  being  unnecessary  to 
the  decision  of  the  cause.  The  question  was  somewhat  agitated  upon 
the  argument,  but  ought,  perhaps,  to  be  more  fully  discussed,  and  more 
deliberately  considered,  before  it  is  definitely  settled. 

It  follows,  from  what  has  been  said,  that  the  judge  erred  upon  the 
trial,  in  submitting  the  case  to  the  jury  under  the  second  subdivision  of 
the  section  of  the  statute  in  question ;  and,  consequently,  that  there 
must  be  a  new  trial. 

Denio,  J.  The  offense  of  murder,  though  the  most  heinous  crime 
which  can  be  committed  against  an  individual,  had  not,  either  in  En- 
gland or  in  this  State,  been  subjected  to  a  legislative  definition,  until  it 
was  done  in  the  enactment  of  the  Revised  Statutes,  in  the  year  1830. 
By  the  ancient  common  law,  the  distinction,  in  felonious  homicide,  be- 
tween a  killing  with  or  without  malice  was  merely  nominal,  both  being 
indiscriminately  punished  with  death.  It  was  said,  that,  although  the 
malice  made  the  fact  more  odious,  yet  it  was  nothing  more  than  the 
manner  of  the  fact,  and  not  the  substance ;  and  the  term  manslaughter 
was  used  to  defined  the  offense  in  both  cases.  But  when  the  benefit  of 
clergy  was,  by  statute,  taken  away  from  murderers  with  malice  pre- 
pense, the  more  modern  distinction  between  the  most  aggravated  form  of 
homicide,  and  the  inferior  grades  came  to  be  recognized,  so  that,  at  the 
period  when  we  succeeded  to  the  English  common  law,  the  legal  defini> 


1002         CRIMES    AGAINST  THE  PERSONS  OF   INDIVIDUALS. 

tlon  of  murder  was  well  establishe^U  The  act  concerning  '""rde'  »n 
the  rcisTon  of  1813,  did  not  atten,pt  a  definition  of  the  offense  but  was 
mied  tothere-enJctmentof  several  English  statutes  l>-v>«l'"g '- ^ 
few  ilicular  cases  of  homicide,  bringing  them  withux,  or  exomptmg 
them  from,  the  penalties  of  mun'i-r.'^ 
%.eaes;riptlLoftheo«e..eth^ 

"^^7^^:^^^  -nlawfuny  UiUeth  an,  reasonable  creature 
:^  h    malice^,.•epense  (or  aforethought)."  3    The  -rds  maUc    ,-- 
tense  acouircd  a  peculiar  significance  on  account  of  their  use  in  the 
s  Ite    r/lenry  VIH.^    That  act  provided,  that  ^-^^ -^  actud^^^^^^^^ 
bolv  orders,  should  be  found  guilty  (among  other  crimes   o      any  w.l 
fu    murder    of  malice  prepensed,"  they  should  be  utterly  excluded 
fim  the  benefit  of  their  clergy,.and  suffer  death  in  such  —rand 
form  ''as  if  they  were  no  clerics."     From  that  time,  the  words  referred 
toTecame  indispensable  in  the  definition  of  the  offense,  as  only  a  nom^ 
ralZLment  could  be  inflicted,  if  malice  were  not  estabhshed  by  the 
Je  die      and  from  thence,  also,  the  inferior  grades  of  fe  on.ous  honu- 
dde  came  to  be  called  manslaughter,  while  the  capital  offense  was 
deno^nated  murder.     And  where  a  capital  conviction  was  sought  i 
tsTaid  to  be  indispensable  that  the  indictment  should  contam  the 
words  -  ex  malitia  sua  pmcogitata,  inlerfecit  et  murdraviL 

Though  the  words,  in  their  ordinary  sen.e,  conveyed  the  idea  of 
deadly  Animosity  against  the  deceased,  and,  by  a  strict  interpretation 
ionl  f  »erhans  only  embrace  cases  of  a  killing  from  a  motive  of  re- 
Tent '  tCy  wer'ell  so  limited  by  the  construction  of  the  courts.  AU 
rnSdes  for  which  no  excuse  or  palliation  was  proved,  and  a  large 
clTwhe;^^^^^^^  no  actual  intention  to  effect  the  death  of  the  per- 

son  kUlcd,  were  held  to  be  murder.  To  justify  these  convictions  an 
Tificlll  meaning  was  attached  to  the  words  -11-  prepe^  b^  w  ich 
thev  were  made  to  qualify  the  taking  of  human  life,  m  all  cases  where 
sound  poUcy,  or  the  demerfts  of  the  offender,  were  supposed  to  require 
*haf  he  should  be  capitally  convicted.  .  .    *u- 

llnce  t  deflniLs  of  murder  to  which  I  have  referred  contam  he 
nd^^tl  tnt  the  malice  may  be  express  or  implied;  but  in  drawing  the 
Snctl^b^^^^^^^^^  the  two' classes,  great  confusion  was  introdnced^ 
Coke  fTinstance,  classes  among  instances  of  implied  mahce,  the  case 
ofTolsoii.^"  and  all  cases  of  the  killing  of  another,  without  any  provo- 
caUoThrhrm  that  is  slain ;  though  it  would  seem,  that  a  willful  poison- 

M  Keeve..  Hist.  Eng.  Law.   ^  m  to  ^^'.^oj:*^'?-"- *'^'"^'^" '" '"''*"' 

,S6;  6  Id.  m  to  223:  FoBters-  Crown  Law.  4 Bla.^Com.  195. 

J02  to  306 ;  4  Bla.  Com.  201.  ^  ^  ^^^^.^  p  p  ^jq 

«  1  U.  L.  66. 


JALS. 

ling  murder,  In 
)ffen3e,  but  was 
providing  for  a 
^  or  exompting 

liled  for  several 
sound  memory, 
onable  creature, 
irds  malice  pre. 
Lheir  use  in  the 
y,  not  actually  in 
;s)  of  "  any  will- 
titterly  excluded 
uch  manner  and 
le  words  referred 
,  as  only  a  noml- 
stablished  by  the 
!  felonious  homl- 
)ital  offense  was 
an  was  sought,  it 
iOuld  contain  the 
avit." 

sycd  the  idea  of 
let  interpretation, 
im  a  motive  of  re- 
f  the  courts.  All 
aved,  and  a  large 
!  death  of  the  per- 
se convictions,  an 
repense,  by  wliich 
in  all  cases  where 
pposed  to  require 

iferred  contain  the 
but  in  drawing  the 
a  was  introduced, 
jd  malice,  the  case 
without  anyprovo- 
at  a  willful  poison- 


l7;lHale*8P.C.U9,450; 


50. 


DARRY  V.   PEOPLE. 


1003 


ing  afforded  the  strongest  evidence  of  deliberate  malice,  while  in  the 
othtr  case,  supposing  no  explanatory  evidence  to  be  given,  actual 
malice  ought  to  be  found  as  a  matter  of  fact  upon  the  evidi;nce.>  Hale 
includes  in  the  class  of  malice  in  fact,  the  case  of  Ivilling  from  a  deliber- 
ate compassing  and  design  to  do  some  bodily  injury,  and  instances 
Hallowiiv'a  Case,  where  the  prisoner  tied  a  lad,  who  was  found  tres- 
passing, to  his  horse's  tail,  and  he  was  dragged  till  his  shoulder  was 
broken,  wliereof  he  dicd.^  So,  he  says,  if  a  master  dcsigneth  an  im- 
moderate and  unrea3ona»)le  correction  of  his  servant,  either  in  respect  to 
the  measure  or  the  instrument,  and  death  ensues,  it  is  murder  from  ex- 
press malice;  and  so  of  a  schoolmaster  toward  his  seholar.s  This 
author,  in  his  chapter  of  "  murder  by  malice  implied,  or  malice  inlaw," 
includes  in  that  class,  cases  where  the  homicide  is  committed  without 
provocati(m,  where  it  is  upon  an  officer  or  minister  of  justice,  and  where 
by  a  person  that  intends  theft  or  burglary,  etc. 

In  the  first  division  (murder  without  provocation),  the  cases  present 
merely  a  rule  of  evidence.     As  the  law  holds  that  a  man  intends  the 
natural  consequences  of  his  own  acts,  it  determines,  that  where  there 
is  no  provocation,  or  where  there  has  been  time  for  the  blood  to  cool, 
the  killing  must  be  designed  and  intentional.     As  was  said  by  Coler- 
idge, J.,  in  Regina  v,  Kirkliam:*  "Everyone  must  be  presumed  to 
intend  the  natural  consequences  of  his  acts.     If  you  throw  a  stone  at 
a  window,  it  must  be   taken  that  you  intend  to  break  it,  because  it  is  a 
brittle  substance.    That  being  so,  if  you  had  heard  nothing  tiore  than 
simply  that  the  prisoner,  taking  a  knife  in  his  hand,  had  stabbed  his 
son,  that  would  have  put  it  on  him  to  clear  himself  from  the  charge  of 
murder."     In  cases  of  this  kind,  if  the  prisoner  could  sliow,  positively, 
that  his  intention  was  not  to  kill  the  deceased,  he  would,  of  course,  be 
acquitted.     In  the  other  instances,  on  account  of  the  intention  to  do 
some  other  illegal  act,  not  Vouching  life,  the  presumption  is  juris  el  de 
jure,  and  the  most  conclusive  evidence  that  death  was  not  intended, 
would  not  help  the  prisoner.     Take,  for  example,  the  case  of  a  homi- 
cide,  by  one  engaged  in  committing  a  burglary;  the  party  killed  may 
have  been  a  stranger,  or  even  the  nearest  friend  of  the  prisoner,  and 
he  may  be  able  to  show  in  the  most  conclusive  manner  that  lucre  was 
his  only  object,  and  that  murder  was  not  in  all  his  thoughts ;  still,  he 
was,  by  law,  guilty  of  murder  with  malice  aforethought. 

These  references  are  sufficient  to  show,  that  the  term  malice  prepense 
had  been  made  the  subject  of  much  and  not  always  perfectly  intelligent 
refinement.     Malice  in  law,  or  implied  malice,  was  simply  a  conclusion 


1  3  Inst.  S2. 

»  1  Hale's  P.  0. 461, 454 ;   Ilalloway's  Case. 
Cro.  Car.  13L 


3  p.  454. 

<  8  C.  &  P.  119. 


1004  <RIME.S   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

from  the  facts,  and  liable  to  be  overcome  by  the  proof  of  other  facts, 
and  at  other  timesi,  it  was  an  irresistible  legal  inference  which  couUl 
not  be  rebutted.  So  far  from  being  a  descriptive  term,  to  bo  applied 
as  a  test  to  cases  as  they  should  arise,  it  bad  become  simply  a  part  of 
the  name  to  be  given  to  the  offense,  when  its  existence  had  been  ascer- 
tained by  other  tests.  It  was,  probably,  for  this  reason,  that  the  ex- 
pression was  wholly  omitted  in  the  revised  r  )de.  The  object  of  the 
revisers  and  of  the  Legislature  was,  to  define  the  offense,  by  the  use  of 
language,  in  its  ordiu.iry  sense,  omitting  a  phrase  which,  though  it  had 
become  technical,  tended  to  mislead  rather  than  to  instruct.  The  pro- 
vision respecting  murder,  as  proposed  by  the  revisers,  was  as  follows:— 
Sec.  4.  The  killing  of  a  human  being,  without  the  authority  of  law, 
by  poison,  shooting,  stabbing,  or  any  other  means,  or  in  any  other  man- 
ner, is  cither  murder,  manslaughter,  or  excusable  or  justifiable  homi- 
cide, according  to  tlie  facts  and  circumstances  of  each  case. 

Sec.  5.  Such  killing,  unless  it  be  manslaughter,  or  excusable  or  jus- 
tifiable homicide,  as  hereinafter  provided,  shall  be  murder  in  the  follow- 
ing cases:  1.  When  perpetrated  from  a  premeditated  design  to  effect 
the  death  of  the  person  killed,  or  of  any  human  being.  2.  When  per- 
petrated by  an  act  imminently  dangerous  to  others,  and  evincing  a  de- 
praved mind,  regardless  of  human  life,  although  witliout  any  premedi- 
tated design  to  effect  the  death  of  any  particular  individual.  3.  When 
perpetrated  without  any  design  to  effect  death  by  a  person  engaged  in 
the  comwssion  of  any  felony :  4.  When  perpetrated  from  a  premedi- 
tated design  to  do  some  great  bodily  injury,  although  without  a  design 
to  effect  death.^ 

The  Legislature  was  at  the  same  time,  informed  by  the  revisers  that 
a  lamentable  uncertainty  prevailed  in  regard  to  the  distinction  between 
murder  and  manslaughter,  that  nothing  was  so  much  needed  as  a 
settled  line  of  distinction  between  them,  and  that  the  first  step  to  such 
a  distinction  was  the  definition  of  murder.  ^ 

These  provisions  were  enacted  precisely  as  reported,  except  the 
fourth  subdivision  of  the  fifth  section,  which  was  rejected.^  It  thence- 
forward became  the  duty  of  the  courts  by  an  attentive  consideration  of 
the  language  of  these  enactments,  to  ascertain,  in  each  case  presented 
for  adjudication,  whether  the  alleged  offense  came  within  the  statute. 
The  case  of  the  plaintiff  in  error  would  have  been  of  easy  solution,  as 
the  law  stood  before  the  revision.  The  deceased  died  by  his  hands, 
and  the  bill  of  exceptions  states  that  there  was  no  evidence  given  to 
show  any  provocation  on  her  part.  It  was  a  homicide,  wholly  un- 
explained; it  was  also  a  case  of  cruel  and  inhuman  violence,  unrelieved 
by  provocation  or  the  heat  of  passion,  and  of  a  design  to  do  some  great 


1  3  Rev.  Stftts.  (2d  ed.)  808. 


2  la.  3  2  Bev.  otats.  6S6. 


IDL'ALS. 

of  of  Other  facts, 
once  whieU  couUl 
rm,  to  bo  applied 
I  simply  a  part  of 
38  had  been  ascer- 
ason,  that  the  ex- 
["he  object  of  the 
nse,  by  the  use  of 
ich,  though  it  bnd 
istnict.  The  pro- 
,  was  as  follows: — 
I  authority  of  law, 
in  any  other  man- 
r  justifiable  bomi> 
h  case. 

excusable  or  jus- 
rder  in  the  follow- 
ed design  to  effect 
ing.  2.  When  per- 
and  evincing  a  de- 
hout  any  premedi- 
ividual.  3.  When 
person  engaged  in 
!d  from  a  premedi- 
h  without  a  design 

t>y  the  revisers  that 
distinction  between 
much  needed  as  a 
le  first  step  to  such 

)orted,  except  the 
jected.3  It  thence- 
ive  consideration  of 
each  case  presented 
5  within  the  statute. 
of  easy  solution,  as 
died  by  his  hands, 
►  evidence  given  to 
)micide,  wholly  ua- 
violence,  unreiievtd 
gn  to  do  some  great 

3  2  Rev.  atats.  656. 


DAHRV  v.  PEOPLE. 


1005 


bodily  harm,  from  which  death  resulted,  po93ii)Iy,  without  its  being 
contemplated  by  the  accused.  In  either  case,  as  a  hcjuiicidc  uncx- 
[tlained,  or  a  killing  by  cruel  violence,  unprovoked,  it  was  murder  by 
the  common  law.  Whether,  under  the  statute,  tiie  jury  would  have 
l)een  authorized  to'flnd  a  premeditated  design  to  effect  her  death,  within 
the  meaning  of  the  first  subdivision  of  the  fifth  section,  is  a  question 
not  before  us,  and  upon  which  it  would  be  improper  to  express  an 
opinion;  that  question  was  not  presented  to  the  jury. 

The  precise  question  is,  wliether  the  second  subdivision  embraces  the 
case  of  killing  by  an  unprovoked  and  cruel  beating,  the  accused  not 
intending  to  take  life.  Had  the  fourth  subdivision,  as  reported,  been 
enacted,  it  would  precisely  have  met  the  case.  I  do  not  rely  very  much 
upon  its  having  been  reported  and  rejected  by  the  Legislature.  It  may 
have  been,  because  they  did  not  intend  to  punish  such  a  case,  as  mur- 
der, and  it  may  have  been,  because  it  was  considered  as  embraced  in 
the  prior  provisions.  It  is,  however,  a  circumstance  of  some  moment, 
as  it  would  rather  be  presumed,  that  where  a  case  of  frequent  occur- 
rence was  well  described  in  the  projected  law,  the  provision  would  have 
been  adopted,  instead  of  leaving  it  to  be  dealt  with  bj'  a  construction 
upon  other  provisions  less  accurately  adapted  to  the  case.  This  con- 
sideration is  strengthened  by  the  circumstance,  that  a  homicide  com- 
mitted in  the  attempt  to  do  a  great  bodily  injury,  short  of  death, 
without,  or  on  insufficient,  provocation,  formed  a  distinct  bead  of  the 
law  of  murder  by  the  common  law.' 

In  ascertaining  the  meaning  of  the  second  subdivision,  upon  which 
the  plaintiff  in  error  was  convicted,  it  is  necessary  to  look  into  other 
instances  of  murder  at  the  common  law,  where  it  is  not  necessary  that 
there  should  be  any  intention  to  take  the  life  of  the  person  killed.  I 
refer  to  cases  where  death  was  the  collateral  consequence  of  the  act, 
which  itself  was  highly  criminal.  Foster  says,  that  "  if  an  act,  unlaw- 
ful in  itself,  be  done  deliberately  and  with  intention  of  mischief,  or 
great  bodily  harm  to  particulars,  or  of  mischief  indiscriminately,  fall 
it  where  it  may,  and  death  ensue,  against,  or  beside,  the  original  inten- 
tion of  the  party,  it  will  be  murder."  '■*  One  branch  of  the  offense  here 
refeiTed  to  is,  in  a  modified  form,  provided  for  in  the  first  subdivision. 
A  premeditated  design  to  effect  the  death  of  "  any  human  being,"  is 
made  murder,  though  the  person  killed  was  not  at  all  within  the  inten- 
tion of  the  offender. 3  Then,  as  the  intent  to  do  mischief  indiscrimin- 
ately, by  which  is  meant  such  as  is  deadly  or  very  dangerous ;  almost 
every  writer  on  criminal  law  has  a  division  of  murder  from  general  mal- 


1  See  in  addition  to  tlie  books  referred  to, 
Fo8t.  Cr.  L.  268, 891, 296 ;  4  Bla.  Com.  !»9:  B«X 
V.  aeaiou,  1  Str.  SOO;  Arcbb.  Cr.  PI.  391. 


i  p.  261. 

'  See  Queen  ».  SAundera,  Plowd.  473. 


1000         CUIME8   A(»AINST  THE   PERSON'S   OP   INDIVIDUALS. 

ice  or  a  dcprave.l  inclination  to  mischief,  fall  Mrbcre  it  may.>  The  act 
muHt  be  ItHelf  unlawful,  attended  with  rrobable  serious  danger,  and 
must  be  done  with  a  malicious  intent  to  hurt  people. 

The  instances  given  are,  riding  an  unruly  horse  among  a  crowd  of 
people,  the  probable  danger  being  great  and  apparent;  throwing  a 
Lavy  stone  into  the  street,  when  multitudes  are  passing;  firing  a  gun 
into  a  crowd,  and  the  like.     No  one  will  deny  but  that  the  second  sub- 
division of  the  fifth  section  very  accurately  describes  tbe  particular  .n- 
gtance  of  murder  just  referred  to ;  but  the  question  is,  whether  it  Is  not 
limited  to  that,  and  whether  it  fairly  extends  to  cases  where  the  in  ten- 
tionand  the  act  refer  only  to  the  person  killed ;  -«;"«   ^«  «^''Vt,^ 
tlon,  whether  more  or  less  wicke^  has  for  Its  object  the  party  who 
ultimately  becomes  the  victim.     Ihe  language  does  not  seem  to  bo  de- 
Ined  to  embrace  the  last  mentioned  ca.e.     In  the  first  place,  the  act 
causing  death  must  be  one  imminently  dangerous  *<>«*»>;"•  J^y 
should  the  greater  or  less  degree  of  danger  be  an  ingredient  when  the 
case  supposes  that  the  party  against  whom  It  was  directed,  and  for 
whom  it  was  intended,  was  killed  by  it?    It  must  be  dangerous  to 
others.     The  plural  form  is  used;  and  though  I  am  aware  that,  by  » 
general  provision  of  the  Revised  Statutes,  the  plural  may  be  construed  to 
include  the  singular,  1  conceive,  that  where  a  precise  deflmt.on  was  m- 
tended,  and  where  the  distinction  between  general  and  particular  malice 
Tust  have  been  in  the  mind  of  the  Legislature.  ^^^;'^-^;\^^r::T' 
danger  to  the  person  killed  would  have  bocn  specified,  h'^d.i' ^«" 
tended  to  embrace  it.3    The  act  must  evince  a  depraved  m.nd  regard- 
ss  of  human  life.     These  words  are  exactly  <i-«!P^- "'j^^'d 
malice,  and  can  not  be  fairly  applied  to  any  affection  of  the  mind, 
ZyiJtoT  itsoMect  a  particular  individual;  they  define  general  reck- 
?e7sne°s  and  are  not  pertinent  to  describe  cruelty  to  an  mdwidual. 
The  act  by  which  the  death  is  effected  must  evince  a  disregard  to 
human  life.     Now,  a  brutal  assault  upon  an  individua  may  evince  am- 
Sy   and  hate'towa.ls  that  person,   and   *  «-    -<* 'J°f^«^'^^ 
disposition,  but  it  could  not  oroperly  be  said  to  be  evidence  of  a  reck- 
Zness  ani  disregard  of  human  life,  generally      Take  t^^---^  <^«^^ 
ensuing  from  an  intentional  immoderate  punishment  of  «  ^^^^^^  ' T,^ 
act  would  be  evidence  of  a  disregard  of  the  life  of  the  servant,  but  not 
of  human  life  in  a  general  sense.    The  life  of  every  one  wc  know,  is  a 
humau  life;  but  the  words  are  used  in  tWs  enactment  m  a  generri 
sense,  as  ci;arly  as  when  we  speak  of  the  uncertainly  <>'  ^""^ ^'«'^ 
the  miseries,  the  pleasures,  or  the  vanity  of  human  life.    Again,  the 


1 1  KMf«  p.  C.  281  -.Hale,  476 ;  4  Bla.  Com. 
aoo;  1  Hawk.,  ch. ».  ••«•  W.  "»*  «•>•  "•  "*• 
«1. 


»  EMt,  ffipra. 
SSBeT.SUU.nS 


>UAL8. 

mny.'    The  act 
QU8  danger,  and 

long  a  crowd  of 
ent;  throwing  a 
ing ;  firing  a  gun 
t  the  second  eub- 
the  particular  in- 
wbether  it  Is  not 
wliere  the  inten- 
re  the  evil  inten- 
ct  tl»o  party  who 
ot  seem  to  bo  de- 
Irst  place,  the  act 
to  ■  others.    Why 
rcdient,  when  the 
directed,  and  for 
be  dangerous  to 
aware  that,  by  a 
ly  be  construed  to 
definition  was  in- 
l  particular  malice 
case  of  imminent 
3,  had  it  been  iu- 
,ved  mind,  regard- 
riptive  of  general 
tion  of  the  mind, 
efine  general  reck- 
to  an  individual, 
ice  a  disregard  to 
lal  may  evince  ani- 
lel  and  revengeful 
ividence  of  a  reck- 
:e  the  case  of  death 
of  a  servant;  the 
he  servant,  but  not 
one,  wc  know,  is  a 
cent,  in  a  general 
Y  of  human  life,  or 
a  life.    Again,  the 


DAIIKY   V.  PEOPLE. 


1007 


killing  must  be  without  any  premeditated  design  to  effect  the  death  of 
any  particular  individual.  Why  did  not  tiio  Legislature  say,  of  the 
person  killed?  or,  if  it  were  intended  to  embrace  botii  general  and 
particular  malice,  of  the  person  killed,  or  of  any  particular  individual? 
The  first  subdivision  presented  an  example,  in  immediate  proximity,  of 
the  phraseology  suggested,  wiuMO  it  was  intended  to  provide,  as  well 
for  the  case  of  particular  malice  effecting  it»  object,  as  for  malice  taking 
effect  in  a  manner  collateral  to  tho  intention.  Upon  tlie  most  careful 
and  anxious  examination  of  the  provision,  I  am  entirely  satisfied,  that 
it  can  not,  witliout  violence  to  the  intention  of  the  Legislature,  as 
evinced  by  tlie  language,  be  applied  to  the  case  of  homicide  resulting 
from  a  direct  assault  by  one  person  upon  another. 

It  is  not  necessary  to  maintain,  tliat  homicide  from  a  cruel  assault, 
without  a  design  to  effect  death,  could  be  adequixtely  punished,  under 
the  provisions  respecting  manslaughter.  It  may  be,  that  the  failure  to 
enact  the  provision  in  the  revisers'  report,  rendered  a  change  necessary 
in  the  enactment  respecting  manslaughter,  which  was  omitted  through 
inadvertence.  If  so,  it  is  a  cams  omissus  which  tho  Legislature  is  alone 
competent  to  supply. 

I  have  not  overlooked  the  opinions  incidentally  expressed  by  Chan- 
cellor Walworth  and  Mr.  Justice  Bronson,  in  People  v.  WhiU  *  and  in 
People  V.  Rector."^  In  neither  of  these  cases,  was  this  question  pre- 
sented ;  and  in  both  of  their  opinions,  those  learnei  judges  were  dis- 
sentients from  the  judgment  of  the  court  upon  the  points  decided  in 
those  cases.  The  judgments  of  the  courts  below  should  be  reversed, 
and  a  new  trial  ordered  in  the  Court  of  Oyer  and  Terminer. 

Parker,  J.  As  it  appeared  that  the  injuries  upon  the  head  of  the 
deceased  had  no  part  in  causing  her  death,  we  may  lay  them  entirely 
out  of  view  in  considering  this  case ;  the  whole  case,  then,  is  this :  the 
prisoner  made  three  several  assaults  upon  the  deceased,  and  beat  her 
with  his  fists,  in  thb  pit  of  the  stomach,  which  caused  her  death.  The 
fact  that  the  prisoner  had  threatened  to  kill  the  deceased,  certainly 
made  the  case  a  proper  one  in  which  to  submit  to  the  jury  the  question, 
under  the  first  subdivision  of  the  definition  of  murder,  whether  the  act 
was  done  from  a  premeditated  design  to  effect  death.  But  the  judge 
charged  that  the  prisoner  might  be  convicted,  under  the  second  subdi- 
vision of  the  definition  of  murder,  which  applies  to  a  killing"  perpe- 
trated by  a?7.  act  imminently  dangerous  to  others,  and  evincing  a 
depraved  mind,  regardless  of  human  life,  although  without  a  premedi- 
tated design  to  effect  the  death  of  ;«:y  particular  individual. 

I  think,  that  subdivision  was  designed  to  cover  a  very  different  class 
of  cases ;  such  as,  where  death  is  caused  by  firing  a  loaded  gun  into  a 


MW«nd.l20. 


a  19 /A  689. 


1008         CRIMES   AGAINST   THE  PERSONS   OF  INDIVIDUALS. 

water,  or  by  opening  the  draw  «  ^  ^f  f^;^^  ^^  ..^j^ently  danger- 
about  to  pass  over  it.  In  such,  and  l»k«  «*^^^' '  reaardlcssness  of 
ous  act,  the  extreme  depravity  ^^C^  t^e  same  W  as  the  taking 
human  lif.,  properly  place  the  ^^^^^l^'^^^J'f^^^^  ^re  not  appUc- 
of  life  by  premeditated  design.  ^"^  *^f  J^^^,  ,^,  commission  of  a 
able,  and  can  not  be  made  so,  to  a  me  e  c-e  «'  ^^^^  ^^^^  ^^.^^ 

well  as  from  the  dicta  in  Peoi^e  y  Enoch. 

If  the  judge  was  right  in  his  «'^.'»rg;m;^>^^^^^^^^^  intends 

against  a  conviction  for  mur  er  m  ^^^^^^^  J <ie.il.,  and  in 
„.erely  to  beat  with  h'^./;J^;^"tld  by  personal  violence,  because 

every  other  ^'^^^  ^*,°^^"^^7„f J^.ttl^e  actJ^^  imminently  dangerous, 
the  accused  could  hardly  deny,  th^t  the  «^*  ^  ^.,^  ^^o  fist 

when  it  proved  so.  by  causing  ^J^J'  -^^j;  ^^  ^^  ^  design  to  do 
evinces  a  certain  depravity  ^*  "^^"^' ^^^.^^  ^  xnisdemeanor,  and  to 
wrong  to  the  extent,  «^^^  ^^^^^^^^^^^^^^  of  human  life  in 

some  extent,  there  may  be  c^"^^ ^^^^^^^^  f^^^,  ^eath.  If  such  a  con- 
such  case,  becaus-u«h  *  ^^^^^^J  ^f  ^^^^^^^^^^  of  putting  the  offense 
struction  is  admissible,  the  aDsuruuy     i  ,  .    .^^   commission  of  a 

„,  WUlng "'''«'\<'-'«°' 1" ';:rwSgt*tauUe,ign,by. pe«on 
misdemeanor,  on  the  same  level  with  a  kimng  ^    ^^^^  ^^,,1 ; 

engaged  h  the  commiselon  o.  ^^'^'^•^^X:ZS^^  „,  .he  Revised 
«.us,  restoring  *«  "^  ^  „  '°  ^^J^d  intention  o.  the  revision,  t. 
Statutes,  when  it  is  the  piainiy  «*!  manslaughter, 

mitigate  the  former  "f  -  ^ tS'd^lgt-''".  and  the  sec 
A  careful  exammation  of  '^.y'f''"''"'^*         clearly  theerro- 

neousness  of  the  charge  m  h«  '«»Pf '•'„„,■.  etc.,  "  shall  be 
declares,  "  such  WUipg,  unless  "^  ™°  ^on  .  made  applicable 
murder  in  the  following  cases.     J.""  »^"f ''l"  j ;,  „„,  manslaughter, 

to  each  of  the  three  '°''"'°8 '"'■'■'''raot  imm  nently  dangerous  to 
it  is  murder,  "  when  1«'P<*'»'««  '^  ""^J  ■,7,^,  ,.„;  proved  bring 
others,"  etc.    »l';^^^t:£^J^:iL..,U^r%  .an,  in  n. 

trb^lX^ot     tcLbefo^u^.^^^^^^^^^^^ 


1  24  Wend.  B8>. 


3  19  Id.  691. 


3U/(i.U>* 


(IVILtUALS. 

accustomed  to  draw 

as  a  train  of  cars  is 
e  imminently  danger- 
he  regardlcssness  of 
aie  level  as  the  taking 
issions  are  not  applic- 

the  commission  of  a 
ieath,  but  from  which 
nator  Wager,  in  Peo- 

V.  Rector,"^  and  differ 
ions  in  those  cases,  as 


se,  there  is  no  security 
(vhere  a  person  intends 

causes  death,  and  in 
sonal  violence,  because 
imminently  dangerous, 
ry  beating  with  tho  fist 
there  is  a  design  to  do 
1  misdemeanor,  and  to 
essness  of  human  life  in 
,  death.    If  such  a  con- 
id,  of  putting  the  offense 
I  in  the  commission  of  a 
thout  design,  by  a  person 
aishing  both  with  death ; 
adoption  of  the  Revised 
jntion  of  the  revision,  to 
oanslaughter. 
ing  murder,  and  the  sec- 
ik,  very  clearly  the  erro- 
3  section  defining  murder 
lighter,"  etc.,  "  shall  be 
3ation  is  made  applicable 
If  it  is  not  manslaughter, 

imminently  dangerous  to 

if  the  facts  proved  bring 
lanslaughter,  it  can,  in  no 

us,  if  there  was  no  pre- 
t  within  the  first  subdivis- 

the  charge  was  made,  the 

3  13  Id.  IBS. 


DARRT  V.  PEOPLE. 


1009 


case  falls  precisely  witliin  the  definition  of  manslaughter  in  the  first 
degree.  It  was  the  killing  of  a  human  being,  without  a  design  to 
effect  death,  by  the  act  of  a  person  engaged  in  the  perpetration  of  a 
crime  or  misdemeanor,  not  amounting  to  a  felony,  in  a  case  where  such 
killing  would  have  been  murder  at  the  common  law ;  and  being  within 
the  description  of  manslaughter,  it  could  not  be  murder.  To  be  mur- 
der, a  case  must  not  only  fall  within  one  of  the  three  subdivisions, 
denning  murder,  but  it  must  not  fall  within  any  of  the  defmitions  of 
manslaughter.  If  full  effect  be  thus  given  to  the  words,  "  unless  it  be 
manslaughter,"  in  the  preliminary  part  of  the  section  defining  murder, 
the  second  subdivision  of  that  section  will  only  be  applicable  to  the 
class  of  cases  above  indicated.  All  others,  growing  out  of  personal 
rencontres,  and  confined  generally  to  two  persons  only,  will  be  found  to 
fall  within  some  of  the  definitions  of  manslaughter  and,  of  coarse, 
without  the  second  definition  of  murder. 

With  this  constructioi.  crimes  will  also  be  properly  graduated,  ac- 
cording to  the  intention  of  the  revisers.  If  A.  attempts  to  cowhide  B., 
for  having  libelled  him,  and  death  accidentally  ensue,  the  crime  will  be 
manslaughter  in  tho  first  degree,  because  the  assailant  was  engaged  in 
committing  an  assault  and  battery  only.  But  if  A.  attempts  to  cut  off 
the  hand  that  wrote  the  libel,  and  dtath  accidentally  follow,  the  crime 
will  be  murder,  because  A.  was  engaged  in  the  commission  of  the  fel- 
ony of  mayhem. 

It  is  evident,  that  the  presiding  judge,  in  charging  the  jui-y,  had  in 
his  mind  the  idea,  that  the  case,  to  be  murder,  must  not  fall  within  the 
definition  of  manslaughter,  for  he  made  it  a  condition  to  bringing  the 
case  within  the  latter,  that  the  jury  should  find  the  injuries  "were  in- 
fiicted  without  provocation,  and  not  in  the  heat  of  passion."  But  he 
overlooked  the  definition  of  manslaughter  that  was  alone  applicable. 
He  should  have  specially  called  their  attention  to  the  definition  of  man- 
slaughter in  the  first  degree,  and  if  he  alluded  to  the  second  subdivision 
of  the  definition  of  murder  at  all,  he  should  have  told  them,  it  could  not 
fall  within  that,  if  it  was  a  case  of  killing,  without  a  design  to  effect 
deatli,  while  engaged  in  committing  an  assault  and  battery  only.  If 
there  was  a  design  to  effect  death,  it  would,  of  course,  have  fallen  under 
the  first  subdivision  of  the  definition  of  murder.  If  there  was  any 
question  on  that  point,  it  should  have  been  submitted  to  the  jury,  to 
find  whether  it  was  murder,  under  the  first  subdivision,  or  manslaughter 
in  the  first  degree. 

If  this  case  was  properly  submitted  to  the  jury,  as  falling  under  the 
second  subdivision  of  murder,  so  might  a  case  be  thus  admitted,  where 
death  was  caused  with' -.t  design,  by  a  person  engaged  in  a  felonious 
assault  upon  the  person  killed,  which  is  one  of  the  cases  expressly  pro- 


1010         CRIMES  AGAINST  THE  PERSONS  OF   INDIVIDUALS. 

^A.A  for  in  the  third  subdivision.  But  tl»e  construction  I  have  put 
rfthe  B^crnd  ^division  confines  each  subdivision  to  a  dist.nct  class 
Of  cases,  and  renders  it  entirely  inapplicable  to  ^y^^^ 

Wnt  it  has  been  said  » that  the  sixth  section  of  the  statute  aenn.ng 
Jns  aughter YnTe  fli'st  degree,  is  not  applicable  to  a  case  where  t^. 
naitv  causing  death  without  design,  is  engaged  in  an  assault  and  bat 
?erv      rand  no  warrant   for  such  a  position;  no  except.cm  of  that 

Itftnte  noThcrc  confines  this  section  and  the  third  subdivision  of  the 
Xn  d:flning  Irder  to  other  offenses  than  those  of  intentional  vio- 

*Ti«  said  that  this  plain  construction  of  the  act  would  niake  every 
it  becomes  felony  of  ™»»'»°8 '"' V"f ,,  3,7/„iLa.ely  to  no  ench 

»uvi  fuc  w  ,       n.„,      Tf  thpi-p  is  the  excuse,  that  tue  a^i  was 

r;Lr:7^%tr':::l\y  ..e  ....eent.  .eetlon  U,  U.e  ,o„«b 
^ftZay  U  that  the«  reBpeotive  erimos  „re  no.  properly  g^uajed. 

1  People  V.  Uector,  19  Wend.  608. 


QALS. 


DARRY  V.   PEOPLE. 


1011 


:ion  I  have  put 
a  distinct  class 

;r. 

statute  defining 

case  where  the 
assault  and  bat- 
:ception  of  that 
the  killing  of  a 
he  act,  procure- 
ther  is  engaged: 
lot  amounting  to 

crime  or  misde- 
•  at  the  common 
s  section  is  thus 
lors,  not  amount- 
ery  is  one.  The 
ubdivision  of  the 
,f  intentional  vio- 

rould  make  every 
ttd  deatli  ensuing, 
ed  in  such  felony, 
malely  to  no  such 
rise  provided.     If 
asues,  without  de- 
mayhem  or  other 
sign,  it  is  murder, 
js  not  designed,  in 
( construction  sup- 
commit  a  battery, 
such  a  case,  is  ihe 
e,  that  the  act  was 
iMUsual  manner,  or 
th  and  twelfth  sec- 
id  if  done  in  the 
ner,  and  not  with  a 
Rction  to  the  fourth 

)roperly  graduated, 
cy ;  but  the  dispro- 
th  ensuing,  without 
uanslaughter  in  the 


first  degree,  within  the  description  of  the  sixth  section.    With  such  a 
construction,  and  with  a  construction  of  the  second  subdivision  of  the 
definition  of  murder,  like  that  adopted  at  the  trial,  the  question  for  the 
jury  would  not  be,  whether  the  crime  was  murder  or  manslaughter  in 
the  first  degree,  but  it  would  be,  whether  it  was  murder  or  manslaughter 
in  one  of  the  lower  grades,  thus  making  a  leap  from  murder  to  man- 
slaughter in  the  fourth  degree ;  from  a  crime  punishable  with  death,  to 
one  punishable  in  a  county  jail,  witlj  but  a  shade  of  difference  between 
tiiem.     The  very  case  before  us  falls  at  once  to  manslaughter  in  the 
fourth  degree,  it  excluded  by  such  a  construction  from  the  first  degree. 
It  is  objected,  that,  if  my  construction  of  the  first  degree  of  man- 
slaughter is  correct,  it  would  cover  every  other  degree  of  manslaughter 
for,  in  every  case  provided  for  in  the  lower  degrees,  there  is  also  an 
assault  and  battery,  and  death  ensues.     I  answer,  the  general  descrip- 
tion in  the  first  degree  can  not  be  considered  as  applicable  to  cases  par- 
ticularly described  in  the  lower  degrees.     The  first  degree  gives  the 
general  description ;  the  lower  degrees,  the  exceptions,  as  where  the 
act  is  done  in  the  heat  of  passion,  etc.     It  is  far  more  consistent,  to 
hold,  that  the  description  in  the  first  degree,  does  not  apply  to  cases 
described  in  the  second  and  third  degrees,  than  to  hold,  it  is  not  ap- 
pHcable  to  any  case  of  assault  and  battery,  where  death  ensues.     There 
is  much  less  violence  done  to  the  language  of  the  section,  by  my  con- 
struction, than  by  that  against  which  I  contend.     There  is  reason  in 
holding  that  the  first  section,  being  in  general  terms,  is  not  applicable 
to  cases  specially  described.     Though  within  the  general  language,  it 
may  well  be  supposed,  the  Legislature  did  not  intend  to  include  them, 
because  they  are  provided  for  specially  in  other  sections.     But  it  seems 
to  me,  it  is  refusing  obedience  to  the  statute,  to  say,  that  it  is  not  in- 
tended to  be  applied  to  any  case  of  assault  and  battery,  when  no  ex- 
ception of  that  offense  is  made.     But  whatever  may  be  the  true  con- 
struction of  the  sixth  section,  defining  manslaughter  in  the  first  degree, 
I  am  clearly  of  the  opinion,  that  the  court  below  erred  in  attempting  to 
bring  the  case  within  the  second  subdivision  of  the  section  defining 
murder.    The  offenat,  was  either  murder  by  design,  under  the  first  sub- 
division, or  manslaughter  in  some  degree. 

If  I  were  sitting  in  the  Oyer  and  Terminer,  and,  perhaps,  if  sitting 
in  the  Supreme  Court,  I  should  feel  bound  by  the  opinions  expressed 
on  these  points  by  the  learned  judges  who  constituted  a  majority  of 
the  court  in  deciding  the  Rector  Case.  But  in  this  court,  where  this 
question  has  not  been  decided,  and  where  we  are  bound  by  no  such 
O|)inions  expressed  in  an  inferior  tribunal,  I  think  it  is  our  duty,  to 
settle  the  construction  of  these  sections  of  the  statute,  by  giving  to 
them  the  effect  which  must  have  been  originally  intended,  and  thereby 


1012         CRIMES  AOAIN8T  THE  PERSONS  OF  INDIVIDUALS. 

placing  the  different  statutory  provisions  more  in  harmony  with  each 

°*Mv  conclusion  is,  therefore,  that  the  Court  of  Oyer  and  Terminer  erred 
in  its  charge  to  the  jury,  aud  that  the  judgment  of  that  court,  and  of 
the  Supreme  Court,  should  be  reversed. 

Judgvient  reverted,  and  new  trial  awaroea. 

Gabdineb,  C.  J.,andRuaoLES,  J.   dissented. 


MURDER  IN  FIRST  DEGREE  -  SPECIFIC  INTENT  TO  KILL 

ESSENTIAL. 

Bratton  V.  State. 

[10  Humph.  103.] 

In  the  Supreme  Court  of  Tennessee,  1849. 

A  Statute  Declare,  that "  all  murder  which  shall  be  perpetrated  by  moa"' «*  P"},"""' 
Iv^ie  fn  watt  o"  ny  other  kind  of  willful,  deliberate.  mallciouB  and  premeditated  killing, 
o'r  which  BhaU  be  clouted  in  the  perpetration  of  or  attempt  '«>  P^-^P^f.'  !  ""?hat  'o 
arson  burg  ury.  or  larceny,  shall  be  deemed  murder  in  the  first  0«f ™«;  "«"'• '^"' ^° 
rnst'turSer  in  the  flrst  decree,  there  must  exist,  in  ^''^  »'-•»  »' 'f,\nrh,  ^th 
•lays  another,  a  spcci0c  intention  to  take  the  life  of  the  person  slain.  «""»  f  «f  " J^"' **"„ 
premed"tated  intent  to  slay  one  person,  against  his  intention  slay  another,  it  wUl  not  be 
murder  in  the  first  degree. 

Bratton  was  indicted  for  murder,  in  the  Circuit  Court  of  Giles,  and 
was  tried  by  Judge  Dillahuntt  and  a  jury ;  found  guilty  of  murder  in 
the  first  degree,  and  judgment  entered  accordingly.     He  appealed. 

Nicholson  and  Jones,  for  the  plaintiff  in  error. 

Attorney  General  and  Wright,  for  the  State. 

McKiNNEY,  J.,  delivered  the  opinion  of  the  court.         ^  ^.,     _      ^ 

The  plaintiff  in  error,  was  indicted  in  the  Circuit  Court  of  Giles  County 
for  the  murder  of  Mary  Jane  Wilsford ;  and  was  found  guilty,  by  the 
jury,  of  murder  in  the  first  degree,  as  charged  in  the  indictment.  The 
iurv  also  found  that  there  were  mitigating  circumstances  in  the  case. 
The  prisoner  moved  the  court  for  a  new  trial ;  but  the  motion  was  over- 
ruled,  and  judgment  pronounced,  that  he  undt-.go  confinement  in  the 
jail  and  penitentiary  house  of  this  State,  for  and  during  the  period  of 
his  natural  life.  A  bill  of  exceptions,  setting  forth  the  proof  in  the 
case,  was  signed  and  sealed  and  an  appeal  in  error  prosecuted  to  this 

^'''upon  a  careful  consideration  of  the  proof,  we  feel  constrained  to  say, 
that  the  facts  of  the  case,  as  presented  in  the  record  before  us,  furnish 


[JALS. 

nony  with  each 

Terminer  erred 
at  court,  and  of 

rial  awarded. 


TO  KILL 


by  moans  of  poison, 
premeditated  killing, 
perpetrate  any  rape, 
degree,"  held,  that  to 
Ind  ot  the  person  who 
In,  and  that  If  he,  with 
another,  it  wUl  not  be 


irtof  Giles,  and 
lilty  of  murder  in 
He  appealed. 


irt  of  Giles  County 
ind  guilty,  by  the 

indictment.  The 
ances  in  the  case. 

motion  was  over- 
confinement  in  the 
ring  the  period  of 
I  the  proof  in  the 
prosecuted  to  this 

constrained  to  say, 
before  us,  furnish 


BRAXTON   V.  STATE. 


1013 


no  sufllcient  ground,  in  our  judgment,  for  disturbing  the  verdict  of  the 
jury.  It,  therefore,  oiilj'  remains  to  inquire,  whether  or  not  the  legal 
principles  applicable  to  the  facts  of  the  case,  were  correctly  stated  to 
the  jury,  in  the  charge  of  the  court. 

The  deceased  was  the  wife  of  the  prosecutor,  and  her  death  was 
caused  by  a  pistol  shot,  discharged  by  the  prisoner.  It  seems  to  have 
been  a  question,  earnestly  discussed  on  the  trial  in  the  Circuit  Court,  as 
well  as  in  the  argument  here,  whether  the  shot  which  resulted  in  the 
death  of  Mrs.  Wilsford,  was  intended  by  the  prisoner,  to  take  effect 
upon  her  or  the  prosecutor.  In  reference  to  this  question  the  Judge 
instructed  the  jury,  that  "  if  the  defendant  intended  to  kill  the  husband 
of  the  deceased,  and  undesignedly  killed  the  deceased,  the  offense 
would  be  the  same  as  if  he  had  killed  the  husband ;  that  is,  if  the  de- 
fendant had  killed  the  husband  of  the  deceased,  and  such  killing  would 
have  been  excusable  homicide  in  self-defence,  as  already  explained  to 
you,  then  you  should  acquit  the  defendant ;  and  so,  if  he  had  killed 
the  husband  of  the  deceased  under  such  circumstances,  as  would  make 
the  offense  manslaughter  or  murder  in  the  first  or  second  degree,  as 
already  explained  to  you;  then,  tliough  he  undesignedly  killed  the 
deceased,  it  would  be  the  same  offense  as  if  he  had  killed  the  husband 
of  the  deceased,  and  you  should  fix  the  punishment  of  the  defendant 
accordingly." 

The  only  question  presented  upon  the  record  is,  whether  the  principle 
announced  in  the  foregoing  instruction  is  applicable  to  the  crime  of 
murder  in  the  first  degree,  as  defined  in  the  third  section  of  the  penal 
code  of  1829.  That  this  principle  is  correct  in  reference  to  murder  at 
the  common  law,  is  conceded,  and  that  it  is  equally  so,  as  respects  mur- 
der in  the  second  degree,  and  all  the  inferior  grades  of  homicide,  under 
the  statute,  is  not  to  be  questioned.  But  that  it  is  wholly  inapplicable 
and  directly  opposed  to  both  the  letter  and  spirit  of  the  statute  as 
regards  murder  in  the  first  degree,  we  think  is  clear  beyond  all  doubt. 

In  order  to  a  correct  determination  of  this  question,  we  are  to  inquire, 
what  was  the  intention  of  the  Legislature?  What  change  of  the  exist- 
ing law,  upon  this  subject,  was  contemplated  by  the  statute?  What 
particular  evil  was  designed  to  be  obviated  or  at  least  alleviated?  The 
common  law,  which  was  in  force  here,  prior  to  the  statute  of  1829, 
recognized  no  distinction  in  respect  to  felonious  homicide,  except  that 
between  murder  and  manslaughter ;  the  distinctive  difference  between 
which  two  offenses  is,  that  malice  aforethought  either  expressed  or 
implied,  which  is  of  the  essence  of  murder,  is  presumed  to  be  wanting 
in  manslaughter ;  the  act,  in  the  latter  offefise,  being  rather  imputed  to 
the  infirmity  of  human  nature. 

In  regard  to  the  latter  crime,  a  distiaction,  certainly  reasonable  and 


1014         CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

just  iu  itself,  was  also  taken  between  voluatary  and  involuntary  man- 
slau.'hter.     But  in  relation  to  the  higher  crime  of  murder,  the  common 
law  made  no  discrimination;  all  murders,  irrespective  of  their  greater 
or  less  malignity  and  atrocity,  were,  so  far  at  least  as  respects  the  pun- 
ishment,  on  the  same  footing.    And,  without  regard  to  the  intrinsic 
nature  of  the  case,  or  circumstances  tending  to  enhance  or  extenuate 
its  legal,  as  well  as  moral,  guilt,  the  uniform  and  indiscriminate  punish- 
luent  was  death.     With  a  discrimination  more  conformable  to  the  dic- 
tates of  reason,  justice  and  humanity,  as  well  as  to  the  spirit  of  the  age, 
tlie  penal  code  of  l«2i),  had  in  view,  among  other  objects,  the  admeas- 
urement  and  adaptation  of  punishment  to  the  different  degrees  of  crime, 
according  to  their  different  degrees  of  malignity,  as  far  as  comported 
with  the  public  safety  and  policy.     In  the  accomplishment  of  this  pur- 
crime  of  murder  (the  definition  of  which,  contained  in  the 
^       tion  of  the  statute  is  borrowed  in  exact  terms  from  the  com- 
mon law),  is  divided  into  two  grades,  with  a  view  solely  to  the  gradua- 
tion  of  the  punishment.    The  third  section  enacts  that,  "  all  murder 
whiel.  'hall  '>      perpetrated  by  means  of  poison,  lying  in  wait  or  any 
other  k- ul  of  willful,  deliberate,  malicious  and  premeditated  killing ;  or 
which  shall  be  committed  in  the  perpetration  of,  or  attempt  to  perpe- 
trate  any  arson,  rape,  robbery,  burglary,  or  larceny,  shall  be  deemed 
murder  in  the  first  degree;  and  all  other  kinds  of  murder  shall  be 
deemed  murder  in  the  second  degree."     In  this  general  definition,  and 
enumeration  of  specific  instances  constituting  murder  in  the  first  degree, 
there  is  a  classification  of  various  kinds  of  homicide,  which  it  maybe  of 
some  importance  to  notice,  with  a  view  to  the  question  under  considera- 
tion    In  cases  of  murder  by  means  of  poison,  or  lying  in  wait,  the 
most  atrocious  and  detestable  of  all  kinds  of  homicide,  and  the  least  to 
be  guarded  against,  either  by  resistance  or  forethought,  the  crime  is 
made  to  depend  exclusively  upon  the  "  means  "  causing  death.    So, 
likewise  in  respect  to  cases  of  murder  committed  in  the  perpetration  of, 
or  attempt  to  perpetrate  arson,  rape,  robbery,  burglary  or  larceny;  a 
class  of  felonies  most  dangerous  in  their  consequences  to  public  safety 
and  happiness,  which  may  be  most  frequently  and  easily  committed, 
and  to  which  there  are  the  strongest  temptations.     In  all  these  cases, 
the  mode  or  "  means  "  of  destroying  life,  supplies  a  conclusive  legal 
presumption  of  malice  and  guilty  intention ;  the  crime,  as  well  as  the 
legal  guilt  of  the  agent,  is  mu.le  to  depend  alone  upon  the  fact  of  tak- 
ing  life  in  either  of  the  specified  modes.     In  such  cases,  the  question 
of  malice  or  intention,  as  a  matter  of  fact,  is  wholly  irrelevant ;  it  need 
not  be  proved,  and  can  not  be  controverted  by  the  accused.     But  the 
remaining  species  of  murder  defined  in  the  statute,  namely,  murder 
"by  any  other  kind  of  willful,  deliberate,  malicious  and  premeditated 


»UALS. 


BRATTON  V.  STATE. 


1015 


ivoluntary  mau- 
ler, the  common 
of  their  greater 
espects  the  pun- 
to  the  intrinsic 
ce  or  extenuate 
iriminate  punish- 
lable  to  the  die- 
spirit  of  the  age, 
icts,  the  admeas- 
[legrees  of  crime, 
ar  as  comported 
nent  of  this  pur- 
contained  in  the 
ns  from  the  com- 
ily  to  the  gradua- 
liat,  "all  murder 
g  in  wait  or  any 
itated  killing ;  or 
ittempt  to  perpe- 
shall  be  deemed 
murder  shall  be 
ral  definition,  and 
in  the  first  degree, 
which  it  may  be  of 
a  under  considera- 
lying  in  wait,  the 
e,  and  the  least  to 
ught,  the  crime  is 
using  death.     So, 
he  perpetration  of, 
ary  or  larceny;  a 
es  to  public  safety 
easily  committed. 
In  all  these  cases, 
a  conclusive  legal 
[me,  as  well  as  the 
on  the  fact  of  tak- 
cases,  the  question 
irrelevant ;  it  need 
accused.     But  the 
2,  namely,  murder, 
3  and  premeditated 


killing,"  falls  within  the  operation  of  a  directly  contrary  principle. 
Here,  the  character  ol  the  crime  and  guilt  of  the  agent,  are  made  to 
depend  exclusively  upon  the  mental  status,  at  the  time  of  the  act,  and 
with  reference  to  tlie  act  which  produces  death. 

This  accumulated  definition  of  murder  in  the  first  degree,  takes  in  all 
the  ingredients  of  crime  descriptive  of  the  utmost  mallgnit}'  and  wick- 
edness of  heart,  as  well  as  of  the  highest  and  most  aggravated  species 
of  homicide.  If  the  universal  principle  of  construction  is  to  be  regarded, 
that  every  word  in  a  statute  is  to  have  meaning  and  effect  given  to  it, 
if  practicable,  it  results  of  necessity,  by  force  of  the  terms  employed 
in  the  definition  of  the  crime,  that  to  constitute  murder  in  the  first 
degree,  it  must  be  established,  that  there  existed  in  the  mind  of  the 
agent,  at  the  time  of  the  act,  a  specified  intention  to  take  the  life  of  the 
particular  person  slain.  The  characteristic  quality  of  this  crime  and 
that  which  distinguishes  it  from  murder  in  the  second  degree,  is  the 
existence  of  a  settled  purpose  and  fixed  design  on  the  part  of  the 
assailant,  that  the  act  of  assault  should  result  in  the  death  of  the  party 
assailed ;  that  death,  being  the  end  aimed  at,  the  object  sought  for  and 
wished.^  The  "killing"  must  be  willful;  "that  is,  of  purpose,  with 
intent  that  the  act,  by  which  the  life  of  a  party  is  taken,  should  have 
that  effect."  *  "  Proof  must  be  adduced  to  satisfy  the  mind,  that  the 
death  of  the  party  slain  was  the  ultimate  result  which  the  concurring 
will,  deliberation  and  premeditation  of  the  party  accused  sought. "  ^  If, 
then,  by  misadventure  or  other  cause,  a  blow,  directed  at  a  particular 
person  and  designed  to  take  his  life,  take  effect  upon  and  cause  the 
death  of  a  third  person,  against  whom  no  injury  was  meditated,  can  it 
be  said,  that  the  will  concurred  with  the  act,  which  resulted  in  the  acci- 
dental death  of  such  third  person;  or  that  there  existed  a  specific 
intention  to  take  his  life.  A  grosser  absurdity  can  not  be  conceived. 
The  hypothesis  that  the  killing  was  undesigned,  concedes  that  the  will 
did  not  concur  with  the  act ;  that  in  point  of  fact,  no  such  specific 
intention  existed ;  no  such  result  was  either  contemplated  or  designed. 
And  upon  what  principle  is  it,  that  this  would  be  murder  at  common 
law?  Simply  upon  the  principle  of  implied  or  imputed  malice  and 
intention.  In  such  case,  all  the  essential  elements  of  murder  at  the 
common  law  concur.  A  homicide  has  been  committed  with  deadly 
weapon,  in  the  attempt  to  perpetrate  a  felony,  by  taking  the  life  of 
another  person,  without  legal  justification  or  excuse ;  and  in  such  case, 
from  the  circumstances  and  deadly  weapon,  the  law  conclusively 
presumes  malice  and  the  intent  to  murder ;  and,  in  like  manner,  the 
law  conclusively  presumes  that  the  party  contemplated  the  probable 
consequences  of  bis  own  act. 


I  4  Humph.  136, 139. 


2  10Terg.SBl. 


•  1  Leigh  •  Rep.  611. 


1 


1016         CRIMES   AGAINST  THE  PERSONS  OT  INDIVIDUALS. 

There  is  another  principle  applicable  in  such  case,  namely :  the  law  by 
imputation,  so  to  speak,  refers  the  act  of  murder  to  the  felonious  intent 
existing  in  the  mind  of  the  agent  towards  the  particular  object  of  his 
revenge.  "  Thus,"  Siiys  Blackstone,^  "  if  one  shoots  at  A.  and  misses 
him,  but  kills  B.,  this  is  murder,  because  of  tlie  previous  felonious 
intent,  which  the  law  transfers  from  one  to  the  other." 

But  we  have  seen  that  murder  in  the  first  degree,  as  constituted  by 
our  statute,  depends  upon  the  existence  of  a  specific  intention  to  take 
the  life  of  the  particular  person  slain ;  and  that  the  existence  of  such 
intention,  as  a  matter  of  fact,  must  be  satisfactorily  established. 
Hence,  it  is  clear  to  a  demonstration  that  all  legal  implication  or  impu- 
tation of  such  intention  is  excluded  in  reference  to  this  particular 
species  of  murder.  It  is  equally  clear  that  all  cases  of  homicide  not 
falling  within  the  principles  here  announced  properly  belong  to  that 
comprehensive  class  included  in  the  statute,  of  "all  other  kinds  of 
murder,"  and  which  are  declared  to  "  be  deemed  murder  in  the  second 
degree."  To  murder  of  this  class,  as  well  as  to  all  inferior  grades 
of  homicide,  the  common-law  principle  asserted  in  the  charge  of  the 
circuit  judge  is  still  clearly  applicable. 

We  are  aware  that  in  Pennsylvania,  upon  a  statute  almost  identical 
in  its  terms  with  our  own,  a  different  construction  has  prevailed.     In 
the  case  of  the  Commonwealth  v.  Dougherty,  it  appears  from  the  note 
of  the  case,  to  which  only  wo  have  had  access,  that  the  prisoner  aimed 
a  blow  with  an  axe  at  his  wife,  and  it  fell  on  the  head  of  a  child  which 
lay  on  her  shoulder,  and  inflicted  a  mortal  wound,  of  which  it  died. 
And  it  was  held  by  the  court  that  if  the  prisoner's  "  intent  was  to  kill 
his  wife,  and  killing  her  would  have  been  murder  in  the  first  degree, 
killing  his  child  will  also  be  murder  in  the  same  degree."    With  defer- 
ence to  an  authority  so  respectable,  we  think  it  very  clear,  that  no  such 
conclusion  can  be  legitimately  deduced  from  the  premises.     We  regret, 
that  we  have  not  seen  the  opinion  at  length,  in  the  case  above  men- 
tioned.     The  brief  extract  before  us,  merely  asserts  the  proposition  we 
have  quoted ;  the  process  of  reasoning  by  which  the  conclusion  is  sup- 
posed to  be  maintained,  is  not  given  in  the  note.     We  confess  ourselves 
at  a  loss  to  understand  in  what  sense  it  can  be  predicated  of  the  act  of 
the  prisoner  in  "  killing  his  child,"  that  it  was  "  willful,  deliberate  and 
premeditated,"  and  more  especially  how  it  can  be  made  out,  that  the 
will  concurred  with  the  act  in  such  case. 

The  contrary  construction,  we  think,  is  alone  compatible  with  the 
terms  of  the  statute,  whether  we  regard  their  proper  or  popular  accepta- 
tion;  with  the  obvious  spirit  of  the  statute  which  was  to  alleviate  the 
punishment  of  murder,  except  in  cases  of  the  greatest  enormity ;  with 

1 1  Bla.  Com.  201. 


7ALS. 


LANE   V.  COMMONWEALTH. 


1017 


ily :  the  law  by 
'elonious  intent 
ir  object  of  his 
;  A.  and  misses 
rioas  felonious 

constituted  by 
itention  to  talie 
istence  of  such 
ly  established, 
cation  or  impu- 
this  particular 
f  homicide  not 
belong  to  that 
other  kinds  of 
it  in  the  second 
inferior  grades 
e  charge  of  the 

almost  identical 
I  prevailed.     In 
}  from  the  note 
I  prisoner  aimed 
}f  a  child  wliich 
I  which  it  died, 
intent  was  to  kill 
the  first  degree, 
."     With  defer- 
iar,  that  no  such 
jes.     We  regret, 
case  above  men* 
e  proposition  we 
onclusion  is  sup- 
ionfess  ourselves 
ted  of  the  act  of 
il,  deliberate  and 
ade  out,  that  the 

patible  with  the 

popular  accepta- 

is  to  alleviate  the 

t  enormity ;  with. 


the  benignant  principle  of  interpretation,  that  in  favor  of  life,  a  statute 
is  to  be  construed  most  favorably  in  beiialf  of  the  accused,  and  most 
strictly  against  him ;  and  finally  with  that  intrinsic  and  fundamental 
distinction,  in  respect  to  the  relative  guilt  of  human  actions,  dependent 
upon  the  concurrence  or  non-concurrence  of  the  will,  which  we  trace  as 
far  back  as  the  ''Jewish  dispensation,"  under  which  cities  of  refuge 
were  provided  to  the  end,  "  that  every  one  that  killeth  any  person 
unawares  may  flee  thither,  and  be  secure  from  the  avenger  of  blood."  ^ 
The  result  is,  that  from  the  foregoing  error  in  the  charge  of  the 
court,  and  alone  upon  that  ground,  the  judgment  must  be  reversed. 


HOMICIDE  — MURDER  BY  POISON  — NOT  PER  8E  MURDER  IN  FIRST 

DEGREE. 

Lane  v.  Commonwealth. 

[69  Pa.  St.  871.] 
Jn  the  Supreme  Court  of  Pennsylvania y  1868. 

On  »  Trial  for  Murder  by  poisoa,  the  court  below  charged, "  the  life  or  death  of  this  man 
is  in  your  bands;  there  is  no  middle  course,  he  must  be  convicted  ot  murder  in  the  first 
degree  or  acquitted  of  everything.  If  your  verdict  is  guilty  of  murder,  you  must  atate 
of  the  flnt  degree.   If  not  guilty  yon  aay  so  and  no  more."   Stld,  to  be  error. 

November  4th,  1868.  Before  Thompson,  C.  J.,  Aonew,  Sharswood 
and  Williams,  J.J.     Bead,  J.,  absent. 

Error  to  the  Court  of  Oyer  and  Terminer  of  Allegheny  County. 

Lewis  Lane  was  indicted  for  the  murder  of  his  wife,  Henrietta  Lane. 

The  indictment  was  tried  June  17,  1868,  before  Stebret,  P.  J.  and 
SxowE,  J. 

The  Commonwealth  gave  evidence  that  the  deceased  died  by  means 
of  poison,  and  that  it  had  been  administered  to  her  by  the  prisoner. 

The  jury  was  charged  by  Stowb,  J.,  who  amongst  other  things,  said 
to  the  jury:  "  The  life  or  death  of  this  man  is  in  your  hands.  There 
is  no  middle  course.  Tf  he  is  guilty  of  murder,  he  must  be  convicted 
of  murder  in  the  first  degree  or  acquitted  of  everything.  *  *  *  If 
your  verdict  is  guilty  of  murder,  you  must  state  of  the  first  degree ;  if 
not  guilty,  you  say  so  and  no  more."  On  the  18th  of  June  the  jury 
returned  a  verdict  of  "guilty  of  murder  in  the  first  degree."  The 
prisoner  was  sentenced  September  12th,  1868. 


1 


1  Num.,  oh.  3S. 


1018         CRIMES  AGAINST  THE  PERSONS  OF   INDIVIDUALS. 

By  virtue  of  a  special  allocatur,   a  writ  of  error  was  taken  out 
October  12th,  1868.     The  above  portioa  of  the  charge  was  assigued  for 

error. 

W.  T.  Haines,  for  plaintiff  In  error. 

L  B.  Duff,  District  Attorney,  for  Commonwealth. 

The  opinion  of  the  court  was  delivered,  November  18th,  1869  by - 

Thompson,  C.  J.  The  prisoner,  Lewis  Lane,  was  charged  and  tried 
at  the  JuneTerm  of  the  Court  of  Oyer  and  Terminer  of  AUegoheuy 
County,  for  the  murder  of  his  wife,  by  administering  poison  to  her , 
and  the  question  now  for  our  consideration  Is  whether  the  court  below 
erred  in  the  portions  of  the  charge  to  the  jury  excepted  to  and  assigned 

for  error,  which  are  as  follows :  —  .      j      *u       s-  «,v 

"  First  The  life  or  death  of  this  man  is  in  you  hands;  there  is  no 
middle  course ;  he  must  be  convicted  of  murder  of  the  first  degree,  or 
acquitted  of  everything." 

-  If  your  verdict  is  guilty  of  murder  you  must  state  of  the  first  de- 
cree.    If  not  guilty  you  say  so,  and  no  more." 

The  objection  to  these  portions  of  the  charge  is,  that  they  were  per- 
emptory, and  took  from  the  jury  their  exclusive  right  and  daty  to  find 
thede/ree,  in  case  of  a  conviction  of  murder.  It  was  contended  on 
argument,  that  in  all  trials  for  murder,  by  whatever  means  Perpetrated 
it  is  always  the  province  and  duty  of  the  jury,  if  they  convict  to  find 
in  their  verdict  the  degree,  and  that  this  being  the  requirement  of  the 
statute,  a  binding  instruction  from  the  court  to  find  a  particula  degree 
is  an  infringement  of  the  duty  intrusted  alone  to  the  jury  and  not  to 

'""TheTeventy-fonrth  section  of  the  act  of  31st  of  March  1860,  which  is 
a  transcript  of  the  provision  on  the  same  subject  of  the  act  of  22d  of 
April  1794,  enacts  that,"  all  murder  which  shall  be  perpetrated  by  means 
tf'pion,o;  by  lying  i^  wait,  or  by  any  other  kind  of  wiUf  d,  deliberate 
and  premeditated  killing,  or  which  shall  be  committed  in  the  perpetra- 
tion  of  or  the  attempt  to  perpetrate  any  arson,  rape  robbery  or  burg- 
lary, shall  be  deemed  murder  of  the  first  degree,  and  all  other  land  of 
murder  shall  be  deemed  murder  of  the  second  degree;  and  the  jury 
bcforwl^om  any  person  shall  be  tried  shall,  if  they  find  -ch  person 
guilty  thereof,  ascertain  in  their  verdict,  whether  it  be  murder  of  the 

first  or  second  degree."  *-„„4.s«„  „a 

It  must  be  admitted,  we  think,  that  the  act  makes  no  distinction  as 
to  the  requirement  to  find  the  degree  of  murder  between  any  of  the 
modes  by  which  it  may  be  perpetrated,  as  defined  m  the  statute.  In 
all  alike  the  requirement  applies  without  any  exception  Even  m  case 
of  a  confession  of  the  crime  and  submission  to  the  court,  no  matter  by 
what  means  it  may  have  been  perpetrated,  whether  by  poison,  lying  m 


1 


ALS. 

ras  taken  out 
k9  assigued  for 


;h,  1869,  by  — 
rged  and  tried 
of  Allegoheuy 
loison  to  her; 
lie  court  below 
;o  and  assigned 

ds ;  there  is  no 
first  degree,  or 

of  the  first  de- 

they  were  per- 
ind  duty  to  find 
9  contended  on 
ins  perpetrated, 
convict,  to  find 
uirement  of  the 
irticular  degree, 
jury  and  not  to 

h  1860,  which  is 
he  act  of  22d  of 
etrated  by  means 
rillful,  deliberate 
in  the  perpetra- 
robbery  or  burg- 
all  other  kind  of 
e;  and  the  jury 
Ind  such  person 
e  murder  of  the 

no  distinction  as 
tween  any  of  the 
the  statute.  In 
1.  Even  in  case 
irt,  no  matter  by 
y  poison,  lying  in 


LANE   V.  COMMONWEALTH. 


1019 


wait,  or  in  an  attempt  to  commit  either  of  the  enumerated  crimes  in 
which  intention  to  kill  is  not  a  mnterial  inquiry,  tiio  court  must,  before 
sentencing,  examine  witnesses  and  determine  the  degree.  The  law  is 
imperative,  and  it  is  indispensable  in  the  trial  of  a  homicide,  that  the 
degree  of  the  crime  be  ascertained  and  appear  on  tlie  record.  This  is 
to  be  done  by  the  jury,  where  there  is  a  trial,  and  l)y  the  court,  where 
there  is  a  sentence  on  a  confession.  It  is  as  essential  an  clement  of  the 
verdict  as  any  other  fact  to  be  found  by  it.  It  is  tliis  which  ascertains 
and  fixes  the  penalty  to  be  atr  :tbed  to  the  crime,  and  hence  it  must 
appear  by  the  record. 

Tilghman,  C.  J.,  in  }V!nte  v.  Commontvealth,^  speaking  of  the  form 
of  the  indictment  under  the  act  of  22d  April,  171*4,  said:  "  It  has  not 
been  the  practice,  since  the  passage  of  the  law,  to  alter  the  form  of  in- 
dictment for  murder  in  any  respect ;  and  it  plainly  appears  by  the  act 
itself,  that  it  was  not  supposed  any  alteration  would  be  made.  It 
seems  to  be  taken  for  granted  that  it  would  not  always  appear  on  the 
face  of  the  indictment  of  what  degree  the  murder  was,  because  the  jury 
are  to  ascertain  the  deg.ee  by  their  verdict,  or  in  case  of  confession, 
tlie  court  are  to  ascertain  it  by  the  examination  of  witnesses."  Not- 
withstanding what  the  Chief  Justice  said,  indictments  continued  to  be 
generally  framed  according  to  common-law  precedents,  in  which  was 
always  set  forth  the  kind  of  instrument  and  the  means  of  tlie  killing. 
Since  the  passage  of  the  Criminal  Procedure  Act  of  31st  March,  I860,' 
it  is  not  necessary  that  the  "  manner  or  the  means  by  which  the  death 
of  the  deceased  was  caused,"  should  be  set  forth,  but  only  that  it  was 
done  "  feloniously,  willfully  and  with  malice  aforethought."  Hence  it 
would  seem  to  be  more  than  ever  material  that  the  jury  be  charged 
with  the  responsibility  and  duty  of  finding  the  degree.  That  it  is  a 
material  fact  to  be  found  is  not  to  be  denied  or  doubted.  The  statute 
makes  it  so,  and  with  it  all  our  decisions  accord. 

But  it  is  argued  that  where  the  facts  bring  the  case  within  either  of 
the  modes  of  killing  declared  murder  in  the  first  degree,  it  being  the 
duty  of  the  jury  to  find  a  verdict  in  accordance  therewith,  a  peremptory 
direction  to  find  that  degree  is  proper  and  right.  To  admit  this  would 
be  to  determine  that  this  portion  of  the  verdict  is  matter  of  form,  and 
to  substitute  a  court  to  do  that  which  the  law  says  the  jury  shall,  upon 
their  oaths,  do.  They  have  undoubtedly  the  power  to  fix  a  lower  degree 
to  the  crime  than  the  statute  provides.  I  say  they  have  the  power,  for 
the«act  gives  it  to  them,  and  no  court  can  refuse  their  verdict  if  they  do 
so,  or  set  it  aside,  unless  at  the  instance  of  the  defendant.  We  need 
not  speculate  about  why  it  was  so  provided.  It  is  sufficient  that  it  is  so 
-written,  and  we  can  not  change,  alter  or  depart  from  it.    In  Rhodes  ▼. 


1681011.18). 


i  lec.  M. 


1020         CHIMES  AOAINBT  THE  PRR80N9  OP  INDIVIDUALS. 

Com^mtwenlth,'  this  was  a  subject  of  thought  and  comment.  Wood- 
ward,  C.  J.,  Bai.l,  Jn  the  opinion  of  the  court:  "No  doubt  cases  of 
murder  in  tlio  first  degree  have  been  found  in  the  second,  but  this  must 
have  been  anticipated  when  the  statute  was  framed,  and  has  certainly 
been  allowed  under  its  operation ;  and  yet  it  has  remained  on  the  s^-^hite 
bo  Jk  since  1704,  unaltered  in  this  regard.  Possibly  the  very  dist' 
of  dccrroes  was  invented  to  relieve  such  jurymen's  consciences  as  suould 
be  found  more  tender  on  the  subject  of  capital  punishment  than  on  their 
proper  duties  under  the  evidence.  Many  men  have  been  convicted  of 
murder  in  the  second  degree  who,  really  guilty  of  the  higher  crime, 
would  have  escaped  punishment  altogether  but  for  the  distmction  in 
decrees,  so  carefully  committed  to  juries  by  the  statute." 

For  myself,  I  have  no  doubt  the  object  of  establishing  degrees  was 
to  ainx  to  the  more  heinous  murders  the  highest  penalty.  But  as  the 
penalty  results  from  the  degree,  the  responsibility  and  duty  of  fixing 
that  was  assigned  to  the  deliberation  of  the  jury.  We  need  not  specu- 
late about  the  moving  cause  for  this  provis  on.  It  is  enough  that  it  is 
of  the  law,  and  its  workings  have  been  but  little  complained  of  after  an 
experience  of  three-quarters  of  a  century.  We  must  administer  it  as 
it  is,  and  in  the  spirit  of  the  enactment,  without  altering  or  weaken-«c  it. 
In  Rhodes  v.  Commonweallh  the  theory  of  the  prosecution  '  ^at 
the  murder  was  committed  by  the  prisoner,  in  perpetrating  t  le 

of  robbery,  for  the  prosecutor's  house  was  robbed  that  day.    The  eifort 
was  to  identify  him  with  the  robbery,  and  the  prosecution  claimed  a 
conviction  so  exclusively  on  that  ground  that  the  judge,  in  his  charge 
to  the  jury,  used  almost  the  same  language  which  the  learned  judge  did 
in  this  case.    The  language  was:  "  If  you  find  the  defendant  guilty, 
your  verdict  must  state  guilty  of  murder  in  the  first  degree,  in  the  man- 
uer  and  form  as  he  stands  indicted.     If  not  guilty,  your  verdict  will 
simply  be,  not  guilty."    The  same  reason  was  urged  in  justification  of 
this  instruction  as  was  urged  here,  namdy :  That  the  evidence  exhibited 
a  case  of  robbery  by  the  hands  of  the  prisoner,  and,  therefore,  it  must 
be  murder  in  the  first  degree  if  any  thing.    For  so  instructing,  this  court 
felt  constrained  to  reverse  the  sentence.    Woodward,  C.  J. ,  after  notic 
ing  the  change  made  by  the  statute  in  the  common  law,  in  respect  to 
degrees  in  murder,  and  the  duty  of  the  jury  under  the  statute  to  find 
the  degree,  said:  "  Yet  the  judge  assumed  the  province  of  the  jury  and 
ascertained  the  degree  in  this  instance,  though  this  was  a  case  of  con- 
viction by  trial,  and  not  by  confession.    Nothing  less  can  be  made  out 
of  his  words, '  If  you  find  the  defendant  guilty,  your  verdict  must  state 

guilty  of  murder  in  the  first  degree. Was  that,"  he  asks  "  leav- 

ing  the  degree  to  the  jury  to  find?"    Most  clearly  not.    It  excluded  all 

1  12  Wright,  »96. 


^^ 


)UAL8. 

nment.  Wood- 
doubt  caseB  of 
(1,  but  this  must 
nd  has  certainly 
c(lonthe8^'<nite 
s  very  dist! 
iicnces  as  suuuld 
ent  than  on  their 
ecn  convicted  of 
ic  higher  crime, 
lie  distinction  in 
e." 

liiug  degrees  was 
ilty.  But  as  tli* 
d  duty  of  fixing 
5  need  not  specu- 
enough  that  it  is 
laincd  of  after  an 
b  administer  it  as 
;  or  weaken' "Of  it. 
secution '  ^»t 
trating  t  le 

day.    The  eitort 
scution  claimed  a 
[Ige,  in  his  charge 
learned  judge  did 
defendant  guilty, 
egree,  in  the  man* 
,  your  verdict  will 
in  justification  of 
evidence  exhibited 
therefore,  it  must 
tructing,  this  court 
,  C.  J.,after  notic- 
law,  in  respect  to 
the  statute  to  find 
ace  of  the  jury  and 
was  a  case  of  con- 
BB  can  be  made  out 
'  verdict  must  state 
t,"  he  asks,  "  leav- 
>t.    It  excluded  all 


LANE  V.  COMMONWEALTH. 


1021 


chance  of  deliberation  on  the  degree,  and  left  to  them  only  the  question 
of  "guilty  or  not  guilty."  •'  It  Is  In  vain  to  argiio,"  he  further  remarks, 
*'  that  this  judge  was  more  compotent  to  Hx  the  degree  than  the  Jury,  or 
that  the  circumstances  proved  the  crime  to  be  murder  in  the  first  degree, 
If  murder  at  all ;  for  the  statute  Is  hiiperatlve  that  commits  tlio  degree 
to  the  jury.  It  was  proper  for  the  judge  to  advise  them  of  the  distinc- 
tion between  the  degrees,  to  apply  the  evidence,  and  to  instruct  them  to 
which  of  tliese  degrees  it  pointed.  But  to  tell  thern  they  must  find  the 
first  degree  was  to  witlidraw  tlie  point  from  the  jury  and  decide  it  him- 
self." 

It  remains  to  inquire,  in  this  case,  w'm  uier  the  charge  as  made  was 
peremptory,  tliat  their  verdict  must  bi;  murder  in  the  first  degree  if  any- 
thing. I  will  not  analyze  the  charge  to  prove  tliat  this  was  meant,  for 
In  all  its  parts,  wherever  conviction  is  spoken  of  as  possible,  this  is 
indicated  almost  as  clearly  as  in  the  last  paragraph.  We  have  also  the 
learned  judge's  interpretation  of  this,  as  the  position  assumed  by  him, 
in  his  oiiinion  on  the  motion  for  a  new  trial.  The  authorities  he  cites 
are  to  prove  this  position,  and  in  the  concluding  portion  of  it,  he  says, 
after  reviewing  the  facts,  and  the  absence  of  evidence  to  mitigate  the 
crime  from  willful,  intentional  poisoning,  he  adds:  "If  such  is  tlie  case 
we  were  right,  and  it  was  our  duty  to  tell  the  jury  that  they  could  not, 
under  the  law  and  evidence  in  the  case,  render  a  verdict  of  murder  in 
the  second  degree." 

TLe  charge  being  intended  to  be  peremptory,  as  claimed  by  the  pris- 
oner's counsel,  and  thus  shown,  we  think  it  infringed  too  strongly  on 
the  province  of  the  jury.  It  did  not  leave  them  free  to  deliberate  and 
fix  the  degree.  The  judge  did,  as  was  said  in  the  case  above  referred  to, 
decide  it,  and  not  the  jury.  If  a  verdict  of  murder  in  the  second 
degree  had  been  rendered,  it  would  have  been  great  error  to  have 
refused  it,  and  yet  this  would  be  the  legitimate  consequence  of  a  failure 
to  observe  the  peremptory  direction  of  the  judge.  It  has  never  yet 
been  decided  in  Pennsylvania  that  a  verdict  of  murder  in  the  second 
degree  might  not  be  given  in  a  case  of  murder  by  poison.  That  it  may 
be  given  is  as  unquestionable  as  the  power  of  the  jury  is  under  the  act 
to  give  it  and  impossible  for  the  court  to  refuse  it.  We  have  no  refer- 
ence to  the  facts  of  the  case  in  hand,  as  they  appeared  before  the  jury. 
We  know  nothing  of  them.  It  is  only  with  the  questions  of  law  raised 
that  we  have  to  deal ;  and  only  in  the  particulars  discussed  do  we  see 
anjrthing  to  be  found  fault  with ;  nor  are  we  to  be  understood  as  find- 
ing fault  with  a  practice  which  is  entirely  proper,  of  judges  freely 
advising  juries  as  to  the  duty  of  ascertaining  that  degree  of  murder 
towards  which  the  facts  seem  to  point,  always  leaving  them,  however, 


1022         CRIMES   AGAINST  THE  PERSONS   OF  INDIVIDUALS. 

free  to  deliberate  upon,  and  the  duty  and  responsibility  of  finding  the 

decree,  if  thev  convict.  , 

For  these  reasons,  the  sentence  in  this  case  is  reversed,  and  a  vemre 

de  novo  awarded. 


HOMICIDE-MURDER  BY  DROWNING -MURDER  IN  SECOND 

DEGREE. 

Johnson  v.  Commonwealth. 

[24  Pa.  St.  387.J 
In  the  Supreme  Court  of  Pennsylvania,  1855. 

1.  A  Premeditated  IntenUon  to  deetroy  life  i«  indispensable  in  order  to  constitute  mnr- 
dor  in  the  flrst  degree. 

,  Th« Tiof  1704  Provide,  that -all  murder  which  shall  be  perpetrated  by  ™eansj* 

irr'a^forasTe  IraJ  iTdir- ^iSS^^^^^^^^^ 
*•  ^f:.^^:Z  t  SttSoTize'd  foTc'onviction  of  murder  in  the  second  degree. 

Error  to  the  Court  of  Oyer  and  Terminer  of  Lancaster  County. 

A  bill  of  indictment  containing  two  counts  was  found  against  Samuel 
Johnson.     In  the  first  count  it  was  charged  that  he,  on  the  fifth  day  of 
October,  1854,  with  force  and  arms  in  and  upon  one  Elizabeth  Thomas, 
feloniously,  willfully  and  of  his  malice  aforethought    did  make  an 
assault,   lU  then  and  there,  feloniously,  willfully  and  of  his  mahce 
aforethought,  did  cast,  throw  and  push  her  into  a  certain  dam,  wherein 
there  was  a  great  quantity  of  water,  by  means  of  which  casting,  etc. , 
she  was  then  and  there  suffocated  and  drowned.     In  the  second  count  u 
was  charged  that  he  feloniously,  willfully,  and  of  his  malice  afore- 
thought, did  cast,  throw  and  drag  her  into  a  certain  dam,  e  c.,  and 
then  and  there  feloniously,  willfully,  and  of  his  malice  aforethought 
did  hold  and  restrain  her  in  and  under  the  water,  by  means  of  which 
throwing,   etc.,  and  holding  and  restraining,  etc.,  she  was  then  and 
there  choked,  suffocated  an!  drowned  and  died. 


V1DUAL8. 


JOHNSON  V.  COMMONWEALTH. 


1023 


sility  of  finding  the 
rersed,  and  a  venire 


lER  IN  SECOND 


,  1855. 

n  order  to  constitute  m«r- 

Barily  murder  in  the  first 
ted  in  the  statute. 
3  perpetrated  by  means  ot 
liberate,  and  pre"\edltated 
attempt  to  perpetrate  any 
in  the  first  degee,  and  all 
degree,"  the  jury,  in  case 
charging  that  the  dcfeud- 
t  a  certain  E.  T.  into  a  dam 
J,  he  wat  tonnd  "  guilty  in 
fendant  was  not  convicted 
gree. 

the  record  remitted  to  pass 
le  second  degree. 

icaster  County, 
found  against  Samuel 
lie,  on  the  fifth  day  of 
ne  Elizabeth  Thomas, 
ought,   did  make  an 
ly  and  of  his  malice 
t  certain  dam,  wherein 
•  which  casting,  etc., 
In  the  second  count  it 
of  his  malice  afore- 
•ertain  dam,  etc.,  and 
i  malice  aforethought 
if,  by  means  of  which 
c,  she  was  then  and 


The  jury  found  the  defendant  guilty  in  manner  and  form  as  he  stands 
Indicted.  The  reason  filed  in  arrest  of  judgment  was  that  the  judgment 
was  that  the  jury  had  not  in  their  verdict  ascertained  whether  tlie  mur- 
der, of  which  they  had  found  the  defendant  guilty,  was  murder  of  the 
first  Of  uf  the  second  degree,  as  they  were  required  to  do  by  the  seventh 
section  of  the  act  of  22dof  April,  1794. 

The  motion  was  overruled  after  argument,  and  the  defendant  was 
sentenced  to  be  hanged. 

It  was  assigned  for  error  that  the  court  erred  in  passing  sentence  of 
death,  it  not  being  warranted  by  the  verdict. 

Brown  and  Atlee,  for  plaintiff  in  error. 

Patterson,  contra. 

The  opinion  of  the  court  was  delivered.  May  24,  1855,  by— 

Lewis,  C.  J.  The  plaintiff  in  error  has  been  sentenced  to  suffer 
death ;  and  the  question  is  whether  the  recoi-d  Justifies  the  sentence. 
The  second  section  of  the  act  of  22d  of  April,  1794,  declares  that  "  all 
murder  which  shall  be  perpetrated  by  means  of  poison,  or  by  lying  in 
wait,  or  Y  •  y  other  kind  of  wiilfull,  deliberate  and  premeditated  kill- 
ing,  or  which  ?aall  be  committed  in  the  perpetration,  or  attempt  to  per- 
petrate, any  arson,  rape,  robbery  or  burglary  shall  be  deemed  murder  of 
the  first  degree ;  and  all  other  kinds  of  murder,  shall  be  deemed  murder 
of  the  second  degree ;  and  the  jury  before  whom  any  person  indicted 
shall  be  tried,  shall,  if  they  find  such  person  guilty  thereof,  ascertain 
in  their  verdict,  whether  it  be  murder  of  the  first  or  second  degree." 

The  cases  of  the  Commonwealth  v.  Earle^  and  Commonwealth  v. 
Miller^  show  that  where  the  indictment  charges  the  murder  to  have  been 
perpetrated  "by  means  of  poison,"  or  "  by  lying  in  wait,"  a  verdict 
of  "  guilty  in  manner  and  form,  as  the  prisoner  stands  indicted,"  does 
"  ascertain  "  the  murder  to  be  of  the  first  degree.  The  reason  of  this 
is,  that  the  indictment  is  thus  referred  to  as  forming  part  of  the  verdict 
and  the  letter  thus  "  ascertains  "  the  facts,  which,  in  judgment  of  law, 
amount  to  murder  of  the  first  degree.  On  the  same  principle  it  may  be 
conceded,  for  the  purposes  of  the  present  case,  that  if  the  indictment 
had  charged  the  murder  to  have  been  committed  willfully,  deliberately 
and  premeditatedly,  or  in  perpetrating  or  attempting  to  perpetrate  either 
of  the  enumerated  felonies,  a  similar  verdict  would  also  sufllciently 
"  ascertain  "  the  murder  to  be  of  the  first  degree.  But  the  indictment 
under  consideration  is  totally  destitute  of  either  of  these  averments. 
It  merely  charges  that  the  murder  was  committed  "feloniously,  wiil- 
full, and  of  malice  aforethought. ' '  This  is  the  usual  and  proper  descrip- 
tion  of  the  crime  at  common  law,  and  the  language  applies  as  well  to 
the  second  as  to  the  first  degree.     It  does  not  necessarily  import  an 


1  1  Whart.  SS5. 


»  Lewis  Cr.  L.  398, 401. 


1024         CRIMES  AGAINST  THE   PERSONS   OP   INDIVIDUALS. 

inlentlon  to  kill.    It  is  applied  by  construction  of  law  to  murders  com- 
mitted  without  such  intention.     If  death  had  ensued  in  the  perpetration 
of  any  felony  not  enumerated  in  the  section;  or  in  an  attempt  to  pro- 
cure  abortion ;  or  been  caused  by  purposely  letting  loose  a  beast  known 
to  be  accustomed  to  destroy  human  life;  or  when  the  mmd  of  the 
prisoner  from  intoxication,  or  other  cause,  was  deprived  of  the  power 
to  form  a  design  with  deliberation  and  premeditation,  the  offense  would 
be  stripped  of  the  malignant  feature  required  by  the  statute  to  place  it 
on  the  list  of  capital  crimes.     But  in  all  these  cases,  although  the  pris- 
oner, had  no  intention  to  kill,  he  is  deemed  guilty  of  killing  "  felon- 
iously, willfully,  and  of  malice  aforethought."    On  the  principle  that 
every  one  is  answerable  for  the  necessary  consequences  of  his  unlawful 
acts,  he  is  adjudged  guilty  at  common  law  of  constructive  '•  malice 
aforethought."     But  constructive  malice  is  not  the  "  deliberate  and 
premeditated  kiUing"  required  by  the  statute  to  constitute  murder  of 
the  first  degree.    A  premeditated  intention  to  destroy  life  is  an  indis- 
pensable  ingredient  in  that  offense.     An  unlawful  killing  may  be  pre- 
8umed  murder ;  but  it  will  not  be  presumed  murder  of  the  first  degree. 
The  burden  of  proving  it  so  lies  on  the  Commonwealth.    The  evidence 
produced  by  the  Commonwealth  in  the  case  of  Bridget  Harmani  ^ay 
have  justified  the  instructions  given  to  the  jury  in  that  case.     But  they 
were  only  advisory.     There  was  no  intention  to  take  from  the  jury  their 
right  to  fix  the  degree.     It  was  their  province  to  "  ascertain ' '  it  in  their 
verdict ;  and  as  murder  by  drowning  was  not  necessarily  murder  of  the 
first  degree,  it  was  required,  even  in  that  case,  to  ascertain  the  degree 

in  the  verdict.  j       * 

We  have  said  that  murder  by  drowning  is  not  necessarily  murder  of 
the  first  degree.     It  is  oot  placed  by  the  statute  in  the  category  with 
murder  "  by  means  of  poison,"  or  "  by  lying  in  wait,"  and  the  courts 
have  no  right  to  place  it  there.     It  is  true  that  the  indictment  charges 
the  prisoner  with  throwing  the  deceased  into  a  dam,  and  holding  her 
under  the  water  until  she  was  suffocated ;  but  this  may  have  been  done 
in  the  pursuit  of  some  unlawful  object  without  an  intention  to  take 
her  life.     It  may  have  been  done  in  mischievous  and  cruel  sport ;  or  it 
mav  have  been  done  for  the  purpose  of  procuring  abortion.    For  aught 
weknow,  the  evidence  given  on  the  trial  might  have  fully  justified  the 
jury  in  deciding  that  the  crime  was  murder  of  the  first  degree.     But,  as 
they  have  not  done  so,  the  court  can  not  look  into  the  evidence  for 
the    purpose    of  ascertnining  the  character    of   the   offense.    This 
would  be  an  infringement  of  the  rigl.r  oi  trial  by  jury.    They  have 
found  the  prisoner  "  guilty  in  manner  and  form  as  he  stands  indicted  " 
^thout  otherwise  "  ascertaining  "  the  degree.     They  have  thus  made 

i4Barr,26». 


i^a^ 


rALS. 


murders 
lie  perpetrati 
ttempt  to  pro- 
a  beast  known 
e  mind  of  the 
1  of  the  power 
B  offense  would 
itute  to  place  it 
hough  the  pris- 
killing  "  felon- 
!  principle  that 
of  his  unlawful 
active   "  malice 
'  deliberate  and 
titute  murder  of 
life  is  an  indis- 
ing  may  be  pre- 
the  first  degree. 
The  evidence 
it  Harman^  may 
case.    But  they 
im  the  jury  their 
■tain"  it  in  their 
ly  murder  of  the 
ertain  the  degree 

;sarily  murder  of 
;he  category  with 
"  and  the  courts 
dictment  charges 
,  aud  holding  her 
y  have  been  done 
ntention  to  take 
cruel  sport;  or  it 
rtion.    For  aught 
fully  justified  the 
;  degree.     But,  as 
the  evidence  for 
he   offense.    This 
jury.    They  have 
J  stands  indicted" 
!y  hive  thus  made 


T 

com-       I       the 
tition       I        as 


STATE  V.  MAHLT. 


1025 


the  indictment  a  part  of  their  verdict,  and  we  are  to  consider  the  case 
if  they  had  found  a  special  verdict,  stating  the  facts  precisely  as 
they  are  set  forth  in  the  indictment.  We  have  seen  that  the  language 
of  the  indictment  applies  as  ai)propriately  to  the  second  as  to  the  first 
degree.  If  there  was  nothing  else  to  restrain  us  from  interpreting 
it  to  mean  murder  of  the  first  degree,  the  rule  of  mitioH  sensu  would 
require  us  to  adopt  the  milder  construction.  But.the  clear  and  positive 
provisioas  of  the  act  of  1794  fix  interpretation  beyond  a  doubt.  We 
have  seen  that  the  indicta  ont  is  destitute  of  the  averments  required  by 
the  statute  to  constitute  murder  of  the  first  degree.  The  case  must 
therefore,  of  necessity,  fall  into  the  class  provided  for  by  the  clause  in 
the  act  which  declares  that  "all  other  kinds  of  murder  shall  be 
deemed  murder  in  the  second  degree."  In  this  opinion  we  are  unani- 
mous. It  follows  tliat  the  judgment  must  be  reversed,  and  record 
remitted  for  further  proceedings  according  to  law. 


DEGREES  OF  MURDER— MUwDER  IN  SECOND  DEGREE. 
State  v.  Mahlt. 

[68  Mo.  315.] 
In  the  Supreme  Court  of  Missouri,  1878. 

Where  the  Only  Evidenoe  agafnst  the  prisoner  is  that  he  was  known  to  have  habitually 
treatea  the  deceased,  an  infuiit  step-child,  with  shocliing  brutality,  and  that  the  chUd 
was  found  dead  on  his  hearth;  keld,  that  be  was  either  guilty  o(  murder  in  the  flrat 
degree,  or  not  juilty;  that  it  was  error  to  charge  the  Jury  that  they  might  And  him 
guilty  o(  murder  in  the  second  degree. 

Henry,  J.  The  defendant  was  indicted  for  the  murder  of  Barbara 
Citawatca,  his  step-daughter,  a  child  about  three  years  of  age.  He 
was  found  guilty  of  murder  in  the  second  degree,  and  sentenced  to  im- 
prisonment in  the  penitentiary  for  a  term  of  twenty-one  years,  and  has 
appealed  to  this  court  from  the  judgment. 

The  evidence  for  the  State  consisted  of  threats  made  by  the  defend- 
ant against  Barbara,  and  of  a  course  of  the  most  brutal  treatment  of 
the  cliild  by  the  defendant,  extending  through  a  period  of  several 
months.  Finally,  on  the  morning  of  October  17,  1876,  Barbara  was 
found  lying  on  the  hearth  dead,  with  evidences  on  lier  body  that  her 
death  was  occasioned  by  burning. 

There  was  evidence  tending  to  prove  that  defendant  was  guilty  of 
murdering  the  child. 

3  Defences.  05 


1 


1026  CRIMES    AGAINST   THE   PEUSONS   OF   INDIVIDUALS. 

*«-  fhA  <;fatp  tcstifiea  to  the  truth,  he  was  guilty  of 
If  the  witnesses  for  the  btate  itsiuien  lu  tuv  rri,„r„  ;,  not 

a  willful  malicious,  premeditated  and  deliberate  murder.     There  s  not 
r„"^ tcTd  a  sc  nulla  of  evidence  to  authorize  an  instruction  to  the 
nrv  in  regard  to  any  crime  except  that  of  murder  in  the  first  degree. 
'ThrphSpal  witness  for  the  State,  Jacinksy,  testified  to  havjng  seen 
del;Zron  several  occasions,  hold  the  f '^;  ^;^;  ^f  ^f  J,",^: 
state,  before  a  strong  fire,  until  its  skin  was  burnt  '^^  '  ^f  ^^  ^^^^^^^ 
in  her  torture  like  a  worm,  and  this  in  his  presence,  and  m  the  presence 
of  BrWs  mother,  with;,ut  so  much  as  a  word  of  remonstrance  from 
:  ther    that  he  had  seen  the  defendant  kick  the  child,  beat  her  with 
vl'.nd  throw  her  out  of  the  house,  and  that,  on  one  occasion,  her 

:  rw:'b:oL:: ;; «.  fan-,  t^s,  too,  m  the  ^^^^^^^^^^^ 

M^  Un^i^l'  to  be  found  ta  Ibe  .ecor.,,  of  cn,»e.    Aecor,h.g  to 
Mrs.  maniy,  u  starved  flossed,  kicked,  roasted  by  the 

?    d^y  »""  "^.  u„,band  of  Its  mother,  M.d  yet  the  court  instructed 
?::;;';:  *~C° -a  the  ^ury  aid,  «  th.t  he  was  „n,y  guiUy 

"Srh^'^I.J^drTwM  uX  *e  eirea„st.nees  detaUed  by  J.cin..y 

buitCage  is  >»»*rrdirrrr  :irr  i stzr; 
-,'  a:";:.:::,:?  r*,' ^r  ir*;  zzi^,  .e ... ..  eon 

,„g  .„  ■"»'™"'^°°  ^      ^„,  „„„„,  „,  eneouraBe  the  sentimentahsm  of 

of  which  the  evidence  proves  him  guilty,  Dy  givui 
,.      them  to  .n.  ^ ^^^ -I^on^'^'"-  «'  -"""'  P' 
ST  »;    irlo  "  he  -lee  tend,  to  prove  they  sho^d  .e,„.. 
*a  „„I  compromise  »ith  that  doubt  by  fading  l..m  gudty  of  a  lower 

t^:Z'^.  regard  to  the  icer  grade,,  not  warranted  by  the  evl- 


:als. 

e  was  guilty  of 
.     There  is  not 
struction  to  the 
;he  first  degree. 
1  to  having  seen 
perfectly  nude 
and  she  writhed 
in  the  presence 
aonstrance  from 
I,  beat  her  with 
oe  occasion,  her 
}  of  the  mother, 
terred  for  exam- 
;en  murdered  by 
;ly  on  his  farm, 
bara,  for  twelve 
ustice  for  perpe- 
t  say  what  credit 
tsy.     That  is  not 
that  the  evidence 
t,  in  connection 
aara' 8  mother,  as 
ity  in  ttte  defend- 
by  Jacinksy  and 
e.     According  to 
I,  roasted  by  the 
I  by  the  incarnate 
e  court  instructed 
le  was  only  guilty 

ailed  by  JacinkBy, 
)city  of  the  crime ; 
arded  as  authoriz- 
e,  we  can  not  con- 
sentimentalism  of 
the  highest  crime 
istructions  author- 
which  there  is  no 
ibt  of  his  guilt  of 
ihey  should  acquit, 
a  guilty  of  a  lower 

xrauted  by  the  evi- 


STATE    V.  MAHLY. 


1027 


dence,  operate  as  persuasives  to  juries  to  convict  of  one  of  those 
grades  wiien  they  sliould  convict  the  accused  of  the  highest,  or  acquit 
him  altogether.  The  court  erred  in  giving  the  instruction  defining 
murder  in  the  second  degree,  because  there  was  no  evidence  to  support 
it.i 

Another  complaint  made  by  appellant  id  that  the  court  permitted  the 
prosecuting  attorney,  in  his  closing  argument  to  the  jury,  to  say : 
"Mahly  was  on  the  stand,  why  did  he  not  tell  us  how  the  child  was 
burned?  It  was  incumbent  on  him  to  show  how  these  things  were. 
Did  he  tell  us  how  slie  was  hurt?  It  was  incumbent  on  hira  to  prove 
how  she  was  hurt.  The  defendant  wa?  tliere,  master  of  his  own  house, 
and  it  was  incumbent  on  him  to  show  that  he  did  not  inflict  the  burns." 
Again  he  said  to  the  jury  in  that  closing  argument:  "  The  preponder- 
ance of  testimony  was  in  favor  of  conviction  and  against  the  defendant, 
and  upon  s  "h  evidence  they  (the  jury)  must  convict."  Every  one  of 
these  declarations  was  a  gross  misrepresentation  of  the  law,  and  such 
conduct  on  the  part  of  the  prosecuting  attorney  has  so  often  been  con- 
demned by  this  court  that  the  hope  was  indulged  that  the  admonitions 
given  would  be  heeded.  It  is  not  for  prosecuting  attorneys  to  declare 
the  law  to  the  jury.  That  is  the  duty  of  the  court,  and  the  State's 
attorney  is  as  much  bound  by  the  law,  as  declared  by  the  court,  as  are 
the  jury  and  the  accused.  The  cour^  declared  the  law,  but  the  prose- 
cuting attorney,  not  satisfied  with  the  instructions  given  by  the  court, 
made  declarations  of  law  to  the  jury  in  conflict  with  those  given  by  the 
court,  and  manifestly  and  palpably  erroneous.  Can  we  say  that  the 
prisoner  was  not  prejudiced  by  this  conduct  of  the  State's  attorney? 
If  he  knew  the  law,  and  made  these  declarations  to  the  jury  in  order  to 
procure  a  conviction,  his  conduct  was  very  reprehensible.  If  he  knew 
no  better,  he  should  have  accepted  the  law  as  given  by  the  court. 

Persons  accused  of  crime  must  be  fairly  tried,  and  when  so  tried  we 
shall  not  interfere  to  prevent  them  from  being  punished ;  but  it  is  not 
only  the  duty  of  this  court,  but  every  officer  of  the  State  who  has  duties 
to  perform  in  regard  to  the  trial  of  persons  accused  of  crimes,  to  see 
that  they  have  a  fair  and  impartial  trial.  The  Circuit  Court  should  have 
rebuked  the  prosecuting  attorney,  and  told  the  jury  that  th^  law  was 
not  as  the  attorney  declared  it  to  be,  and  for  not  having  done  so,  the 
judgment  should  be  reversed. 

It  wa.  not  error  to  permit  the  State  to  prove  the  conduct  of  the  de- 
fendant toward  the  child,  prior  to  the  time  of  the  commission  of  the 
murder,  as  alleged  in  the  indictment. 

1  state  V.  ScboenwiUd,  SI  Mo.  1S3;  State  «. 
Starr.  38  Mo.  269;  Sute  v.  Alexander,  te  Mo. 

148. 


i 


1028         CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

It  was  admissible  to  sliow  malice,  premeditation  and  deliberation; 
malice  may  be  proved  by  acts  as  well  as  by  threats.  All  concurring, 
the  judgment  is  reversed,  and  the  cause  remanded.  ji^yersed 


DEGREES  OF  MURDER- HOMICIDE  COMMITTED  IN  PERPETRATING 

another  felony. 
State  v.  Shock. 

[68  Mo.  666.] 
In  the  Supreme  Court  of  Missouri,  1878. 

or  other  felony!  shall  be  deemed  murder  in  the  flrBt  degree."  It  w  «"»' '»  ""•"f*'!'''*; 

not  to  thoBO  acts  of  personal  violence  to  the  deceased  which  are  necessary  and  con 
Btitnent  parts  of  the  homicide  itself. 

HoiTGH,  J.  At  the  May  term,  1878,  of  the  Cir-  Jaurt  of  Calla- 
wav  County,  the  defendant  was  indicted  for  murder  in  the  first  degree, 
for  the  killing  of  one  Robert  Scott.  At  Ihe  November  term  following, 
he  was  tried  and  found  guilty,  and  sentenced  to  be  hanged.  Stay  of 
execution  was  awarded,  and  the  case  has  been  heard  here  on  aPPeal- 

The  evidence  on  the  part  of  the  State  tends  to  show  that,  on  the  6th 
dav  of  March,  1878,  the  defendant  beat  the  deceased,  who  was  a  boy 
between  five  and  six  years  of  age,  with  a  piece  of  sycamore  fishing-pole, 
about  three  feet  long  and  one  and  a  half  inches  in  diameter  for  some 
xninutes,  accompanying  his  beating  with  oaths;  that  he  left  the  room  in 
which  he  was  beating  the  boy,  went  into  the  yard,  procured  a  piece  of 
jrrapevine  about  one  and  one-fourth  inches  in  diameter,  returned  to  the 
Lse  and  resumed  the  beating,  whichiasted  in  all  about  fifteen  minutes^ 
During  the  beating,  the  child  did  not  scream  or  cry,  but  groaned  and 
moaned,  and,  after  several  days,  died  of  the  injuries  -  ---d  ^t 
the  hands  of  the  defendant.     An  inquest  was  held,  at  winch  the  body 
7^  examined.     The  child's  head  was  found  to  be  covered  with  bruises 
it.  back  beaten  to  a  jelly,  and  its  skull  fractured.     On  the  part  of  the 
defendant  evidence  was  introduced  tending  to  show  that  the  deceased 
trvery  weakfyand  sickly;  that  the  defendant  did  -t  beat  it  on  th. 
day  named,  and  that  the  wounds  on  its  head  were  caused  by  its  falUng 
downstairs. 


iJa^ 


L8. 


deliberation ; 
11  concurring, 

Reversed. 


SRPETRATINO 


aich  gtaallbtcom- 
,  robbery,  barglary 
ror  to  charge  that, 
a  ot  the  defendant 
o  him  great  bodily 
t  the  first  degree." 
llateral  felony,  and 
leoessary  and  con- 


burt  of  Calla- 
he  first  degree, 
term  following, 
nged.     Stay  of 
•e  on  appeal, 
that,  on  the  6th 
who  was  a  boy 
ore  fishing-pole, 
meter,  for  some 
left  the  room  in 
cured  a  piece  of 
returned  to  the 
fifteen  minutes, 
ut  groaned  and 
}  so  received  at 
which  the  body 
red  with  bruises, 
n  the  part  of  the 
hat  the  deceased 
lot  beat  it  on  the 
jed  by  its  f  alUng 


STATE   V,  SHOCK. 


1029 


The  deceased  was  a  son  of  a  cousin  of  the  wife  of  the  defendant 
and  it  appears  that  it  had  been  at  the  house  of  the  defendant  for  about 
two  months,  but  whether  as  a  visitor  or  otherwise,  the  record  does  not 
show. 

In  support  of  the  motion  for  a  new  trial,  an  affidavit  of  one  of  the 
jurors  was  filed,  which  stated,  in  substance,  that  while  the  jury  were 
considering  their  verdict,  he  was  of  the  opinion  that  the  case  was  not 
one  in  which  capital  punishment  should  be  inflicted,  but  he  was  induced 
to  believe  that  the  court  had  the  power  to  inflict  a  less  degree  of  pun- 
ishment ;  he  and  others  of  said  jury  were  opposed  to  rendering  a  ver- 
dict in  said  case  that  would  result  in  the  death  of  the  defendant.  It 
will  be  sufficient  to  say  on  this  point,  that  a  juror  will  not  be  allowed 
to  impeach  his  verdict  on  the  ground  that  he  would  not  have  found  the 
defendant  guilty  if  he  had  known  that  the  punishment  fixed  by  law  for 
the  crime  charged  was  death.  The  nature  of  the  punishment  had  noth- 
ing to  do  with  the  guilt  or  innocence  of  the  defendant. 

The  only  question  of  importance  presented  for  our  determination 
arises  upon  the  action  of  the  court  in  giving,  at  the  instance  of  the 
prosecuting  attorney,  the  following  instructions :  — 

"4.  To  constitute  murder  in  the  first  degree,  it  is  not  necessary  that 
the  fatal  beating,  wounding  or  striking  be  given  with  the  specific  intent 
to  kill ;  it  is  sufficient  if  it  be  given  willfully  and  maliciously,  and  with 
intent  to  inflict  great  bodily  barm,  and  death  ensue." 

"  13.  If  the  jury  believes,  from  the  evidence,  that  it  was  not  the 
intention  of  the  defendant  to  kill  the  child  Scott,  by  whipping  him,  but 
that  he  did  intend  to  do  him  great  bodily  harm,  and  in  so  whipping  him, 
death  ensued,  he  i$>  guilty  of  murder  in  the  first  degree." 

It  is  contended,  on  behalf  of  the  State,  that  the  foregoing  instructions 
were  fully  warranted  by  the  decision  of  this  court  in  the  case  of  State 
v.  Jennings^  and  in  State  v.  Green.^  In  the  case  first  named,  which 
was  a  most  atrocious  case  of  lynching,  the  infiiction  of  which  was  con- 
tinued for  several  hours,  under  circumstances  of  the  greatest  cruelty 
and  brutality,  there  was  no  occasion  for  any  effort  on  tlie  part  of  the 
State  to  make  a  case  of  constructive  murder  in  the  first  degree,  as  the 
facts  of  the  case  justified  the  jury  in  finding  the  defendant  guilty  of  a 
willful,  deliberate  and  premeditated  killing. 

The  following  instruction,  however,  was  given  in  that  case :  — 

"  6.  If  the  jury  believe,  from  the  evidence,  that  it  was  not  the  in- 
tention of  those  concerned  in  lynching  Willard,  to  kill  him,  but  that 
they  did  intend  to  do  him  great  bodily  harm,  and  in  so  doing  death  en- 
sued, such  killing  is  murder  in  the  first  degree  by  the  statutes  of  this 
State."     Judge  Ryland,  who  delivered  the  opinion  of  this  court,  ap- 


4t5. 


66  Mo.  651. 


1030         CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

proved  this  instruction  In  the  following  language :  ' '  The  sixth  instruc- 
tion  is  correct  under  the  statutes  of  this  State.*  Homicide,  commit  ed 
in  the  attempt  to  perpetrate  any  arson,  rape,  robbery,  biuglary  or  other 
felony,  shall  be  deemed  murder  in  the  first. degree.  The  thirty-e.gh  h 
section  makes  the  person  by  whose  act  or  procurement  great  oodily 
harm  has  been  received  by  another,  guilty  of  what  is  by  our  law  called  a 
felony ;  that  is,  guilty  of  such  an  offense  as  may  be  punished  by  impns- 
onmenit  in  the  penitentiary."  , .  .      ,,i  u-  ^^a^ 

There  are  two  errors  in  the  foregoing  extract,  which  will  be  made 
patent  by  reciting  the  two  sections  of  the  statute  referred  to.  Section 
1  is  as  follows:  "Every  murder  which  shall  be  committed  by  means 
of  poison,  or  by  lying  In  wait,  or  by  any  other  kind  of  willful  dehber- 
ate  and  premediated  killing,  or  which  shall  be  committed  in  the  perpe- 
tration  or  attempt  to  perpetrate  any  arson,  rape,  robbery,  burglary  or 
other  felony,  shall  be  deemed  murder  In  the  first  degree.''  ^^ 

Section  thirty-eight,  now  section  thirty-three,  is  as  follows:  « 
any  person  shall  be  maimed,  wounded  or  disfigured,  or  receive  great 
bodily  harm,  or  his  life  be  endangered  by  the  act,  procurement  or  cul- 
pable  negligence  of  another.  In  cases  and  under  circumstances  which 
would  constitute  murder  or  manslaughter,  if  death  has  ensued,  the 
person  by  whose  act,  procurement  or  negligence  such  injury  or  danger 
of  life  shall  be  occasioned  shall,  in  cases  not  provided  for,  be  punished 
bvimprisonment  in  the  penitentiary,"  etc. 

It  will  be  observed  that  the  statute  does  not  say  that  every  homicide 
committed  in  the  manner  therein  pointed  out  shall  be  murder  in  the 
first  degree,  but  that  every  murder  so  committed  shall  be  murder  m  the 
first  degree.     The  object  of  first  and  second  sections  of  the  statute  is 
to  divide  the  crime  of  murder  into  two  degrees,  and  they  dea  with  that 
crime  as  it  existed  at  common  law.     This  is  made  manifest  by  the  Ian- 
guage  of  the  second  section,  which  Is  as  follows:  "All  other  kinds  of 
murder  at  common  law,  not  herein  declared  to  be  manslaughter,  or 
justifiable  or  excusable  homicide,  shall  be  deemed  murder  in  the  second 
decree  "    So  that  In  every  case  under  the  first  section,  the  first,  though 
not  the  sole,  inquiry  to  be  made  Is,  whether  the  homicide  was  murder 
at  common  law.  if  not  it  can  not  be  murder  in  the  first  degree  under 

***  At'common  law,  a  homicide  committed  In  the  willful  and  maUcious 
Infliction  of  great  bodily  harm  was  murder,  though  death  was  not  in- 
tended;  but  this  was  not  so  because  such  infliction  of  great  bodi  y 
harm  was  In  Itself  a  felony,  In  the  perpetration  of  which  the  homicide 
was  committed,  but  because  such  Infliction  of  great  bodily  harm  was  an 

1  See  crime,  and  PunUhmenU.  R.  C.  184S.  »  Whwrt  on  Ho«..  wc.  184. 

aeot.  1, 38. 


STATE  V.  SHOCK. 


1031 


ALS. 

sixth  instruc- 
de,  committed 
rglary  or  other 

0  thirty-eighth 
;  great  'oodily 
ur  law  called  a 
ihed  by  impris- 

\  will  be  made 
id  to.  Section 
itted  by  means 
(Tillful,  deliber- 
d  in  the  perpe- 
iry,  burglary  or 

f  9 

follows:  "If 
)r  receive  great 
lurement  or  cul- 
imstances  which 
as  ensued,  the 
ijury  or  danger 
or,  be  punished 

every  homicide 
J  murder  in  the 
)e  murder  in  the 
of  the  statute  is 
y  deal  with  that 
lifcst  by  the  lan- 

1  other  kinds  of 
manslaughter,  or 
ler  in  the  second 

the  first,  though 
clde  was  murder 
irst  degree  under 

111  and  malicious 
leath  was  not  in> 
of  great  bodily 
lich  the  homicide 
>dily  harm  was  an 

lec.  184. 


act  mnhim  in  se,  and  the  pnrty  was,  therefore,  held  answerable  for  all 
the  harm  that  ensued.^  But  as  such  a  homicide,  death  not  being  in- 
tended, is  not  a  willful,  deliberate  and  premeditated  killing,  and  is  not 
a  murder  committed  in  tlio  perpetration  or  attempt  to  perpetrate  any 
of  the  felonii'3  specially  designated  in  the  first  section,  but  a  simple  un- 
intentional killing  only,  it  has  been  universally  classed  as  murder  in 
the  second  degree,  in  those  States  having  statutes  identical  with  our 
own  with  the  exception  of  the  words  "  other  felony."  * 

But  as  murder  in  the  second  degree  «;ith  us  comprehends  only  such 
homicides  as  are  intentional,  but  witliout  deliberation,  it  can  not  be 
80  classed  in  this  State.3  Hq^  jt  gjiall  be  classed  under  our  statute 
must  depend  upon  the  construction  to  be  given  to  tiie  words  "  other 
felony,"  in  the  first  section.  This  brings  us  to  the  second  error  in  the 
statement  of  Judge  Byland. 

This  error,  which  is  the  most  important  one,  so  far  as  the  present 
case  is  concerned,  consists  in  the  declaration  that  the  thirty-eighth 
(33)  section  makes  the  person  by  whose  act  or  procurement  great 
bodily  harm  has  been  received  by  another,  guilty  of  felony.  This  is  a 
very  grave  error.  As  before  stated,  the  bare  infliction  of  great  bodily 
harm  was  not  a  felony  at  common  law,  and  it  is  not  made  so  l)y  statute. 

The  statute  says,  if  any  person  shall  receive  great  bodily  harm  by  the 
i^ct,  procurement  or  culpable  negligence  of  another,  ' '  in  cases  and  un- 
der circumstances  which  would  constitute  murder  or  m.inslaughter  if 
death  had  ensued,  the  person  by  whose  act,  procurement  or  negligence 
such  injury  ♦  •  »  shall  be  occasioned  shall  •  •  •  be  pon- 
ished  by  imprisoned  in  the  penitentiary,"  etc.,  that  is,  shall  be  guilty 
of  a  felony,  and  punished  as  therein  prescribed,  if  death  does  not  ensue. 

Now,  upon  the  supposition  that  this  felony  is  one  contemplated  by 
the  words  "  other  felony,"  in  the  first  section,  let  us  add  this  qualifica- 
tion to  the  thirteenth  instruction  given  in  this  case,  and  see  what  its 
legal  effect  will  be.  The  instruction  will  then  read  as  follows :  "  If  the 
jury  believe,  from  the  evidence,  that4t  was  not  the  intention  of  the  de- 
fendant to  kill  the  child  Robert  Scott  by  whipping,  but  that  he  did  intend 
to  do  him  great  bodily  harm,  under  circumstances  which  would  consti- 
tute murder  or  manslaughter  if  death  ensued,  and,  in  so  whipping  him, 
death  did  ensue,  then  he  is  guilty  of  murder  in  the  first  degree." 
Would  not  such  an  instruction  as  this  present  a  palpable  contradiction 
on  its  face  ? 

If  the  circumstances  under  which  the  bodily  harm  was  inflicted  were 
such  as  to  constitute  the  offense  of  manslaughter,  if  death  ensued,  by 
this  instruction  it  is,  nevertheless,  declared  to  be  murder  in  the  first 
degree.     The  language  adopted  in   the  supposed  instruction   is,  of 


1  Fost  ssa. 


>  Whart.  on  Horn.,  sees.  40, 190. 


3  State  V.  Wilner,  66  Mo.  11. 


1 


T 

uestion       ■ 
tlie  two       I        c 
of  the       I       g 


1032         CRIMES   AGAINST  TUB   PEHSONS  OF   INDIVIDUALS. 

course,  not  8uch  as  wouU!  be  used  to  a  jury,  as  it  presents  a  qv 
of  law.  but  it  is  pertinent  and  proper  thus  to  bring  together  the 
provisions  for  the  purpose  of  determining    the  construot.on  of 
Statute.     It  would  seem,  therefore,  that  the  offenses  ment.onea    n   lie 
thirty-third  section  are  not  such  as  are  meant  by  the  words  -other 
felony,"  in  theflrst  section.  ,  .     ♦!,„ 

We  are  of  the  opinion  that  the  words  "other  felony,"  used  m  the 
first  section  refer  to  some  collateral  felony,  and  not  to  those  acts  of 
personal  violence  to  the  deceased  which  are  necessary  and  constituent 
elements  of  the  homicide  itself,  and  are,  therefore,  merged  in  it,  and 
which  do  not.  when  consummated,  constitute  an  offense  distinct  from 

the  homicide.*  ,  .    ^t.  * 

Again,  the  first  declares,  that  all  murders  committed  in  the  perpetra- 
tion or  attempt  to  perpetrate  arson,  rape,  robbery,  burglary,  or  other 
felony,  shall  be  murder  in  the  first  degree.  As  this  section,  as  before 
shown,  includes  only  such  murders  aa  were  murders  at  common  law,  it 
may  well  be  doubted  whether  the  words  "  other  felony  "  can  be  held  to 
include  offenses  which  were  not  felonies  at  common  law.  This  point, 
however,  we  do  not  now  decide,  it  being  unnecessary  in  the  present 


case 


But  the  statute  evidently  contemplates  such  "  other  felony  "  as  could 
be  consummated,  although  the  murder  should  also  be  committed.     It 
says  murder  "  committed  in  the  perpetration  or  attempt  to  perpetrate 
any  felony.     It  were  absurd  to  say  that  there  could  be  an  attempt  to 
perpetrate  a  felony  which  could  not    be  perpetrated.     The  statute, 
therefore,  must  refer,  to  such  felony  as  may  be  perpetrated,  although 
the  murder  is   committed.    The  arson,  rape,  robbery,  burglary,  may 
each  be  perpetrated,  and  th^  murder  also  be  committed.    But  when 
great  bodily  harm  has  been  inflicted,  and  death  immediately  or  speedily 
ensues  therefrom,  what  felony  has  been  committed,  either  at  common 
law  or  under  our  statutes,  in  addition  to  the  murder?    The  infliction  of 
irreat  bodily  harm  is,  by  the  statute,  only  made  a  felony  when  death 
does  not  ensue,  and  when,  if  it  had  ensued,  the  whole  offense,  includ- 
ing the  infliction  of  the  bodily  harm,  would  constitute  either  murder  or 
manslau-L^er;  but  whether  murder  or  manslaughter,  would  have  to  be 
determined  the  circumstances  of  the  case,  as  in  other  cases  of  violence 
terminating  in  death,  when  the  samewas  not  inflicted  in  the  perpetra- 
tion or  attempt  to  perpetrate  some  collateral  or  independent  substantive 

crime  ^ 

If  the  instruction  given  in  this  case  can  be  upheld,  it  will  convert 
many  cases  of  unintentional  killing,  which  are  manslaughter  only  under 
other  provisions  of  the  statute,  into  murder  in  the  first  degree. 

1  Whart.  on  Hou...  Bece.  66. 67. 68. 62.  »  Kelly  v.  Com..  1  Grant's  Case.  487. 


IAL8. 

ents  a  question 
)getlier  tlie  two 
ruction  of  the 
entionea  in  the 
words  "other 

r,"  used  in  the 
,o  those  acts  of 
md  constituent 
rged  in  it,  and 
96  distinct  from 

in  the  perpetra- 
irglary,  or  other 
iction,  as  before 
,  common  law,  it 
'  can  be  held  to 
iw.  This  point, 
ry  in  tlie  present 

elony"  as  could 
i  committed.     It 
t  to  perpetrate  " 
be  an  attempt  to 
1.    The  statute, 
etrated,  although 
T,  burglary,  may 
tted.     But  when 
lately  or  speedily 
either  at  common 
The  infliction  of 
elony  when  dfath 
B  offense,  includ- 
I  either  murder  or 
would  have  to  be 
cases  of  violence 
d  in  the  perpetra- 
ndent  substantive 

!ld,  it  will  convert 
ughter  only  under 
degree. 

Irant'8  CoBCi,  487. 


STATE   V.  SHOCK. 


1033 


These  views  are  in  accordance  with  Ww  construction  placed  by  tliis 
court  upon  ait  analagous  provision  of  the  statute,  relating  to  inferior 
grades  of  homicide.  The  statute  delining  manslaugliter  in  the  first  de- 
gree is  as  follows:  "Section?.  Theliilling  ahuman  being  witliout  a 
design  to  effect  death  by  the  act,  procurement  or  culpable  negligence 
of  another,  while  such  other  is  engaged  in  the  perpetration  or  the  at- 
tempt to  perpetrate  any  crime  or  misdemeanor,  not  amounting  to  a 
felony,  in  cases  where  such  a  liilling  would  be  murder  at  the  common 
law,  shall  be  deemed  manslaughter  in  the  first  degree." 

It  was  held  by  this  court,  in  the  case  of  State  v.  Slonn,^  that  the 
foregoing  se'tt^on  contemplates  some  other  misdemeanor  than  that  which 
is  an  ingredient  in  the  imputed  offense,  otherwise  that  part  of  it  relat- 
ing to  an  attempt  to  perpetrate  a  misdemeanor  would  be  wholly  nuga- 
tory ;  that  where  an  act  becomes  criminal  from  the  perpetration  or  the 
attempt  to  perpetrate  some  other  crime,  it  would  seem  that  the  lesser 
would  not  be  a  part  of  the  greater  offense.* 

On  the  facts  of  this  case,  we  thinic  the  jury  might  properly  have  been 
instructed  as  to  the  law  of  murder  in  the  first  degree,  on  the  tlieory  of  a 
willful,  deliberate  and  premeditated  killing,  and  also  as  to  the  law  of 
manslaughter  in  the  fourth  degree. 

It  was  to  be  expected,  of  course,  that  the  Circuit  Court  would,  in  pass- 
ing upon  the  instructions  presented  bt  the  trial  of  this  case,  be  governed 
by  the  decision  of  this  court  in  the  case  Oi  Ihn  State  v.  Jennings ;  but  the 
doctrine  of  that  case  and  of  the  case  of  State  v.  Nueslein,^  in  so  far  as 
it  conflicts  with  our  opinion  in  this  case,  is  overruled.  There  is  no 
conflict  between  this  case  and  the  case  of  State  v.  Oreen.* 

In  the  latter  case  the  defendant,  at  the  time  of  the  homicide,  was  re- 
sisting an  oflScer  under  circumstances  wliicb  made  such  resistance 
a  collateral  felony,  both  at  common  law  and  under  the  statute.  True, 
the  Jennings  Case  was  cited  in  support  of  instructions  numbered  three 
and  four,  given  for  the  State  in  that  case,  which  omitted  the  elements 
of  deliberation  and  premeditation ;  but  those  instructions  were  unlike 
the  sixth  instruction  in  the  Jennings  Case  and  the  thirteenth  instruc- 
tion in  the  case  at  bar,  and  are  in  conformity  with  this  opinion.  Neither 
of  them  declared  that  if  the  defendant  did  not  intend  to  kill  the  accused, 
but  did  intend  to  inflict  on  him  some  great  bodily  harm,  he  was 
guilty  of  murder  in  the  first  degree.  The  person  killed  by  Green  was 
an  officer  who  had  a  warrant  for  his  arrest  on  a  charge  of  felony,  and 
instructions  three  and  four,  above  referred  to,  were  to  the  effect  that  if 
the  deceased  read  such  warrant  to  the  defendant,  or  notified  him  of  his 


1  4   Mo.  604. 

2  l.de.  People  v.  Bntler,  8  Park.  Or. 
Kep.  3";  People  v.  Skeeban,  49  Barb.  217; 
People  V.  Rector,  19  Wend.  60S. 


3  35  Mo.  111. 
«  66  Mo.  631. 


i 


1034         CK.M.S   A„A.N«   T„r.   ™,«OV»  OP   ,S>..V...«.». 

.,.Uo,U,  ..  an.,.  .,„,  a.„  .k;  ;;;'-:- ^r «  :^»'°  -- 
„«  .,„.h  .rr.«t.h.  7^f''"'„™f«rtUor™,o,.horetot.>r.  given. 
l„,truoUon.  "o™  undou.tcUlj  "'"•;'  ^'^„,,„j „,,„u apparent. 
The  .«Ifomu:e  Lclween  that  ca,    ""^^l'™  „  „„,„„,ed. 

Navton  and  Henry,  J  J.,  tontur,  ^» 
J.,  diHsent.  ieeuersed. 

HKsnv.  J.,  concurring.  The  o^^^^^lr^'^^^^^^  :;rhlcidelt- 
act  in  relation  to  crimes  and  l>«n'«»'««f ^J  ^'j^"  ;,,,  ,,y  arson,  rape, 
„.iUed  in  the  perpetrat.on,  <>r  ^  em  t  ^  perp^^^^^^  J^^^^^^^^^^  ^^^^ 

robbery,  burglarly,  ««•  °  '^^  ^ l^iJ  '^t  In-  --^  classed  with  those 
should  be  dee.ned  murder  ""  ;'  *  ;^^'tying  n  wait,  etc.  It  wasnot 
xnurdors  comr.itted  by  •-*'^;  "  '^^ ^jL^^^  but  only  to  rec 

ii^tended  to  enlarge  the  class  of  -""  ™7  .^.  i^,,,  j^  the  classiflca- 
og„izoti.ose  designated  '-^^^^^^^^^  contended  for  by  the 
tion  made  by  that  sec  ion.  "  ^^^^ J^^  ^^,  .j  ,1,,  criminal  code.  For 
State  prevail,  it  will  ^^^f  ^  Il^^^^uster  to  any  woman,  preg- 
instance:  "Every  person  '''^'if^^l  ^^^,,  „,.  substance  whatsoever, 
nant  with  a  quick  ^'l^''^' "^"^ '"" ''\^^^^^^^  means,  with  intent 

or  shall  use  or  employ  -.^  ^-^^^^™;;^/  ,L  shall  have  been  neces- 
thereby  to  destroy  such  chdd,  f^^Tol  shall  have  been  advised  by 
sary  to  preserve  the  life  of  7^^^"^^^'' i;,,,u,  if  the  death  of  such 
a  physician  to  be  -^Xreo?  etl  f^^^^^  the  means  so  employed,  be 
child,  or  the  mother  t^«'7'';°f"'  "^cond  degree.''^ 
deemed  guilty  of  -^--''^^^J^'XmZ^<^^  ^n^eans,  with  the  intent  to 
If  one  administer  medicine  or  «"H^oyo  ^^^^^  ^^ 

employed,  the  oBen«i,  IJ  *»  e  «i1er  tUe  couslructioa  placed 

::nC.::tr.trrth:T:^^^^^^^^^^^^ 

mrnslaughter  in  the  second  degree.  ^^  ^     ,    ,y 

none  assault  another  wihn^ent^t^^^^^^^^  ^^^ 

under  Wagner's  Statutes.^    i.  -  «  J^/^^^i/^,.  ,,-  of  the  seco-  d 

liberate,  and  death  ensue,  the  off^^e^o^'^  .uslaughter,  uu     b 

degree.  If  made  in  aheatof  passioi^  '0^00!  unUcr  which  It  would,  in 
thf  doctrine  of  the  ^n,nn^  l^'J^^TX^Zt^.  com,  .ssion  of  the 
rnT^idTwr  rnr ;rre-l  ^  a  felony,  thus  making  what  was 

,„       ..-  J  sec.  32,  p.  449. 

a  Wag.  Stats.. socio, p. **<• 
|i  »rt.2. 


i 


UAL8. 

(■cased  In  resist- 
aegree.  Those 
crutofore  given. 
ai>|>ai'ent. 

led. 

.,  and  NouTON, 

Reversed. 

cctlon  1,'  of  the 
y  homicide  com- 
auy  arson,  rsipe, 
r  at  common  law, 
iassed  with  those 
,  etc.    It  was  not 
,  but  only  to  rec- 
4  in  the  classiflca- 
;lended  for  by  the 
iminal  code.     For 
\ny  woman,  preg- 
itance  whatsoever, 
teana,  with  intent 
I  have  been  necea- 
^c  been  advised  by 
f  the  death  of  such 
19  80  employed,  be 

,,  with  the  intent  to 
from  the  means  so 
te  statute,  is  man- 
jonatructiou  placed 
liomicide  was  com- 
miirder  of  the  first 
ires  that  it  shall  be 


I  guiltv  of  a  '  ly 
>,,  T'  but  not  de- 
01-  of  the  seco"! 
inslaugbter,  un  « 
.1  which  ;t  would,  in 
he  comi  ission  <>'  **^® 
19  making  what  was 


8TATK   V.  SHOCK. 


1035 


1  sec.  ■ 


i,  p.  449. 


manslaughter  at  cotnmoii  law,  and  murder  In  tiie  second  degree  under 
our  statute,  murder  of  the  first  degree,  u  result  not  to  bethought  of  hut 
with  alihorrence 

If,  when  great  bodily  harm  is  intlioted,  under  eircurastanccs  wliich,  if 
deatli  ensue,  would  constitute  tlio  offense  of  manslaugiiter,  the  offense 
is  to  be  transformed  Into  murder  by  construction,  how  is  tlio  tliirty- 
sccond  section  to  bo  distinguisiied  from  the  thirty-tiiird  in  tlie  applica- 
tion of  tiio  construction  placed  upon  the  first  and  thirty-tltird  sections 
in  the. Tennings  Case? 

Every  assault  witli  intent  to  kill,  provided  for  in  section  thirty-two,  if 
death  ensue,  must  also  be  transformed  into  nuirder  of  tlie  first  degree, 
wlietiier  such  killing  would  be  murder  of  the  second  degree  or  man- 
slaughter under  other  provisions  of  the  statute. 

I  have  seleeted  these  from  many  selections  of  the  criminal  code, 
which  illustrates  the  force  and  conclusiveness  of  tlie  argument  of  my 
associate  who  delivered  the  opinion  of  the  court.  If  one  be  indicted 
under  the  thirty-tliird  section  for  inflicting  great  bodily  barm,  it  would 
be  necessary  for  the  jury  to  find  whctlicr,  if  death  had  ensued,  the  party 
would  have  been  guilty  of  murder  or  manslaughter. 

If  the  circumstances  were  such  that,  if  death  had  ensued,  the  accused 
would  have  been  guilty  of  either  murder  or  manslaughter,  it  would  be 
tiie  duty  of  the  jury  to  find  him  guilty  of  tlie  felony  defined  by  the 
section.  If,  however,  death  ensued,  no  case  would  exist  for  a  prose- 
cution under  that  section,  because  then  the  offense  would  be  murder 
or  manslaughter,  or  excusable  or  justifiable  homicide,  according  to 
tlie  circumstance  under  which  the  homicide  was  committed,  witliout 
regard  to  the  second  subdivision  of  section  one.  Section  thirty- 
three,  by  its  very  terms,  recognizes  the  law  to  be,  that  one  in- 
tentionally inflicting  great  bodily  harm  upon  another  may,  if  death 
result,  be  guilty  of  murder  or  manslaugiiter,  the  grade  of  the  offense  to 
be  determined  by  the  circumstances  attending  the  act,  yet  the  con- 
struction contended  for  utterly  denies  that,  if  one  intentionally  inflict 
great  bodily  harm  upon  another,  and  without  intending  it  kill  him,  he 
can  be  guilty  of  any  crime  but  murder  of  the  first  degree. 

It  is  clear,  from  the  whole  scope  and  spirit  of  the  act,  that  it  was  in- 
tended to  mitigate  the  severity  of  the  common  law  in  regard^ to  murder, 
but  this  construction  of  the  first  section  would  make  our  code  more 
severe.  The  substitution  of  the  words  "  neitlier  excusable  nor  justifi- 
able," for  the  words  "which  would  constitute  murder  or  manslaugh- 
ter," in  section  thirty-three,  perverts  the  meaning  of  the  section  and 
expunges  that  portion  which  brings  it  in  conflict  with  section  one.  The 
words  neither  justifiable  nor  excusable,"  are  not  equivalent  to  the 
words  of  the  statute, ' '  which  would  constitute  murder  or  manslaughter, 


i 


1036 


CHIMES   AGAINST   THE   PERSONS    OF   INDIVIDUALS. 


if  death  had  ensueil,"  and  such  substitution  is  calculated  to  mislead 
and  draw  iitlenlion  from  the  real  question  under  discussion. 

We  have  to  deal  with  the  section  as  it  is,  not  as  it  might  have  been. 
The  section  does  not  make  the  infliction  of  great  bodily  harm  a  felony 
when  not  excusable  or  justifiable  merely ;  but  to  constitute  the  offense 
a  felony,  it  must  also  be  inflicted  "  under  circumstances  which  would 
constitute  murder  or  manslaughter,  if  death  had  ensued." 

Section  thirty-three  not  only  contemplates  cases  where  the  infliction 
of  great  bodily  harm  would  be  neither  justifiable  nor  excusable,  but 
cases  where,  in  the  event  of  death  the  offense  would  be  murder  or  man- 
slaughter under  some  other  section. 

If  the  State  had  provided  for  cases  where  the  iOiiictionof  bodily  harm 
was  neither  excusable  nor  justifiable,  and  where  it  was  not  declared  by  any 
statute  to  be  either  murder  or  manslau^^'iter,  there  would  be  no  con- 
flict. If  section  thirty-three  refers  to  cases  where  the  homicide  would 
be  murder  of  the  first  degree,  by  the  circumstances  of  the  killing,  there 
is  no  occasion  to  resort  to  the  first  section  to  make  a  case  of  constructive 
murder.  If  it  refers  to  cases  which,  by  the  circumstances,  would  be 
murder  in  the  second  degree,  or  manslaughter  in  any  degree,  a  conflict 
arises  which  nullifies  the  expi-ess  terms  of  the  statute,  and  adds  to  the 
class  of  murders  of  the  first  degree  almost  a.''  many  constructive  mur- 
ders as  there  are  sections  of  the  statute  defining  manslaughter  in  the 
different  degrees. 

The  Jennings  Case  has  been  acquiesced  in  for  a  number  of  years, 
and  was  expressly  approved  and  followed  in  Nueslein's  Case,^  and  this 
fact,  if  the  doctrine  were  n^t  clearly  wrong,  should  make  this  court  hesi- 
tate to  overrule  it ;  but  the  principle  of  stare  decisis  docs  not  obtain  in 
criminal  to  the  same  extent  as  in  civil  cases. 

A  number  of  adjudications  one  way  indicates  that  the  law  '.^  as  they 
have  adjudged  it  to  be.  In  civil  cases,  where  rightc  of  property  have 
been  acquired  under  such  decisions,  they  are  adhered  to,  right  or  wrong. 
No  sucli  reason  applies  in  crin  -  >jal  cases. 

That  there  have  been  many  adjudications  announcing  the  same  doc- 
trine on  a  given  subject,  is  of  force  an  argument  that  they  correctly  de- 
clare the  law,  but  I  apprehend  that  men  are  not  to  be  hanged  or 
imprisoned  in  the  penitentiary  on  a  clearly  erroneous  construction  of  a 
statute  because  many  others  have  been  so  hanged  or  imprisoned. 

The  doctrine  of  stare  decisis  has  not  always  been  reverently  recog- 
nized by  this  court,  even  in  civil  cases.^  Believing  that  the  instruction 
given  by  the  court,  based  upon  the  thirty-tl '  d  section,  ia  palpably 
eToueous,  I  concur  in  reversing  the  judgment. 


1  25  Mu.  111. 


9  Proctor  V.  Hannibal  &  St.  Jo.  R.  R.  Co., 

61  Mo.  112. 


[VIDUALS. 

Icnlated  to  mislead 

icussion. 

it  might  have  been. 

)dily  harm  a  felony 

institute  the  offense 

!;ance3  which  would 

sued." 

where  the  infliction 
nor  excusable,  but 

[  be  murder  or  man> 

ction  of  bodily  harm 
i  not  declared  by  any 
re  would  be  no  con- 
the  homicide  would 
of  the  killing,  there 
I  case  of  constructive 
imstances,  would  be 
ny  degree,  a  conflict 
lite,  and  adds  to  the 
J  constructive  mur- 
maiQslaughter  in  the 

a  number  of  years, 
lein's  Case,^  and  this 
make  this  court  hesi- 
is  does  not  obtain  in 

at  the  law  '.^  as  they 
htc  of  property  have 
id  to,  right  or  wrong. 

Dcing  the  same  doc- 
it  they  correctly  de- 
jt  to  be  hanged  or 
us  construction  of  a 
•r  imprisoned, 
len  reverently  recog- 
:  that  the  instruction 
section,  is  palpably 


mibal  &  St.  Jo.  R.  R.  Co., 


PLIEMLIMQ   V.  STATE. 


1037 


MURDER— DEGREE  OF  OFFENSE  WHEN  PERPETRATED  IN  COMMIS- 
SION OF  ANOTHER  FELONY. 

Fliemlino  V.  State. 

[46  Wis.  616.] 
In  the  Supreme  Court  of  Wisconsin,  1879. 

On  a  Trial  for  Kurder  the  Evidence  tended  to  show  that  a  mother  and  her  three  children 
were  killed  at  night,  while  being  in  separate  beds,  by  having  their  skulls  crushed  with 
some  blunt  weapon,  and  that  their  house  was  then  burnt.  The  evidence  was  circum- 
stantial.  The  verdict  was  guilty  of  murder  in  the  third  degree,  on  the  theory  that 
the  crime  was  committed  in  endeavoring  to  commit  rape  upon,  or  adultery  with,  the 
mother.  The  Wisconsin  statute  makes  "  the  killing  of  a  human  being,  without  a  design 
to  effect  death,  by  a  person  engaged  in  the  commission  of  any  felony"  murder  in  the 
third  degree.  Held,  that  there  is  no  such  connection  between  rape  or  adultery  and 
homicide  as  to  make  one  the  natural  consequence  of  either  of  the  others ;  and  that  as 
there  was  no  evidence  to  show  that  the  killing  was  without  design  to  effect  death,  the 
verdict  was  wrong. 

Okton,  J.  This  is  an  information  of  murder  in  the  first  degree,  with 
five  counts,  stated  in  common-law  form ;  the  first  count  of  whicli  charges 
the  murder  of  one  Laura  Van  Vorhees,  the  mother ;  the  second  of  Ed- 
ward, her  son ;  the  third  of  Stella,  her  daughter ;  the  fourth  of  Claudia, 
her  female  babe ;  and  the  fifth,  the  murder  of  all  four  together. 

The  verdict  of  the  jury  was,  guilty  of  murder  in  the  third  degree, 
uiidpr  the  fifth  count  of  the  information. 

The  facts  in  brief  were  as  follows :  In  the  evening  of  the  first  day  of 
November,  1877,  the  small  house  in  which  the  Van  Vorhees  family  lived 
was  burned  ;  in  the  smouldering  ruins  of  which  the  partly  bMrned  re- 
mains of  Laura  Van  Vorhees,  the  mother,  of  Edward,  her  son,  of  Stella, 
her  daughter,  and  of  Claudia,  her  female  babe,  were  found.  The 
mother  was  twenty-five  years,  Edward  seven  years,  Stella  four  years, 
and  Claudia  seventeen  months  of  age.  They  had  evidently  retired  to 
rest  for  the  night;  the  motlier,  Stella  an;  Claudia  side  by  side  in  a  bed 
in  one  corner  of  the  room,  and  Edward  <  n  a  lounge  or  coi  in  another 
corner,  their  usual  sleeping  places ;  and  their  remains  were  found  in 
the  same  position  relatively  as  lying  when  asleep,  with  tlie  bed  and  cot 
burned  from  under  them.  Parts  of  the  cranium  of  each  one  was  uncon- 
sumed  by  the  fire ;  and  the  great  preponderance  of  the  medical  testimony 
tended  to  show  that  the  skull  of  each  one  of  them  had  been  broken  and 
crushed  in  by  the  use  of  some  bluut  instrument  with  great  violence, 
producing  death  before  the  burning. 

Near  some  of  tlie  remains  a  hammer  with  a  broken  handle  was  found 
with  which  such  wounds  might  have  been  made. 

The  verdict  of  the  jury,  convicting  the  defendant  of  murder  in  the 


1038  CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

third  dogroe  of  all  of  these  persons  together,  rests  wholly  upon  the  as- 
sumption that  he  committed  the  deed  substantially  in  the  same  manner 
and  under  the  circumstances  ibove  stated. 

The  relationship,  sox,  age  and  condition  of  the  persons  killed ;  the 
time,  place,  and  horrible  circumstances  of  the  deed ;  the  mother  with 
her  little  daughter  and  female  babe  by  her  side  in  the  bed,  it  may  be, 
and  quite  likely,  asleep;  and  the  little  boy  on  his  cot  in  a  distant  cor- 
ner of  the  room,  in  the  night  time,  with  no  appearances  of  struggle  or 
resistance ;  their  skulls  crushed  in  with  a  blunt  instrument,  used  with 
great  violence,  producing  almost  instant  death ;  and  the  house  set  on 
fire  to  consume  the  bodies  of  the  slain  and  to  exterminate  the  evidence 
of  the  homicide  — must  all  be  considered  in  determining  the  character 
of  the  act,  and  the  degree  of  guilt  involved  in  its  perpetration.     There 
being  no  direct  evidence  whatever  of  the  homicide,  the  case  rested  upon 
purely  circumstantial  evidence  of  the  previous  relations  and  conduct  of 
the  parties,  and  of  subsequent  discovery  of  isolated  facts  and  circum- 
stances  tending  to  connect  the  defendant  with  the  homicide,  which  it  is 
unnecessary  to  notice.     From  the  e\'idence  and  instruction  of  the 
learned  judge  to  the  jury,   it  is  apparent  that  the  case  was    tried 
and  considered  by  the  jury  upon  three  suppositions  or  theories:  first, 
that  the  deaths  were  produced  by  the  burning  building ;  second,  that  it 
was  murder  in  the  fiist  degree ;  and  third,  that  the  defendant  did  the 
killing  without  any  design  to  effect  death,  while  engaged  in  the  com- 
mission of  rape  upon,  or  adultery  with,  the  deceased  Laura  Van  Vorhees, 
and  was  therefore  guilty  of  murder  in  the  third  degree.     The  verdict 
must  have  been  rendered  upon  the  last  theory  or  finding. 

We  shall  not  inquire  whether  there  was  sufficient  evidence  to  connect 
the  defendant  with  the  homicide,  but  assume  that  there  was ;  and  we 
shall  at  first  consider  the  case  conceding  that  there  was  sufficient  evi- 
dence for  the  jury  to  find  that  the  defendant,  when  he  did  the  killing, 
was  engaged  in  the  commission  of  rape  or  adultery. 

Murder  in  the  third  degree  is  "  the  killing  of  a  human  being,  without 
a  design  to  effect  death,  by  a  person  engaged  in  the  commission  of  any 

felony."  ^ 

The  three  degrees  of  murder  by  our  statute  were  comprised  in  the 
general  crime  of  murder  at  common  law ;  and  murder  in  the  same  de- 
gree must  have  the  same  requisites  as  murder  at  common  law ;  and  the 
degree  established  by  the  statute  is  based,  not  upon  the  fact  that  it  is 
any  the  less  murder,  but  upon  the  character  of  the  homicide,  and  the 
punishment  to  be  suffered  for  the  homicide,  committed  under  such  con- 
ditions and  circumstances  as  would  be  murder  at  common  law. 

The  oftense  of  murder  in  the  three  degrees,  as  defined  by  our  statute, 

1  leo.  4349,  Rot.  State. 


[JALS. 

Ily  upon  the  as- 
le  same  manner 

sons  killed ;  the 
the  mother  with 
bed,  it  may  be, 
in  a  distant  cor- 
9  of  struggle  or 
mcnt,  used  with 
tie  house  set  on 
ate  the  evidence 
iig  the  character 
itratiou.     There 
jase  rested  upon 
I  and  conduct  of 
icts  and  circum- 
icide,  which  it  is 
itruction  of  the 
case  was    tried 
f  theories:  first, 
;  second,  that  it 
8f  end  ant  did  the 
ged  in  the  com- 
iraVanVorhees, 
ee.    The  verdict 

dence  to  connect 
ere  was ;  and  we 
as  sufficient  evi- 
e  did  the  killing, 

in  being,  without 
>mmission  of  any 

comprised  in  the 
■  in  the  same  de- 
lon  law ;  and  the 
the  fact  that  it  is 
omicide,  and  the 
I  under  such  con* 
non  law. 
ed  by  our  statute, 


PLIEMLING   V.  STATE. 


1039 


was  so  before  the  statute,  and  is  but  the  adoption  or  introduction  ii?ta 
the  statute  of  the  common-law  description  of  the  crime.' 

It  is  sometimes  stated  that  t'lO  object  of  this  classification  is  to  make 
a  distinction  between  murder  with  express  malice  and  murder  with  im- 
plied malice.  In  the  killing,  without  the  design  to  effect  death,  there 
can  be  no  actual  malice  or  intention  in  the  act  itself ;  and  in  murder  in 
the  third  degree  such  malice  and  felonious  intent,  necessary  to  make  it 
murder,  is  derived  from  the  felony  by  the  commission  of  which,  the 
killing  happens.  In  the  State  of  Maine,  murder  in  the  second  degree  is 
the  same  as  murder  in  the  third  degree  by  our  statute ;  and  in  State  v. 
Smith,^  the  court  says :  "  The  malice  is  implied  when  the  killing  is  com- 
mitted by  a  person  when  in  the  perpetration  of  a  crime  punishable  in 
the  State  prison  ;  and  if  in  the  perpetration  of  that  offense  a  killing  oc- 
curs, the  malice  making  murder  in  the  second  degree  may  be  implied." 
This  is  substantially  the  definition  given  to  this  particular  kind  of  mur- 
der at  common  law. 

"  Such  killing  shall  be  adjudged  murder  which  happens  in  the  execu- 
tion of  an  unlawful  action  principally  intended  for  some  other  purpose, 
and  not  to  do  a  personal  injury  to  him  in  particular  who  happens  to  be 
slain;  "  or,  "  Such  killing  as  happens  in  tl.o  execution  of  an  unlawful 
action,  whereof  the  principal  intention  was  to  commit  another  felony ;  " 
or,  "  Whenever  a  man  happens  to  kill  another  in  the  execution  of  a 
deliberate  purpose  to  commit  any  felony,  he  is  guilty  of  murder." 
"  And  not  only  in  such  cases  where  the  very  act  of  a  person,  having- 
such  a  felonious  intent,  is  the  immediate  cause  of  a  third  person's  death, 
but  also  when  it  in  any  way  occasionally  causes  such  a  misfortune,  it 
makes  him  guilty  of  murder."  3 

So,  also,  at  common  law,  "if  a  person  commit  a  criminal  misde^ 
meanor  which  is  of  such  a  sort  as  to  endanger  life,  so  that  the  element 
of  danger  occurs  with  the  unlawfulness  of  the  act,  the  accidental  caus- 
ing of  death  is  murder  "  *  and  this  latter  killing  is  by  our  statute  man- 
slaughter in  the  first  degree,  and  this  explains  what  is  meant  by  the 
clause  in  the  section  defining  it,  "inci>  cs  where  such  killing  would  be 
murder  at  common  law."  In  the  killing  without  design,  while  in  the 
commission  of  a  misdemeanor,  which  makes  the  crime  manslaughter, 
precisely  the  same  principle  and  evidence  of  similar  effect,  obtain  as  in 
murder  in  the  third  degree,  the  only  difference  being  that  between  a 
felony  and  a  misdemeanor,  the  felony  imputing  malice  which  makes 
murder,  and  the  misdemeanor  not;  and  in  such  case  the  "homicide 
which  results  from  the  perpetration  of  offenses  below  the  degree  of 


1  People  V.  Enoch,  IS  Wend.  U0. 
3  U  Me.  369. 


1 1  Hawk.  P.  0. 86,  69,  100. 
*  3  Biah.  Or.  L.,  aeo.  691. 


1040         CRIMES   AGAINST  THE   PERSONS   OF  INDIVIDUALS. 

felony  and  without  malice,  is  manslaughter."  ^    '^^Z  *^'°''"'%°*  *t' 
Tcc^nized  fully  by  this  court  in  State  v.  Hammond,*  and  by  ioster  v. 

Jn;otle  felony      In  this  case,  the  felony,  being  rape  or  adultery, 
connection  with  it,  as  to  make  it  i  J'    ^^  „^„„e,  g^own  by 

t:":;^:::::^  ™  *«  ^-^^^ 

"  Zt;:,  ^^du;J^ry:S;he  lamng  are  so  distinct  and  di^onnected 
and  fndepend  nt  from  each  other,  in  all  the  particulars  of  the  kilhng 
Proved  and  all  the  possible  particulars  of  the  ravishment  imagined  or 
a  sined    that  the  degree  of    homicide  could  not  be  -t^f  «/^ 
tesrened  but  would  rather  be  enhanced  by  the  commission  of  the 

^'Sut'l'ettbe  assumed  that  the  act  of  rape,  or  adultery,  is  in  itself 
da!g  rous    0  Ufe,  and  that  the  killing  happened  or  occurred  without 
^    -^r Torn  the  kcl  of  rape  or  adultery,  or  during  its  commission,  so 

"    "Hot  or  Zl  a  ly  Connection  or  relation  with,  the  ravishment  of 

7Z.  la  thU  ca»,  U  .upposed  to  be  the  crime  of  rape  or  ..dulter,  , 

'"^L^rrayTfoi'ttu*  ^uLoe  o,  ,or.er  ,.pro,.r  relafoo,  ^ 
t  Je„  ".re^dant  and  Laura,  casting  .ome  ausplcioo,  perhaps,  upoa  the 


1  State  V.  McNab.20  K.  II.  160;  BU88.  on 
Cr.  52" ;  1  East'a  Cr.  L.  218. 


1  35  Wis.  315. 
3  SO  N.  Y.  S98. 


JALS. 


PLIEMLINO  V.  STATE. 


1041 


lements  of  the 
cesaary  to  con- 
by  statute,  are 
nd  by  Foster  v. 
yon. 

rder  to  make  a 
le  third  degree, 
implied  malice 
ve  intimate  rela- 
not  be  separate, 
constituting  the 
te  naturally  con- 
ape  or  adultery, 
om  it  or  in  close 
felonious  intent 
aanner  shown  by 
Bcessary  to  make 

and  disconnected 
ars  of  the  killing 
raent  imagined  or 
be  mitigated  or 
)mmission  of  the 

Itery,  is,  in  itself, 
occurred,  without 
its  commission,  so 
possible  construc- 
ig,  in  the  manner 
Q,  of  the  little  girl 
babe,  be  a  conse- 
the  ravishment  of 
sign,  or  to  transfer 
ninteutional  killing 

or  elements  of  this 
sioii  of  the  felony, 
(  rape  or  adultery ; 

proper  relations  be- 
,  perhaps,  upon  the 


chastity  of  both,  and  of  some  feeling  of  hostility  and  fear  or  dread 
upon  her  part,  and  some  hostility  or  evil  design  upon  his ;  but  there  is 
absolutelj'  no  evidence  whatever  of  any  rape,  or  attempted  rape  or 
adultery,  at  the  time  of  the  killing,  or  of  any  other  felony  than  what  is 
constituted  by  the  killing  itself.    It  is  a  mere  supposition,  guess,  or 
theory  of  a  ravishment  or  adultery,  or  attempted  ravishment,  predicated 
solely  i.pon  the  previous  relations  of  the  parties,  wliich  do  not  naturally 
or  logically,  and  by  no  means  necessarily,  form  the  premises  of  any 
such  conclusion.     The  case  is  as  barren  of  all  evidence  of  the  commis- 
sion, or  attempted  commission  of  a  felony,  separate  from  the  killing,  as 
the  above  cases  in  50  New  York,*  and  35  Wisconsin ;  *  and  the  act  of 
killing  in  both  of  those  cases,  in  respect  to  the  instrument  used,  and 
the  deadly  consequence,  is  very  similar  to  that  in  this  case,  and  the 
learned  opinions,  in  both  eases,  upon  the  manner  of  the  killing,  would 
have  been  more  pertinent  and  have  greater  emphasis  in  this  case,  where 
the  conviction  is  for  the  killing  of  four  persons  instead  of  one,  and 
those  persons  the  mother  and  her  children.     In  the  first  case  above  last 
cited,  the  court  say:  "The  refusal  of  the  court  to  charge  that  if  the 
prisoner  intended  to  maim  and  not  to  kill,  the  offense  was  murder  in 
the  second  degree,  was  proper,  for  the  reason  that  there  was  no  evi- 
dence upon  which  the  jury  could  have  found  that  the  prisoner  intended 
to  fracture  the  skull  of  the  deceased,  as  distinguished  from  an  intent  to 
kill  him,     •    •     •    and  while  it  was  for  the  jury  to  determine  with 
what  intent  the  blow  was  inflicted,  we  can  not,  without  doing  violence 
to  common  sense,  say  that  the  prisoner  may  have  intended  to  break  the 
skull  without  producing  death."    This  court  said,  in  the  opinion  in  the 
State  V.  Hammond:'^  "  So,  in  the  present  case,  it  was  absurd  for  the 
jury  to  find  that  the  defendant  sent  a  bullet  crushing  tbrough  the  head 
and  brain  of  the  deceased,  without  any  design  to  kill  him,  but  with  a 
design  to  inflict  upon  him  one  of  the  specific  injuries  above  mentioned, 
for  which  the  perpetrator,  on  conviction,  is  liable  to  be  punished  by  im- 
prisonment in  the  State  prison."    That  there  was  no  evidence  of  the  com- 
mission of  a  rape  or  adultery,  or  any  other  felony  than  the  killing  of  the 
four  persons  in  the  manner  above  stated,  and  that  such  killing  could 
not  have  been  without  design  to  effect  death,  is  too  clear  for  further 
argument  or  authority. 

This  being  so,  although  the  venlict  is  for  an  offense  included  in  and 
less  than  murder  in  the  first  degree,  for  which  the  defendant  might  have 
been  convicted  under  the  information,  upon  sufficient  evidence,  if  un- 
sustained  by  the  evidence  and  by  facts  necessary  to  constitute  the 
offense  of  murder  in  the  third  degree  of  which  he  was  convicted,  the  ver- 


p.  896. 


3  Defences. 


i  p.  815. 
66 


'tupra. 


1042         CRIMES   AGAINST  THE  TOIffiONS   OF  INDIVIDBALS. 

die. .»  erroneous,  and  the  jadgment  m„.t,  for  .hat  reason  alone,  b.  «. 
T^;:.ee.de..c„.e^^^^^^^^^^^^ 

sr::ri:-f'r>{ord^^^^^^^^ 

defendant  was  convicted  of  Una  hornblc  deed,  in<^^  "  •    H 
SrLverd:_.,.s.e»pro.n.^o.*e^^^^^^^^^ 

prehensible,  character ;  and  rf  '"^ J«^»  latlludlnarianiain  in  the 

compromise  o.  "««»'>*'*•- ^^f,  l'"  -^^iS  if*e'.ria.  of  high 

proceedings  or  ultimate  results.  judgment  reversed. 


MUEDER-MANSLAUGHTER-MtrrUAL  COJOAT-HEAT  OF  PAS- 
MUKlJi!-n  ^^^^ _^  DEGREES  OF  MURDER. 

People  v.  Sanchez. 

[24Cal.  17.] 
In  the  Supreme  Court  of  California,  1864. 

^.  I.  Oa..  Of  Mutual  combat  ^'l^^L^T^  ^::^^^  '^-^^^^'^^l 
offense  trom  murder  to  "«"/'*"«"«'i"  """ '^^^^^^^        by  the  defendant,  lor  U  Bucb 

mony.  ««•»•«•  —In  order  to  conBtitnte 

4.  What  Oon.titute.  Murder  to  ^^•*,^*^*„S^^*„te^"mallciou8  or  intentional 

murder  In  the  first  degree  there  ™"*'''7°"*"'"f „,„!„»  ,„  wait,  or  torture,  or  Bome 

oil' A.?r.= '•^rr.'.s.'rr  .v^;r;.  w. «... ., »,»«.  >„«.  u 

1  See  State  t».  Haran-ond.  lupra,  and  State 
«.BricksoD.4SWis.tJ6. 


■-•?«!. 


ALS. 

1  alone,  be  re- 

5  homicide,  we 
d  a  reasonable 
at  all,  that  the 
s  quite  evident 
able,  if  n^t  re- 
1,  then  the  ver- 
arianism  in  the 
,ve  offense,  and 
int,  in  order  to 
he  trial  of  high 
:ever  influence, 
sibility  in  such 
d  or  attempted. 
in  the  adminis- 
lot  be  preverted 
ration  of  future 

ment  reversed. 


SEAT  OF  PAS- 


34. 

order  to  reduce  the 
sontest  was  waged  on 

defendant,  for  U  such 
lurder. 
Iclent  time  has  elapsed 

one  of  them  kills  the 

ury  which  Is  not  predi- 
e  portion  ot  the  testl- 

-In  order  to  constitute 
lalicious  or  Intentional 
>it,  or  torture,  or  some 
It,  or  torture,  which  is 


PEOPLE   V.  SANCHEZ. 


1043 


wlUfnl.  deliberate,  and  premeditated,  or  a  killing  which  is  committed  in  the  perpetration 
or  the  attempt  to  perpetrate  any  argon,  rape,  robbery  or  burglary.  Every  other  kind 
Of  murder,  which  is  murder  at  common  law.  is  murder  in  the  second  degree. 

Appeal  from  tiie  District  Court,  Third  Judicial  District,  Santa  Cruz 
County. 

SANUEKsojf,  C.  J.  (omitting  rulings  on  questions  of  practice).  The 
next  error  assigned  is  the  refusal  of  tlie  court  to  give  certain  instructions 
asked  on  behalf  of  the  prisoner.  The  first  instruction  is  in  the  follow- 
ing words:  "When,  upon  sudden  quarrel,  two  persons  fight,  and  one 
of  them  kills  the  other,  this  is  voluntary  manslaughter ;  and  so  if  they, 
upon  such  occasion,  go  out  and  fight  in  a  field,  for  this  is  one  continuetl 
act  of  passion." 

This  instruction  seems  to  be  founded  upon  the  theory  that  the  killing 
was  the  result  of  mutual  combat.  It  is  doubtful  whether  such  a  theory 
is  logically  deducible  from  the  evidence ;  but  however  that  may  be,  it 
is  clear  that  the  instruction  was  properly  refused,  for  the  obvious 
reason,  even  in  view  of  that  theory,  that  it  ia  not  law.  It  ignores 
entirely  the  doctrine  that  in  case  of  mutual  combat,  in  order  to  reduce 
the  offense  from  murder  to  manslaughter,  it  must  appear  that  the 
contest  was  waged  upon  equal  terms  and  no  undue  advantage  was 
sought  or  taken  by  either  side ;  for  if  such  was  the  case,  malice  may  be 
inferred,  and  the  killing  amount  to  murder.  The  latter  clause,  which, 
it  is  presumed,  was  more  especially  intended  to  apply  to  the  present 
case,  is  also  erroneous,  because  it  ignores  the  doctrine  that  such  "going 
out  to  fight "  must  occur  immediately  after  the  quarrel ;  for  if  suflBcient 
time  elapse  between  the  quarrel  and  the  "going  out  to  fight,"  to 
enable  the  blood  to  cool  and  passion  to  subside,  the  killing  will  be 
murder,  and  not  manslaughter. 

The  next  instruction  refused  by  the  court  is  in  the  following  language : 
"Under  the  indictment  against  the  defendant,  he  may  be  found  guilty 
of  an  offense  the  commission  of  which  is  necessarily  included  in  that 
with  which  he  is  charged  in  tlie  indictment ;  that  is,  he  may  be  found 
guilty  of  murder  in  the  first  degree,  of  murder  in  the  second  degree  of 
manslaughter,  of  fighting  a  duel  and  killing  his  antagonist,  and'  of 
excusable  or  justifiable  homicide." 

In  determining  this  question  of  eiTor  it  is  unnecessary  to  decide 
whether,  under  an  indictment  for  murder,  a  defendant  may  be  found 
guilty  "of  fighting  a  duel  and  killing  his  antagonist,"  inasmuch  as  the 
action  of  the  court  below  must  be  sustained  on  other  and  sufficient 
grounds.  The  instruction  was  properly  overruled  for  several  obvious 
reasons. 

1.  All  of  it,  except  that  portion  which  relates  to  dueling  and  excus- 


1044         CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

able  or  jusliflable  homicide  had  already  been  given  by  the  court,  and 
the  refusal  was  accompanied  by  a  statement  to  that  effect. 

2  The  theory  that  tlie  homioide  in  this  case  was  the  result  of  a  duel 
has  no  foundation  in  the  evi.lonce.  No  instruction  should  be  given  to 
a  jury  which  is  not  predicated  upon  some  theory  logically  deducible  from 
at  least  some  portion  of  the  testimony.  Such  instructions  are  only 
calculated  to  confuse  and  mislead  the  jury,  and  ought  not  to  be 

^' 3*.°it  announces  for  the  first  time  in  the  history  of  criminal  procedure, 
the  startling  doctrine  that  a  defendant  on  trial  for  murder  may  be  found 
guilty  of  excusable  or  justifiable  homicide.  Upon  this  branch  of  the 
instruction  comment  is  unnecessary. 

4.  Numerous  objections  to  the  instructions  given  by  the  court  are 
next  urged,  most  of  which  have  more  or  less  merit ;  and  one  of  them 
is  clearly  fatal  to  the  judgment  in  this  case. 

Tlie  following  definition  of  murder  of  the  first  degree  is  found  in  the 
charge:  "Murder  is  divided  by  our  law  into  two  degrees  — the  first 
includes  every  unlawful  killing  of  a  human  being  done  maliciously  or 

intentionally."  ,       .  .  « 

At  best  this  is  but  a  lame  definition  of  murder,  and  contains  none  of 
the  characteristics  which  mark  the  distinction  between  murder  of  the 
first  and  murder  of  the  second  degree.  In  effect,  the  jury  are  told 
that  every  unlawful  killing  of  a  human  being  done  maliciously  is  mur- 
der of  the  first  degree,  and  every  unlawful  killing  of  a  human  beuig 
done  intentionally  is  murder  of  the  first  degree.  Neither  of  these 
propositions  is  true;  for  malice  must  and  intent  to  kill  may  exist, 
where  the  killing  only  amounts  to  murder  of  the  second  degree. 

In  order  to  constitute  murder  of  the  first  degree  there  must  be  some- 
thincr  more  than  a  malicious  or  intentional  killing.  Tliere  must  be  a 
killin<r  within  one  of  the  three  classes  of  cases  described  in  the  statute 
as  constituting  murder  of  the  first  degree.  There  must  be  ^a  killing  by 
means  of  poison,  lying  in  wait,  torture,  or  some  other  kind  of  kiUmg 
different  from  that  of  poison,  lying  in  wait,  or  torture,  which  is  willful, 
deliberate,  and  premeditated;  or  a  killing  which  is  committed  in  the 
perpetration  or  the  attempt  to  perpetrate  any  arson,  rape,  robbery,  or 

burglary. 

In  dividing  murder  into  two  degrees,  the  Legislature  intended  to 
a8si<rn  to  the  first,  as  deserving  of  greater  punishment,  all  murders  of  a 
crueUnd  aggravated  character;  and  to  the  second  all  other  kinds  of 
murder  which  are  murder  at  common  law ;  and  to  establish  a  test  by 
which  the  degree  of  every  case  of  murder  may  bg  readily  ascertained. 
That  test  may  be  thus  stated :  Is  the  killing  willful  (that  is  to  say,  inten- 


JALS. 

the  court,  and 

ct. 

result  of  a  duel 

lid  be  given  to 

■  deducible  from 

ctions  are  only 

ight  not  to  be 

ainal  procedure, 
er  may  be  found 
.3  branch  of  the 

ly  the  court  are 
ind  one  of  them 

e  is  found  in  the 
grees  —  the  first 
le  maliciously  or 

contains  none  of 
11  murder  of  the 
lie  jury  are  told 
iliciously  is  mur- 
'  a  human  being 
Neither  of  these 
>  kill  may  exist, 
id  degree, 
re  must  be  some- 
riiere  must  be  a 
ed  in  the  statute 
jt  be  _a  killing  by 
r  kind  of  killing 
,  which  is  willful, 
committed  in  the 
rape,  robbery,  or 

ature  intended  to 
,  all  murders  of  a 
11  other  kinds  of 
istablish  a  test  by 
■adily  ascertained, 
lat  is  to  say,  inten- 


PEOPLE   V.  SANCHEZ. 


1045 


ttts;  tiUf'notTlrT'"'''"'-    "  ''  '^'  '"^^  ««-  "'"^  -'tl^- 
me  nrst,  an  I  if  not,  within  the  second  degree 

There  are  certain  kinds  of  murder  which  carry  with  them  conclusive 
evidence  of  premeditation.     These  the  Legislature  has  enleTted   n 
the  statu  e.  and  has  taken  upon  it  the  responsibility  of  sayin.  tJat  thev 
shall  be  deemed  and  heldto  bemurder  of  the  first  degree."^  These caes 
are  of  two  classes.     First,  where  the  killing  is  perpetrated  by  means  oJ 
poison  etc     Here  the  means  used  is  held  to  be  conclusive  evidence  of  " 
premeditation.     The  second  is  where  the  killing  is  done  in  the  trpetra' 
t  on  or  attemptto  perpetrate  someoneof  thefelonles  enumerat   iTn  *?: 
statute     Here  he  occasion  is  made  conclusive  evidence  of  premedi*  a! 
tion.    Where  the  case  comes  within  either  of  these  classes  tToW 
question  .^  Is  the  killing  wiUf„,   deliberate,  JTre^Zll^^^^^^^^ 
answered  by  the  statute  itself,  and  the  jury  have  no  option,  but  to  find 
the  prisoner  gn.Ity  in  the  first  degree.     Hence,  so  kr  as  those  two 
classes  are  concerned,  all  difficulty  as  to  the  question  of  degreels 
removed  by  the  statute.     But  there  is  another  and  much  larj  Xsa  of 
cases  included  in  the  definition  of  munler  in  the  first  degree?  which  are 
of  equal  cruelty  and  aggravation  with  those  enumerated,  ind  whici 
owing  to  the  different  and  countless  forms  which  murde^  assumes  ii 
IS  impossible  to  describe  in  the  statute.     In  this  class  the  Le'rature 
eaves  the  jury  to  determine,  from  all  the  evidence  before  them  Jhe 
degree  o  the  crime,  but  prescribes,  for  the  government  of  the  r  d  1  b- 
erations,the  same  test  which  has  been  used  by  itself  in  determ  1.  the 
fn^.^    .^f'*ir*^"''*^'^^-*°^'*'*'»«<»^»l'«r-teandprecS^^^^ 

of  the  first  degree  are  made  to  stand  upon  the  same  principle 

It  IS  only  ,n  the  latter  class  of  cases  that  any  difficulty  is  experienced 
m  drawing  the  distinction  between  murder  of^he  firsLnd  murder  of 

unlawfu  killing  must  be  accompanied  with  a  deliberate  and  clear  intent 
0  take  Jife,  in  order  to  constitute  murder  in  the  first  degree     Thein 
ent  to  kiU  must  be  the  result  of  deliberate  premeditatior  i  must  be"   ' 
formed  upon  a  pre-existing  reflection,  and  not  upon  a  sudden  hel  oJ 
passion  sufficient  to  preclude  the  idea  of  deliberation.    There  need  be 
kZrre      ''".'  °'  t-e  Ween  the  intention  to  kill  and  the  act  of 
kiUing;  they  may  be  as  instantaneous  as  successive  thoughts  of  the 
mmd.    ItM  only  necessary  that  the  act  of  killing  be  preceded  bv  a 
concurrence  of  will,  dellberatton,  and  premeditation  on  the  par  of  Ihe 
slayer;  and  if  such  «  the  case,  the  killing  is  murder  of  the  first  degree! 
no  matter  how  rapidly  these  acts  of  the  mind  may  succeed  each  ofier 
or  how  rapidly  they  majr  be  followed  by  the  act  of  killing.  * 

We  have  carefuUy  read  the  entir^charge  of  the  court,  for  the  pur* 


1046         CRIMES   AOAINST  THE   PERSONS   OF   INDIVIDUALS. 

pose  of  ascertaining  whether  this  objection  is  cured  in  any  other  part; 
and  although  we  i\m\  other  attempts  at  definition  and  illustration,  we 
arc  satisfied  tliat  the  distinction  between  the  two  degrees  of  murder  is 
nowhere  drawn  with  that  perspicuity  whieli  is  necessary  in  order  to 
render  it  distinct  and  clear  to  the  comprehension  of  a  j ury.  This  leaves 
to  U8  no  option  but  to  reverse  the  judgment  and  order  a  new  trial. 

Ordered  accordingly. 


DEGREES  OF  MURDER -MURDER  IN  FIRST  DEGREE -MURDER  IN 

second  degree. 
People  v.  Long. 

[39  Cal.  694.] 
In  the  Supreme  Court  of  California,  1870. 

L  Murder  In  the  PlMt  Decree. -Murder  In  the  Hrst  degree,  unless  oommltted  In  per- 
petVa"  nfor  attS't  1"«  to  perpetrate  arson,  rape,  robbery  or  burglary  1.  the  unlawful 
killing,  with  malice,  nn.l  with  a  deliberate,  proraedltated.  preconceived  desijsn  to  take 
life,  though  such  design  may  have  been  formed  In  the  mind  immediately  before  the 
mortal  wound  was  given. 

2.  Murder  in  the  Second  De»ree.-Murder  In  the  second  degree  is  the  unlawfu  kiUiag 

with  malice,  but  without  a  deliberate,  premeditated  or  preconceived  design  to  kill. 

3.  Inetruction.  to  Jury  -Practice  on  Appeal.  -  When  ^the  evidence  is  not  brought  up 

in  t~?ran"  ipt  the  Judgment  will  not  usually  be  reversed  for  an  «'«8'«»«"°' '''''"' 
Ltructions ;  but  where  U..  court  gives  an  Instruction  which  is  clearly  contrary  to  law 
on  a  particular  point,  it  will  be  orosumed  that  there  was  some  evidence  requiring  an 
instruction  on  that  point. 

Appeal  from  the  District  Court   of  the  Second  District,  Tehama 

CJounty. 

The  facts  are  stated  in  the  opinion. 

Raymond  &  Stratton,  for  appellant. 
.     The  charge  is  in  the  very  teeth  of  the  doctrine  held  by  this  court  in 
People  V.  Sanchezy^  People  v.  Foren,^  and  People  v.  Nichol^ 

In  effect,  the  jury  were  told  that  if  the  defendant,  with  mahce, 
intentionally  killed  the  person  slain,  they  must  find  him  guilty  of  mur- 
der in  the  first  degree.  The  vice  in  this  is,  that  the  mere  intent  to  kill 
is  made  the  distinguishing  test  between  the  two  degrees  of  murder,  yet 
the  intent  to  kill  may,  and  often  does  exist,  and  the  killing  only  amounts 
to  murder  in  the  second  degree. 

J.  Hamilton,  Attorney-General  for  respondent. 

In  its  charge,  it  was  the  intention  of  the  court  to  convey  to  the 
minds  of  the  jury  the  idea  tliat  premeditated  intention  could  form  no 


1  U  Cal.  S8. 


2  25  Cal.  361. 


S3iCal.3U. 


JALS. 

iny  other  part ; 
Uudtration,  we 
8  of  murder  is 
iry  in  order  to 
'.  This  leaves 
new  trial. 
accordingly. 


—  MURDER  IN 


I  committed  in  per- 
larr,  Is  the  unlawful 
lived  deiign  to  take 
lediately  before  the 

I  the  unlawful  killing 
d  design  to  kill, 
ice  la  not  brought  up 
alleged  error  in  tlie 
arly  contrary  to  law, 
ridence  requiring  an 


)i9trict,  Tehama 


by  this  court  in 
iehol.^ 

nt,  with  malice, 
Q  guilty  of  mur- 
lere  intent  to  kill 
19  of  murder,  yet 
ing  only  amounts 


to  convey  to  the 
on  could  form  no 

S34Cal.3U. 


PEOPLE   V.  LONG. 


1047 


part  of  the  crime  of  murder  in  the  second  degree,  but  that  it  was  an 
ingredient  of  murder  in  tlie  first  degree,  which  was  correct.* 

Ckockett,  J.,  delivered  tiie  opinion  of  tlio  court. 

Tlie  defendant  was  convicteil  of  murder  in  tlie  first  degree  and  lias 
appealed  from  tlie  judgment.  On  the  trial,  tlie  court,  after  reading  to 
the  jury  from  the  statute  the  definition  of  murder  of  tlie  first  and 
second  degrees,  cliarged  as  follows:  "Murder,  therefore,  of  the  first 
degree  has  in  it  tlie  ingredient  of  malice  towards  the  person  Itilled ; 
and  also  a  deliberate  and  premeditated  intention  to  take  life.  In  mur- 
der of  the  second  degree  there  is  the  same  de;^ree  of  malice  as  in 
murder  of  the  first  degree,  and  the  killing  is  done  unlawfully,  but  with- 
out the  intention  to  take  life."  After  defining  the  crime  of  man- 
slaughter, tlie  court  then  proceeds  as  follows:  "  Thus,  you  have  the 
gr.ides  of  crime  included  in  this  indictment;  first,  murder  in  the  first 
degree,  which  is  an  unlawful  killing,  accompanied  by  malice  and  by  a 
premeditated  intention  to  take  life,  murder  of  the  second  degree,  which 
is  the  unlawful  killing  accompanied  with  malice,  but  in  it  was  no  inten- 
tion of  taking  life,  for  tlie  reason  that  as  soon  as  that  ingredient  enters 
into  the  killing  it  becomes  murder  in  the  first  degree." 

This  charge  was  excepted  to  by  the  defendant,  and  is  relied  upon  as 
error  on  the  appeal. 

The  different  degrees  of  murder  are  tlius  defined  in  the  statute: 
"All  murder  which  shall  be  perpetrated  by  means  of  poison,  or  lying 
in  wait,  torture,  or  by  any  other  kind  of  willful,  deliberate  or  premedi- 
tated killing,  or  which  shall  be  committed  in  the  perpetration  or  attempt 
to  peqietrate  any  arson,  rape,  robbery,  or  burglary,  shall  be  deemed 
murder  of  the  first  degree ;  and  all  other  kinds  of  murder  shall  be 
deemed  murder  in  the  second  degree."  "  Section  nineteen  of  the  act 
defines  murder  to  be  "  the  unlawful  killing  of  a  human  being,  with 
malice  aforethought,  either  express  or  implied."  The  court,  therefore, 
correctly  charged  the  jury,  that,  to  constitute  murder  of  either  the  first 
or  second  degree  the  killing  must  have  been  unlawful  and  accompanied 
with  malice;  and  the  charge  that  to  constitute  murder  of  the  first 
degree,  there  must  have  been  a  deliberate  and  premeditated  intention  to 
take  life,  is  perhaps  not  objectionable,  as  applied  to  the  facts  of  the 
case,  though  not  as  broad  as  the  statutory  definition,  which  includes 
also  killing  committed  in  the  perpetration  or  attempt  to  perpetrate 
arson,  rape,  robbery,  or  burglary.  But  the  court,  in  its  definition  of 
murder  in  the  second  degree,  not  only  fails  to  define  it  correctly,  but 
may  have  confused  the  jury  in  respect  to  the  definition  of  murder  in 


1  People  V.  Bealoba,  17  Gal.  39S ;  People  v. 
Foren,  29  Oal.  365;  Com.  v.  Green,  1  Ash. 
296;  PennsrWania  v.  Lewis,  Add.  279. 


2  statute  concerning  Crimes  and  Puniab- 
ments,  sec.  21. 


1048         CRIMES  AGAIN8T  THE  PEUSONS   OP   INDIVIDUALS. 

the  first  degree.    The  jury  was  told  in  substance,  that  the  only  differ- 
enco  between  murder  of  the  first  degree  and  of  the  second  clegr«o.s. 
that  In  the  former  there  must  be  an  intention  to  take  hfe,  whilst  In  the 
latter  there  is  not.     But  to  constitute  murder  of  the  first  degree  there 
must  be  not  only  an  intention  to  take  life,  but  it  must  also  bo     a  de- 
liberate  and  premeditated  killing ,"  nor  is  it  true  that  in  ^""1"  °'  f^« 
second  degree  there  must,  of  necessity,  be  an  absence  of  all  intention 
to  take  life.     On  the  contrary,  the  true  distinction  between  the  two 
grades  of  the  offense  is,  that  in  murder  of  the  first  degree,  unless  it  w«» 
committed  in  perpetrating  or  attempting  to  perpetrate  arson,  rape  rob- 
bery,  or  burglnrv,  the  killing  must  be  deliberate  and  premeditated, 
whilst  in  murder.f  the  second  degree,  the  killing  is  not  deliberate  or 
premeditated.  In  the  one  case  there  is  a  deliberate,  premeditated,  precon- 
ceived  design,  though  it  may  have  been  formed  in  the  mind  immediately 
before  the  mortal  wound  was  given,  to  take  life.     In  the  oth^  case  there 
is  no  deliberation,  premeditation,  or  preconceived  design  to  kill.   In  bo  h 
however,  the  killing  must  have  been  unlawful  and  ^-^-^^Ttvyt 
malice.    We  think  the  charge  of  the  court  may  have  misled  the  jury  in 
respect  to  the  proper  distinction  between  the  two  grades  of  the  offense 

The  evidence  is  not  brought  up  in  the  transcript,  and  usually  in  such 
cases  the  judgment  will  not  be  reversed  for  an  alleged  error  in  he 
Lstrue  ions.  We  must  assume,  from  the  fact  that  the  court  instructed 
the  u  y  in  relation  to  murder  in  the  second  degree,  that  there  was  some 
evtdenee  in  the  case  requiring  an  instruction  on  that  point ;  but  as  the 
instruction  is  not  and  can  not  in  any  conceivable  state  of  the  evidence 
De  a  correct  definition  of  murder  in  the  second  degree,  we  can  not  say 
that  the  error  was  not  productive  of  any  injury  to  the  defendant. 

Judgment  reversed  and  a  new  tnal  ordered. 


MUEDER  IN  THE  FIRST  DEGREE -PREMEDITATION  NOT  PROVED. 

People  v.  Monoano. 

[I  N.  Y.  Grim.  Rep.  411.] 
In  the  Supreme  Court  of  New  York,  1883. 

,    .  «w  1.1-1.  In  KffiMt  states  that  to  constitute  murder  In  the  first  degree,  "o  P«- 

L  A  Oharve  whloh  in  Bffeot  '•""■*,*',,,,„_  ■_  _,hich  to  deliberate  and  premeditate, 

■    exception  by  the  prisoner. 


1  People*.  Sanchez. 24  CaL  88;  People  v. 
Foren.  »  Cal.  361;  People  •.  Nlchol,  M  Cal. 
SO. 


J 


UAL8. 

the  only  differ- 
icond  degree  is, 
fc,  whilst  in  the 
rst  degree  there 
,  also  be  "  a  de- 
i  murder  of  the 
of  all  intention 
ctween  the  two 
;e,  unless  it  was 
irson,  rape,  rob- 
d  premeditated, 
lot  deliberate  or 
editated,  prccon- 
jind  immediately 
1  other  case  there 
to  kill.    In  both, 
Bcompanied  with 
lisled  the  jury  in 
s  of  the  offense.* 
1  usually  in  such 
!ged  error  in  the 
!  court  instructed 
it  there  was  some 
point ;  but  as  the 
e  of  the  evidence 
e,  we  can  not  say 
defendant. 
10  trial  ordered. 


)N  NOT  PROVED. 


?S5. 

;he  first  degree,  no  par- 
lerate  aod  premedltate> 
1  presents  no  ground  ot 


PEOPLE  V.  MONOANO. 


1049 


2'  Where,  In  Respona*  to  »  BequMt  by  the  prisonnr  to  charge  that  the  word  "  deliber- 
ate "  has  a  dilforont  mounlng  anil  ulgnlllcatloii  from  the  word  "  promoditatod,"  the  court 
says :  "  I  suppose  there  Is  a  slight  shade  of  dilf erenco,  I  will  so  charge ,"  no  question  Is 
raised  by  a  goiioral  oxcoptlon,  If  tho  prisoner  wishes  the  terms  defined  with  greater 
minuteness,  hu  must  make  a  direct  request  to  that  effect. 
The  Jury  are  not  authorized  to  arbitrarily  draw  an  Inference  of  premeditation  as  tboy 
see  fit;  Ihu  tacts  must  point  to  and  warrant  It,  othorwisu  a  verdict  can  not  stand. 

i  The  Execution  of  the  Oulltjr  purpose  Is  required  to  be  settled  and  dotorntlnod  upon 
refinclion,  before  the  crime  of  murder  In  the  first  dcicroo  can  be  committed,  and  a  free 
and  determined  purpose  Is  rendered  necessary,  as  distinguished  from  a  mere  Impulsive 
fatal  act. 

B.  The  Facts  in  thla  Oaaa  reviewed  by  the  court,  and  hold  insulBolent  to  establish  pre- 
meditation. 

Appeal  by  defendant  from  judgment  entered  upon  verdict  of  jury, 
and  from  an  order  denying  a  motion  for  a  new  trial,  made  under  section 
465,  of  the  Code  of  Criminal  Procedure. 

The  facts  and  exceptions  appear  in  the  opinion. 

Francis  Larkin,  Michael  J.  Keogh  and  Isaac  N.  Mills,  for  the  appel- 
lant. 

f 

C.  Frost,  for  the  People,  respondent. 

CuLLEN,  J.  The  prisoner,  a  life  convict,  was  convicted  of  murder 
in  the  first  degree  for  killing  a  fellow-convict,  Williams,  at  the  Sing 
Sing  State  prison. 

Two  exceptions  were  taken  to  the  charge  of  the  court.  It  is  urged 
that  it  was  error  to  charge  "that  no  length  of  time  is  required" 
previous  to  striking  the  blow  in  which  to  premeditate  and  deliberate. 
If  it  were  conceded  that  such  a  statement  standing  by  itself  were 
erroneous,  I  do  not  think  the  exception  here  well  taken.  The  expres- 
sion was  not  a  single  isolated  proposition  submitted  to  the  jury,  but 
must  be  construed  in  connection  with  the  whole  contents  of  the  charge 
on  that  point.  The  district  attorney  asked  the  court  to  charge  in  the 
language  above  given.  "  By  the  Court.  I  will  charge  that  no  par- 
ticular length  of  time  is  required,  but  that  no  time  is  required  I  will 
not  charge.  (Defendant  excepts.)  Mr.  Baker.  I  mean  no  appre- 
ciable length  of  time.  The  Court.  I  will  charge  that  no  length  of  time 
is  required,  but  there  must  be  deliberation  and  premeditation.  (De- 
fendant excepts)." 

Taking  all  of  this  together,  the  charge  was  unobjectionable  in  my 
opinion.  In  effect,  it  was  that  no  particular  time  was  necessary,  pro- 
vided there  was  deliberation  and  premeditation.  Upon  being  requested 
to  charge  that  the  word  "  deliberate  "  has  a  different  meaning  and  sig- 
nification from  the  word  "  premeditated,"  the  court  said:  " I  suppose 
there  is  a  slight  shade  of  difference ;  I  will  so  charge."  To  the  first 
statement  the  prisoner  excepted.  We  think  there  is  substantial  differ- 
ence between  those  two  terms  as  used  in  the  statute.  But  we  think  no 
question  was  raised  by  the  exception.    The  court  charged  as  required. 


\: 


1 


1050         CRIMES   AGAINST  THE   PERSONS   OF  INDIVIDUALS. 

It  had  already  defined  the  meaning  of   these  terms  accurately.     If 
the  prisoner  wished  such  definition  made  with  greater  minuteness,  there 
should  have  been  a  direct  request  tv  that  effect.     We  think,  therefore, 
neither  exception  tenable.     But  the  question  is  presented  to  us,  a 
motion  for  a  new  trial  having  been  made,  that  the  verdict  is  against  the 
evidence ;  that  is,  that  there  was  no  suflftcient  evidence  of  deliberation 
to  justify  the  conviction  in  the  first  degree.    Formerly,  in  criminal 
cases  courts  could  not  grant  new  trials  on  such  ground.     Now,  by  the 
express  terms  of  the  law  a  motion  for  that  purpose  may  be  made,  and 
an  appeal  from  the  judgment  brings  before  us  for  review  the  decision 
of  such  motion  as  well  as  the  proceedings  upon  trial.     The  power  of 
interfering  with  the  verdict  in  a  criminal  case  is  doubtless  to  be  exer- 
cised with  caution,  especially  where  the  question  of  fact  to  be  deter- 
mined is  one  incapable  of  direct  proof  and  only  to  be  established  by 
inference  from  other  facts.    The  old  decisions  denied  not  only  the 
power  bat  the  propriety  of  vesting  such  power  in  the  courts ;  l)ut  the 
Legislature  having  cast  upon  the  courts  such  duty,  we  are  bound  to 
exercise  it.    The  history  of  this  case  is  brief.    There  is  little  or  no 
conflict  between  the  witnesses  or  dispute  as  to  the  fact.     Its  salient 
features  are  beyond  dispute.     The  deceased,  one  Cornetti  (an  Italian), 
and  the  prisoner  were  all  at  work  In  the  prison  peeling  potatoes. 
Cornetti  applied  some  opprobrious  epitliet  to  the  deceased,  upon  which 
the  deceased  struck  Cornet*  i  with  a  stick.     Cornetti  then  seized  a  stick 
or  stool  and  attacked  the  deceased. 

While  this  altercation  was  transpiring,  the  prisoner  picked  up  a 
broom  and  also  attacked  the  deceased.    One  Coburn,  a  convict,  but  a 
sort  of  overseer  over  the  others,  slipped  between  the  parties  to  stop  the 
conflict,  and  seized  the  defendant.    A  convict  named  Cash  took  the 
broom  from  the  prisoner  and  thrust  him  aside  the  distance  of  two  or 
three  barrels,  when  the  prisoner  immediately  took  the  knife  which  he 
had  used  «n  his  work,  rushed  towards  the  deceased  and  struck  him,  in- 
flicting the  fatal  blow.     It  was  proved  there  was  no  dispute  or  ill  feel- 
ing  between  the  parties  prior  to  this  occurrence.    The  whole  affray 
lasted,  according  to  one  witness,  five  minutes,  the  others  place  it  at 
from  two  to  three  minutes.    The  time  that  elapsed  between  the  dis- 
arming of  the  prisoner  by  Cash  and  llie  striking  of  the  blow  with  the 
knife  was,  according  to  one  witness,  "half  a  second,"  according  to 
another  it  was  "instantly."    This  is  substantially  the  whole  occur 
rence.    Now,  is  there  sufficient  e^^dence  in  it  to  warrant  the  finding  of 
the  jury  of  deliberation  on  the  part  o.  tlie  prisoner?    It  is  true  that 
suc'b  deliberation  is  incapable  of  proof,  save  as  an  inference  from  other 
facts.     But  that  does  not  authorize  the  jury  to  arbitrarily  draw  such 
inference,  as  they  see  fit.    The  facts  must  point  to  And  warrant  the 


;dual8. 

13  accurately.     If 
minuteness,  there 
think,  therefore, 
esented  to  us,  a 
[lict  is  against  the 
56  of  deliberation 
irrly,  in  criminal 
id.     Now,  by  the 
nay  be  made,  and 
;view  the  decision 
il.    The  power  of 
ibtless  to  be  exer- 
fact  to  be  deter- 
be  established  by 
lied  not  only  the 
3  courts;  but  the 
we  are  bound  to 
ire  is  little  or  no 
fact.    Its  salient 
netti  (an  Italian), 
peeling  potatoes, 
aased,  upon  which 
then  seized  a  stick 

oner  picked  up  a 
a,  a  convict,  but  a 
parties  to  stop  the 
led  Cash  took  the 
distance  of  two  or 
,he  knife  which  he 
sind  struck  him,  in- 
dispute  or  ill  feel- 
The  whole  affray 
others  place  it  at 
I  between  the  dis- 
f  the  blow  with  the 
nd,"  according  to 
■f  the  whole  occur 
rrant  the  finding  of 
er?  It  is  true  that 
if erence  from  other 
bitrarily  draw  such 
to  And  warrant  the 


PEOPLE   V.  MONOANO. 


1051 


inference,  otherwise  a  verdict  can  not  stand.     This  undoubtedly  is  the 
rule  in  civil  cases.     It  should  hardly  be  less  potent  where  life  is  in- 
volved.    The  inference  is  generally  proved  by  the  nature  of  tlie  occur- 
rence,  the  manner  in  which  the  crime  is  committed,  the  weapon,  threats, 
or  expression  of  hostile  feeling  toward  the  deceased,  or  preparation  on 
the  part  of  the  prisoner.     But  this  case  seems  barren  of  all  such  fea- 
tures.   There  is  not  ground  even  for  suspicion  that  prior  to  the  alter- 
cation the  prisoner  meditated  an  injury  to  the  deceased.     When  the 
fight  between  deceased  and  Cornetti  occurred  the  prisoner  attacked  the 
deceased,  but  with  a  weapon  not  calculated  to  inflict  fatal  or  even  seri- 
ous injuries.     For  while  many  blows  wrre  struck  by  Cornetti  and  the 
deceased,  who  were  similarly  armed,  no  serious  results  followed  to 
either  party.    When  disarmed  by  Cash,   tlie  prisoner  took  from  his 
person  the  knife,  not  possessed  by  him  for  any  unlawful  purpose,  but 
used  in  the  work  in  which  he  had  been  engaged,  and  immediately  stabs 
the  deceased.    The  use  of  the  deadly  weapon  and  the  thrust  at  the  vital 
part  would  wan   -it  the  conclusion  that  the  prisoner  intended  to  take 
life,  aid  therefoiv  that  the  act  was  premeditated.     But  there  Is  nothing 
to  show  deliberation,  but  on  the  contrary,  the  facts  of  the  transaction 
negative  that  conclusion. 

As  vfG  lave  said,  there  is  a  substantial  difference  between  premedita- 
tion and  deliberation  —  a  difference  more  readily  appreciated  than  to  be 
accurately  defined.     An  apt  statement  is  to  be  found  in  the  opinion  of 
Judge  Daniels  in  People  v.  Leighton,  speaking  of  tlie  elements  neces- 
sary to  constitute  murder  in  the  first  degree,  he  says :  ♦'  The  execution 
of  the  guilty  purpose  is  required  to  be  settled  and  determined  upon  re- 
flection, before  the  crime  of  murder  in  the  first  degree  can  be  committed. 
A  full  and  determined  purpose  is  rendered  necessary  as  distinguished 
from  a  mere  impulsive  fatal  act."    No  particular  period  of  time  is  req- 
uisite for  the  deliberation,  but  still  deliberation  must  take  place.     We 
do  not  say  taat  in  no  supposable  case  could  deliberation  be  consum- 
mated in  so  brief  a  period  as  that  occupied  by  the  broil  :  i  which  thi-j 
crime  was  committed;  but  we  do  say  that  in  this  case  there  is  nothing 
to  show  deliberation,  but  rather  a  passionate  vicious  impulse.     The  re- 
sult of  these  views  is  that  the  prisoner  obtains  practical  immunity  for 
his  crime ;  for  being  a  prisoner  for  life  nothing  save  a  capital  execution 
can  increase  his  punishment.     We  can  not  but  think  that  this  considia-- 
ation  affected  the  verdict.     But  the  law  recogniws  no  distinction  be- 
tween one  in  the  condition  of  this  prisoner  and  a  free  person.     Iif  it  he 
necessary  for  the  purposes  of  priwn  discipli».  or  to  |)ro««ct  the  lives 
whether  of  keepers  or  convicts,  that  offenses  «t>ramitt«i  by  prisoners 
shall  be  punished  more  severly  than  those  committed  by  others,  the 
remedy  is  witk  the  Legislature.     The  court*  auwt  carry  out  tlie'  law 


1052  CRIMES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 

as  they  find  it,   and  not  strain  it  to  punish  even  the  greatest  of 

offenders.  ,       •■  _  *^„i 

The  conviction  and  judgment  should  be  reversed  and  a.iiew  trial 

ordered. 


MURDER  IN  THE  FIRST  DEGREE -PREMEDITATION. 

People  v.  Conroy. 

[2  N.  Y.  Crlm.  Rep.  247.] 
In  the  Supreme  Court  of  New  York,  June,  1884. 

—  .  .    ^       T-.ii.4-.«or>4-  DVnmed  under  the  first  aubdivlBion  of  Bection  183  ot 

deliLratlon  and  premeditation,  the  verdict  can  not  be  anything  more  than  murder  in 

the  second  degree.  ^  ,    .  _ 

,  „     J      i_  *i.«  tH-M^  TtaffTAa  under  such  an  indictment  can  only  he 

'•  '^:o^X%rLT^Z'::^:.'^^^T:r::^^:.io.  ...  premeditation  antecedent 
S  the  ict  which  intentionally  eifects  the  death,  and  of  which  the  Intent  alone  Is  not 
sufficient  evidence.  . 

8.  Voluntary  Intoxication  may  bo  Oon.lderod  upon  the  question  of  premedltoUon.  r 

Appeal  from  a  judgment  of  the  Court  of  General  Sessions  of  the  City 
and  County  of  New  Yorlc,  of  December  6,  1883,  convicting  defendant, 
William  Conroy,  of  murder  in  the  first  degree. 
The  facts  appear  in  the  opinions. 
Wm.  F.  Howe,  for  defendant,  appellant. 

Peter  B.  Olney  {John  Vincent,  assistant),  for  the  People,  respondent. 
Barrett,  J.  Conroy  was  convicted  of  murder  in  the  first  degree, 
upon  an  indictment  charging  liim  with  the  killing  of  one  Keenan.  The 
indictment  is  under  the  first  subdivision  of  section  183  of  the  Penal 
Code;  and  it  avers  that  the  killing  was  from  a  deUberate  and  pre- 
meditated  design  to  effect  the  death  of  Keenan. 

We  have  gone  over  toe  evidence  with  care,  and  we  are  of  opinion 
that  the  r.lement  of    deliberation  ia  entirely  wanting.     The  learned 
judge  should,  as  reque*ted,  have  withdrawn  the  question  of  murder  in  the 
first  degree  from  the  consideration  of  the  jury.     His  instructions  upon 
the  law  of  the  two  degrees  of  murder  were  entirely  accurate.    But  he 
failed  to  apply  the  facts  to  his  definitions,  and  consequently  th?  jury 
fell  into  the  quite  natural  error  of  treating  the  many  brutal  and  atrocious 
I  features  of  this  homicide  as  the  equivalent  of  legal  evidence  of  delib- 
eration     We  find  enough  to  warrant  the  submission  to  the  jury  of  the 
quesiion  of  murder  in  the  second  degree ;  that  is,  of  killing  with  the 
design  to  effect  the  death  of  Keenan  or  of  some  other  person,  but 


[JALS. 

he  greatest  of 
ad  a. new  trial 


PEOPLE  V.  CONROT. 


1053 


[■ATION. 


'884. 

Ision  of  section  183  of 
>  effect  dcitth,  but  not 
more  than  murder  in 

liotment  can  only  be 
tetlitation  antecedent 
le  intent  alone  is  not 

1  of  premeditation,  f 

ssions  of  the  City 
Lcting  defendant, 


iople,  respondent, 
the  first  degree, 
me  Keenan.  The 
183  of  the  Penal 
^liberate  and  pre- 

we  are  of  opinion 
ng.  The  learned 
ii)  of  murder  in  the 
\  instructions  upon 
accurate.  But  he 
sequently  tb?  jury 
ratal  asadt.  atrocious 
evidence  of  delib- 
to  the  jury  of  the 
3f  killing  with  the 
other  person,  but 


without  deliberation  and  prerar  litation.  Enough,  too,  if  the  indict- 
ment had  been  framed  under  the  p.*  jnd  subdivision  of  section  183, 
and  had  charged  the  killing  by  an  act  imminently  dangerous  to  others, 
and  evincing  a  depraved  mind  regardless  of  human  life,  although  with- 
out premeditation,  to  have  justified  the  submission  of  murder  in  the 
first  degree.  But  for  the  evidence  of  deliberation,  we  have  sought  in 
vain.  Upon  the  contrary,  the  strongest  testimony  against  Conroy 
points  no  farther  than  to  sudden  impulse.  Between  the  impulse  and 
the  aot  there  was  no  reflection,  however  slight  or  brief.  There  were,  in 
•fact,  none  of  the  indicia  of  deliberate  purpose ;  no  hesitation,  no  doubt 
overcome,  no  choice  made  as  the  result  of  thought.  Indeed,  the  grav- 
est question  was,  whether  the  shot  was  fired  with  any  distinct  and 
specific  intent,  or  merely  with  a  reckless  and  wanton  disregard  of  human 
life. 

Conroy 's  acts  throughout  were  those  of  a  ferocious  ruffian  inflamed 
liy   'ink;  but  the  law  expressly  declares  that  voluntary  intoxication, 
tliougn  furnishingr  v.  excuse  for  a  criminal  act,  may  be  considered  by 
the  jury  upon  the  questions  of  intent  and  of  tho  degree  of  crime.*    If 
voluntary  intoxication  may  be  considered  upon  the  question  of  intent,  a 
fo^iori  upon  that  of  deliberation.     The  defence  of  insanity  in  our 
'  iiigment  entirely  failed  and  was  properly  overruled  by  the  jury.     Un- 
dv^ubtedly  Conroy  was  responsible  for  his  acts  in  every  legal  sense. 
"But  the  evidence  upon  that  head,  while  failing  to  establish  irresponsi- 
bility, indicated  an  abnormal  sensitiveness  to  liquor,  resulting  from 
sunstroke,  a  fall  from  a  loft  and  other  incidents,  fully  accounting  for 
the  extraordinary  mental  disturbance  caused  by  two  glasses  of  bar- 
room sherry.    An  exhibition  of  violence  followed  each  dram,  and  fol- 
lowed it  almost  instantly.    Nothing  of  the  !:ind  preceded  the  drinking. 
Certainly  Conroy  had  no  homicidal  intent  when  he  entered  Cody's 
saloon.    That  event  was  purely  casual.     He  happened  to  be  passing, 
and  he  was  invited  in  to  drink.    He  then  seeded  to  be  sober.     The 
people  within  were  either  his  friends,  ordinary  acquaintances,  or  per- 
sons with  whom  he  was  entirely  unacquainted.     At  all  events,  he  found 
no  enemy  there.     After  taking  a  glass  of  what  was  called  sherry  wine,'> 
he  became  quarrelsome,  accused  a  man  named  Cantwell  of  having  pre- 
viously  betrayed  his  improper  presence  in  a  drinking  saloon  while  on 
duty,  and  upon  Cantwell's  retorting,   offered   to    fight.     In  a  few 
moments,  he  seemed  to  get  entirely  over  his  combative  spirit,  became, 
as  one  of  the  witnesses  described  it,  "happy,"  and  invited  all  present 
to  drink  at  his  expense.     Again  he  took  a  glass  of  the  so-called  sherry  ] 
wine,  again  he  became  quarrelsome.    At  first  he  questioned  the  price  of 

1  Peuai  Code,  sec.  22. 


1054         CRIME8   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

the  drinks.     Then  Cody,  to  pacify  him,  reduced  the  charge  from  one 
dollar  to  seventy  cents.     Still  he  seemed  dissatisfied,  mqumng  of  sev- 
eral  about  him,  if  they  had  drank.    He  then  asked  a  man  named  Mc- 
Gninness  what  he  had  taken,  and  upon  McGuinness  replying     mixed 
ale  "  Conroy  called  him  a  liar.    McGuinness  retorted,  "  You  are  an- 
other," and  thereupon  Conroy  struck  him  with  his  fist,  knoctang  h.m 
down;  and  while  McGuinness  was  down  kicked  him  about  the  hjps. 
This  ;aised  a  tumult.     The  crowd  "hallooed"  at  Conroy  to  let M- 
Guinness  up.  and  began  to  close  in  around  him     Conroy  then  drew  h^ 
club,  and  the  crowd  retreated  ^o  a  card-room  in  the  rear.     As  they  le- 
treated  Conroy  also  drew  Ins  revolver,  holding  the  club  j"  o^  card! 
the  revolver  in  the  other.     Some  one  then  put  h.s  head  out  of  the  card- 
room  door  and  Conroy  threw  his  club  at  him,  missing  tl^  man  s  head, 
but  smashing  a  pane  of  glass  in  the  door.     Almost  i-mediately  another 
pane  of  glass  was  broken  from  the  inside  of  the  card-room.    Tins  evn 
dently  startled  Conroy  and  precipitated  the  firing,  for  mstantly  he 
"wheeled  to  his  left"  with  his  face  still  towards  the  card-room  door, 
and  as  a  friend  (Keating),  who  undoubtedly  perceived  the  danger  ys 
imminent,  fe.asped  him  by  the  shoulder,  the  revolver,  to  use  the  lan- 
ffuacre  of  Ue  witness  Buckley,  ' '  at  that  instant  went  off. 

This  descvi'^tion  is  slightly  varied  by  one  of  the  witnesses,  who  says 
that  Conroy.  after  breaking  the  pane  of  glass,  stepped  back  two  or  three 
paces,  placed  his  club  in  his  belt,  threw  open  his  coat,  and  with  8om6 
difficulty  got  at  and  drew  his  revolver ;  that,  as  he  did  so,  Keating  ex- 
claimed, '' For  God's  sake,  Billy,  dont  fire;  those  are  fnends  of 
and  that,  notwithstanding  this  warning,  Conroy,  according  to 


mine;  "  and  that,  notwithstanaing  xuis  wuiuiug,  ^^ — j, ---= 

the  witness  Caatwell,  "  turned  round  and  let  go  that  way  as  quick  as 

^'^irilUhi's  there  was  surely  not  the  slightest  indication  of  a  deliberate 
purpose.  Conroy  had  no  quarrel  of  any  kind  with  the  unfortunate  man 
who  received  the  bullet.  In  fact,  he  scarcely  knew  this  man.  Even 
the  dispute  with  Cantwell  had  been  composed. 

McGuinness  had  fled  and  was  not  in  the  saloon.     Conroy  was  then 
his  own  worst  and  only  enemy. 

It  is  palpable  either  that  he  fired  without  mental  concentration  upon 
any  individual  object,  but  recklessly  and  in  utter  disregai^  of  human 
life  (for  which  offense  as  we  have  seen  he  has  not  been  indicted),  or 
/that  fearing  an  attack  he  acted  upon  a  sudden  impulse  to  strike  terror 
!  into  the  crowd  by  firing  at  the  first  person  who  stood  before  or  about 
him.  The  extreme  rapidity  of  Conroy's  movements,  the  absence  of 
threats,  pre-existing  ill-will  or  motive ;  the  presence  ^J  f^-^^^^^JZ 
Bion  and  sudden  violence ;  the  inappreciable  space  of  time  between  the 
act  and  the  earliest  previous  raomcni  when  it  is  possible  to  assume  the 


DUALS. 

jharge  from  one 
inquiring  of  sev- 
man  named  Mc- 
replyicg  "mixed 
d,  "You  are  an- 
ist,  knocking  him 
L  about  the  hips, 
lonroy  to  let  Mc- 
roy  then  drew  his 
ear.    As  they  re- 
lub  in  one  hand, 
d  ont  of  the  card- 
T  the  man's  head, 
aaediately  another 
■room.    This  evi- 
for  instantly  he 
B  card-room  door, 
ed  the  danger  was 
r,  to  use  the  lan- 
ofl." 

itnesses,  who  says 
I  back  two  or  three 
»at,  and  with  8om6 
lid  so,  Keating  es- 
se are  friends  of 
•nroy,  according  to 
lat  way  as  quick  as 

tion  of  a  deliberate 
le  unfortunate  man 
T  this  man.     Even 

Conroy  was  then 

concentration  upon 
lisregard  of  human 
b  been  indicted),  or 
ulse  to  strike  '.error 
)od  before  or  about 
nts,  the  absence  of 
of  self-aroused  pas- 
)f  time  between  the 
ssible  to  assume  the 


PEOPLE   V.  CONKOY. 


1055 


flash  of  design ;  the  unreasoning,  senseless,  and  frenzied   condition  of 
his  mind;  all  tend  absolutely  to  txc'.ude  the  idea  of  deliberation,  even 
within  the  most  extreme  construction  which,  in  the  interests  of  society 
has  been  or  can  be  given  to  this  word  in  its  present  statutory  rela- 
tion. 

X  The  law  must  not  be  nullified,  strained  or  perverted  to  meet  an  ex- 
ceptional case  nor  to  ma':e  an  example  of  a  particular  offender. 

In  all  the  cases  to  which  we  have  been  referred,  there  was  undoubted 
evidence  of  a  deliberate  purpose.  They  differ  in  every  essential  partic- 
ular from  the  present. 

In  Hovey's  Case,^  the  evidence  of  deliberation  consisted  of  the  pur- 
chase and  loading  of  the  pistol,  followed  directly  by  its  use  in  the  com- 
mission of  the  deed. 

In  Sindram's  Case,^  it  consisted  of  previous  bad  blood  and  threats, 
followed  by  preparation,  the  prisoner's  seeking  the  deceased,  and  the 
deliberate  firing  of  a  second  shot  after  the  failure  of  the  first. 

In  Majone's  Case,^  it  consisted  in  the  exhaustion  of  any  possible  im- 
pulse upon  the  previous  killinor  of  his  wife,  and  his  proceeding  with  the 
same  weaji'jn  from  the  room  where  his  first  victim  lay,  directly  to  the 
deceased. 

In  Cometti's  Case,*  it  consisted  in  the  prisoner's  taking  advantage  of 
an  opportunity  to  secure  the  knife  with  which  the  crime  was  perpe- 
trated, and,  in  shortly  afterwards,  without  a  word,  approaching  the  de- 
ceased and  stabbing  him  to  death. 

In  Leighton'a  Case,^  it  consisted  of  previous  threats  to  injure  the 
deceased,  Mary  Dean ;  of  the  prisoner  seeking  her  out  with  the  razor 
in  his  pocket ;  and  of  an  all-potent  motive — jealousy,  and  her  abandon- 
ment of  him  for  another  man. 

The  distinction  between  these  cases  and  the  present  is  marked  and 
obvious.  It  is  the  distinction  between  premeditation  and  impulse — 
between  the  cold-blooded  or  deliberate  assassin  and  the  brutal  or  reck- 
less bar-room  brawler. 

The  Legislature  has  chosen  to  make  this  distinction.  It  has  enacted 
that  the  one  offender  shall  suffer  death,  the  otlier  imprisonment  for  life. 
Courts  and  juries  must  not  be  wisor  than  the  law.  It  is  suflicient  that 
it  is  the  law,  and  it  should  be  enforced  loyally  and  with  submission  to 
the  legislative  will. 

^  We  have  net,  been  unmindful  of  what  transpired  after  the  homi- 
cide—  the  prisoner's  wanton  shooting  in  the  street,  his  stupid  lying  to 
his  brother  officers,  his  outrageous  behavior  to  the  deceased,  and  hia 


1  29  Hun,  382;  1  N.  Y.  Cr.  Rep.  ISO 

2  88  N.  Y.  ine. 

«  91 N.  Y. all ;  1  N.  Y.  Cr.  Rep.M. 


«  92  N.  Y.  86;  1  N.  Y.  Cr.  Rep, 
»  10  Abb.  (N.  C.)  261. 


S03. 


1056         CRIMES  AGAINST  THE   PERSONS   OF  INDIVIDUALS. 

declaration  to  Sergeaat  Ca^sidy  that  he  "  tried  hard  enough  to  shoot 
Keenan." 

All  this,  however,  has  a  more  important  bearing  upon  Conroy's  men- 
tal condition  as  affected  by  the  two  glasses  of  sherry  than  upon  the 
question  of  deliberation.  In  truth  it  is  almost  inconceivable  that  a  roan 
capable  of  a  deliberate  murder  and  conscious  of  having  committed  it, 
should  have  closed  the  door  to  all  hope  by  clubbing  his  dying  victim, 
shooting  at  other  innocent  people  and  avoiding  anything  like  plausibility 
in  the  preposttsrous  falsehoods  which  were  put  forward  to  account  for 
what  had  happened  —  falsehoods  which  any  one  capable  of  even  the 
lowest  order  of  reflection  would  have  seen  must  be  instantly  and  com- 
pletely exploded  by  every  witness  of  the  occurrence. 

As  to  Conroy's  statement,  so  earnestlj'  dwelt  upon  by  the  learned 
District  Attorney,  that  he  "  tried  hard  enough  to  shoot  Keenan,"  it  is 
impossible  to  give  to  it  the  force  of  a  confession  of  a  deliberate  pur- 
pose. 

At  the  utmost  and  treated  literally  the  words  convey  nothing  beyond 
An  intent  to  kill,  formed  at  the  moment. 

They  do  not  necessarily  import  deliberation ;  and  thus  they  really  add 
nothing  to  the  actual  occurrence  as  narrated  by  the  witnesses.  If  in 
fact  the  whole  scene,  as  thus  laid  down  before  us,  excludes  the  respon- 
sibility of  deliberation,  the  value  of  such  a  retrospect  is  limited  to  its 
bearing  upon  the  question  of  murder  in  the  second  degree.  But  in  truth 
Conroy  thereby  intended  not  to  confess  his  guilt,  but  blatantly  to  pro- 
test his  innocence  and  to  boast  of  his  prowess.  This  is  apparent 
from  Sergeant  Cassidy*s  testimony.     We  quote :  — 

Q.  What  did  he  tell  you? 

A.  He  told  me  that  he  bad  arrested  this  man  for  being  drunk  and 
disorderly. 

Q.  Arrested  Keenan? 

A.  Keenan  for  being  drunk  and  disorderly ;  he  was  attacked  by  a 
crowd  there  and  his  prisoner  rescued ;  I  says,  "Conroy,  is  this  man 
shot?  "  "  Well,"  he  says,  "  I  don't  know,  if  he  is  or  not,"  he  says, 
♦'  it  is  not  my  fault;  I  tried  hard  enough  to  shoot  kim." 

Under  the  circumstances,  to  treat  this  expression  as  evidence  of  de- 
liberation would  require  not  only  the  straining  of  language,  but  its  en- 
tire misapplication  —  that  is,  its  transposition  from  the  imaginary  seene 
it  was  intended  to  color  to  the  real  occurrence  which  it  sought  to  con- 
ceal ;  and  then  ascribing  to  it  as  thus  grafted,  the  sincerity  and  truth 
which  it  originally  lacked.  Hard  cases  sometimes  produce  bad  logic  as 
well  as  bad  law.  If  the  re»  gestae  had  supported  the  claim  of  delibera- 
tion with  sometliing  less  insignificant  than  a  want  of  ease  in  drawing  the 
revolver  and  the  failure  almost  at  the  moment  of  the  shooting  to  heed  a 


rALS. 

tough  to  shoot 

Conroy's  men- 
tban  upon  the 
ible  that  a  roan 

committed  it, 
i  dying  victim, 
ike  plausibility 

to  account  for 
le  of  even  the 
mtly  and  corn- 
by  the  learned 

Keenan,"  it  is 
deliberate  pur- 

lothing  beyond 

I  they  really  add 
tnesses.  If  in 
des  the  respon- 
s  limited  to  its 
e.  But  in  truth 
latantly  to  pro- 
is    is  apparent 


eing  drunk  ant^ 


attacked  by  a 

oy,  is  this  man 

not,"  he  says, 

evidence  of  de- 
tage,  but  its  en- 
imaginary  seene 
t  sought  to  con- 
cerity  and  truth 
lice  bad  logic  as 
aim  of  delibera- 
e  in  drawing  the 
ooting  to  heed  a 


PEOPLE   V.  CONROY. 


1057 


bystander's  exclamation,  we  would  probably  never  have  heard  of  this 
subsequent  straw. 

The  truth  is,  that  it  was  simply  an  idle  phrase,  meant  to  be  cunning 
but  really  transparent,  put  forward  to  color  the  equally  idle  falsehood 
that  he  had  arrested  Keenan  for  being  drunk  and  disorderly ;  and  that 
he  had  then  been  attacked  by  a  mob  in  the  street  and  his  prisoner 
rescued.  What  he  meant  in  his  besotted  way,  to  convey  to  Sergeant 
Cassidy  was  that  he  had  shot  Keenan  in  the  faithful  performance  of  the 
duty  which  devolved  upon  him  to  prevent,  by  every  means  in  his  power, 
the  escape  of  a  rescued  prisoner.     Plainly  this  and  nothing  more. 

Whether,  then,  this  shocking  affair  be  regarded  in  the  light  of  what 
transpired  after,  before  or  at  the  time  of  the  shooting,  the  absence  of 
deliberation  is  equally  apparent. 

The  result  is  inevitable.  Under  the  law  as  it  existed  prior  to  1873, 
Conroy  would  have  forfeited  his  life. 

There  was  then  but  one  degree  of  murder,  and  to  constitute  it,  pre- 
meditation alone  was  required.     The  courts  had  construed  the  law  so 
that  premeditation  and  intent  were  substantially  equivalent.     The  Leg- 
islature then  divided  the  crime  into  two  degrees,  requiring  intent  with 
deliberation  and  premeditation  to  constitute  the  first;  intent  without 
deliberation  and  premeditation  to  constitute  the  second.     Conroy's  case, 
therefore,   comes  clearly  with  the  second  and  not  within  the  first  of 
these  degrees.     But  the  error  below  was  not  unnatural.    For  if  ever 
there  was  a  case  where  the  judgment  of  a  right  minded  court,  prosecut- 
ing  officer  or  jury  might  readily  be  obscured  by  a  feeling  of  just  indig-  " 
nation,  it  is  assuredly  the  present.    The  tendency  of  its  horrible  detail 
is  to  make  the  citizen  deplore  the  alteration  in  the  law.     It  cries  aloud 
for  a  judicial  view  of  deliberation  from  which,  under  other  and  less  ag- 
gravated circumstances,  the  mind  would  instantly  revolt.    The  fact  that ' 
the  prisoner  was  a  police  oflicer,  employed  to  protect  the  people  from 
violence  and  to  guard  them  from  outrage,  can  not  but  intensify  this 
sentiment.     Beyond  question,  Conroy  richly  deserves  all  the  punish- 
ment which  can  lawfully  be  inflicted  upon  him.     Less  than  this  would  i 
be  a  miscarriage  of  justice.     More,  however,  would  be  lynch  law,  un-  i 
der  the  forms  of  law.    What,  after  all,  is  more  important  than  Conroy's  * 
death  or  imprisonment  for  life,  is  accuracy  in  the  administration  of  jus-  j 
tice  — precise  conformity  to  the  law.     The  latter  it  is  our  duty  to  ex- 
act, and  in  doing  so  to  stand,  if  necessary,  between  the  vilest  wretch    \ 
and  even  the  righteous  indignation  of  those  who  would  add  one  jot  to    ' 
his  punishment  beyond  what  the  law  prescribes.     Such  a  duty  is  now 
plainly  before  us,  and  it  can  only  bo  faithfully  performed  by  the  rever-   » 
sal  of  this  judgment  and  the  direction  of  a  new  trial.  -^ 

Davis,  P.  J.     I  have  given  careful  attention  to  the  conflicting  opio- 
8  Defences.  67 


1058  CRIMES   AGAINST  THE  PEHSONS   OF   INDIVIDUALS. 


ions  of  my  brothers  Brady  and  Barrett,  and  a  most  painstaking  examina- 
tion of  the  evidence  in  the  case,  bearing  upon  the  question  in  conflict, 
between  them,  and  my  mind  is  brought  to  the  conclusion  reached  liy 
my  brother  Barrett,  that  there  was  no  sufficient  evidence  in  tlio  case  of 
such  premeditation  and  deliberation  on  the  part  of  the  prisoner,  as  is 
required  by  the  present  law  of  this  State  to  justify  a  conviction  of  mur- 
der in  the  first  degree. 

At  common  law  all  felonious  killing  of  a  human  being  with  intent  to 
take  life  was  murder,  and  of  that  crime  there  were  no  degrees. 

By  the  former  statute  of  this  State  this  rule  of  the  common  law 
was  sought   to  be  modified  by  requiring,   in  murder,  proof  of  a  de- 
liberate   design  to    kill.     But  the    courts  promptly  held    that     the 
statute   was  satisfied  whenever  the  evidence  showed  to   a  jury  that 
the    act  of   homicide  was   the  result  of  a  fully  formed  intent   to 
kill,    although   the  intent   was  concurrent   with   the  act    and  had 
no   appreciable  antecedent  period  of  deliberation  or    consideration. 
This  was  practically  reinstating  the  law  sought  to  be    modified ;  or 
in  other   words   holding   that   the  common-law   rule  had    not  been 
changed  in  substance.    It  may  well  be  doubted  whether  the  courts 
would  have  deemed  themselves  forced  to,  or  justified  in  such  a  construc- 
tion, if  the  statutes  referred  to  had  created  degrees  of  murder  and  de- 
fined the  second  degree  to  be  a  homicide  with  design  to  kill  but  without 
deliberation. 

Subsequently  the  Legislature  created  two  degrees  of  the  crime  of 
murder.  The  first  they  declared  to  be  the  killing  of  a  human  being 
(unless  it  be  excusable  or  justifiable)  when  perpetrated  with  a  deliber- 
ate and  premeditated  design  to  effect  the  death  of  the  person  kiUed,  or 
of  another  person ;  the  second  they  defined  to  be  the  killing  of  a  human 
being  with  intent  to  cause  the  death  of  the  person  killed,  or  another, 
but  without  deliberation  or  premeditation.  To  the  first  of  these  degrees 
they  attached  the  penalty  of  death;  to  the  second  the  absolute  penalty 
of  imprisonment  for  life. 

It  is  impossible  now  for  the  courts  to  hold  that  the  killing  of  a  human 
being  with  design  to  effect  death,  not  accompanied  with  deliberation  and 
premeditation,  is  anything  more  than  murder  in  the  second  degree,  how- 
ever clear  and  manifest  the  design  which  accompanies  and  induces  the 

act  may  be. 

It  would  now  be  manifest  error  to  charge  a  jury  upo  \  a  trial  for  mur- 
der  that  a  clear  and  laanifest  design  to  effect  death  is  itself  sufficient 
evidence  of  deliberation  and  premeditation  to  constitute  murder  in  the 
first  degree ;  for  that  is  the  exact  thing  which  the  statute  declares  shall 
be  murder  in  the  second  degree.  Hence,  there  must  be,  in  addition  to 
proof  of  design,  some  satisfactory  evidence  that  it  was  a  "  deliberate 


kingesamina- 
ion  in  conflict, 
)n  reached  by 
in  tlio  case  of 
prisoner,  as  is 
iction  of  mur- 

with  intent  to 
frees. 

e  common  law 
roof  of  a  de- 
eld    that     the 
>   a  jury  that 
led  intent   to 
act    and  had 
consideration, 
modified;  or 
had    not  been 
iier  the  courts 
uch  a  construe- 
nurder  and  de- 
:ill  but  without 

f  the  crime  of 
a  human  being 
with  a  deliber- 
erson  killed,  or 
ing  of  a  human 
ed,  or  another, 
)f  these  degrees 
bsolute  penalty 

ling  of  a  human 
leliberation  and 
nd  degree,  how- 
and  induces  the 

a  trial  for  mur- 
)  itself  sufficient 
e  murder  in  the 
te  declares  shall 
!,  in  addition  to 
IS  a  "  deliberate 


PEOPLE    V.  CONROr. 


1059 


and  premeditated  design  "  before  the  crime  of  murder  in  the  first  de- 
gree IS  proven.     If  psist  constructions  disarm  the  word  "  deliberate  " 
of  any  portion  of  the  normal  significance,  they  do  not,  of  course,  impair 
the  just  sense  of  the  word  "  premeditated,"  which  is  new  to  the  stat- 
ute; and  the  conjunction  of  the  two  words,  in  a  form  which  requires 
the  satisfaction  of  both,  especially  when  accompanied  with  the  creation 
of  a  new  degree  of  the  crime  of  murder,  which  itself  requires  the  pres- 
ence  of  an  actual  and  established  intent  to  kill,  leaves  no  door  open  to 
doubt  that  murder  in  tiie  first  degree  can  now  only  be  shown  by  proof 
of  some  amount  or  kind  of  deliberation  and  premeditation  antecedent 
to  the  act  or  blow  which  intentionally  effects  the  death,  and  of  which 
the  intent  alone  is  not  adequate  evidence.    The  intent  or  design  is  of 
course,  necessary  in  both  degrees.    It  alone  is  sufficient  in  the  second : 
butm  the  first  it  must  have  the  characterization  of  deliberate  and  pre- 
meditated  design.     There  are  many  modes  in  which  this  characteriza- 
tion may  be  shown;  as,  for  instance,  by  procuring  and  administering 
poison,  by  lying  in  wait,  by  arming  or  preparing  for  the  deed  in  ad- 
vance,  by  seeking  an  opportunity  or  advantage,  by  threats  of  revenge 
or  hate,  or,  in  short,  any  form  of  words  or  action   which  indicates 
thought  and  conclusion  of  a  considered  purpose  to  effect  a  design     My 
brother  Barrett  has  shown  how  clearly  the  cases  cited  by  the  counsel 
for  the  People  fall  within  this  rule.     It  is  not  necessary  to  repeat  what 
is  so  well  said. 

In  the  case  at  bar  I  am  unable  to  find  any  evidence  to  justify  a  find- 
ing  of  deliberate  and  premeditated  design  to  effect  the  death  of  the  per- 
son  killed,  or  of  any  other  person.     The  prisoner  was  a  policeman,  but 
the  Jaw  of  murder  for  him  is  no  different  for  that  reason.    He  was 
charged  with  duties  and  trusts  which  made  misconduct  a  crime  on  his 
part  peculiarly  odious;  but  that  fact,  while  it  may  expose  him  to  the 
dangers  of  popular  prejudice,  and  in  a  sense  excuse  clamorous  con- 
demnation,  can  not  in  law  change  or  affect  his  guilt  or  innocence  of 
murder  in  the  first  degree.     He  is  not  on  trial  for  violation  of  official 
duty,  but  for  a  felony  affecting  his  life,  and  in  its  definition  of  that 
crime  and  its  requirements  of  proof  to  establish  it,  the  law  knows  no 
scale  of  adjustment  that  fits  a  brutal  policeman  but  does  not  fit  other 
brutal  criminals.     The  Legislature  has  not  so  provided ;  and  that  is  an 
answer  to  every  suggestion  of  undue  severity  because  of  official  do- 
sition.  ,  ^ 

To  my  mind  tlie  evidence  against  the  prisoner  fails  to  show  that  he    " 
entered  the  drinising  saloon  of  the  witness  Cody  for  any  purpose  of  ' 
crime  or  violence.     He  went  for  the  purpose  of  driniting  on   "the 
treat "  of  a  candidate  for  office.     He  dranic  what  is  called  sherry,  and 
it  IS  not  difficult  to  imagine  what  sort  of  vile  concoction  bore  that  name 


1060  CRIMES   AGAINST  THE   PEKSONS   OF    INDIVIDUALS. 

in  that  place.     The  evidence  shows  that  he  was  peculiarly  susceptible 
to  the  effects  of  drink,  and  he  speedily  showed  its  effects  t.pon  him 
A  colloquy  and  controversy  sprung  up  between  him  and  another,  which 
led,  on  his  part,  to  an  offer  to  fight  any  person  present  for  money  - 
but  this  passed  over,  and  the  prisoner  invited  every  person  present  to 
drink.    They  all  drank,  a  dozen  or  fifteen  in  number.     The  prisoner 
again  dra.ik  sherry ;  when  he  asked  what  he  had  to  pay  he  was  told  a 
dollar.    The  price  angered  him,  and  he  asked  who  had  drank.     Cody 
told  him  aU,  but  the  prisoner  disputed,  and  turned  to  one  person,  asked 
what  he  had  drank ;  he  answered,  "  mixed  ale."     The  prisoner  called 
him  a  liar,  and  the  lie  was  given  back  to  him.     That  party  approached 
the  prisoner,  who  immediately  struck  him  and  knocked  him  down,  and 
commenced  kicking  him  while  down.     At  this  several  persons  de- 
manded that  he  let  the  person  up,  and  all  gathered  around  the  prisoner. 
The  party  knocked  down  got  up  and  immediately  fled  from  the  saloon. 
The  prisoner,  as  soon  as  freed  from  those  holding  him,  drew  his  police- 
man's  club,  and  went  toward  the  "  crowd,"  some  of  whom  retreated 
into  the  "  card-room,"  and  shut  the  door ;  the  prisoner  went  toward  the 
card-room,  and  struck  with  his  club,  breaking  a  light  of  glass  in  the 
door ;  immediately  a  light  was  broken  from  the  other  side ;  the  prisoner 
stepped  back  and  drew  his  revolver  and  cocked  it,  and  although  seized 
bv  one  person  present,  who  said,  -  Don't  shoot,  Billy;  those  are  my 
friends,"  he  turned  partly  around  and  fired  in  the  direction  of  three 
persons  standing  near  each  other,  and  hit  the  deceased,  with  whom  he 
had  had  no  controversy,  in  the  abdomen  and  inflicted  a  wound  from 
which  he  afterwards  died.    The  deceased  exclaimed  that  he  was  "  done 
for  "  and  fell  over —  but  no  one  seemed  to  think  at  that  time  that  the 
bullet  had  taken  effect.    This  is  the  substance  of  all  that  took  place  up 
to  the  time  of  the  shooting.     It  is  impossible,  I  think,  to  see  m  it  any 
••  deliberate  and  premeditated  design"  to  effect  the  death  of  any  per- 
son     There  was  nothing  of  deliberation  or  premeditation  in  the  affair. 
The  madness  of  drink  operating  upon  a  brain  and  system  physically 
and  morally  weak  and  wicked,  perhaps  was  there  and  very  hkely  a 
drunken  and  reckless  intent  to  kill,  quite  sufllcient  to  justify  a  convic- 
tion of  murder  in  the  second  degree ;  but  it  seems  to  be  in  vain  to  look 
for  evidence  of  deliberate  and  premeditated  murder. 

What  afterwards  occurred  gives  no  different  color  to  the  actual  trans- 

action.  , 

It  was  in  substance  this:  When  officers  came  m,  the  prisoner  pre- 

•tended  to  be  performing  his  official  duty.    The  officers  examined  the 

deceased  and  did  not  discover  that  he  was  shot.     One  proposed  to  send 

for  an  ambulance.    The  prisoner  exclaimed  "ambulance  be  d— d,  the 

man  is  not  shot,"  and  he  gave  into  their  custody  two  young  men  whom 


y  susceptible 
ta  upon  him. 
aothcr,  wbicii 
for  money  — 
m  present  to 

The  prisoner 
he  was  told  a 
rlrank.     Cody 
person,  asked 
irisoner  called 
ty  approached 
lim  down,  and 
1  persons  de- 
d  the  prisoner. 
3va  the  saloon, 
rew  his  police- 
horn  retreated 
ent  toward  the 
}f  glass  in  the 
e ;  the  prisoner 
ilthough  seized 

those  are  my 
sction  of  three 
with  whom  he 
a  wound  from 
t  he  was  "  done 
it  time  that  the 
t  took  place  up 
:o  see  in  it  any 
ath  of  any  per- 
>n  in  the  affair, 
stem  physically 
i  very  likely  a 
ustify  a  convic- 
!  in  vain  to  look 

he  actual  trans- 
lie  prisoner  pre- 
rs  examined  the 
)roposed  to  send 
ice  be  d— d,  the 
oung  men  whom 


PEOPLE   V.  CONKOY. 


1061 


he  charged  with  disorderly  conduct,  and  he  himself  dragged  out  the 
deceased  to  take  him  to  the  police  station.  On  the  wny  he  beat  him 
brutally  with  his  club,  but  those  Injuries  are  shown  to  have  had  no  effect 
m  causing  his  death.  At  the  station  he  stated  that  he  had  arrested  the 
deceased  for  drunkenness  and  disorderly  conduct ;  that  he  was  assaulted 
by  a  mob  and  his  prisoner  was  recovered  and  that  he  shot  the  prisoner 
to  prevent  his  escape,  and  afterwards  when  he  was  told  the  prisoner 
was  really  shot,  he  said  in  substance  he  ought  to  be  for  he  '•  tried  hard 
enought  to  shoot  him." 

His  statements  were  wholly  false.  He  had  not  arrested  the  deceased. 
There  had  been  no  mob  — no  rescue,  or  attempt  at  rescue,  and  no 
shooting  on  such  an  occasion.  Tliis  was  all  a  falsehood  invented  as  an 
excuse  for  his  misconduct  as  an  officer,  and  the  statement  that  he  tried 
hard  to  shoot  the  deceased  was  not  intended  to  be  anything  more  than 
an  assertion  that  he  tried  hard  to  do  his  duty  as  against  a  mob  of  res- 
cuers and  an  escaping  prisoner.  It  is  not  to  he  detached  from  its  con- 
text and  distorted  into  an  admission  that  he  tried  hard  to  shoot  the 
deceased,  while  he  sat  quietly  on  a  whisky  cask  in  Cody's  saloon  at  the 
time  he  was  wounded.  To  do  so  is  to  make  the  prisoner's  false  declar- 
ation that  something  took  place  that  would  justify  a  shooting,  a  con- 
fession of  something  in  conflict  with  the  testimony  of  every  witness  on 
the  part  of  the  People. 

The  actual  shooting  was  clearly  the  act  of  an  infuriated  man,  firing 
with  a  reckless  intent  to  kill  any  one  who  might  chance  to  be  in  the  "*" 
way  of  his  bullet  — but  there  is  not,  I  think,  a  symptom  of  proof  that 
he  "tried  hard  to  shoot"  his  victim,  who  by  chance  happened  to  be  in 
the  range  of  his  reckless  aim. 

There  are  several  questions  in  the  case  arising  upon  exceptions  which 
seems  to  me  of  serious  importance;  but  I  prefer  the  decision  of  the 
case  should  be  put  upon  the  ground  that  as  a  matter  of  law  there  was 
not  sufficient  evidence  of  deliberate  and  premeditated  design  to  effect  ' 
death  to  justify  the  conclusion,  so  that  the  Court  of  Appeals  may  re- 
view  our  decision  and  correct  it  if  wrong. 
I  concur,  therefore,  in  a  reversal  of  the  judgmeut  and  a  new  trial. 
Bkadt,  J.     Tlje  controlling  facts  upon  which  the  appellant  was  con- 
victed are  these:  He  had  by  his  aggressive  conduct  driven  nearly  all 
the  persons  from  the  saloon  (fourteen  or  fifteen  in  number)  in  which  the 
deceased  was  shot,  some  of  them  taking  refuge  in  the  card-room,  which 
was  separated  from  the  saloon  by  a  partition,  having  a  door  partially  of 
glass  opening  into  it,  and  others  in  a  rear  room  or  hall.     Those  who  re- 
mained in  the  saloon  were  the  proprietor,  Cody,  his  wife,  CantweU, 
Keating  and  the  deceased.     The  appellant  approached  the  door  men- 
tioned, and  observing  that  one  of  the  persons  who  had  retreated  was 


10(52         CBIME9   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 
Keating  seeing  th.s  8uul  to  »»!" ;  JJ^^    ^^^^^  „„  ,tte 

some  one  of  tlie  peisoii.  "  ,  Keatta»,  a  result  natural  in 

strengthened  doubtless  by  '  'V':.^;'^^'^^^."!  ,.irit  wMoU  then  ia- 
r  "?h':'  TZ  ri  tlCot  «:lL,dl„g  Ue  had  no 
::::;!  Ifronthlml  »>,  »»»  m  danger  by  act  or  *-a.  o.  any  one 

design.     HIS  puipus  towards  whom  it  must  have  been  pomted 

,    his  weapon  at  the  deceased,  towards  wnom 

ouT^yi  Shot,  -  .--rrn^iJbrrdLCiotx  f; 

shot  at  the  deceased,  a  fact  demonstraieu  uy 

;.,.nt '- '--/rTtisTurrdVri^^^^^^^  -"cbt 

;t  r^Sdnht-^dlc^-rvrand  Whether  it  was  right  or  not  Is  the 
aJIIlsLrryl,  that  1.       ,«o.Un  '-^-^I" LHrLtS 

:ri;rrar;vr  hti  u:^:.^^^^^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


i^<m  12.5 

:!f  m 


2.2 


L25  IIIII.4 


1.6 


Photographic 

Sciences 
Corporation 


•y 


23  WIST  MAIN  STRUT 

WEftSTH.N.Y.  MStO 

(716)S72-4S03 


4^ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproduutions  historiques 


PEOPLE   V.  CONROY. 


1063 


and  deliberate  design  to  effect  bis  death.  It  is  not  nece&iiary,  under 
sucii  circumstances,  in  order  to  properly  convict  a  person  of  murder  in 
tlie  first  degree,  to  show  that  when  the  intention  to  shoot  was  formed  tlie 
person  shot  was  also  then  selected  and  determined  upon.  It  is  enough 
if  there  be  a  general  design  to  shool  one  of  the  persons  present  and  such 
intention  is  carried  out. 

The  Penal  Code  by  section  183  provides  by  the  first  subdivision  that 
the  killing  of  a  human  being  is  murder  in  the  first  degree,  when  com- 
mitted from  a  deliberate  and  premeditated  design  to  effect  the  death  of 
a  person  killed  or  of  another.  This  cont  mplates,  as  well  as  others,  the 
crime  of  killing  a  person  not  within  the  intent  of  the  killer,  and  slain  in 
error  or  by  mistake.  If  the  design  is  to  kill  B. ,  and  the  shot  mis- 
directed kills  C,  it  is  murder  if  the  elements  exist  which  would  make 
it  murder  had  B.  been  killed  in  accordance  with  the  original  intent.  If 
the  design  be  to  kill  one  or  several  present,  and  one  be  selected  in  ac- 
cordance with  such  design,  it  is  not  at  all  illogical  or  unreasonable  to 
declare  that  the  person  killed  was  slain  by  premeditation.  The  case  as 
presented  to  the  jury  having  the  characteristics  mentioned,  it  could  not 
be  taken  from  them.  Indeed,  they  were  warranted  in  declaring  the 
presence  of  the  design  stated,  not  only  from  the  acts  of  the  appellant, 
but  his  subsequent  declaration  that  if  he  did  not  shoot  the  deceased  it 
was  not  his  fault  —  he  tried  hard  enough  to  do  it. 

In  estimating  the  force  and  effect  of  the  circumstances  to  which  refer- 
ence has  been  made,  we  must  bear  in  mind  that  we  are  dealing  with  a 
sane  person  having  no  enemy  to  overcome,  but  brutally  excited,  and 
drawing  his  pistol  without  reason  —  without  caupe,  and  seemingly  for  no 
other  than  a  murderous  purpose  and  after  he  had  without  its  use  created 
a  reign  of  terror.  He  had  time  enough  to  deliberate  upon  the  act  of 
shooting.  The  law  upon  that  subject  was  clearly  and  accurately  charged 
and  no  exception  was  taken  to  what  was  said. 

The  court  said  in  reference  to  deliberation  and  premeditation  — 
quoting  from  the  opinion  of  Justice  Earle  in  People  v.  Jfo/one,  Hhat 
tlie  design  must  precede  the  killing  by  some  appreciable  time,  but  the 
time  need  not  be  long.  It  was  suflicient.if  time  existed  for  choice  to 
kill  or  not  to  kill  and  when  the  time  was  sufficient  for  that  it  matters 
n  t  how  brief. 

The  appellant,  it  must  be  observed,  was  advised  of  the  impropriety 
of  his  contemplated  act —  he  was  warned  i^ainst  it  by  a  request  made 
of  him  not  to  shoot,  to  which  he  paid  no  attention.  He  did  not  mean 
to  be  interfered  with ;  be  was  the  master  of  the  situation  and  meant  to 
maintain  that  attitude.     He  was  cool  and  collected  when  he  reached  the 

1  91 N.  Y.  211 ;  1  N.  Y.  Crim.  Kep.  95. 


4« 


1064  ClUMES   ACSAINST   THE   PERSONS   OF   INDIVIDUALS. 

Station-house,  antl  bis  declaration  there  made  was  undoubtedly  under- 
stood by  liim. 

It  matters  not  what  we  may  conjecture  as  to  the  spirit  in  which  it 
was  said  or  the  emotion  which  prompted  it.  It  must  be  united  to  other 
•vents  and  he  must  take  the  consequences  resulting  from  it.  If  the 
jury  had  not  found  that  he  was  then  wholly  responsible  for  his  conduct, 
we  should  be  obliged  to  assert  this  to  have  been  his  condition  when  the 
declaration  mentioned  was  made.  There  is  and  can  be  no  pretense  that 
he  was  as  much  excited  at  that  time  as  he  was  in  the  saloon.  He  was 
then  where  he  could  not  hold  supreme  sway  either  as  a  bully,  bravado 

or  desparado. 

The  history  of  this  country  unfortunately  is  not  without  precedent 
for  terrorisms  created  by  one  individual  even  without  the  semblance  of 
•uthority,  a  feature  not  marking  the  appellant's  career  on  the  occasion 
referred  to,  inasmuch  as  lie  was  dressed  in  his  uniform  and  had  all  the 
insignia  necessary  to  enable  him  to  act  as  the  official  bully  — the  man 
in  power,  in  brief  authority. 

It  is  true  that  all  the  witnesses  for  the  People  did  not  tally  in  their 
details  of  the  occurrence,  but  the  jury  had  the  right  to  accept  such 
version  as  tlie  evidence  best  commended  to  their  judgment,  and  the 
assumed  controlling  facts  herein  recited  are  established  by  it.  Ths 
witnesses  were  not  sufficiently  in  conflict  to  make  it  difficult  to  recon- 
cile their  testimony  and  establish  a  satisfactory  basis  for  the  judgment 
arrived  at,  and  particularly  inasmuch  as  the  witnesses  who  said  the 
pistol  was  pointed  at  the  floor  or  barrel,  must  have  been  mistaken,  as 
the  baU  discharged  from  it  entered  tlie  body  of  the  deceased  and  with- 
out deflecticm,  as  already  suggested. 

Whether  the  premeditation  and  deliberation  required  by  the  statute 
as  an  ingredient  of  murder  iu  the  first  degree  existed  or  not  is,  as 
already  suggested,  the  only  question  at  issue  on  this  appeal,  none  of 
the  exceptions  taken  having  any  real  value.     The  charge  was  elaborate 
and  clear.     Indeed,  it  was  pronouuced  by  the  learned  and  experienced 
counsel  for  the  appellant  to  be  most  fair,  and  numerous  requests  to 
charge  which  he  had  handed  to  the  court,  were  withdrawn  by  him. 
After  a  careful,  deliberate  and  conscientious  examination  of  this  case, 
therefore,  with,  I  hope  a  just  sense  of  my  responsibility,  I  am  unable 
to  a<rree  with  the  conclusion  that  the  learned  justice  who  presided  at 
the  General  Sessions,  could  in  the  face  of  the  appellant's  satement  at 
the  station-house,  in  connection  with  the  other  facts,  withdraw  the  ele- 
ment of  premeditation  from  the  consideration  of  the  jury.     The  ques- 
tion  of  the  appellant's  innocence  or  guilt  was  for  them  to  determine  on 
the  evidence.  ■  They  are  the  judges  of  the  facts,  and  if  a  reasonable 


LS. 

ttedly  under- 

;  in  which  it 
jited  to  other 
a  it.  If  the 
■  his  conduct, 
tion  when  the 
pretense  that 
ion.  He  was 
lully,  bravado 

tut  precedent 
semblance  of 
the  occasion 
id  had  all  the 
ly  —  the  man 

tally  in  their 
>  accept  such 
nent,  and  the 
I  by  it.  The 
cult  to  recon- 
the  judgment 
who  said  the 
n  mistaken,  as 
ised  and  with- 

by  the  statute 
1  or  not  is,  as 
ppeal,  none  of 
!  was  elaborate 
id  experienced 
us  requests  to 
Irawn  by  him. 
n  of  this  case, 
y,  I  am  unable 
lio  presided  at 
b's  satement  at 
thdraw  the  ele- 
ry.  The  queS' 
;o  determine  on 
if  a  reasonable 


M' DANIEL   t?.  COMMONWEALTH. 


1065 


view    of    the     evidence    sustains    their    finding    it    should  not     be 

disturbed. 

Judgment  reversed. 


MURDER  IN  FIRST  DEGREE  — BURDEN  OF  PROOl' 
McDaniel  V.  Commonwealth. 

[77Va.  281.] 

In  the  Supreme  Court  of  Appeals  of  Virginia,  1883. 

1.  Oana  on  Froseontion  to  Show  Karder  Is  In  the  First  Decree.  —  To  consUtnte  tb* 
offense  of  marder  in  tbe  first  degree,  the  killing  must  be  predetermined,  and  not  under 
momentary  impulse  of  passion ;  though  the  determination  need  not  have  existed  any 
partiealar  length  of  time.  Prima  facie,  all  homicide  is  murder  in  the  second  degree. 
Omu  is  on  prosecution  to  raise  the  offense  to  the  first  degree. 

S.  Wbat  the  Beoord  must  Show. — To  sustain  aTerdictof  murderin  the  first  degree,  the 
record  must  show  proof,  direct  or  inferential,  sufficient  to  Justify  the  Jury  in  coming  to 
the  conclusion  that  the  death  of  the  deceased  was  the  ultimate  result  which  the  con 
•urring  will,  deliberation  and  premeditation  of  the  prisoner  sought. 

I.  Osse  In  Jadffment. — A  quarrel  had  taken  place  between  the  prisoner  and  the  deceased, 
in  which  both  had  used  Tiolent  language,  and  the  former  had  given  tbe  latter  the  lie ; 
they  then  separated,  and  fifteen  or  twenty  minutes  later  the  deceased,  cairying  a  light 
oane,  approached  the  prisoner,  declaring  that  he  would  not  stand  what  the  prisoner  had 
said ;  the  prisoner  picked  up  s  large  stick,  and  upon  being  asked  by  the  deceased  why 
he  stood  holding  that  stick,  said,  "If  yon  come  hero,  I  will  show  you;"  the  deceased 
then  raised  bis  cane  to  parry  a  blow  from  the  prisoner,  and  struck  at  or  struck  the 
prisoner,  who  then  atmek  the  deceased  two  blows  with  hi*  stick,  from  which  be  died 
about  two  boora  afterwards.   SeU,  not  gnlUy  ol  murder  in  the  first  degree. 

Error  to  the  Circuit  Court  of  Amherst  County. 

For  plaintiff  in  error.  L.  S.  Marye  and  W.  B.  Tinsley. 

For  the  Commonwealth,  the  Attorney-General. 

HiNTON,  J.  This  is  a  writ  of  error  to  a  judgment  of  the  Circuit 
Court  of  the  county  of  Amherst,  convicting  Frederick  McDaniel,  the 
plaintiff  in  error,  of  murder  in  the  first  degree,  and  sentencing  him  to 
be  hanged  therefor.  The  accused  moved  the  court  to  set  aside  the  ver- 
dict and  grant  him  a  new  trial ;  hot  the  court  overruled  the  motion,  and 
to  this  ruling  the  prisoner  excepted.  The  bill  of  exceptions  contains  a 
certificate  of  what  is  stated  to  be  the  "facts  and  all  the  facts  proved 
upon  the  trial." 

Tbe  only  assignment  of  error  is,  the  refusal  of  the  court  to  set  aside 
the  verdict  and  to  award  a  new  trial. 


1066         CRI3IE8   AGAINST  THE  PERSONS  OF   INDIVIDUALS. 

Upon  an  application  of  this  kind,  iliis  court  is  always  loth  to  disturb 
the  judgment  of  the  trial  court.     On  this  point  Cliristian,  J.,  dehver- 
Z    he  opinion  of  the  court  in  Pryor's  Case,^  said :     "  This  court  U-. 
always  acted  with  great  caution  in  granting  new  tnals  m  cases  where 
the  new  trial  is  asked  solely  upon  the  ground  that  the  verdict  x.  con- 
trary to  the  evidence,  and  great  weight  is  always  given,  and  justly  so, 
to  the  verdict  of  the  jury  and  judgment  of  the  court  m  which  the  case 
i8  tried.     The  cases  are  very  rare  in  which  this  court  interferes ;  and  it 
is  only  in  a  case  where  the  evidence  is  plainly  insufflciont  to  warrant  the 
flndin-  of  the  jury."     I  fully  recognize  the  salutary  influences  of  this 
x^le,  Ind  have'no  purpose  U>  relax  its  operation.     But  I  Jlunk  we -y 
remand  this  case  for  a  new  trial  without  being  amenable  to  the  charge 
of  violating  its  sinrit  or  provisions  in  the  special  circumstances  of  this 

^'T  proceed  to  state  as  briefly  as  I  can  some  general  doctrines  of  the 
law  of  homicide,  which  wiU,  I  think,  materially  assist  usmamying  ata 
correct  conclusion  upon  this  point.     Every  homicide  under  our  statute  is, 
pnma/acie.  a  case  of  murder  in  the  second  degree.     And  it  is  incum- 
bent  upon  the  Commonwealth,  in  a  casr    like  the  present,  where  the 
offense  was  not  committed  by  any  of  the  ..)ecific  means  enumerated  m 
the  statute,  that  is,  "by  i^oison,  lying  in  wait,  imprisonment  or  starv- 
ing,"  nor  in  the  commission  of,  or  attempt  to  conimit  "  arson,  rape, 
robbery  or  burglary,"  in  order  to  elevate  it  to  murder  in  the  first  de- 
«ee  to  prove  by  evidence,  either  direct  or  circumstantial,  beyond 
Stional  doubt,  that  the  kilUng  was  "  willful,  deliberate  and  premedi- 
tated  "     And  on  the  other  hand,  the  burden  is  upon  the  accused,  if 
he  would  reduce  the  offense  below  murder  in  the  second  degree,  to 
show  the  absence  of  malice  and  the  other  mitigating  circumstances  nee 

essary  for  that  purpose.  ,.*  .  ^  wii5„„  »» 

Now  to  constitute  a  -willful,  deliberate  and  premeditated  killing, 
it  is  necessary  that  the  killing  should  have  been  done  on  purpose,  and 
not  by  accident  or  without  design ;  that  the  accused  must  have  reflected 
with  a  view  to  determine  whether  he  would  kill  or  not;  and  that  be 
must  have  determined  to  kill,  as  the  result  of  that  reflection  before  he 
does  the  act.  That  is  to  say,  the  killing  must  be  a  predetermined 
killing  upon  consideration,  and  not  a  sudden  killing  under  the  momen- 
tary excitement  and  impulse  of  passion,  upon  provocation  given  at  the 
time  or  so  recently  before  as  not  to  allow  time  for  reflection.  And  this 
design  to  kill  need  not  have  existed  for  any  particular  length  of  time^ 
It  may  be  formed  at  the  moment  of  the  commission  of  the  act.      With 


i 


I  -21  Oratt.  1010. 

i  Klng'8  Case  and   note,  2  Vt.  Cae.  84; 
Whlteford's  Case,  6  Rand.  721;  Jones'  Caw. 


1  Leigh,  598;  HUl's  Case,  2  Gratt.695;  How- 
ell's Case.  26  Gratt.  995;  Weight's  Case.M 
Gratt.  881  j  Wright'3  Case,  78  Va.  914. 


^^i 


LS. 


M'DANIGL   V.  COMMON>*'EALTH. 


1067 


th  to  disturb 
,  J.,  dtUver- 
his  court  has 
1  cases  where 
irdict  is  con- 
,nd  justly  so, 
■hich  the  case 
•feres ;  and  it 
;o  warrant  the 
nences  of  this 
tliink  we  may 
to  the  charge 
.ances  of  this 

jtrines  of  the 
in  arriving  at  a 
'  our  statute  is, 
id  it  is  incum- 
ent,  where  the 
enumerated  in 
[ment  or  starv- 
"  arson,  rape, 
in  the  first  de- 
tantial,  beyond 
and  premcdi- 
Lhe  accused,  if 
ond   degree,  to 
umstances  nec- 

itated  killing," 
)n  purpose,  and 
it  have  reflected 
>t;  and  that  be 
ction,  before  he 
\  predetermined 
ider  the  momen- 
tion  given  at  the 
Btion.     And  this 

length  of  time. 

the  act.*    With 


e,2  Gratt.B95;  How- 
95;  W'ighfs  Case.M 
ise,78V8.914. 


these  familiar  principles  of  the  law  of  homicide  in  mind,  we  now  come 
to  examine  the  facts  of  this  case. 

From  the  certificate  thereof  it  appears  that  the  prisoner,  who  lived 
in  a  cabin  in  the  yard,  and  upon  the  land  of  the  deceased,  near  Pedlar 
Mills,  in  the  county  of  Amherst,  went,  on  the  24th  day  of  January, 
1882,  to  a  mill  a  few  miles  distant,  and  that  one  of  the  horses  which  he 
drove  to  the  wagon  on  that  occasion  was  loaned  to  him  by  the  deceased ; 
that  he  returned  with  the  wagon  about  two  hours  after  sundown,  and  at 
that  time  tlie  decea8e<i  was  absent  from  home ;  that  the  wagon  was  then 
sent  for  a  load  of  wood,  a  small  son  of  the  prisoner  driving  it.     It 
returned  with  the  wood  a  little  while  after  dark,  and  the  prisoner  com- 
ro<  aced  unhitching  tlie  team,  when  the  deceased  went  out  to  the  wagon 
ar.d  may  have  assisted  in  unhitching.     A  quarrel  ensued  between  the 
prisoner  and  the  deceased,  both  of  whom  were  in  liquor  although  not 
drunk.     The  deceased  had  taken  a  drink  at  a  negro  man's  cabin  just 
before  night.     The  deceased  charged  that  the  prisoner  had  neglected 
his  horse  in  not  feeding  him  during  the  day.     Loud  and  violent , 
language  was  used,  in  the  course  of  which  tlie  prisoner  gave  the  lie  to 
the  deceased  as  to  the  charge  of  not  feeding  his  horse.    The  deceased  * 
applied  harsh  and  profane  language  to  the  prisoner.    The  prisoner, 
having  unhitched  the  horses,  carried  them  to  the  creek  to  water  them. 
After  the  prisoner  got  back  'dth  the  horses  from  the  creek,  wliich  was 
some  distance  off,  he  led  tlie  horses  around  the  road,  just  outside  of 
the  fence,  on  the  way  to  the  stable,  and  when  he  came  to  the  wood-pile 
by  the  side  of  the  yard  fe^ne,  the  deceased,  whose  wife  had  vainly 
tried  to  detain  him  in  the  house,  came  towards  the  fence  and  towards 
the  prisoner,  with  a  walking-stick  of  dogwood,  light  and  not  long,  in 
his  hand ;   that  whilst  his  wife  was  trying  to  detain  him  in  the  house, 
the  deceased  said  he  would  not  stand  what  the  prisoner  had  said.     She 
followed  him  to  the  fence.     There  was  a  stick  used  in  plowing,  com- 
monly called  a  bearing  stick,  about  four  feet  and  a  half  long,  and 
about  three  and  a  half  inches  in  circumference,  of  seasoned  white  oak, 
lying  on  the  wood-pile.     And  this  stick  the  prisoner  picked  up.    That 
the  deceased  demanded  to  know  why  the -prisoner  stood  holding  the 
stick  in  his  hand ;  to  which  the  prisoner  said :   "If  you  come  here  I 
will  show  you."    The  fence  around  the  yard,  at  this  point,  was  a  low 
one,  not  more  than  about  two  and  a  half  feet  high,  so  that  a  man  could 
step  over  it,  and  this  point  was  about  twelve  or  fifteen  yards  from 
the  house  of  the  deceased.     This  was  about  fifteen  or  twenty  minutes 
after  the  first  quarrel  at  the  wagon.     The  deceased  raised  Ills  stick  to 
ward  off  a  blow  from  the  prisoner,  and  maybe  he  struck  at  or  struck 
the  prisoner.    The  prisoner  then  stepped  over  the  fence,  struck  at  the 


aMiriMaaitajitatMiwwBawirwafe^ 


1068         CBIMK9   AGAINST  THE  PEklSONS   OF   INDIVIDUALS. 

deceased  and  knocked  the  walking-stick  out  of  his  hand,  and  with  the 
bearing-stick  struck  the  deceased  two  blows  over  the  head.  From 
the  first  blow,  which  was  above  the  left  eye,  the  deceased  was  appar- 
ently  made  insensible  but  did  not  fall.  The  second  blow  frretured 
and  indented  the  skull  behind  and  above  the  left  ear.  He  never  spoke 
afterwards,  and  died  within  about  two  hours,  from  the  ejects  of  the 

blows. 

These  being  all  the  facts  proved  on  the  trial,  as  the  judge  certifies, 
do  they  make  out  a  case  of  "willful,  deliberate  and  premeditated 

killing?" 

The  prisoner  certainly  killed  the  deceased,  and  it  is  equally  certaic 
that  this  was  not  accidentally  done  by  him.     But  this  is  not  enough  to 
constitute  a  case  of  murder  in  the  first  degree.    Before  we  can  pro- 
nounce him  guilty  of  murde»  in  the  first  degree,  we  must  be  able  to 
find,  in  the  certificate  of  facts,  proof,  direct  or  inferential,  sufficient  to 
justify  the  jury  in  coming  to  the  conclusion  that  the  death  of  the 
deceased  was  the  ultimate  result  which  the  concurring  will,  deliberation 
and  premeditation  of  the  prisoner  sought.*     If  we  fail  to  find  this 
measure  of  proof,  the  case  falls  short  of  murder  in  the  first  degree. 
For  it  is  laid  down  and  believed  to  be  undoubted  law  that  in  all  cases 
of  slight  and  insufficient  provocation,  if  it  may  be  reasonably  inferred 
from  the  weapon  made  use  of,  or  the  manner  of  using  it,  or  from  any 
other  circumstance,  that  the  party  intended  merely  to  do  some  great 
bodily  harm,  such  homicide  will  be  murder  in  the  second  degree,  in 
like  manner  as  if  no  provocation  had  been  given,  but  not  a  case  of 
murder  in  the  first  degree.* 

In  this  case  there  had  been  a  quarrel  between  the  prisoner  and  the 
deceased  whilst  he,  and  perhaps  the  deceas«d,  were  unhitching,  the 
horses,  but  there  was  no  disposition  shown  by  the  prisoner  to  strike 
the  deceased  either  with  his  fists  or  with  a  weapon  at  that  time.    On 
the  contrary,  he  unhitches  the  horses,  leads  them  to  water,  and  is  in 
the  act  of  quietly  leading  them  to  the  stable,  when  just  as  he  arrives  at 
the  wood-pile,  where  doubtless  the  wagon-load  of  wood  had  just  been 
deposited,  he  perceives  the  deceased,  in  spite  of  the  entreaties  of  his 
wife,  armed  with  a  walking-stick,  coming  towards  him  and  bent  upon 
having  a  difficulty  with  him.    In  this  condition  of  affairs,  instead  of 
selecting  from  the  load  of  wood  a  stick  of  wood,  one  blow  with  which 
would  be  certain  death,  he  stops  and  picks  up  a  stick  of  comparatively 
insignificant  proportions,  which  he  finds  lying  on  the  wood-pile.     It  is  true 
that  when  the  deceased  asked  him  why  he  stood  there  holding  that  stick 
in  his  hand,  he  replied,  "  If  you  come  here  I  will  show  you."    But 


1  Jones'  Caie,  1  Leigh,  611. 


i  DaTis  Cr.  L.  90. 


^^M 


7ALS. 


M'DANIEL  V.  COMMONWEALTH. 


1069 


1,  and  with  the 
I  head.  From 
sed  was  appar- 
blow  frretured 
[e  never  spoke 
:  ejects  of  the 

judge  certifies, 
I  premeditated 

equally  certain 
9  not  enough  to 
)re  we  can  pro- 
nust  be  able  to 
ial,  sufficient  to 
le  death  of  the 
rill,  deliberation 
ail  to  find  this 
he  first  degree, 
bhat  in  all  cases 
jonably  inferred 
it,  or  from  any 
>  do  some  great 
cond  degree,  in 
t  not  a  case  of 

prisoner  and  the 
I  unhitching:  the 
risoner  to  strike 
)  that  time.    On 
water,  and  is  in 
b  as  he  arrives  at 
3d  had  just  been 
entreaties  of  his 
(u  and  bent  upon 
ffairs,  instead  of 
blow  with  which 
of  comparatively 
d-pile.     It  is  true 
lolding  that  stick 
how  you."    But 


this  language,  in  the  light  of  what  subsequently  happened,  can  only  be 
interpreted  to  mean  something  like  this,  namely :  Whilst  I  shall  not  seek 
you,  ytjt  if  you  shall  attack  me  with  that  cane,  I  shall  repel  your  attack 
with  this  stick.  This  language,  instead  of  revealing  a  deliberate  and 
preconceived  purpose  to  kill,  would  imply,  it  seems  to  me  it  raiglit  well 
be  argued,  that  in  the  event  the  deceased  kept  away  from  Lim  it  was 
not  hif  purpose  to  bring  about  a  difficulty.  At  any  rate  I  do  not  tliink 
that  from  this  language,  even  if  coupled  with  the  blows  inflicted  on  the 
deceased,  without  any  other  acts  or  declarations  shedding  light  upon 
the  inteiition  of  the  prisoner,  that  the  jury  were  warranted  in  finding, 
or  that  this  court  could  be  justified  in  holding,  that  the  prisoner  killed 
the  deceased  in  pursuance  of  a  deliberate  and  preconceived  purpose  to 
kill  him,  and  that  therefore  this  was  a  case  of  murder  in  the  first  degree. 

It  is  not  intended  to  intimate  in  anything  that  has  been  said  in  this 
opinion  that  the  stick  used  by  the  prisoner  in  his  encounter  with  the 
deceased  was  not  a  deadly  weapon,  for  the  fatal  effect  of  its  use  ia  this 
case  but  too  surely  establishes  its  deadly  chai'acter  when  used  by  a  per- 
son of  the  prisoner's  strength ;  nor  is  It  intended  in  any  wise  to  con- 
travene that  wise  and  wholesome  rule:  "  That  a  man  must  be  taken  to 
hitend  that  which  he  does,  or  which  is  the  natural  and  necessary  conse- 
quence of  his  act."  ^    All  that  I  do  mean  to  say  is,  that  giving  to  this/ 
rule  its  proper  scope,  in  the  meager  and  peculiar  circumstances  of  thi», 
particular  case,  this  court  is  not  warranted  in  presuming  (from  the/ 
mere  use  of  this  weapon,  without  any  words,  other  than  those  hereto-' 
fore  mentioned,  or  circumstances,  either  before  or  after  or  at  the  time 
of  the  killing,  going  to  show  the  intention  of  the  prisoner)  that  the 
purpose  of  the  prisoner  was  neither  to  forcibly  repel  the  attack  of  the 
deceased,  nor  to  inflict  grievous  bodily  harm  upon  him,  but  to  kill  him.  i 

For  these  reasons,  I  am  of  opinion  that  the  judgment  of  the  Circuit 
Court  of  Amherst  County  be  reversed  and  annulled,  the  verdict  of  the 
jury  set  aside,  and  that  a  new  trial  be  awarded  the  plaintiff  in  error. 

RiGHABosoM  and  Fa0iitlerot,  JJ.,  concurred. 

Lewis  and  Lact,  JJ.,  dissented. 


1  Murphy's  Caae,  a   Gratt.  972;  HUl'a 
CMe,2  0ntt.SW. 


1070 


CB1ME8  AGAINST  THE  PEB80N8  OF  INDIVIDUALS. 


MUBD.Il  IN  FIRST  DEGREE -PREMEDITATION -DELIBERATION. 
State  v.  Robinson. 

[73  Mo.  306.] 
Jn  the  Supreme  Court  of  Missouri,  October  Term,  1880. 

i.  Wh.r.  th.r.  1.  •'••«»»»':  «'»»7jfitueUhe7n.^rdermthe«r.tor..oon^ 
appropriate  inrtructlon*  on  the»e  oifeMei. 

Appeal  from  Clinton  Circuit  Court. 

ta  the  «,cond  degree  without  P'«»'«''»i'°°- '  "°  iT^r 

has  been  »»  '^^^         however  short."    Premeditation  is  a  necessary 

ToLrnt  :  rr:;rrtrsecona  degree,  as  there  can  ^^^ -;^^: 

rthe  second  degree  which  was  not  murder  at  common  law,  and  there 

the  r'''°''2,der  at  common  law  unless  the  act  causmg  death  wa. 


1  TO  Mo.  694. 


!  tupra. 


ALS. 


STATE   V.  K0BIN80N. 


1071 


LIBERATION. 


1880. 


,at  tb«  kUllng  took 
ret  or  ieoond  degre* 
refuM  or  f»U  to  gtv* 


degree,  and  wm 
jccsBary  to  state 
ng  instructions: 
lant  feloniously, 
premeditatedly, 
guilty  of  murder 
r  the  State,  is  to 
to  the  definition 
Curtis.^    It  was 
san  be  no  murder 
i  which  has  uni- 
lasifying  murderi 
►f  beforehand  for 
a  is  a  necessary 
can  be  no  murder 
an  law,  and  there 
sausing  death  waa 
malice  and  pre- 
the  same  as  that 
ot  mean  that  the 
constitute  murder 
ad  its  natural  con- 
itated;  but  in  all 
d  be  premeditated 
The  Legislature 
and  "deliberate" 
.    The  ttimple  fact 
ler  considerations, 


shows  that  one  of  them  was  intended  to  have  a  larger  signiflcation  than 
the  oilier,  and  this  larger  signification  has,  in  recent  cases  by  this  coui-t, 
been  assigned  to  the  word  "  deliberate."  *  The  distinction  thus  drawn 
between  murder  in  the  first  and  murder  in  the  second  degree  is  a 
rational  and  just  one ;  one  vhich  can  be  observed  in  practice,  because 
in  harmony  with  tliat  discriminating  sense  of  right  which,  in  calm 
times,  will  always  control  the  juries  of  any  enlightened  and  law-abiding 
community  in  the  enforcement  of  the  criminal  law.  This  distinction  is 
well  illustrated  in  the  case  put  in  State  v.  Wieners.^  We  will  instance 
substantially  the  same  case:  If  A.  and  B.,  being  friends,  should  casu- 
ally meet  upon  the  street,  and,  in  the  course  of  a  conversation,  which 
gradually  assumes  the  character  of  a  heated  controversy,  A.  should,  in 
apparent  anger,  apply  to  B.  some  degrading  epithet  or  impute  to  him 
some  act  of  criminal  baseness,  and  B.,  stung  to  madness  by  the  insult, 
should,  upon  the  instant,  strike  and  kill  A.  with  some  deadly  weapon, 
this  would  undoubtedly  be  murder ;  but  under  the  classification  made 
in  the  Curtis  Case,  it  would  be  murder  in  the  second  degree.  The  act 
causing  death  would  have  been  inten^'onal;  and  as  no  act  can  be 
intentional  unless  it  be  previously  thought  of,  it  would,  therefore,  have 
been  premeditated ;  B.  would  be  held  to  have  intended  the  natural 
consequences  of  his  act ;  from  the  fata!  use  of  the  deadly  weapon  the 
law  would  imply  malice ;  there  was  no  lawful  provocation,  and,  conse- 
quently, no  technical  heaC  of  passion ;  in  short,  the  killing  would  have 
been  a  willful  killing  with  malice  aforethought,  —  that  is,  with  malice 
and  premeditation,  —  but  it  would  not  fill  the  measure  of  the  definition 
of  murder  in  the  first  degree,  because  it  would  not  also  'be  deliberate. 
And  it  would  be  against  our  common  sense  of  right  and  the  presumable 
intent  of  the  Legislature  that  a  murder  so  committed  should  be  visited 
with  the  same  punishment  which  the  law  inflicts  for  a  murder  com- 
mitted by  lying  in  wait  or  by  poison.  The  provocation  being  insuffi- 
cient in  the  eye  of  the  law  to  reduce  the  killing  to  manslaughter,  yet 
being  such  as  would  naturally  rouse  the  passions  and  excite  the  mind, 
wouM  prevent  the  homicide  from  reaching  the  highest  grade  of  murder. 
The  only  direct  testimony  in  the  case  at  bar  as  to  the  manner  in 
which  the  deceased  was  killed  was  the  testimony  of  the  defendant  him- 
self, and  that  tended  to  show  that  it  was  accidental.  The  killing  took 
place  in  the  upper  hall-way  of  a  dwelling  house,  in  which  the  defendant 
and  deceased,  who  were  brothers,  resided  together,  and  there  was  no 
witness  to  the  difficulty.  But  there  was  other  testimony  from  which 
the  jury  might  have  inferred  that  the  killing  took  place  under  such  cir- 
cumstances as  would  have  made  it  either  murder  in  the  first  degree  or 

1  State  V.  Wieners,  69  Mo.  11;  State  v.  Stupra,  p.2S. 

Curtis,  70  Mo.  604. 


1072         Ca.ME8  *0»IN»T  THE  PEI..ON!.  or  mDIVIDUAW. 

ri,tlgme».  -ill  be  rever.e.1  .ud  the  C.U..  rem«,ded. 
The  other  judges  concur. 


BEOREES    OF    MUUDER-MUBDEB   ■»    ^^SSu^Er"  "  ""^ 
ERATION  NECESSARY -MAN8LAUOHT11.K. 

State  v.  Curtis. 

[70Mo.6i>4.] 
In  the  Supreme  Court  of  Misaowi,  1879. 

Appeal  from  Livingston  County. 
Attorney-General  Smith  lor  State. 
Shanklin,  Waters  &  Dixon,  for  appeUant. 

^  ^;  one  Cl...e.  P-'V^*  rXSt^inTht- 
1„  the  Mcond  degree.  In  .  difflenlty  "*  *  ""['»""  4  „„  .^bbed 
„tb.,  00  the  nlgl.t  ot  the  2Tth  »' /"  >;•  ^^/'^  *  J^Mowing  died  0. 
„a  „,or«-ly  wounded  «.d  on  the  »*^J"°™''a.fe„a.„t  .nd  on. 
the  wounds  thus  received.    The  deee^e".  ">• 

1  SUte  V.  Edwards,  70  Mo.  480. 


Adk 


ILS. 

For  the  error 
[Jegree,  and  iu 
[ourth  degree, 


8TATR   V.  CUKTI8. 


1073 


REE  —  DBLIB- 


the  blood,  li  murder 
sommltud  wltb  pre- 

I "  and  "  premedlt*- 
jertitatlon,  In  a  cool 
irlthout  deliberation 

le  prUoner  0.  and  3. 
yard*  fell,  and  «oan 
C.  offered  to  prove 
by  the  sheriff  to  the 
ladmUilble. 


at  degree  for  the 
vLcted  of  murder 
le  house  in  Chilli- 
jased  was  stabbed 
following  died  of 
fendaiit  and  one 
light  in  which  wa* 
in  adjoining  room, 
was  knocked  from 
ed,  and  a  struggle 
d.    The  testimony 


tended  to  fasten  the  crlmo  upon  tlie  defendant.  The  deceased  immedi- 
ately after  being  8tal)l)od  left  the  house  and  walked  about  one  hundred 
yards,  when  ho  fell  and  soon  after  beciuno  insensible,  and  so  remained 
until  after  six  o'clock  the  next  morning. 

The  defendant  offered  to  prove  by  the  sheriff  that  he  arrested  Stonen 
and  took  him  to  Powell's  room  between  nine  and  ten  o'clock  on  the 
morning  of  the  'iSfh,  and  that  Powell  recognized  Stoner  as  the  man 
who  cut  him.  Tliis  testimony  was  rejected  by  the  court  and  its  exclu- 
sion is  assigned  for  error.  The  defendant  also  complains  of  tlie  action 
of  th«  court  in  giving  the  following  instructions  on  the  part  of  th« 
State. 

"  1th.  The  jury  are  instructed  if  they  believe  from  all  the  facts  and 
ciicumstancos  bej-ond  a  reasonable  dou»)t,  that  tlio  defendant  willfully 
and  with  his  malice  aforethoujrlit,  but  without  didiberation  smr?  premed- 
itation, stabbed  and  killed  the  deceased,  Charles  Powell,  a?  <  li:ir<,'ed  in 
tlie  indictment  at  the  County  of  Livingston  and  State  of  Missouri,  then 
they  will  find  him  guilty  of  murder  in  the  second  de<r'.  oe,  and  assess 
his  punishment  at  imprisonment  in  tlie  State  pcnitcnti'  y  for  a  term  oi 
not  less  tlin  ten  years.  Tlie  jury  are  instructed  that  muni  r  in  tlie 
second  degree  is  the  wrongful  killing  with  inalico  aforethoujiht,  but,  as 
staL^ II  above,  without  premeditation  and  deliberation ;  it  is  where  the 
intent  to  kill  is  in  a  heat  of  passion,  executed  tlic  instant  it  is  conceived 
anil  before  there  has  been  time  for  the  passion  to  subside." 

"  8th.  In  considering  what  the  defendant  said  after  tlie  fatal  stalj- 
bing  the  jury  must  consider  it  altogether.  The  defendant  is  entitled  to 
tlio  benefit  of  what  lie  said  for  himself  if  true,  as  the  State  is  of  any- 
thing he  said  against  himself  in  any  conversation  proved  by  the  State ; 
what  he  said  against  himself  the  law  presumes  to  be  true  because 
ai^ainst  himself :  but  what  he  said  for  himself  the  jury  are  not  bound 
to  believe  because  said  in  conversation  proved  by  the  State ;  they  may 
believe  or  disbelieve  it,  as  it  is  shown  to  be  true  or  false  by  all  the 

evidence  in  the  case." 

«»         »»»•♦•*•*♦• 

•'  10th.  The  court  instrncts  the  jury  that  if  the  kiUing  was  committed 
willfully,  premeditatedly  and  deliberately  with  means  and  instruments 
likely  to  produce  death,  then  the  malice  requisite  to  murder  will  be 
presumed ;  and  if  the  jury  are  satisfied  from  tlie  evidence  beyond  a 
reasonable  doubt,  that  the  defendant  stabbed  and  killed  Charles 
Powell  willfully,  maliciously,  premeditatedly  and  deliberately,  with  an 
instrument  likely  to  produce  death,  then  it  devolves  upon  the  defendant 
to  adduce  evidence  to  meet  and  repel  such  a  presumption." 

The  8<;atements  of  the  deceased  on  the  morning  after  the  difficulty 
identifying  Stoner  as  his  assailant  were  properly  rejected.  They  were 
3  Defknces.  68 


-V 


1074         CRIMES  AGAINST  THE  PERSONS  OF   1ND1VIDUAI<.. 

^  •.  „n,i  indeed  were  not  offered  as  dying  declarft- 
r  ""^l  u:„rrre  :?  ^^l  ire l «  gro„n<.-  -or  could  .hey 
nons  and  .'''"^  J"" '"  '  ^  „  ,he  declaration,  ot  a  party  to  the 
in  any  point  ot  vie»  be  ''S" '«' »  j    i„^,     roseeutiona  the 

record  or  as  W'««°S  "l'°".*\*'°''-„°.,,"?„red  a,  will  render  hi, 
S.,.e  .nstalna  -^•-t tlTdet  al  h  sl'  I«n,edi.tely 
declarations  admissible  in  cvulei.ce  a  a  aeclared  Curtis 

after  the  slabhin,  and  before  Powellt^^^^^^^^^^ 

cut  hira,  and  while  being  «»"'"'«"  ^^  ^1,^^^  to  be  taken. 

W.  he  was  'f-'"*^™"  ttlCd  wis  r,  Made  untiUearly  four 
The  statement  -«ght^^  -^    '"^rron-io—  on  the  morning  ot 

r:ara:Ur'ndrs;::tra.i':a    parrot  tbe.,...e.n 

°»^re=rr:r°;ronr:2  - --:r= 

mon_  law  tUe  nomicme  m  .   .„.      -  „o  Henrv  VIII.,'  expressed 

^ee  aforethought     o.„ft^.^^^„.e  0^23  »^^^^^^^ 

"■  ::d  "t'C'T-e"  c^TmL  "  premeditated  "  or  thought  ot 
rr  h  nd  Thesewords  thus  explained  do  not  mean  that  the  tnaliec 
beforehand.    These  words  .  1  ^    ,F.„><!rs,<  that 

should  be  l^^f'^^'^'-iJ^'I^Tomiitionot  the  mind;  but  they 
'""  *ttat"  he  actl"h  "e  partyls  prompted  by  his  malice  to  commit 


1  com.  «.  DlnBmore.  12  Allen.  235;  People 
V.  McLauBWin.44  Cal.  435 ;  "or  were  the  .lec^ 
larations  ot  the  deceaseU  admissible  a8  a 
part  ol  the  rtt  gesta. 

8  Wag.  StotB.,  p.  446,  sec.  2. 


3  ch.  1,  sec.  3. 

4  6  Cent.  L.  J.  "0. 

»  Keenan  t>.  Com.,  44  Pa.  St.  56. 
•  People  V.  Vance,  21  Oal.  400. 


^tfi 


IDUAI'f?. 


STATE    V.  CURTIS. 


1075 


as  (lying  declara- 
[  —  nor  could  they 
3  of  a  party  to  the 
1  prosecutions  the 

I  as  will  render  bis 
ite.^    Immediately 
he  declared  Curtis 
the  place  where  he 
wished  to  be  taken, 
(ie  until  nearly  four 
3  on  the  morning  of 
sciousness  from  the 
hen  the  declaration 
of  the  res  gestm  even 

State  is  erroneous, 
h  -re  is  no  murder  in 
sditation.    No  homi- 

was  not  murder  at 
itute  murder  at  com- 
[  "willfully  and  with 
iry  VIII.,' expressed 
thought"  and"pre- 
ited  "  or  thought  of 

mean  that  the  rotdice 
tate  V.  Wieners,*  that 
,f  the  mind ;  but  they 
r  his  malice  to  commit 
id,  and  if  such  act  so 
ist  be  premeditated.^ 
luivalent  to  the  words  a 

II  the  jury  that  if  they 
litation  and  malice  but 
leceased,  they  will  find 
itradictory  and  absurd, 
aing  wremeditation  and 

fined,  nor  is  the  term 
e  is  defined  but  there  is 


a  substantial  difference  between  malice  and  malice  aforethought.'  In 
Regina  v.  Griffiths,^  Alderson,  B.,  said:  "By  the  term  maliciously,  is 
not  meant  'with  malice  aforethought,'  because  if  it  were  with  malice 
aforethought,  that  would  constitute  a  still  more  grave  offense  as  that 
vTould  show  an  intent  to  murder."  In  Bradle;/  v.  Banks,^  it  is  said: 
*  *  *  "Although  the  indictment  or  the  appeal  says  that  the  defend- 
ant murdravit  such  a  man,  if  it  does  not  say  malitia  prcecogitcUa,  it  is 
but  manslaughter." 

That  we  have  assigned  to  premeditation,  its  proper  place  may  be 
shown  by  examining  tlie  question  from  another  point  of  view.  Murder 
at  common  law  was  ar homicide  committed  "willfully  and  of  malice 
aforethought."  Our  statute  in  substance  declares  that  any  willful,  de-  ^ 
liberate,  and  premeditated  killing  being  also  murder  at  common  law, 
shall  be  murder  in  the  first  degree.  Every  other  homicide,  being  mur- 
der at  common  law  and  not  declared  to  be  manslaughter  in  some  of  its 
degrees,  is  murder  in  the  second  decree.  In  State  v.  Wietiers,*  it  was 
said,  "premeditation  and  deliberation  are  not  synonymous,  and  a 
homicide  may  be  premeditated  without  being  deliberately  committed." 
It  is  further  held  in  that  case  that  "murder  in  the  second  degree  is 
such  a  homicide  as  would  have  been  murder  in  the  first  degree,  if  com- 
mitted deliberately."  If  these  views  be  correct,  it  must  necessarily 
follow  that  all  intentional  homicides  committed  with  premeditation  and 
malice,  but  without  deliberation,  must  be  murder  in  the  second  de- 
gree. The  word  "  deliberation,"  as  used  in  the  statute,  implies  a  cool 
state  of  the  blood,  and  is  intended  to  characterize  what  are  ordinarily 
termed  a  cool-blooded  murders ;  such  as  proceed  from  deep  malignity 
of  heart,  or  are  prompted  by  motives  of  revenge  or  gain.  These  are 
classed  as  murders  in  the  first  degree.  On  the  other  hand,  premedita- 
tion may  exist  in  an  excited  state  of  the  mind,  and  if  the  passion  or  ex- 
citement of  the  mind  be  not  provoked  b}'  what  the  law  excepts  as  an  ^ 
adequate  cause,  so  as  to  rebut  the  imputation  of  mahce,  an  intentional 
killing  under  the  influence  of  such  passion  will  be  murder  in  the  second 
degree.  If  the  party  act  upon  sudden  passion,  engendered  by  reasona- 
ble provocation,  the  e'^istence  of  malice  will  be  negatived,  and  the  kill- 
ing, though  intentional,  will  be  manslaughter  in  the  fourth  degree.^ 

To  make  our  meaning  plain,  we  will  recapitulate  our  classification  of 
intentional  homicides :  Where  there  is  a  willful  killing  with  malice  afore- 
thought and  deliberation,  that  is,  with  malice  and  premeditation  in  a 
cool  state  of  the  blood,  the  offense  is  murder  in  the  first  degree.     This 


3. 

J.  70. 

.  Com.,  M  Pa.  St.  56. 
Vance,  21  Oal.  100. 


1  1  Bish.  Or.  L.,  see.  429. 

2  8  C.  A  P.  248. 

3  YelT.206a. 


*  $upra, 

'  state  V.  Edwards,  decided  at  present 
term. 


1076  CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

definition  is  not  intended  to  include  cases  in  which  acts  are  mf^^Y 
statute  made  murder  in  the  first  degree.  Where  there  ,s  a  wil  ful  Ull- 
ing  ^ith  malice  aforethought,  that  is  with  °»'\1'««  l^'^ ^^7  rntl; 
but  not  with  deliberation,  or  in  a  cool  state  of  the  blood,  the  offen.o  .8 
murder  in  the  second  degree;  nor  can  any  homicide  be  murder  m  the 
second  degree,  unless  the  act  causing  death  was  committed  wita  maUce 
afor^^thouSt,  that  is  with  malice  and  premeditation.  Where  there  »s  a 
.  willful  killing  without  deliberation,  and  withoutmalice  aforethought,  the 

offense  is  manslaughter;  but  whether  manslaughter  in  the  second  or  he 
fourth  degree,  will  depend  upon  whether  the  facts  bring  the  kilhng 
within  th!  twelfth  or  eighteenth  section  of  the  chapter  on    homi- 

''^  We  deem  it  necessary  to  examine  the  views  presented  in  the  elab- 
orate  argument  of  the  counsel  for  the  defendant  in  regard  to  the  eighth 
Ltructfon.  It  is  almost  a  literal  copy  of  an  instruction  which  received 
the  approval  of  this  court  in  the  case  of  Statej.  West:^  ^his  instruc- 
tion though  in  the  form  in  which  it  is  usually  given,  it  »-t  be  con- 
fessed,  is  not  happily  worded,  and  while  its  phraseology  n^'ght  be  im- 
proved  without  impairing  its  force,  we  do  not  think  it  calculated  to  mis- 
Ld.  Men  of  orLary  capacity  will  readily  understand  it,  and  can 
intelligently  and  properly  apply  it  to  the  facts  of  every  case  in  which 
there  is  any  necessity  for  giving  it.  „„^«iioa 

We  perceive  no  error  in  the  tenth  instruction.  It  more  than  complies 
with  the  requirements  of  the  rule  laid  down  in  the  case  of  State  v.  Alex- 
rlr.3  After  stating  in  the  first  paragi.ph  that  malice  will  be  pre- 
sumed from  a  willful,  premeditated  and  deliberate  killing  with  a  deadly 
weapon,  the  succeeding  paragraph  expressly  requires  the  jury  to  find 
from  the  evidence  beyond  a  reasonable  doubt,  that  the  killing  was  ma- 
liciously  as  well  as  willfully,  premeditatedly  and  deliberately  done  with 
a  deadly  weapon.  This  paragraph  renders  all  reference  to  legal  pre- 
sumption wholly  superfluous.  .  .  ,  .  „;ii 
For  error  committed  in  giving  the  fourth  instruction,  judgment  wiU 
be  reversed  and  the  cause  remanded.    The  other  judges  concur. 


1  state  t>.  Edwards,  lupra. 


i  69  Mo.  401. 


>  66  Mo.  148. 


i^^a 


STATE   V.  SHARP. 


1077 


specific  by- 
willful  kill- 
meditation, 
e  offcnsj  is 
irder  in  the 
with  malice 
re  there  is  a 
thought;  the 
■cond  or  the 
:  the  killing 
•  on    homi- 

in  the  elab- 
:o  the  eighth 
Ich  received 
:his  instruc- 
nust  be  con- 
might  be  im- 
lated  to  mis- 
it,  and  can 
lase  in  which 

han  complies 
State  V.  Alex- 
a  will  be  pre- 
with  a  deadly 
J  jury  to  find 
Uing  was  ma- 
ely  done  with 
I  to  legal  pre- 
judgment will 
ioncur. 

>  66  Mo.  148. 


DEGREES    OF     MURDER  —  DELIBERATION—  INCORRFX'T  DEFINITION 

OF  TERMS. 

State  v.  Sharp. 

[71  Mo.  218.] 
In  the  Supreme  Court  of  Missouri,  1879. 

1.  To  Oonatitute  Uurder  In  the  Firat  degree,  the  killing  must  buru  been  done  wlUtally, 
deliberately,  prL-incditatedly  and  with  malice  aforethought,  and  these  different  words 
must  bo  deflncd  by  the  Instructions  o{  the  court. 

3.  An  Inatraotion  which  Beflnea  the  word  "  Deliberately  "  to  mean  Intentionally, 
purposely,  cimHideratcly,  is  insulllcient.  "  Deliberately  "  nieauH  in  a  cool  state  of  the 
blood,  and  a  willful,  premeditated  killing  is  murder  in  the  second  degre«. 

The  defendant  was  convicted  of  murder  in  the  first  degree  for  having 
shot  and  killed  one  Martin  Edward  Plogin.  It  appears  from  the  testi- 
mony in  the  case  that  the  defendant  was  charged  with  the  crime  of 
forgery,  a  felony,  by  complaint  before  a  justice  of  the  peace,  and  a 
warrant  was  issued  and  placed  in  the  hands  of  an  acting  deputy  conata- 
ble  to  be  executed ;  that  said  constable  requested  one  or  two  persons  to 
aid  in  making  the  arrest,  among  others  the  deceased,  who  had  also  been 
acting  as  constabl*^  on  special  occasions.  Two  or  three  other  persons 
afterwards  joined  tne  posse,  and  assisted  in  looking  for  defendant.  The 
defendant,  having  learned  that  these  parties  were  seeking  his  arrest, 
made  some  effort  to  escape,  and  declared  that  if  they  attempted  to  ar- 
rest him  tiiey  would  get  hurt,  or  he  would  hurt  them.  Some  of  tiie  party 
discovering  the  defendant  passing  through  the  town  (a  newly  laid  out 
town  on  the  C.  B.  &  St.  L.  R.  R. )  in  tlie  direction  of  the  livery  stable, 
called  to  him  to  halt ;  he  immediately  answered  this  call  by  firing  two 
shots  at  the  person  baiting  him,  and  this  person  then  snapped  his  re- 
volver at  defendant.  Defendant  then  fited  two  more  shots  at  another 
member  of  tlio  posse  who  was  near  by,  and  then  went  to  the  livery  sta- 
ble, and  in  the  office  of  the  stable  (this  being  after  night),  reloaded 
his  revolver  by  putting  four  loads  into  it,  saying  at  the  same  time  that 
if  they  bothered  him  they  would  get  hurt,  that  he  had  not  killed  any 
body  and  had  not  committed  forgery ,  and  would  not  be  taken  by  that  crowd 
from  Possum  Walk,  and  kissing  his  revolver  he  passed  out  of  the  ofilce 
into  the  stables.  He  sent  word  to  the  constable  by  one  Brown,  a  friend 
of  his,  that  if  tliey  would  let  him  alone  until  morning  he  would  go  down 
otlie  justice's  office,  but  if  they  attempted  to  arrest  him  that  night,  he 
would  kill  the  first  man  wlio  attempted  to  arrest  him.  The  constable 
and  h\a  posse  resolved  to  arrest  him  forthwith,  and  Hogin,  the  decensed, 
remarked  to  some  one  in  the  posne  to  give  him  a  revolver  and  he  would 
arrest  him  without  any  trouble,  and  upon  receiving  the  revolver  he 


1078  CRIMES    AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

Started  toward  the  livery  stable,  inquired  at  the  office  for  tl»e  defendant 
and  wt  told  that  he  was  l.a.k  in  the  bar...  and  not  to  go  m  there  he 
would  set  hurt,  but  he  valked  in  and  called  to  the  defendant:      hharp, 
whe  e  Ire  you?    I  want  youV "     Sharp  answere.l :  ^.  Danm  you,  .ake 
U  thi  ''  and  thereupon  three  shots  were  fire.l  in  quick  succes.,on,  ono 
of  which  Tnflieted  ipon  the  deceased  the  wound  of  wh.oh  he  d.ed  in 
abou     t^n  hours.     Upon  hearing  the  shooting  the  other  persons  rushed 
^  Id  tund  defendant  down  on  his  back,  deceased  upon  hun  hol.hng 
mm  down  while  defendant  had  his  revolver  in  his  hand  pomting  it  at 
^rtrd  of    he  deceased,  niaking  an  effort  to  shoot  him  in  the  head. 
Whente  crowd  rushed  I.  defendant  called  out  •  Adams  ,s  tha  you ; 
don't  let  them   hurt  me ;   they  are  trying  to  kdl  me        The  ^^ef^J 
ta   secured  and  disarmed,  and  the  deceased  was  assisted  uito  the  office 
Id  pTuced  upon  a  bed  and  a  physician  sent  for.     Deceased  was  sho 
throuTthe  upper  part  or  the  thigh,  the  bullet  cutting  or  injuring  the 
sSf  .1  e  "w    d  caused  him  great  pain  and  suffering  until  he  passed 
n  comatose  state,  and  died  in  that  condition  about  ten  hours  after 
he  was  Tot      Shortly  after  the  shooting  defendant  asked  to  see  Hogm. 
a  d  wL  tatn  to  hisUe-e  in  the  office,  and  there  is  a  -n-ng  cor. 
versation  between  them,  Sharp  said,  "  Hogm,  you  shot  first        Hogin 
deXd  this.     Some  one  said  a  load  had  been  shot  out  of  Hogm  s  pisto 
and  two  from  defendant's.     Hogin  said  if  his  pistol  was  discharged  i 
went  Iff  accTdently  in  the  scuffle,  that  he  did  not  shoot.     Defendant 
Td    ^IfThad  had  you  where  you  had  me  I  would  have  b^  .W.15W 
d    d  brains  out,  and  if  I  had  had  my  finger  on  the  tngger  instead  of  On 
S;:guarrwouUl  have  blown  your  d-d  brains  out.';^  He  said  it  migh 
1  hard  with  him,  but  he  di.i  not  give  a  damn.     He  also  said  he  was 
f:rry  t  hid  happe'ned ,  that  Hogin  was  to  blame  and  t'-t    e  ought  no^ 
o  have  rushed  on  me  as  he  did ;  he  mi.ht  have  ^^^ ./^^^  ^^  J^^  ^„ 
flhoot"     Hocrin  said:  "I  arrested  you  all  the  same.       When  taken 
before  the  justice,  defendant  pleaded  guilty  to  the  charge  of  forgery 
and  was  committed  for  that  offenne.     There  was  evidence  of  some 
"her  statement  by  defendant,  boasting  on  his  manhood  and  the  kind 

of  man  he  was,  etc. 

The  court  gave  the  following  instructions :  - 

-  1.  If  the  ju.y  believe  from  the  evidence  that  on  or  about  the  9  h 
dav  of  October,  187!.,  in  thi.  county,  the  defendant,  Otto  Sharp,  d  d 
tiUful  V  deliberately  premeditatedly,  and  with  malice  aforethought 
Tioot  a^d  kill  one  aLun  Edward  Hogin  with  a  pistol,  the  ury  shou  d 
fi^d  the  defendant  guilty  of  murder  in  the  first  degree,  and  so  state  in 

*^''2'  Wnifuily  means  intentionally,  and  not  accidentally,  therefore 
tf  toe  TeLdant  intended  to  kill,  such  intention  was  willful,     DeUber- 


rt^i 


STATE   V.  SHARP. 


1079 


defendant, 
u  there,  he 
it:  "Sharp, 
n  you,  lake 
cession,  ono 
h  he  died  iu 
•sons  rushed 
him  holding 
)ointing  it  at 
in  the  head. 
is  that  you; 
lie  defendant 
nto  the  office 
ised  was  shot 
•  injuring  the 
itil  he  passed 
;n  hours  after 
to  sec  Hogin, 
running  con- 
rst."     Hogin 
login's  pistol 
discharged  it 
.     Defendant 
ire  b.  >wn  your 
instead  of  On 
I  said  it  might 
so  said  he  was 
,  lie  ought  not 
that  I  would 
When  taken 
irge  of  forgery 
dence  of  some 
d  and  the  kind 


»r  about  the  9th 
)tto  Sharp,  did 
e  aforethouglit 
the  jury  should 
,  and  so  state  in 

ally ;  therefore, 
illful,     DeUber- 


ately  means  intentionally,  purposely,  considerately;  therefore  if  the 
defendant  foiinod  a  design  to  kill,  and  was  conscious  of  such  a  purpose, 
it  was  deliberate.  Prcmeditatodly  means  thouglit  of  beforehand  for 
any  length  of  time,  however  short ;  and  malice  signifies  a  condition  of 
the  mind,  an  unlawful  intetition  to  kill  or  do  some  great  bodily  harm  to 
another  without  just  cause  or  excuse ;  aforethought  means  thought  of 
beforehand  for  an3''  length  of  time,  however  short. 

"3.  To  constitute  murder  iu  the  first  degree  there  must  have  been  an 
intention  to  kill ;  the  killing  must  have  been  willful  at  tlic  time  of  the 
allege<l  shooting,  and  there  must  have  been  delilioration  aiul  premedita- 
tion, a  formed  design-and  determination  to  take  life,  but  the  intention 
to  kill  and  the  deliberation  and  premeditation  with  which  the  alleged 
act  was  done,  and  the  necessary  malice  may  all  be  proved  by  circum- 
stiinces,  and  need  not  be  proved  by  direct  and  positive  evidence  as  to 
such  facts ;  the  intention  and  deliberation  and  premeditation  need  not  be 
expressly  proved,  but  the  facta  must  appear  from  which  their  existence 
may  be  rationally  and  satisfactorily  inferred. 

"4.  If  the  jury  believe  from  the  evidence  that  the  defendant  in. 
tended  to  kill  and  shot  with  that  intention,  and  such  intention  was  ac- 
companied by  such  circumstances  of  its  own  purpose  and  design,  it  wag 
deliberate,  and  if  sufficient  time  was  afforded  to  enable  the  defendant 
to  select  or  prepare  the  weapon,  a  place  to  carrj'  out  his  intention  and 
design,  it  was  premeditated. 

"5.  It  may  be  presumed  that  a  man  intends  the  natural  and  probable 
result  of  Ills  own  willful  acts.  The  intention  with  which  an  act  ia  done 
may  l)e  inferred  from  the  facts  and  circumstances  attending  it ;  there, 
fore,  if  a  man  uses  a  deadly  weapon  by  which  death  is  produced,  with  a 
manifest  design  so  to  use  it,  with  sufficient  time  to  deliberate  and  fully 
to  form  a  conscious  purpose  to  kill,  without  just  cause  or  excuse,  it 
m;»y  be  inferred  that  he  intended  to  kill,  and  the  willfulness,  delibera- 
tion and  premeditation  and  malice  essential  to  murder  may  be  also  in- 
fi'iTcd  when  the  jury,  from  all  the  facts  and  circumstances  in  proof, 
feel  warranted  in  making  such  inference.  The  law  fixes  oa  no  length  of 
time  to  form  this  intention  to  kill,  or  to  deliberate  or  premeditate  upon 
it,  but  leaves  the  existence  of  a  fully  formed  intent,  and  the  willfulness 
and  deliberatiop.  and  premeditation,  as  facts  to  be  determined  by  tlie  jury 
from  all  the  facts  and  circumstances  in  proof,  the  conduct  of  the  defend- 
ant, what  he  said  and  did  at  any  shortly  before  the  alleged  shooting." 
Tiien  follow  a  few  instructions  in  relation  to  the  rights  of  the  parties 
to  make  arrests,  and  as  to  the  duty  of  the  defendant  to  submit  to  arrest, 
and  hia  right  to  defend  himself  and  under  what  circumstances.  As  to 
murder  in  the  second  degree,  the  court  instructed  as  follows:  — 

"10.  If  the  jury  believe  from  the  evidence  that  about  the  9th  day  of 


1080  CRIMES   AGAINST   THE  PERSON'S   OF   INDIVIDUALS. 

October,  1879,  in  this  county,  the  defendant  with  intent  to  kiU  wiUfully 
antll  ciouBly  s.^ot  and  killed  one  Martin  Edward  Hogm  -th  a  p..tol 
and  that  said  intention  to  kill  was  not  deliberate  and  premeditated  by 
the  d  fendant,  the  Jury  should  find  the  defendant  guilty  of  murd.rjn 
he  second  degree,  and  so  state  in  the  verdict,  and  assess  h.s  ^.msh- 
ment  at  imprisonment  in  the  penitentiary  for  any  determinate  peaod  not 

less  than  ten  years.  , 

..  11    The  jury  must  inquire,  and  by  their  verdict  ascertain  from  the 
evidence  under  the  instructions  of  the  court  whether  the  deendant  is 
Kuilty  of  murder  at  all  or  not,  and  whether  he  is  guilty  in  the  first  or 
lecond  degree  of  murder,  if  guilty  at  all,  under  the  evidence  and  m- 
s  ructions  of  the  court,  and  return  their  verdict  according  to  the  f  aet  as 
found  by  them ,  that  is  to  say,  if  the  jury  believe  from  the  evidence 
that  the  defendant  did  willfully,  deliberately  and  premeditatedly ,  and  of 
his  malice  aforethought,  as  these  words  and  terms  have  been  ;^^-""«d  «»d 
explained  by  the  court,  kill  the  said  Hogin  by  shooting  hiin  with  a 
Pistol  the  jury  should  find  him  guilty  of  murder  in  the  first  decree. 
Buui  they  finJ  and  believe  from  the  evidence  that  he  killed  said  Hogan 
intentionally  and  with  malice  aforethought,  but  without  deliberation  and 
premeditation,  the  jury  should  find  him  guilty  of  murder  a  the  second 
decrree,  and  unless  the  jury  find  him  guilty  of  either  the  nrst  or  second 
degree  of  murder,  they  should  find  him  not  guilty." 

Sheuwood,  C.  J.,  delivered  the  opinion  of  the  court.         .     ^,      „    ^ 
The  defendant  was  indicted  for  the  crime  of  murder  in  the  first 
degree ;  tlie  name  of  tiie  person  on  whom  the  murder  was  alleged  m  the 
indictment  to  have  been  perpetrated  was  Martin  Kdward  Ilogin.    On  tria 
the  jury  by  their  verdict  found  the  defendant  guilty  of  murder  in  the  first 
degree;  and  he  was  therefore  sentenced  in  conformity  to  the  verdict 
We  shall  enter  on  no  discussion  of  the  testimony  as  to  the  degree  of 
homicide  which  is  established,  as  we  regard  a  fatal  error  as  having 
been  committed  in  the  giving  by  the  court,  of  its  own  motion,  the  sec- 
on.l  instruction  on    behalf   of    the  State.     The  instruction  read  as 

°  ""willfully  means  intentionally  and  not  accidentally ;  t'ocrefore,  if 
the  defendant  intended  to  kill,  such  intention  was  willful.  i;rj  »-..,nte.y 
means  intentionally,  purposely,  considerately;  therefore-,  v  -  .,.■•.,.»' 
ant  foiraed  a  design  to  kill  and  was  conscious  of  such  a  pu<pc  -•  'ft- 
deliberate.  Premeditatedly  means  thought  of  beforelui.-  >r  any 
length  of  time  however  short.  Malice  signifies  a  condition  of  the 
mind,  an  unlawful  intention  to  kill  or  do  some  great  bodily  harm  to 
another  without  just  cause  or  excuse.  Aforethought  means  thougut 
of  beforehand  for  any  length  of  time,  however  short."  That  mstruc- 
tion  is  clearly  faulty  in  that  it  does  not  correctly  define  the  word     de- 


^^m 


,s. 

kiU  wiUf  ully 
rith  a  pistol, 
leditated  by 
if  murder  in 
I  his  pimiah- 
;e  peiiod  not 

ain  from  tlie 
defendant  is 
in  the  first  or 
ence  and  in- 
to the  f ai:t  as 
the  evidence 
itedly,  and  of 
n  defined  and 
I  him  with  a 

first  degree, 
d  said  Hogan 
liberation  and 

a  the  second 
Irst  or  second 


er  in  tlie  first 
alleged  in  the 
3gin.  On  trial 
der  in  the  first 
to  the  verdict. 
» the  degree  of 
rror  as  having 
lotion,  tlie  sec- 
iction  read  as 

' ;  tbcref ore,  if 

D*'!  ^'•"'■''telv 

piiipc  ,  isr»»5 
(htri"  sr  any 
)ndition  of  the 
bodily  harm  to 
means  thought 
That  instruc- 
the  word  "  de- 


8TATE   V.  SHARP. 


1081 


liberately."     To  constitute  murder  in  the  first  degree,   there  must 
concur  wilfuUness,  deliberation,  premeditation  and  malice  aforethought. 
The  first  instruction  clearly  stated  in  general  terms  what  was  neces- 
Bary  to  constitute  murder  in  the  first  degree,  but  the  terms  used  in  that 
instruction  needed  to  be  explained  so  that  the  jury  might  fully  under- 
stand  their  import.     This  explanation  of  the  words  used  in  the  first 
instruction  was  attempted  in  the  second  instruction,  but  with  a  signal 
lack  of  satisfactory  results.     "Deliberately"  is  said  to  mean  that  ' 
which  is  done  in  the  cool  state  of  blood.     A  homicide  may  be  thought 
of  beforehand,  that  is  premeditated  and  intentionally  done,  and  still  if 
the  elements  of  deliberation  be  lacking  the  homicidal  act  will  be  only 
murder  in  the  second  degree.     So  that  it  will  be  readily  seen  that  "  de- 
liberately "  does  not,  as  defined  in  the  objectiopable  instruction,  mean 
intentionally  or  purposely  done,   otherwise   every  act  of  intentional 
killing  done  with  premeditation  and  malice  would  carry  with  it  the  ele- 
ment of  deliberation  and  amount  to  murder  in  the  first  degree.     For  it 
is  held  that  "  all  intentional  homicides  committed  with  premeditation,  . 
but  without  deliberation,  must  be  murder  in  the  second  degree,"  and 
that  murder  in  the  second  degree  is  such  a  homicide  as  would  have  been 
murder  in  the  first  degree  if  committed  deliberately,  and  we  do  not 
consider  the  definition  of    the  word   "deliberately"    as  made   any 
clearer  by  the  words  which  follow  the  word  '« purposely  "  in  the  same 
clause.     Even  if  we  grant  that  tlie  word  "  considerately  "  is  a  synonym 
of  "deliberately,"  "  considerately  "  is  not  defined,  and  the  jury  were  as 
much  in  the  dark  as  if  the  word  being  defined  had  been  merely  repeated 
in  the  explanatory  sentence.     Nor  do  we  think  the  matter  is  helped  by 
the  addition  of  the  words,  "  that  if  the  defendant  formed  a  design  to 
kill,  and  was  conscious  of  such  a  purpose,  it  was  deliberate."     Be- 
cause  every  intentional  killing  — a  killing  with  premeditation,  as  seen, 
only  makes  murder  in  the  second  degree,  and  it  is  impossible  to  conceive 
of  such  a  killing,  unaccompanied  by  a  previously  formed  design  to  kill, 
or  the  forming  of  such  design  without  a  consciousness  of  its  purpose. 
Then  the  jury  were  in  effect  told  tliat  deliberation  was  an  ingredient 
of  murder  in  the  second  degree,  that  therefore  there  was  no  distinction 
between  the  two  degrees  of  murder.     Had  the  jury  been  told  that 
deliberately  meant  in  a  cool  state  of  blood,  and  that  in  such  a  state  of  the 
blood  the  defendant  formed  a  design  to  kill,  the  act  would  have  been 
deliberate.     The  instruction,  taken  as  a  whole,  and  in  connection  with 
its  other  definitions  would  perhaps  have  been  unobjectionable.     As  it  is 
we  can  not  give  our  sanction.     The  foregoing  views  are  fully  supported 
by  the  cases  of  StaU  v.  WeiMrs  >  and  State  v.  Curtis.* 


166  Mo.  U. 


•  70  Mo.  094. 


1082         CRIMES   AGAINST  THE  PEKSON8   OF   INDIVIDUALS. 

In  relation  to  the  roint  that  there  was  variance  between  the  name  of 
the  decease.!  and  that  mentioned  in  the  indictment,  it  is  sufficient  to  say 
that  8»ch  variance  is  immaterial  unless  the  trial  court  found  it  ma  o- 
trial  to  the  merits  of  the  case,  and  prejudicial  to  the  defence  of  th'^  de- 
fondants."     There  has  been  no  such  Injury  in  the  case. 

Judgment  reversed  and  came  remanded.  All  concur,  excopt  Judge 
NoKTOS,  who  disBents. 


MURDER  AND  MANSLAUGHTER-INTENT  TO  KILL. 

People  v.  Freel. 

[48  Cal.  436.] 

In  the  Supreme  Court  of  California,  1874.  # 
1  Wh.th«*Homlolde  Amount. tomarderortom»n.la«ght6rmerely.doeBnot  depend 

upon  the  presence  or  absence  of  Uio  Intent  to  kill.  t,,i  ar  the 

2.  lueithT  murder  or  man.la«Bht.r.  there  may  >.e  a  pre.ent  intention  to  k.U  at  the 

moment  of  the  commiesion  of  the  act. 

Appeal  from  the  District  Court  of  the  Third  Judicial  District,  city 

and  county  of  San  Francisco.  ,  ^    u 

The  defendant  was  indicted  for  the  crime  of  murder,  alleged  to  have 
been  committed  at  San  Francisco,  on  the  first  day  of  November,  18-3 
by  killing  one  Edward  W.  Allen.     Allen  kept  a  saloon,  and  a  crowd  o 
nersons  having  collected  there  so  as  to  obstruct  his  doorway,  he  went 
from  his  place  behind  the  bar  with  a  cane  or  stick  to  clear  the  passage- 
wav      A  difficulty  tookplace  during  which  he  waskllled.     The  defend- 
ant  claimed  to  have  been  justified,  but  the  testimony  ^^^^  of  «uch  a 
character,  that  it  became  a  question,  if  he  was  not  justified,  whether  the 
offense  was  murder  or  manslaughter.     The  defendant  was  convicted  of 
murder  in  the  second  degree,  and  appealed. 

C  B  Darwin,  for  the  appellant,  agreed  that  if  there  was  no  mten- 
tlon'to  kill,  there  was  no  crime  unless  there  was  criminal  negligence. 
Attomey-Oeneral  Love,  for  the  People. 

B>,  the  Conn,  NiLF.3,  J.  -The  court  instructed  the  jury  as  follows: 
♦'  You  will  abjo  observe  that  the  difference  between  murder  and  man- 
slaucrhter  is,  that  in  manslaughter  there  is  no  intention  whatever,  either 
to  kUl  or  to  do  bodily  harm.    The  killing  is  the  unintentional  result  of 

1  BeT.  Statt.  1879,  p.  SOT,  see.  IBM.    State 
».  W»mm»ck,  decided  at  present  term. 


^rfa 


L8. 

the  name  of 
Ilcient  to  say 
id  it  "mate- 
ce  of  th"  clc- 

Bxcjpt  Judge 


DALY   V.  PEOPLE . 


1083 


ILL. 


r,  does  not  depend 
Ion  to  kill  at  tbe 


AT 

ft  sudden  heat  of  passion,  or  of  an  unlairful  act  committed  witliout  due 
caution  or  circumspection." 

This  is  clearly  erroneous.  Whetlier  the  homicide  amounts  to  murder 
or  to  manslaughter  merely,  does  not  depend  upon  the  presence  or  ab- 
sence of  tlie  intent  to  kill.  In  either  case  there  may  be  a  present  Inten- 
tii.n  to  kill  at  the  moment  of  tlie  commission  of  the  net.  But,  when  the 
mortal  blow  is  struck  in  the  heat  of  passion,  excited  by  a  quarrel,  sud- 
den, and  of  sutllcient  violence  to  amount  to  adequate  i  rovocation,  the 
law,  out  of  forbearance  for  the  weakness  of  human  nature,  will  disro- 
giird  the  actual  intent  and  will  reduce  the  offense  to  manslaughter.  In 
such  case,  although  the  intent  to  kill  exists,  it  is  not  that  deliberate  and 
malicious  intent  which  is  an  essential  element  in  the  crime  of  murder. 

Under  tiie  circumstances  of  this  case,  as  shown  by  the  testimony,  it 
was  important  that  the  distinctions  between  the  several  grades  of  homi- 
cides should  be  correctly  stated  to  tlie  jury.  Tliey  could  harly  fail  to 
be  misled  by  the  erroneous  instruction  we  have  noticed. 

Several  other  points  were  uade  by  the  counsel  for  defendant,  which 
we  do  not  deem  it  necessary  to  discuss. 

Judgment  and  order  reversed,  and  cause  remanded  for  a  new  trial. 


1  District,  city 


lUcged  to  have 
(vember,  1873, 
md  a  crowd  of 
)rway,  he  went 
ar  the  passage- 
.  The  defend- 
was  of  such  a 
ed,  whether  the 
as  convicted  of 

e  was  no  inten- 
d  negligence. 

ury  as  follows: 
urder  and  man- 
whatever,  either 
ntional  result  of 


MURDER  IN  THE  SECOND  DEGREE  -  INTENT  TO  KILL  MUST  BE 

SHOMTN. 

Daly  v.  People. 

[32  Hun,  182.] 
In  the  Supreme  Court  of  New  York,  1880. 

XjDon  a  Sunday  eTenlng  the  defendant  and  four  person,  all  more  or  less  under  the  Infln- 
ence  of  liquor,  assaulted  one  Daly,  threw  him  down,  struck  him  with  a  stone  and  cut 
him  with  knives.  Daly  had  been  drinkinff  with  them,  and  the  cause  of  the  disagreement 
was  not  shown,  nor  was  there  any  evidence  to  show  that  they  Intended  to  kill  him.  The 
wounds  and  cuts  Inflicted  were  not  considered,  by  the  j.hyslcian  who  attended  him,  to 
be  of  a  dangerous  character.  He  died  the  next  night,  and  a  post  mortem  examination 
showed  that  his  death  resulted  from  meningitis,  and  that  his  disease  hud  probably  been 
produced  by  an  Injury  to  his  head  reHultIng  from  the  blows  or  a  fall.  Held,  that  there 
was  no  evidence  to  sustain  a  conviction  of  murder  In  the  second  degree. 

Writ  of  error  to  review  the  judgment  of  the  Court  of  General  Sessions 
of  the  county  of  New  York,  by  which  the  plaintiff  in  error  was  con- 
victed of  the  crime  of  murder  in  the  second  degree,  and  sentenced  to 
imprisonment  in  the  State  prison  for  life. 


1081         CKIME8   AGAINST  THE  PEK80N8  OF   INDIVIDUALS. 

Wm.  F.  Kintzing,  for  plaintiff  in  error.  ,i^rp„dftnt  in 

John    VincU,   Assistant  District  Attorney,  for  the   defendant  ia 

degree.     Tins  ^'^^  /";'^"7"   "    „     .  '  g.^idence  it  was  made  to  appear 

tod' c,»cO.    They  h„l  Uim  down  upon  the  .tree. ,  one  o<  th.m 

hta  „i.l>  a  ^tone,  and  ot..e,-»  cut  ^'™  "'*  '''-'^'^  ,,^  „^„„„  „p„„  Mm 
Whiit  caused  the  r  d  sagrecment  out  ol  wuicn  lue  «=  i 

=>r j.-;t.- --  "r:r3fS^ 

with  .ny  intention  to  l.'";  .■««  h»  ""^'f -.^^^'T;'"  «or<i  exan.L 
.Su„d«ynig.t  .nd   ,0  d    d  «e  -'jg-^^f^rhe  L,^  died  to. 

:r,i:.tdtyrs:S;onto.n.e„.n.iti,^  HUst.^^^^^^^ 
wound,  coullrmed  the  '1-"'P«°"  »r,  *J  *' /JjXTth.t  it  w« 

'T^trtrrr  .t^r  -p-^dte-dCnir-y'to  «,.  .e.a 
probable  that  tins  oiseaae  u.i«  i  „nder  the  circum- 


A* 


rALS. 


defendant  ia 

cause  was  sub- 
irect  them  that 
haiged  against 
ill  the  second 
to  the  decision 
mado  to  appear 
lulted  and  beat 
I  of  them  struck 

ssault  upon  him 
cthor,  and  Daly 
eddov.n,  and  at 
and  cutting  him 
me  of  them,  and 

given  indicating 
iny  part  of  their 
lade  use  of  were 
hat  they  enter- 
lon  the  deceased 
as,  in 'the  jutlg- 
ased  them,  could 
I.     While  he  had 
ts  upon  his  body, 
d  of  a  dangerous 
iiri^ose  of  punish- 
isagreement,  than 
t  took  place  upon 
mortem  examina- 
le  had  died  from 
}  statement  of  the 
lysician  who  first 
further  that  it  was 
injury  to  the  head 
under  the  circum- 
oping  this  disease, 
the  evidence  of  the 
5  held  to  have  been 
1  that  in  the  blows 
ssociates,  was  acta- 


BROWN   V.  STATE. 


1085 


fttcd  with  the  design  to  take  the  life  of  the  deceased.  It  is  highly  probable 
that  as  they  were  all  more  or  less  affected  by  drinking,  that  some  com- 
mon cause  of  disagreement  arose  between  them,  as  is  frequently  the 
case  with  persons  stimulated  in  this  manner,  leading  them  into  the 
fight  with  the  defendant,  and  that  this  was  produced  by  such  a  provo- 
cation as  induced  them  severely  to  chastise  him  without  intending  to 
liiU  him.  It  was  what  may  be  called  a  drunken  brawl,  not  infrequently 
resulting  in  more  serious  consequences  than  either  of  the  persons 
engaged  in  it  intended  or  expects.  Neither  I've  acts  themselves,  nor 
the  instruments  made  use  of,  nor  the  wounds  iuL'f'ted  upon  the  body, 
with  any  reasonable  degree  of  certainty  will  su.f.ain  the  conclusion 
that  there  was  any  Intention  on  the  part  of  cith^  r  the  assailants  to  kill 
the  person  so  assailed.  The  court,  therefore,  should  have  directed  the 
jury  that  the  defendant  could  not  be  convicted  of  the  crime  of  murder 
iu  the  second  degree,  for  the  existence  of  an  Intent  to  kill  is  indispen- 
sable  under  the  statute  to  the  commission  of  that  offense.  The  offense 
committed  by  these  persons  was  clearly  one  of  manslaughter,  not  that 

of  murder.  .  ,      j       i 

The  judgment  should  therefore  be  reversed  and  a  new  trial  ordered. 

Brady,  P.  J., concurred. 

Judgment  reversed  and  a  new  trial  ordered. 


HOMICIDE  -  PROVOCATION  -  ADEQUATE  CAUSE  -ERRONEOUS 

treatment. 
Brown  v.  State. 

[38  Tex.  482.] 
In  the  Supreme  Court  of  Texas,  1873. 

1  Wh«r«  the  Court  !■  Satt«fled  that  a  defendant  whols  taken  «lck  during  hi«  trial  on  a 
TS  oMe^^i*  tooTvcU  to  be  present  m  court  at  erery  Btuge  of  the  trial,  the  cause 

Should  either  be  temporarily  continued,  to  await  hie  convalescence,  or  a  Juror  with- 
drawn  and  the  cause  continued.  ,  ..  ,    „v,a 

2  On  a  Trial  for  felony,  no  separation  of  the  Jury  can  be  allowed   under  "^  «»«  S"™; 

Pa.c™s  Digest,  except  with  U.e  consent  of  the  party  on  trial;  It  U  not  within  the 
power  of  his  attorney  to  give  such  consent. 

3  When  auoh  Separation  takes  place,  every  Juror  should  be  under  the  control  of  an 
Tfficer.  that  no  c'ommunicallon  may  be  had  with  other  persons.  i«  regard  to  the  cause  on 

trial.  .  ,  ..         M 

4.  In  a  capital  case,  this  court  will  ascertain  whether  there  has  been  any  y.olation  of 
wttcleSasch.a's  Digest,  though  no  exception  may  have  been  taken  on  th.  trial. 


wHm^tmf*^^'* 


lOSr,         CHIMED   AOAINHT  T..B   PEH.ONS   OK   INDIVIDUALS. 

-     »hirh  Will  TPduro  nhomlclile  from  murdor  to 

prsctlce  oJ  iho  iurgeon. 

v.vt  Wnn.l     Tried  below  before  the  Hon.  L.  Lindsay. 
Appeal  from  F<"-t  Bern  .     J''«^  .^  ^,  „„,  Ted  Benjamin. 

The  appellant  was   uuhctea  for  *''« J"""''    ^  ti,e  latter  T^u* 

mlvaming  upon  him  in  an  '^''^'^^^'''^^^^^^  .,  ,_a  rebel  son 

of  ab— h.       ^o  \vinpi>u  "»■>  «,Miimled  bv  a  p  stolshot 

The  couri  re  prisoner  ^^'uvlty  of  murdtr 

llrrert:  -.S  *«  Be„,anun  dua  froM  *e  wouad,  ..d  no. 

of°the  court  and  counsel  in  regard  to  the  separation  of  the  jury,  the  tnai 
^as  conducted  in  the  absence  of  the  «^««^"«^^;  ..^he  only  ade- 

Among  other  charges  the  court  gf^  *J« '^""r^^.jii^  J,' ^^ 

,„ate  causes  fixed  by  our  ^-;'> -^"2^;^.^  ^^^^^^^^^^  the 

to  manslaughter  are  an  assault  and  battery,    reuung  au    4 


A^i 


JALH. 

lie  from  murtlor  to 
tide  tut,  I'aiclial'i 

imrt  of  the  »UTf  con 
y  cun  not  <ron»trl  i>( 
id  Dot  from  the  inkl- 


on.  L.  LiSDSAT. 
Ted  Benjftinin. 
1,  the  latter  w:i» 
cr,  swearing  lif 
n  ,i_a  rebel  Bon 
(1,  but  nn  fix  aw\ 
by  a  pistol  sliot 
be  abdomen  and 
1   sewed    up  the 
live  plaster  on  the 

consented  to  the 
;  until  next  moi  n- 
oining  room  sick, 
Ing  doctor  during 

ndcr  the  charge  of 
;  rooms  under  dif- 
criff,  five  colored 
ne  white  juror  at 
asked  the  accused 
Q  him,  or  if  he  had  \ 
Dusent  to  the  jury 
ind  that  he  desired 

jplication  of  appel- 
iv  -guilty  of  murder 
the  wound,  and  not 

t  up  to  and  includ- 
)urt  and  the  action 
)f  the  jury,  the  trial 

jg:  "  The  only  ade- 
killing  from  murder 
ting  and  quoting  the 


BROWN   V.  8TATR. 


1087 


four  ftdcqiiftte  causes  named  in  the  code,'  and  proceeding:   "These are 
:ill  tlio  cuust'S  whicli  our  law  allows  as  adequate  causes  to  reduce  t..j 
killing  of  a  human  being  from  murder  to  mnuslaughttT.     If  any  one  of 
these  causes  is  found  to  exist,  from  the  testimony,  tlien  the  crimo  would 
be  simple  manslaughter.     In  the  absence  of  all  of  them  the  crime  is 
murder,  of  the  first  or  second  degree,  as  t\u\  jury  may  determine  from' 
the  evidence."     There  was  a  verdict  and  Judgment  of  guilty  of  murder 
in  the  second  degree,  and  assessing  the  punishment  of  appellant  at  five 
years  imprisonment  in  the  penitentiary. 
P.  E.  Pearson,  for  appellant. 
The  Attomey-Generalf  tor  t\ioSt&{e. 
Walkeu,  J.     There  Is  some  novelty  in  this  case. 
Wiiero  a  defendant  in  a  prosecution  for  felony  is  taken  ill  on  the  trial, 
and  the  court  is  satisfied,  by  tiio  opinions  of  pliysicians  or  otherwise, 
tliat  he  is  too  ill  to  bo  present  in  open  court  at  every  stage  of  the  trial, 
the  cause  should  either  be  temporarily  continued  to  await  his  convales- 
cence, or  a  juror  should  be  withdrawn  and  the  cause  continued  for  the 
terra.     The  accused  should  not  only  bo  within  the  walls  of  the  courc- 
house,  but  ho  should  be  present  whore  the  trial  is  conducted,  that  he 
may  see  and  be  seen,  heard  and  be  heard,  under  such  regulations  as  the 
law  has  established. 

Under  our  Code  of  Criminal  Procedure  it  is  competent,  on  the  trial 
of  a  felony,  for  counsel  to  do  certain  things  in  the  presence  of  the  de- 
fendant, but  these  things  strictly  pertain  to  professional  acts ;  but  that 
article  of  our  code  »  which  provides  that  a  jury  maybe  allowed  to  sepa- 
rate,  by  consent,  in  charge  of  an  officer,  limits  the  consent  to  the  defend- 
ant alone,  so  far  as  ho  is  concerned.  It  is  not  an  act,  either  by  practice 
or  by  our  code,  brought  within  the  province  of  counsel. 

Had  the  prisoner  consented  to  tlie  separation  of  the  jury  con- 
templated by  the  statute  he  would  not  be  bound  in  this  case,  for  the 
separation  which  took  place  was  not  such  as  is  contemplated  by  the 
law.  When  a  separation  takes  place  by  the  consent  of  the  accused, 
every  juror  should  bo  under  the  protection  and  control  of  an  oflScer, 
that  no  communication  may  be  had  witli.  other  persons  in  any  wise 
touching  the  cause  on  trial.  It  is  the  practice  of  the  courts  to  permit 
a  juror  to  retire  from  the  panel  for  a  temporary  or  necessary  cause, 
and  this  practice  grows  out  of  necessity;  but  this  court  should  be 
watchful  and  vigilant  to  see  that  the  law  is  executed  which  forbids  all 
Improper  conduct  on  the  part  of  jurors,  and  all  intermeddling  or  tam- 
pering with  them  by  parties  interested  in  the  suit,  their  friends,  or  other 
persons. 


art.  8254,  Pasc.  Dig. 


s  3070,  PaBC.  Dig. 


a    .OMNST  THE  PERSONS  OF  INDIVIDUALS. 

ao88       C.IMES  AOMNST  ^^  ^,^  ,„„,,,„  ,.e  assignment 

Exception  is  taken  to  the  «\*'g; ^^/^^J,  on  the  trial;  yet  in  a 
of  er  ors,but  no  special  «««i;^''^"J^^;eturt  to  examine  the  genera 

to"  case  it  has  been  the  Vr-^^^^^^^--^^^  ^^  ^«^"  '"^'^  '" t 
clar^re  in  order  to  determine  ^yhcthcrth  ^^^^^^^  reverse  a  judg- 

The°court  ^iU  not,  however,  m  c^-^oj  ^         ^^  ^^^      „eral  charge, 

lent  on  account  of  the  ^^'^'^''''''llZ,    I"  b^^^  ««^«««  "^  ^"T 
rCs  L  exception  he  taUen  ^^;^;^,^  ,,,  ,„  eapiUl  cases^he 

court  -will  look  at  any  *'  uiisled  the  juiy-     ^     , ,  .    . 

i°  dence  in  tl.e  ca,=  really  waB  ^^  „.„,e,  «Mob 

it  „m  error  to  ln.truct  tl,c  1"'?  °°  °;.  ^^^  ,„„,  ,„„voking  caase. 
Jull  reduce  murder  *?  """''"J,^": ^  cauaea  wMcl.  could  reduce 
ru„erated  in  article  2^54  we--  the  °»^V  ^__  ,^  ^,,  ^,,„        ,, 

"'^-'""tTrra.rrr'B/article  n.^  *«  '-P"*'"" 
rdXer«.:--"^o,ua«c=.ae_:  ^^^„  „,„„„ 

find  many  more  means  of  outragmg  ^^^^  language 

"than  those  four  ^^^^rt sly  P-^ne.  vulgar  and  abusive^ 

eTpMed  by  the  deceased  ^^f^flJ^,,,,nce  of  his  friends  and 

TWas  applied  to  the  appellant  m  the^  ^^^^^^^  .^  ^^^^^^^  to 

^li;:borr;  ^t-^  -hjanguag^-^-^^^^^  ,„^,,  ,^e  and 

men  of  ordinary  temper,  was  cai 

resentment.  ,„,  „,,_  i„^  3  to  refuse  giving  the  charge 

It\as  error  in  the  court,  under  '>^'^''\'\^^^^  „y  the  physician 

as  asled%oncerning  the  treatment  of  the  Jo        J ^.^  ^^^^^      ^^ 

,La,»re.uU,ngJo.tU^«^;^  ^^^^  ^  „,^^,    .,d  tl,e  cau 


,    ,   R„.'e   26  Tex.  107 ;  25  Tex. 
1  vmareal  r.  Stu.e.  ^  ^O  Tex. 


■.^.TrX"...  «"•=="• 


^^M 


viduals. 

in  tbe  assignment 

the  trial;  yet  in  a 
examine  tlie  general 
asbeenlair'.ytried.i 

inor.  reverse  a  judg- 
the  general  cbarge, 
such  cases  a  written 
b  in  capital  cases  the 
ischal's  Digest.    The 
the  jury.    There  was 
,  deceased  should  first 
1  to  the  minds  of  the 
onception  of  what  the 

adequate  cause,  which 
our  provoking  causes 
.3  which  could  reduce 
,  unius  est  exchmo  alte- 
j  2252  th«  Legislature 

^nt  such  as  would  com- 
.ntment  or  terror,  in  a 
.  the  mind  incapable  of 
vicious  men  can  and  do 
ilting  others  of  ordinary 
•le  2254.  The  language 
,„e.  vulgar  and  abusive^ 
,enceof  bis  friends  and 
t  instances,  if  applied  to 
produce  anger,  rage  and 

;o  refuse  giving  the  charge 
wound  by  the  physician, 
re  come  to  bis  death.  Our 
ommon  law,  the  theory  of 

jury  should  be  held  guilty, 
y  no  other  would  have  fol.  I 

,  reversed    and  the   cause| 
Reversed  and  remanded. 


m'cann  v.  people. 


HOMICIDE  —  KILLING   AFTER     PROVOCATION 

PASSION. 


1089 


AND    IN    HEAT    OF 


McCann  V.  People. 

[G  Park.  629.] 
In  the  Supreme  Court  of  New  York,  1867. 

The  Prisoner  waa  Oonvloted  of  marder.  The  eTldenoe  showed  tbe  homicide  was  com- 
mitted by  stabbing  the  deceased  \rith  a  knife,  in  immediate  retaliation  tor  insulting 
words  and  a  violent  blow-strack  the  prisoner  by  the  deceased.  Beld,  that,  in  the  absence 
of  premeditated  design,  which  was  olearly  wanting,  the  conviction  was  unauthorized. 

Error  to  the  Columbia  Oyer  and  Terminer,  in  which  court  the  pris- 
oner was  tried  and  convicted  of  murder.  The  questions  involved 
sufficiently  appear  in  the  opinion  of  the  court. 

C  L.  Beale,  for  tlie  plaintiff  in  error. 

J.  M.  Welch,  District- Attorney,  for  the  defendant  in  error. 

Ingalls,  J.  At  the  Oj'cr  and  Terminer,  held  in  and  for  the  County 
of  Columbia,  in  April,  J 866,  Barney  McCann  was  tried  and  convicted 
of  the  murder  of  Edward  Pye.  Tlie  prisoner,  with  several  others,  met 
at  thr  house  of  one  Mrs.  Riley,  and  indulged  in  drinking  liquor.  Pye 
was  present,  and  a  dispute  arose  between  him  and  the  prisoner  in  rela- 
tion to  some  tobacco.  The  witnesses  agree  that  McCann  asked  Pye 
for  a  chew  of  tobacco,  which  was  refused.  One  witness  states  that 
Pj'e,  in  answer  to  the  request  said,  "  I  would  sooner  hit  you  in  tha  face 
than  give  you  a  chew."  Another  witness  gives  tlie  following  version: 
*'  Pye  said.  No,  you  dirty  Irish  son  of  a  bitch,  get  on  the  floor  and  I  can 
lick  you."  Immediately  after  these  words,  Pye  struck  McCann,  and 
knocked  him  nearly  or  quite  down,  and  McCann  got  up  and  rushed  to- 
wards Pye,  making  a  thrust  with  a  knife,  which  inflicted  the  fatal 
Wound.  The  evidence  showed  clearly  tliat  the  whole  transaction  oc- 
cuiTed  within  a  few  moments,  and  that  McCann  could  not  have  advanced 
more  than  six  or  ei^ht  feet  when  he  administered  the  blow  with  the 
knife.  Shaffer,  a  witness  for  the  prosecution  testifies:  "  The  whole 
transaction  occurred  in  about  a  minute ;  it  was  all  right  along." 

Stafford,  another  witness  for  the  People,  testified:  "Did  not  see 
McCann  fall ;  he  went  back  three  or  four  paces,  and  the  next  I  saw, 
I  saw  him  (McCann)  coming  with  a  knife.  This  was  but  a  few  moments 
after  Pye  struck  McCann."  It  is  apparent  that  McCann  was  in  a  vio- 
lent passion,  amounting  to  a  paroxysm  of  anger  induced  by  the  insult- 
ing language  of  Pye,  accompanied  with  a  severe  blow,  which  nearly  or 
quite  prostrated  the  prisoner.  The  evidence  shows  that  the  attack  by 
Pye  was'  wholly  unprovoked  by  the  prisoner,  and  that  the  injury  was 
.1  Pefkn-ces.  69 


1090         CRIMES  AGAINST  THE   PERSONS   OP  INDIVIDUALS. 

inflicted  by  McCann  while  he  was  in  the  heat  of  passion,  induced  by 
sudden,  violent,   and  unjustifiable  provocation.     Under  such  circum- 
stances it  is  unreiisonable  to  conclude  that  time  had  elapsed  sufficient 
lor  passion  to  cool  and  reason  to  regain  control,  so  that  a  premeditated 
design  to  take  the  life  of  Pye  could  have  been  proved,  which  is  indis- 
pensable  to  constitute  the  crime  of  murder  in  the  first  degree.     We  are 
inclined  to  the  conclusion,  that  the  prisoner  might  with  propriety  have 
been  convicted  of  manslaughter  in  the  third  degree.    Certainly  not 
murder  in  the  first  degree.     It  may  be  well  to  examine  some  of  the  au- 
thorities bearing  upon  the  questions  presented,  with  a  view  to  arrive  at 
a  correct  conclusion  in  regard  to  the  grade  of  crime  which  the  evidence 
shows  was  committed.  ^     ' '  Manslaughter  at  common  law  is  of  two  kinds. 
1st.  Voluntary  manslaughter,  which  is  the  unlawful  killing  of  another 
without  malice  on  sudden  quarrel  or  in  heat  of  passion.     When  upon 
sudden  quarrel  two  persons  fight  and  one  of  them  kills  the  other  that  is 
voluntary  manslaughter.     And  so  if  they  upon  such  occasion  go  out 
and  fit'ht  in  a  field,  for  this  is  one  continued  act  of  passion.     So,  if  a 
man  is  greatly  provoked  by  any  gross  indignity,  and  immediately  kills 
his  agcn-essor,  it  is  voluntary  manslaughter,  and  not  excusable  homicide, 
not  being  se  defedendi;  neither  is  it  murder,  for  there  is  no  previous 
malice.     In  these  and  such  like  cases,  the  law  kindly  appreciating  the 
infirmities  of  human  nature,  extenuates  the  offense  committed,   ami 
mercifully  hesitates  to  put  on  the  same  footing  of  guilt,  the  cool  dehb- 
erate  act,  and  the  result  of  hasty  passion.  "^ 

"  When  the  defendant,  having  been  violently  beaten  and  abused,  ran 
to  his  house  eighty  rods,  got  a  knife,  ran  back,  and  on  meeting  the  de- 
ceased  stabbed  him,  it  was  held  but  manslaughter. "3 

«'  If  on  receiving  such  a  deadly  assault,  he  suddenly  leave  the  scene 
of  outrage,  procure  arms,  and  in  the  heat  of  blood  consequent  upon  the 
wrong,  return  and  renew  the  combat,  and  slay  his  adversary,  both 
beinff  armed,  such  a  homicide  would  be  but  manslaughter.  For  the 
law  from  its  sense  of,  and  tenderness  towards  human  infirmity,  would 
consider  that  sufficient  time  had  not  elapsed  for  the  blood  to  cool  and 
reason  to  resume  its  empire  over  the  mind  smarting  under  the  original 

'''sec    987 :  "  When  death  ensues  in  heat  of  blood  on  immediate  prov- 
ocation  there  having  been  no  previous  malice,   the  oflense  is  man- 

slaughter."  .     ,    ^  « 

Same  section:  "The  indulger.ee  which  the  law  extends  to  cases  of 

this  description  is  founded  on  the  supposition  that  a  sudden  and  violent 

exasperation  is  generated  in  the  affray,  so  as  to  produce  a  temporary 


1  Wliftrt.  on  Horn.  SS. 


8  Wbart'i  Or.  U  aeo.  WA  (4tb  ad.) 


1  leo.  UO. 


^^a 


,  induced  by 
uch  circum- 
ed  sufficient 
•remeditxted 
lich  is  indis- 
ee.     We  are 
opriety  hiave 
Jertainly  not 
le  of  the  au- 
V  to  arrive  at 
the  evidence 
uf  two  kinds. 
g  of  another 
When  upon 
other  that  is 
asion  go  out 
on.     So,  if  a 
icdiately  kills 
ble  homicide, 
3  no  previous 
)reciating  the 
nmitted,   and 
,he  cool  delib- 

d  abused, ran 
eeting  the  de- 

»ave  the  scene 
uent  upon  the 


M'CAXN    v.  5'EOPLE. 


1091 


versary. 


both 


Iter.  For  the 
firrnity,  would 
od  to  cool  and 
er  the  original 

imediate  prov- 
fense  is  man* 

kds  to  cases  of 
len  and  violent 
:e  a  temporary 

laeclM. 


suspension  of  reason.     And  tliat  the  transport  of  passion  excludes  the 
presumption  of  malice." 

Wliartonon  Homicide:^  "Any  assault  in  general,  made  with  violence 
or  circumstances  of  indignity  upon  a  man's  person,  if  it  be  resented 
immediately  by  the  death  of  the  aggressor,  and  it  appears  that  the  party 
acted  in  the  heat  of  blood  upon  that  provocation,  will  render  the  crime 
manslaughter." 

Taunton,  J.,  in  Taylor's  Case,  defines  manslaughter  as  follows: 
"  Manslaughter  —  homicide,  not  under  malice,  but  yrhen  the  blood  is 
heated  by  provocation,  and  before  it  has  time  to  cool." 

In  Bex.  V.  Taylor,^  after  a  quarrel  an  attempt  was  made  to  expel 
Taylor  from  the  house,  and  he  drew  a  sword  and  stabbed  Smith,  the 
deceased,  and  inflicted  a  mortal  wound.     The  court,  after  deliberation, 
pronounced  it  manslaughter.    That  case  is  often  referred  to  with  appro- 
bation.    In  the  case  of  Rogers  v.  People,^  much  of  the  reasoning  of  the 
court  applies  to  the  case  under  consideration,  and  some  of  the  circum- 
stances are  similar  to  those  in  the  case  at  bar.     The  homicide  was  com- 
mitted under   circumstances  of  much  less  provocation,  and  there  is 
evidence  in  the  case  cited  to  the  effect  that  only  words  preceded  the 
fatal  blow.     In  this  case  there  is  no  conflict  in  the  evidence.     All  the 
witnesses  agree  in  saying  that  words  and  blows  constituted  the  provocai- 
tion.     Judge  Sutherland,  in  the  case  cited,  remarlcs:   *'  If  the  prisoner 
struck  the  fatal  blow  in  the  heat  of  passion,  without  the  intention  or 
design  to  kill,  he  was  guilty  of  one  of  the  degrees  of  manslaughter." 
Again :  "  But  the  violent  homicide  for  which  the  prisoner  was  tried  had 
different  degrees,  depending  on  the  intent  to  kill,  or  the  absence  of 
such  intent.     The  statutory  definition  of  two  of  the  degrees  of  man- 
slaughter implies,  not  only  that  a  homicide  committed  in  the  heat  of 
passion  may  have  been  committed  without  the  intention  to  kill ;  but 
that  also  such  heat  of  passion  is  likely  to  prevent  the  reasoning,  calcu- 
lation, reflection  or  design  implied  by  a  particular  intent."  * 

In  this  case  the  prisoner  and  the  deceased  engaged  in  a  flght  in  the 
public  highway,  and  the  prisoner  knocked  the  deceased  down,  and  then 
took  a  large  stone  from  a  wall,  and  with -both  hands  threw  it  upon  the 
head  of  the  deceased,  breaking  the  skull  and  causing  death.  The 
prisoner  was  convicted  of  murder,  and  such  conviction  was  reversed,  and 
the  reasoning  of  the  court  shows  conclusively  that  the  crime  was  regarded 
manslaughter  and  not  murder.  Barculo,  J. ,  says :  "  We  suppose  that  an 
erroneous  impression  may  thus  have  been  produced  upon  the  minds  of 
the  jury.  We  consider  the  second  subdivision  wholly  inapplicable  to  a 
case  where  there  is  reason  to  believe  that  the  killing  was  in  the  heat  of 


1  p.  186. 

>  S  Ban.  9791. 


•  15  How.  Pr.  068. 

*  People  «.  Johnson,  1  Park.  Or.  Bsp.  aitk 


1092  CRIMES   AGAINST   THE   PERSON'S   OF   IXDIVIDUAL8. 

passion,  for  such  killing  never  was  murder  at  common ,  and  the  revisers  did 
not  intend  to  increase  the  cases  of  murder."     This  remark  of  the  learned 
judge  bears  with  force  upon  the  case  at  bar.     In  People  v.   ClarTi,^ 
the  court  recognizes  the  distinction  between  cases  where  there  is  a 
provocation  and  heat  of  passion,  and  where  those  features  do  not  exist, 
in  determining  the  grade  of  crime.     The  court  says:    "In  th.,  case  be- 
fore us,  there  was  no  provocation,  no  mutual  combat,  no  heat  of  pas- 
sion which  the  law  can  recognize."     Turning  to  tlie  ease  at  bar,  we 
find  all  these  features,  mutual  comliat,  gross  provocation,  and  conse- 
quent heat  of  passion  without  time  for  such  passion  to  cool,  before  the 
fatal  thrust.    The  parties  did  not  separate  from  the  commencement 
until  the  termination  of  the  affray.     How  can  it  be  reasonably  con- 
tended under  such  circumstances,  that  there  could  be  premeditation? 
If  not,  the  case  is  wanting  in  an  indispensable  element  to  constitute  the 
crime  of  which  the  prisoner  was  convicted.     The  jury  must  have  mis- 
conceived the  directions  which  they  received  from  the  court,  for  upon 
no  other  reasonable  hypothesis  can  we  account  for  their  verdict,  which 
is  in  direct  conflict  with  the  facts  proved,  and  the  law,  which  was  cor- 
rectly pronounced  by  the  learned  justice.     There  accompanied  the 
verdict  positive  evidence  of  the  reluctance  with  which  it  was  rendered, 
in  the  written  communication  containing  an  unusually  urgent  appeal  on 
behalf  of  the  prisoner  for  the  exercise  of  executive  clemency.    Tlie 
judicial  mind  can  not  apply  the  law  to  the  undisputed  facts  of  this 
case,  and  fail  to  be  convinced  that  the  prisoner  has  been  convicted 
of  a  crime  of  which   he  was  not    guilty,   and  which  stands  wholly 
unproved  against  him.     It  might  be  insisted,  certainly  at  least  with 
plausibility,  that  the  facts  proved  reduce  the  offense  to  manslaughter 
in  the  third  degree,  as  defined  by  section   12,^  which  is  as  follows: 
"The  killing  of  another  in  the  heat  of  passion,  -without  a  design  to 
effect  death,  by  a  dangerous  weapon,  in  any  case  except  such  wherein 
the  killing  of  another  is  herein  declared  to  be  justifiable  or  excusable, 
shall  be  deemed  manslaughter  in  the  third  degree." 

It  is  not  pretended  that  there  is  evidence  of  express  malice,  and  in 
my  judgment  it  can  not  be  implied  from  the  facts  proved,  and  the  law 
apphcable  thereto,.  And  hence  the  design  to  effect  the  death  of  the 
deceased,  as  contemplated  by  the  statute  referred  to,  did  not  exist. 

Foster,  in  defining  what  constitutes  imi  lied  malice,  says :  "  And  I 
believe  that  most,  if  not  all,  the  cases  which  in  the  books  are  ranged  under 
the  head  of  implied  malice,  will,  if  carefully  adverted  to,  be  found  to  turn 
upon  this  single  point:  that  the  fact  hath  been  attended  with  such  cir- 
cumstances as  carry  in  them  a  plain  indication  of  a  heart  regardless  of 
social  duty  and  fatally  bent  on  mischief."     There  is  not  a  fact  in  the 


1  7  N  T.  8». 


1  p.  940,  Tol.  S,  Rev.  stati. 


^iM 


L8. 

e  revisers  did 
tf  the  learned 
le  V.  Clark,^ 
3  there  is  a 
do  not  exist, 

til'-  case  be- 
i  heat  of  pas- 
se at  bar,  we 
I,  and  c6nse- 
il,  before  the 
mmencement 
isonably  con- 
cmeditation  ? 
jonstitute  the 
ist  have  mis- 
urt,  for  upon 
erdict,  •which 
hich  was  cor- 
mpanied  the 
vas  rendered, 
ent  appeal  on 
mency.    The 

facts  of  this 
een  convicted 
bands  wholly 

at  least  with 
manslaughter 
is  as  follows : 
it  a  design  to 

such  wherein 
or  excusable, 

malice,  and  in 
J,  and  the  law 
i  death  of  the 
not  exist. 
ys :  "  And  I 
ranged  under 
I  found  to  turn 
with  such  cir- 
;  regardless  of 
;  a  fact  in  the 

M. 


M  CANX   V.  PEOPLE. 


1093 


whole  case  which  proves  the  existence  of  those  qualities  in  the  prisoner. 
All  who  testify  as  to  liis  general  cliaracter  and  demeanor  speak  favora- 
bly, and  the  history  of  the  fatal  affray  shows  that  he  was  not  the 
aggressor. 

In  People  v.  Johnson,^  Barculo,  J.,  says:  "  Thus  it  appears  by  the 
terms  of  the  statute  the  killing  of  a  human  being,  in  three  specified 
cases,  is  murder,  unless  it  falls  within  some  of  the  inferior  classes  of 
homicide,  from  which  we  deduce  the  inference,  that  if  a  case  comes 
within  any  d^^ree  of  manslaughter,  it  can  not  be  deemed  murder, 
although  it  is  accompanied  by  some  of  the  circumstanceb  which  make 
up  the  latter  crime."      — 

The  fact  that  the  prisoner  used  a  knife  and  death  ensued,  does  not 
necessarily  raise  the  presumption  of  malice  or  that  within  the  meaning 
of  the  statute  there  existed  the  design  to  effect  the  death  of  tlie  de- 
ceased. This  has  been  shown  by  the  authorities  wliich  have  been  cited. 
When  we  reflect  that  there  was  a  violent  provocation,  and  almost 
instantaneously  thereupon  the  fatal  injury  was  inflicted  by  the  prisoner, 
we  may  properly  hesitate  before  declaring  that  the  prisoner's  crime 
was  not  manslaughter  in  the  third  decree.  It  is,  however,  only  neces- 
sary to  satisfy  ourselves  whether  or  not  the  prisoner  was  guilty  of  mur- 
der in  the  first  degree,  and  the  other  considerations  are  only  important 
so  far  as  they  aid  in  determining  that  question,  except  possibly  they 
may  furnish  some  guide  in  a  future  trial.  The  reflection  that  the  life  of 
a  human  being  is  even  jeoparded  by  the  verdict  of  a  jury,  erroneously, 
although  conscientiously,  rendered,  ia  revolting  to  every  sense  of  justice 
and  dictate  of  humanity,  and  calls  upon  the  court  to  interpose  on 
behalf  of  the  prisoner,  to  the  extent  of  its  power,  in  the  exercise  of 
judicial  discretion.  It  is  said  by  counsel,  in  substance,  that  it  was  the 
province  of  the  jury  to  determine  whether  there  existed  a  premeditated 
design  to  effect  the  death  of  the  deceased,  and  having  rendered  a  ver. 
diet  which  implies  such  finding,  this  court  is  powerless  to  grant  relief^ 
although  satisfied  that  such  verdict  stands  unsustained  by  any  evidence 
which  even  tends  to  prove  the  crime.  We  can  not  give  our  assent  to 
such  a  proposition.  Suppose  the  jury  had  rendered  a  verdict  in  this 
case,  pronouncing  the  priaoner  guilty  of  treason,  this  court  would  not, 
I  apprehend,  hesitate  a  moment  to  set  aside  such  a  verdict,  and  order  a 
new  trial.  It  may  be  said  the  case  put  is  a  strong  one,  and  improb- 
able—  nevertheless  it  tests  the  power  of  the  court  to  interpose,  in  the 
exercise  of  that  general  control  which  it  possesses  over  its  own  records 
and  proceedings.  Conceding  that  the  case  is  not  improved  in  every 
particular  which  enters  into  a  conviction  for  the  crime  of  murder,  and 

1  1  Park.  291. 


1094         CHIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

•    ««nt8n.r  in  one  indispensable  element  to  constitute  the 

?ZmHw»MrSvetb.tthe  leaned  Jurtic.  charged  the  Ju-T,  wnoDg 
rer'Z  l:;rr:oU.te  *»  c™.  ».  »u«.r  .he«  ^  h^  .o^ 

of  passion  a  man  striKes  a  uiu  ^^^^^  ^^^^^^^^ 

follows   then  it  is  manslaughter  in  tbe  tnira  uegi^r. 
Sns  as  has  been  before  remarked,  were  probably  misconceived  by  he 
tions,  as  uas  oeeu  u  -^„,i«.red  a  verdict  unauthorized  by  the 

jury,  and  as  a  consequ-ce  tl-y  --lere^^^  ^^  .^^  ^^^^^ 

'Ttotllly  the  determiMtton  »f  .  qu«tlon  of  Uw  upon  undUpottd 

ohTge  to  the  jury,  or  in  .ny  ruliog  »po.  ^^^  J^'.'lfL' 
„J  opinion  that  the  conviction  should  be  awirdea  ana  a 

"Ito^  and  HOOEBOOM,  W.,  concurred  in  the  reanlt. 


1  HllUrd  on  New  Tr.,  p.  853,  «eo.  86. 


1  U  N.  T. 


^ttm 


PRICE  V.  STATE. 


1095 


L8. 

!onstitute  the 
laughter,  and 
premeditated 
e  purports  to 
pon  the  triali 
5  jury,  among 
must  be  some 
if  in  the  heat 
ill,  and  death 
rhese  instruc- 
iceived  by  the 
lorized  by  the 
I  which  tended 
tras  produced, 
■mination.    In 
a  prisoner  is 
nee  of  a  crime 
onstitute  such 
the  same,  this 
f  opinion  that 
e  it  should  be 

pon  undisputed 
erial  point,  and 
the  ground  that 
ncer,^  Allen,  J., 
ould  be  clearly 
ton  the  assump- 
ice,  either  in  his 
We  are  clearly 
knd  a  new  tria 


HOMICIDl    -PROVOCATION -HUSBAND  AND  WIFE -ADULTERY. 

Price  v.  State. 

[18  Tex.  (App.)  474 ;  61  Am.  Rep.  322.] 
In  the  Court  of  Appeals  of  Texas,  1885. 

—   .      ^..    T        Tw-fci—hnmioldo  by  a  husband  lustlflable  When  committed;©!!  one  taken 
Under  the  Law  KaklBB  homicide  by  a  nusoanu  J  separated,  it  la  Bufficlent  II 

of  the  marriage  bed.  and  not  habitu.U  carnai  Intercourse. 

Conviction  of  manslaughter.     The  opinion  states  the  case. 

Dowell  &  Wooten,  for  appellant. 

J.  H.  Burts,  Assistant  Attorney-General,  for  State. 

White  P.  J.  Appellant  was  convicted  of  manslaughter  committed 
upon  one  William  Chandler;  his  punishment  being  assessed  at  two 
years*  confinement  in  the  penitentiary.  .  «   ,     .x. 

Before  the  homicide,  appellant  had  evidently  become  dissatisfied  with 
the  familiarity  which  had  existed  for  some  time,  as  shown  in  the  conduct 
of  his  wife  toward  deceased  and  the  deceased  toward  his  wife.  He  may 
even  have  entertained  suspicions  that  all  was  not  as  it  should  be  between 
them,  or  to  say  the  least  of  it,  he  felt  that  their  conduct  was  highly 

"°OnthI  night  of  the  homicide  he  had  evinced  this  state  of  feeling  of 
dissatisfaction  and  suspicion  in  more  than  one  particular  when  deceased 
and  his  wife  had  been  seen  whispering  and  "  carrying  on  together 
before  he  retired  to  his  bed,  leaving  his  wife,  the  deceased  and  his 
mother  still  sitting  by  the  fire.    But  he  retired  and  went  to  sleep.    Not 
long  after.  Chandler,  the  deceased,  left;  and  not  long  after  he  had, 
ostensibly,  gone  to  his  home,  defendant's  wife,  complaimng  of  feeling 
sick,  went  out.    She  was  gone  so  long  that  defendant's  mother  became 
uneasy,  woke  defendant  up,  and  told  him  he  had  better  go  and  see  what 
was  the  matter.     Defendant  finally  got  up,  and  hearing  persons  talking 
in  his  corn  pen,  went  back  into  the  house,  got  his  gun,  went  into 
the  com  pen  found  the  door  open,  went  in  and  asked  "who  was 
there?  "     After  this  question  had  been  repeated  three  times  by  him,  his 
wife,  who  was  lying  down  with  some  one  in  the  crib,  got  up  and 
answered  "  It's  me.  Price,"  and  said  she  had  gone  there  to  get  some 
corn.    Defendant  told  her  to  come  out  and  asked  "  who  was  with  her 
She  replied  "  no  one."    Defendant  insisted  there  was  some  one.     hhe 
said  "no,"  and  went  out  at  the  door.     Defendant  again  asked  who 
was  there  and  deceased  got  up  and  caught  the  gun.    Defendant  backed 
out  ot  the  door,  the  parties  struggUng  over  the  gun.    After  getting  out 


iiij|ffe>  niipM*" 


1096  CRIME8   AGAINST  THE   PERSONS  OF   INDIVIDUALS. 

Of  the  door  defendant  said,  "  let  go  of  the  gun  and  let  nie  go  about  niy 
business,"  the  wife  begging  her  husband  not  to  shoot  nm.  Chandle» 
then  turned  loose  his  hold  of  the  gun  and  defendant  shot  h.m.  After  the 
^hootin'^  ^hen  a  light  wa.  struck,  the  coat  of  the  deceased  w a.  found 
spread  out  in  the  crib,  at  the  plaoe  where  he  and  defendant's  wife  had 

been  Ivinff  down. 

In  his  voluntary  statement,  which  was  read  by  the  P'^f  ««»»<>"  «^«7- 

dence  at  the  trial,  defendant  says :"  I  do  not  know  what  they  (Chan<U 

ler  and  my  wife)  were  doing.     I  did  not  take  time  to  myestigate  that. 

I  knew  they  were  there  for  no  good.  That  was  the  only  time  1  ever  saw 
hem  lying  down  together  any  where.  I  can't  say  that  I  t-ught  they 
were  having  connection  with  each  other  at  the  time  I  called  to  them  at 
the  door  of  the  crib,  but  by  finding  them  together  I  Buppo^ed  that  the,.- 
object  was  to  have  connection  vrith  each  other,  and  I  shot  him,  Chand- 
ler, because  I  felt  that  that  was  the  object  of  their  being  together  atthst 

*' ™1  concise  statement  of  the  substance  of  the  facts  will  sufficiently 
illustrate  the  main  question  presented  in  the  record,  and  so  ably  argued 

by  appellant's  counsel.  ^       tu^ 

The  defence  claimed  was  that  under  the  facts  stated  and  our  law,  the 
homicide  was  justifiable.     Our  statute  so  reads :  "  Homicide  is  justifia- 
ble  when  committed  bv  the  husband  upon  the  person  of  any  one  taken 
in  the  act  of  adultery'  with  his  wife,  provided  the  killing  ^ke  place 
before  the  parties  to  the  act  of  adultery  have  separated.'  \    We  are  not 
aware  that  a  similar  statute,  making  such  a  homicide  justifiable,  can  be 
found  in  the  codes  of  any  other  State;  though  the  principle  and  pre- 
cedent  from  which  ours  is  derived  is  of  the  most  ancient  ongm.     But  in 
most,  if  not  all  the  States,  as  at  common  law  a  killing  under  such  c.r- 
cumstances  would  reduce  the  homicide  from  murder  to  manslaughter. 

Blackstone  says:  "  So,  if  a  man  takes  another  in  the  act  of  adultery 
with  his  wife,  and  kills  him  directly  upon  the  spot,  though  this  was 
allowed  by  the  laws  of  Solon  as  likewise  by  the  Roman  civil  law  (if  the 
adulterer  was  found  in  the  husband's  own  house),  and  also  among 
the  ancient  Goths,  yet  in  England,  it  is  not  absolutely  ranked  in  the 
class  of  justifiable  homicide  as  in  the  case  of  a  forcible  rape,  but  it  is 
manslaughter.  It  is,  however,  the  lowest  degree  of  it ;  and,  therefore, 
in  such  a  case  the  court  directed  the  burning  in  the  hand  to  be  gently 
inflicted,  because  there  could  not  be  a  greater  provocation.'' 

Mr.  Bishop  states  the  rule  as  it  now  obtains  thus:  "If  a  husband 
finds  his  wife  committing  adultery,  and,  provoked  by  the  wrong,  instantly 
takes  her  life  or  the  adulterer's    •    •    *    the  homicide  is  only  man- 


1  Penal  Oodet  art.  687. 


1  i  Bla.  Com.  (Ohitty),  side  p.  191. 


Aili 


\LS. 

J  go  about  my 
in.  Chamller 
no.  After  the 
sed  wae  found 
ant's  wife  had 

lecution  as  evi- 
t  they  (Chand- 
tvestigate  that, 
time  1  ever  saw 
I  thought  they 
Ued  to  them  at 
)0sed  that  their 
ot  him,  Chand- 
together  at  th-it 

will  sufficiently 
I  so  ably  argued 

md  our  law,  the 
licide  is  justifia- 
if  any  one  taken 
lling  take  place 
"  1    We  are  not 
iistiflable,  can  be 
rinciple  and  pre- 
it  origin.     But  in 
f  under  such  cir- 
>  manslaughter. 
le  act  of  adultery 

though  this  was 
a  civil  law  (if  the 

and  also  among 
ly  ranked  in  the 
)le  rape,  but  it  is 
t;  and,  tlierefore, 
liand  to  be  gently 
ation."  8 

j:."If  a  husband 
lie  wrong,  instantly 
cide  is  only  man- 

tty),eide  p.  191. 


PRICE   V.  STATE. 


1097 


slaughter.  But  if  on  merely  hearing  of  tlie  outrage,  he  pursues  and 
kills  the  offender,  he  commits  murder.  The  distinction  rests  on  the 
greater  tendency  of  seeing  the  passing  fact,  tlian  of  hearing  of  it  whea 
accomplished,  to  stir  the  passions;  and  if  a  husband  is  not  actually 
witnessing  the  wife's  adultery,  but  knows  it  is  transpiring  and  in  an 
overpowering  passion,  no  time  for  cooling  having  elapsed,  he  kills  the 
wrong-doer,  the  offense  is  reduced  to  m.anslaugljter."  ' 

Our  statute  uses  the  expression,  "  taken  in  the  act  of  adultery  with 
the  wife."  The  question  is  as  to  the  proper  meaning  or  construction  of 
these  terms.  Do  tlie  words,  when  properly  construed,  mean  that  tlie 
husband  must  discover,  find,  or  see  the  wife  and  adulterer  in  the  very 
act  of  illicit  intercourse  or  copulation  in  order  to  constitute  the  offense 
denominated  "  taken  in  the  act  of  adultery." 

Such  positive  proofs  of  the  commission  of  the  crime  of  adultery  are 
not  required  and  are  rarely  attainable.  As  a  crime  adultery  it^ielf 
may  be  established  and  proven  by  circumstantial  testimony.  ^  Should 
the  law  hold  the  husband  to  a  greater  or  higher  degree  of  proof 
than  itself  requires  to  establish  a  given  fact?  It  is  a  late  hour  of  the 
night  —  the  parties  are  found  in  a  corn  crib  some  distance  from  the 
house,  lying  down  in  the  dark.  They  refuse  at  first  to  answer  when 
called ;  then  when  the  wife  answers,  she  denies  tliat  any  one  is  with 
her  —  when  deceased  gets  up  he  clutches  the  gun  —  defendant  finds 
that  the  one  whose  previous  conduct  and  ''carrying  on  "  with  his  wife 
has  excited  his  suspicions  is  the  one  be  has  thus  found  in  company  with 
his  wife.  What  would  any  reasonable,  sensible  man  have  concluded 
from  these  circumstances?  In  otiier  words,  how  did  the  matter 
reasonably  appear  to  defendant?  To  him  are  not  tliese  facts  "  confirm- 
ations strong  as  proofs  of  holy  writ?"  Could  it  have  been  otherwise 
tiian  that  he  had  caught  the  parties  in  the  act  of  adultery,  either  just  as 
tiiey  were  about  to  commit,  or  just  after  they  had  in  fact  committed  it? 
His  voice  when  lie  called  perhaps  had  arrested  them  in  the  very  act  of 
carnal  coition,  and  if  that  were  so,  then  were  not  the  parties  caught  or 
taken  by  him  in  adultery?  Docs  not  the  law  always  estimate  a  man's 
right  to  act  upon  reasonable  appearances?  Taking  into  consideration 
the  res  gestae  —  taking  the  acts  of  the  parties  and  their  words  coupled 
with  their  acts  —  and  were  not  the  appearances  of  a  cliaracter  such  as 
would  have  created  the  reasonable  apprehension  and  conviction,  in  a 
person  of  ordinary  mind,  that  the  parties  thus  taken  were  taken  in  the 
act  01  adultery? 

We  are  ot  opinion  that  the  correct  doctrine  is  that  enunciated  in 
I  State  V.  Pratt. ^    In  passing  upon  the  construction  and  application  of 


1  2  Biah.  Cr.  L.  (7th  ed.),  seo.  706. 

2  Richardson  v.  State,  3t  Tex.  142. 


a  7  Honst.  8*9. 


1098         CRIMES   AGAINST   THE   I'ERSONS   OP   INDIVIDUALS. 

a  statute  substantially  similar  to  ours,  except  that  \n  Delaware  the 
homicide  under  such  circumstances  would  only  have  been  reduced  from 
murder  to  manslaughter  instead  of  being  justifiable,  as  witli  us,  it  was 
held:  "  If  a  husband  find  another  In  the  act  of  adultery  with  his  wife, 
and  In  the  first  transport  of  passion,  excited  by  It  tlien  and  there  kills 
him,  It  will  not  be  murder  but  manslaughter  only.  It  Is  not  ncjessary, 
however,  that  he  should  witness  an  act  of  adultery  committed  by  thorn. 
If  he  saw  the  deceased  In  bed  with  bis  wife  or  -.'avlng  it,  or  found  them 
together  in  such  a  position  as  to  Indicate  with  reasonable  certainty  to  a 
rational  mind  that  they  had  just  then  committed  the  adulterous  act,  or 
were  then  about  to  commit  it,  the  effect  will  be  the  same;  and  If  under 
such  circumstances  the  mortal  blow  was  then  and  there  given,  the  kill- 
ing will  be  manslaughter  merely.  But  no  other  knowledge  on  the  part 
of°the  husband,  however  positive,  otherwise  acquired  of  their  adulter- 
ous  intercourse  can  suffice  to  mitigate  and  reduce  the  crime  from 
murder  to  manslaughter." ' 

As  to  a  proper  construction  of  the  expression  "  taken  In  the  act," 

we  can  not  believe  that  the  law  requires  or  restricts  the  right  of  the 

husband  to  the  fact  that  he  must  be  an  eye  witness  to  physical  colMon 

of  his  wife  with  the  other  party.     As  we  have  seen,  adultery  can  be 

proven  by  circumstances  and  the  circumstances  In  this  case  were  not 

hearsay  so  far  as  this  defendant  was  concerned ;  they  transpired  In  his 

own  presence,  sight  and  hearing.     A  mistake  may  possibly  exist  as  to 

the  fact;  "  but  if  a  person  laboring  under  a  mistake  as  to  a  particular 

fact  shall  do  an  act  which  would  otherwise  be  criminal,  he  Is  guilty  of 

no  offense ;  "  '  provided  It  be  such  mistake  as  does  not  arise  from  want 

of  proper  care  on  his  part.3    A  party  may  always  act  upon  reasonable 

appearances,  and  his  guilt  depends  upon  the  reasonableness  of  the 

appearances,  judged  of  from  his  own  standpoint. 

Mr.  Bishop's  rule  as  above  quoted  also  commends  Itself  to  us  as  both 
just  and  proper:  •'  If  a  husband  Is  not  actually  witnessing  his  wife's 
adultery,  but  knows  It  Is  transpiring  and  in  an  overpowering  passlou, 
no  time  for  cooling  having  elapsed,  he  kills  the  wrong-doer,  the  offense 
is  reduced  to  manslaughter."  *  If  the  offense  would  be  manslaughter 
at  common  law  and  In  most  of  the  other  States  it  would  be  justifiable 
homicide  under  the  special  provisions  of  our  statute.^ 

In  his  charge  to  the  jury  the  learned  trial  judge  instructed  them 
fully  and  ably  upon  the  law  of  murder  of  the  second  degree  (murder 
in  the  first  degree  being  abandoned)  and  manslaughter.    His  charge 


1  See  8»me  OMe  in  1  Cr.  L.  Mag.  H09, 810. 

*  Penal  Code,  art.  45. 

3  Penal  Code,  art.  46. 

«  State  V.  Hplmes,  54  Miss.  153;  Biggs  v. 


State,  80  Ga.  728;  Cheek  v.  State,  86   Ind. 
493.   And  to  the  same  effect  ie  Maher  v. 
State,  10  Hich.  312. 
*  Penal  Code,  art.  676. 


4-iMW^^.-Mt»^W'W^WtV.W'MiwW^ 


^t^m 


>UAL8. 

in  Delaware  the 
en  reduced  from 
s  with  Hi,  it  was 
ry  witli  'lis  wife, 
n  and  there  kills 
is  not  nt'jessarj'^ 
imittcd  by  thoiu. 
it,  or  found  them 
)le  certainty  to  a 
dulterous  act,  or 
ae;  and  if  under 
•e  given,  the  Itill- 
ledge  on  the  part 
of  their  adulter- 
I  the  crime  from 

iken  in  the  act," 
9  the  right  of  the 
>  physical  coiMon 
,  adultery  can  be 
;hi8  case  were  not 
'  transpired  in  his 
jftsibly  exist  as  to 
as  to  a  particular 
al,  he  is  guilty  of 
>t  arise  from  want 
;  upon  reasonable 
onableness  of  the 

tself  to  ua  as  both 
[nessing  liis  wife's 
powering  passiou, 
T-doer,  the  offense 
.  be  manslaughter 
mid  be  justifiable 

e  instructed  them 
id  degree  (murder 
fhter.    His  charge 

ibeek  v.  State,  35  Ind. 
me  effect  is  Maherv. 

.676. 


PRICE  t;.4ITATE. 


1099 


upon  justifiable  homicide,  predicated  upon  the  statute,  was  in  these 
words,  viz. :  "If  the  jury  find  that  the  defendant  shot  and  killed  the 
suid  Chandler  at  the  time  and  place  as  alleged,  and  it  also  appears  from 
the  testimony  that  defendant  shot  and  kilbul  said  Chandler  when  taken 
in  the  act  of  adultery  or  carnal  intercourse  with  the  wife  of  the  defendant 
mid  before  they  (Chandler  and  bis  wife)  had  separated,  then  they  will 
find  him  not  guilty." 

The  very  gist  of  the  issue  made  by  the  facts  in  the  case  was  as  to 
whether  the  f. lets  tended  to  shrtw  that  the  parties  were  "  taken  in  the 
net  of  adultery,"  and  in  all  sut'li  cases  we  imagine  tlie  principal  con- 
test will  be  as  to  tliat  fact.  Such  being  true,  it  i.s  a  part  of  the  law 
of  such  cases  that  the  jurj'  should  be  properly  instructed  as  to  what  is 
meant  liy  the  expression  "  taken  in  the  act."  Without  some  explana- 
tion of  the  phrase,  a  jury  would  scarcely  be  able  to  comprehend  and 
understand  its  import,  so  as  correctly  to  apply  it  to  the  facts.  They 
would  perhaps  be  most  likely  to  interpret  it  as  meaning  that  the  parties 
must  be  taken  in  the  very  act  and  process  of  carnal  intercourse  and 
copulation. 

Again  it  was  important  that  the  jury  should  have  been  instructed  as 
to  the  meaning  of  the  other  expression  used  in  the  statute,  "  before 
the  parties  to  the  act  of  adultery  have  separated."  Giving  the  lan- 
guage a  too  literal  construction,  they  might  infer  that  it  meant  that  the 
parties  must  be  physically  united  with  the  rem  in  re,  in  the  act  of  cop- 
ulation, and  that  it  woul  i  be  a  separation  though  they  might  still  be 
ill  tlie  same  bed  or  same  room.  Evilently  the  statute  means  no  such 
thing,  and  contemplates  only  that  parties  are  seen  together  in  company 
with  each  other,  after  the  act,  when  the  homicide  is  committed. 

Again  it  is  most  clear  that  the  word  "  adultery  "  as  used  in  the  stat- 
ute can  not  be  or  mean,  the  adultery  which  is  defined  as  a  specific 
offense  by  the  code,  and  which  is  the  "  living  together  and  carnal  inter- 
course with  each  other,  or  habitual  carnal  intercourse  with  each  other," 
etc.,  of  a  man  and  woman,  etc.^ 

It  can  not  be  that  a  statutory  adultery  must  be  shown  by  a  husband 
justifying  under  the  law  we  are  discussing.  Evidently  ecclesiastical 
adultery  is  meant,  adultery  as  it  is  known  in  common  parlance  "  viola- 
tion of  the  marriage  bed,"  whether  the  adultery  consisted  of  one  or 
more  acts,  or  whether  the  parties  lived  in  habitual  carnal  intercourse  or 
not.  It  was  part  of  the  law  of  the  case  that  "  adultery"  as  used  in 
this  statute,  should  have  been  explained  to  the  jury. 

There  were  no  special  exceptions  to  the  charge  of  the  court,  but  the 
defects  of  omission  pointed  out  are,  in  our  opinion,  fatal  to  the  suffi- 
ciency of  the  charge,  which  under  tlie  statute  must  set  forth  distinctly 

I  Penal  Code,  art.  833. 


1100         CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

the  law  uppHcablo  to  the  facts.  Defendant's  counsel  submitted  sev- 
eral reque8te«l  instructions  which  should  have  called  the  attention  of  tlic 
court  to  the  omissions  in  its  own  charge,  though  it  might  not  feel  in- 
clined to  (^ve  said  instructions  as  presented  and  requested. 

For  the  errors  in  the  charge  of  the  court  as  above  pointed  out,  the 
Judgment  is  reversed  and  the  cause  remanded. 

Iteveraed  and  remanded. 


MURDER— MANSLAUGHTER- r^  OVOCATION  — ADEQUATE  CAUSE. 

Hudson  v.  State. 

[6  Tex.  (App.)  6C5.] 
In  the  Court  of  Appeals  of  Texas,  1879. 

1.  Th«  Oharce  of  tb*  Court  upon  the  law  ot  manslangbtar,  In  deflntng  "  adequate  e«nie  " 

M  arliing  from  the  u»e  of  IneuUing  langaage  toward*  a  female  relatUe  by  the 
deceaied  told  the  Jury  that  §uch  language,  unle«8  it  was  uwd  In  the  presence  of  the 
female,  did  not  constitute  "  adequate  cause  "  within  the  meaning  of  the  statute.  Bttd, 
error. 

2.  The  Defendant  in  »  Vurder  Trial  can  not  put  in  evidence  the  dangerous  or  desperate 

character  of  the  deceased  in  Justiflcation,  but  he  may  prove  it  in  excuse  for  the  killing, 
provided  he  first  shows  that  the  deceased  manifested  a  purpose  of  attacking  him,  and  he 
was  aware  of  the  dangerous  character  of  the  deceased. 

Appeal  from  the  District  Court  of  Bell.  Tried  below  before  the 
Hon.  L.  C.  Alexander. 

The  indictmer'  charged  the  murder  of  J.  J.  Crow.  The  conviction 
was  for  murder  in  the  second  degree,  and  the  penalty  imposed  was 
ninety-nine  years  in  the  State  penitentiary. 

The  dying  declarations  of  the  deceased,  made  without  solicitation, 
and  in  anticipation  of  t(oa*h,  were  testified  to  by  several  witnesses. 
The  substance  of  them  was,  .!iat  on  the  evening  of  the  1st  of  April, 
1879,  the  deceased  startiwl  to  Dr.  Russell's  for  medicine  for  his  sick 
family.  His  route  lay  l>y  che  school-house  where  the  defendant  was 
teaching.  School  was  in  session,  and  the  deceased  saw  the  defendant 
in  the  school  as  he  was  passing.  From  Dr.  Russell's  he  went  to  Little 
River  City,  and  when  he  stepped  into  Fletcher's  store  he  saw  the 
defendant.  He  was  somewhat  surprised,  as  it  was  early,  and  the  defend- 
ant usually  dismissed  school  quite  late.  From  Fletcher's  store  the 
deceased  went  on  to  Hale  &  Wilson's  saloon,  to  get  a  bottle  of  whisky. 
While  in  the  saloon,  behind  a  partition,  talking  to  Hale  and  Dave  Rob- 
ertspD,  the  defendant  came  in  and  looked  behind  the  partition.     Pres* 


r^ff?5?s?**y-i<'i«^'  ■^-''' ' 


i^JWWiJtWja^Att^'JUMaiM 


^^k 


DUALS. 


HUDSON   V,  STATE. 


1101 


1  submitted  sev- 
J  attention  of  the 
light  uot  feel  lu- 
sted, 
pointed  ont,  the 

md  remanded. 


IQUATE  CAUSE. 


9. 

Ing  "  adequate  eanie  " 
male  relative  by  the 
n  tbe  pregenca  of  the 
oi  tbe  statute.    Btld, 

langerouB  or  desperate 
excuse  for  tbe  killing, 
'  attacking  him,  and  he 


below  before  the 

The  conviction 
alty  imposed  was 

ihout  solicitation, 
several  witnesses, 
the  1st  of  April, 
icine  for  his  sick 
lie  defendant  was 
saw  the  defendant 
i  he  went  to  Little 
store  he  saw  the 
y,  and  the  defend- 
etcher's  store  tbe 
,  bottle  of  whisky, 
lie  and  Dave  Rob* 
partition.     Pres- 


ently the  deceased  came  from  behind  tlie  partition,  bought  liis  whislty, 
uud  lilmself  and  Robertson,  who  lived  in  the  same  direction  from  the 
ti.wn,  got  on  their  horses  and  started  liomc.  They  had  traveled  some 
little  distance,  when,  looking  back,  they  saw  defendant  coming  towards 
them.  Defendant  rode  up  on  tlio  side  of  Robertson,  and  the  three 
roile  on  abreast  until  they  reacliod  a  point  in  the  road  wiere  Robert. 
sou's  route  diverged.  At  this  point  Robertson  took  a  drink  from 
doooased's  bottle,  and  left  the  parties.  The  defendant  declined  to  drink. 
Deceased  then  remarked:  "If  we  can't  drink  together,  we  can  ride 
together;  "  to  which  the  defendant  assented,  saying  thai  he  never 
refused  to  ride  with  any  one.  The  two  rodo  on  together,  In  f  rlen(  1  ly  dls- 
ciisslon  of  thn  school  matter  about  which  they  had  previously  disagreed. 
When  near  Thornton's  residence,  defendant  checked  up  his  horse,  and, 
as  the  deceased  turned  his  face  to  observe  the  cause,  he  received  a  slot 
in  the  right  side  of  his  face.  Deceased  fell,  and  for  some  time 
remained  unconscious,  but  finally  recovered  sufficiently  to  reach  a  neigh- 
bor's  house,  from  where  he  was  taken  home. 

The  evidence  of  the  deceased  taken  at  the  preliminary  trial  of  the 
defendant,  upon  a  charge  of  assault  with  intent  tj  murder,  comports 
with  tlie  above ;  but  adds  that,  when  discussing  the  school  matter,  the 
defendant  asked  him  why  he  thought  that  he  (the  defendant)  "  had 
n-t  treated  lilm  (the  deceased)  right;  "  and  he  answered,  "  I  know 
you  are  no  school-teacher,  in  the  first  place,  and  you  have  married  a 
liiostitute."  He  did  not  at  that  time  say  to  defendant,  "  God  d— n 
your  soul,  I  will  bring  you  to  time  yet." 

The  witness  Wilson  corroborates  the  statements  as  to  what  occurred 
at  the  saloon,  and  the  witness  Robertson  made  the  same  stateuient  of  the 
occurrences  from  the  time  the  deceased  entered  the  saloon  until  they 
separated  at  the  forks  of  the  road. 

Thomas  Clegg  testified,  for  the  defence,  that  in  the  preceding  Feb- 
ruary the  defendant  and  the  deceased  met  at  a  party  in  the  neighbor, 
hood,  and  engaged  in  a  quarrel.  The  deceased  asked  the  defendant  If 
he  had  said  that  he  had  arrested  his  (the  deceased's)  father  for  horse- 
stealing, —following  up  this  question  with  tlie  statement  that,  if  so,  he 
had  told  a  d— n  lie,  and  he  would  kill  him  for  it.  Defendant  answered 
that  he  had  arrested  one  Zeke  Crow  for  horse  theft,  and  that  if  deceased 
had  a  brother  of  that  name,  then  he  had  said  it.  Deceased  responded 
that  he  had  tx:ld  a  d— n  lie,  —that  he  Lad  never  arrested  a  man  named 
Zeke  Crow. 

The  testimony  of  this  witness  is  corroborated  by  Jasper  Wiley,  who 
testified,  in  addition,  that  on  the  second  Saturday  of  the  previous 
March  the  deceased  read  a  letter  to  him,  and  asked  him  if  he  had  ever 
heard  defendant  say  anything  about  him.    Being  answered  in  the  negf- 


1102 


CBIMES   AGAINST  THE  PERSONS   OF  INDIVIDUALS. 


ative,  the  deceased  then  said,  "Hudson  and  I  can  not  live  in  the  same 
country. ' ' 

Another  witness  detailed  the  quarrel  between  the  deceased  and  the 
defendant  at  the  party,  in  substance  as  above  set  out.  These  state- 
ments are  disputed  by  A.  J.  Smith.  Smith  testified  that  he  went  with 
deceased  to  the  house  of  Shaver,  where  the  party  was  give  i  (not  know- 
ing there  v.  as  to  be  an  entertainment),  to  see  Shaver  about  a  report  that 
the  defendant  had  told  him  that  he  had  arrested  deceased's  father  for 
horse  stealing.  Witness  went  with  deceased,  at  his  request,  to  hear 
what  might  be  said.  Ou  their  return  homeward  they  met  the  defendant 
near  the  fence.  Deceased  asked  the  defendant  there  if  he  bad  circu- 
lated such  a  report.  Defendant  answered  that  he  bad  arrested  the 
father  of  one  Zeke  Crow  for  that  offense,  and  that  if  deceased  had  a 
brother  of  that  name,  then  he  had  arrested  his  father  for  such  offense. 
Deceased  merely  answered  that  defendant  had  "  better  go  slow  "  when 
he  slandered  his  .old  father,  who  had  been  dead  forty-two  years,  and 
before  defendant  was  born.  He  did  not  threaten  to  kill  defendant.  If 
such  threat  had  been  made,  witness  would  have  beard  it.  It  was  in 
evidence  that  deceased  was  one  of  the  school  trustees. 

Thomas  Ball,  Assistant  Attorney-General,  for  the  State. 

EcTOB,  P.  J.  The  defendant  was  indicted  by  the  grand  jury  of  Bell 
County,  for  the  murder  of  J.  J.  Crow.  He  was  tried,  found  guilty  of 
murder  in  the  second  degree,  and  his  punishment  assessed  at  confine- 
ment in  the  penitentiary  for  ninety-nine  years. 

Defendant  filed  a  motion  for  new  trial,  and  in  arrest  of  judgment 
which  were  overruled,  and  he  has  prosecuted  an  appeal  to  this  court. 
We  will  briefly  refer  to  such  portions  of  the  evidence  as  we  deem  neces- 
sary to  a  proper  discussion  of  the  questions  presented  in  the  record, 
and  on  which  the  defendant  relies  for  a  reversal  of  the  judgment. 

The  evidence  shows,  beyond  all  question,  that  the  prisoner  killed  the 
deceased.  Defendant  was  a  school  teacher  in  Bell  County,  and  the 
deceased  was  one  of  the  trustees  of  the  school.  These  parties  had  been 
unfriendly  for  several  months.  Some  time  in  January  last,  there  was 
held  what  is  termed  in  the  statement  of  facts  a  school  meeting,  in  the 
school-house  where  defendant  kept  school.  The  defendant  and  Crow 
were  there.  Defendant  asked  Crow  to  explain  something  he  had  said 
about  his  family.  Crow  refused  to  explain  anything  about  it,  and  said 
that  "this  was  not  the  place;  some  other  time  would  do."  Shoillj 
after  this.  Crow,  in  company  with  a  friend,  called  on  the  defendant  in 
regard  to  certain  remarks  which  he  had  been  informed  Hudson  had 
made  about  his  (Crow's)  father.  Crow  asked  defendant  what  be  had 
said  about  arresting  his  (Crow's)  father  for  horse  stealing.  Defendant 
told  him  that  he  had  said  he  arrested  Zeke  Crow  for  horse  stealing,  and 


.  ..uiMii^iii^/iMtiaiimmmemtiimmtiia 


>ivf  DUALS, 
not  live  in  the  same 

ihe  deceased  and  the 
it  out.  These  state- 
ed  that  he  went  with 
T&s  give  I  (not  know- 
?r  about  a  report  that 
deceased's  father  for 
his  request,  to  hear 
ley  met  the  defendant 
here  if  he  had  circu* 
he  had  arrested  the 
at  if  deceased  had  a 
uher  for  such  offense. 
»etter  go  slow  "  when 
forty-two  years,  and 
bo  kill  defendant.  If 
beard  it.  It  was  in 
eea. 

iie  State. 

he  grand  jury  of  Bell 
tried,  found  guilty  of 
t  assessed  at  confine- 

X  arrest  of  judgment 
appeal  to  this  court, 
ice  as  we  deem  neeea- 
sented  in  the  record, 
)f  the  judgment, 
the  prisoner  killed  the 
Bell  County,  and  the 
'hese  parties  had  been 
muary  last,  there  was 
chool  meeting,  in  the 
I  defendant  and  Crow 
)mething  he  had  said 
ling  about  it,  and  said 
would  do."  Shortly 
il  on  the  defendant  in 
nformed  Hudson  had 
efcndant  what  be  had 
I  stealing.  Defendant 
for  horse  stealing,  and 


HUDSON   V.  STATE. 


iioa 


that  be  bad  not  arrested  bis  father  for  horse  stealing,  unless  his  father 
had  a  son  named  Zeke  Crow.    Crow  said  it  was  a  d— d  lie ;  and  some 
of  the  persons  present  say  that  Iw  threatened  to  take  the  life  of  defend- 
ant.    On  the  Ist  of  April,  18Vd,  Crow  left  home,  going  to  see  Dr. 
Russell,  who  lived  in  Little  River  City,  to  get  some  medicine  for  a  sick 
family.    His  route  was  by  the  house  where  defendant  was  engaged, 
as  he  passed,  in  teaching  Bchool.    Crow  stopped  at  the  house  of  Dr. 
Ruseell  a  short  time,  and  then  went  to  a  store  to  buy  a  bottle  of  whisky, 
and  saw  Hudson  in  Little  River  City.    Crow  left  there  in  company  with 
the  witness  Robertson,  and  both  of  them  traveled  the  same  road  a  part 
of  the  way  home.    After^row  and  Robertson  bad  ridden  a  short  dis- 
tance, Hudson  caught  up  with  them,  and  the  three  rode  along  together 
until  the  road  forked,  one  part  leading  to  Robertson's  home  and  the 
other  to  Crow's,  via  Thornton's  house,  where  Hudson  was  boarding. 
Crow,  before  separating  from  Robertson,  pulled  out  his  bottle  of 
whisky  and  asked  him  to  take  a  drink,  which  he  did,  as  the  three  were 
halted  in  the  road.    Crow  also  invited  Hudson  to  take  a  drink,  and  he 
declined,  saying  he  never  drank.    Robertson  here  parted  with  Crow 
and  Hudson.     Crow  then  said  to  Hudson,  if  they  could  not  drink  to- 
gether, they  could  ride  together.    Hudson  said,  all  right,  — that  he 
never  refused  to  ride  with  anybody,  and  the  two  rode  off  together. 
After  they  had  ridden  some  distance  Crow  testified  that  defendant 
pulled  out  his  pistol,  and  fired  suddenly  and  unexpectedly  upon  him, 
shooting  him  in  the  right  side  of  his  face,  in  his  temple ;  that  when  he 
was  shot  he  fell  off  of  his  horse,  and  lay  insensible  for  some  time ; 
and  finally,  when  he  came  to  his  senses,  succeeded,  after  much  delay, 
in  making  his  way  to  a  house  about  a  fourth  of  a  mile  distant. 

Counsel  for  the  prosecution  read,  on  the  trial,  the  testimony  of  Crow, 
given  in  evidence  before  a  justice  of  the  peace  sitting  as  an  examining 
court,  where  the  matter  under  investigation  was  the  shooting  of  Crow 
by  defendant,  from  which  we  make  the  following  extract,  to  wit: 
"After  riding  about  a  quarter  of  a  mile,  the  subject  regarding  the  free- 
school,  about  which  we  had  had  some  trouble,  was  raised.    I  was  a 
trustee  of  the  school  community.    No  angiy  words  passed  between  us. 
I  told  him  I  did  not  want  any  trouble  about  it.    We  had  no  quarrel 
before  he  shot  me.    Defendant  asked  me,  on  the  road,  if  I  thought  I 
could  '  get  away  with  him.'    I  said,  '  No ;  I  did  not  want  to  harm  any 
one.'    We  had  been  riding  side  by  side  until  we  neared  the  place  where 
I  was  shot.     •    ♦    *    The  defendant  checked  his  horse,  which  threw 
him  about  half  the  length  of  his  horse  in  my  rear.     I  turned  my  face 
towards  him,  and  saw  him  throw  up  his  right  arm.    I  immediately 
heard  the  report  of  a  pistol.    I  fell  from  my  horse  after  I  wa» 
shot.    •    •    •    I  w.^  powder-burnt  on  the  right  side  of  my  face —the 


^•*, 


1104 


CRIMES  AOAIKST  THE  PERSONS  OF   INDIVIDUALS. 


l! 

li 

■1 

1. 


side  on  which  I  was  shot  —  by  the  firing  of  the  pistol.  The  ill-feeling 
of  the  defendant  towards  me  has  existed  for  about  three  or  four 
months. ' ' 

Crow,  on  cross-examination,  also  testified  that,  '*  I  did  nut  say,  in 
the  conversation  referred  to  in  direct  examination,  '  Hudson,  you  have 
not  treated  me  right.'  I  told  him  I  knew  he  wan  no  school-teacher,  in 
the  first  place ;  and  he  had  married  a  prostitute.  I  did  not  say  to 
defendant,  'God  d— n  your  soul,  I  will  bring  you  to  trouble  yet,'' 
Crow  was  shot  about  dusk  in  the  evening  of  the  1st  of  April,  1879, 
and  the  shot  produced  his  death  on  the  13th  of  the  same  month. 

On  the  trial  of  the  cause  in  the  District  Court,  after  the  defendant 
had  introduced  all  his  evidence,  which  is  set  out  in  the  statement  of 
facts,  his  counsel  stated  to  the  court  he  had  no  testimony  to  offer  to 
show  that  Crow  had  done  any  act  manifesting  an  intention  to  injure  the 
defendant  at  the  time  of  the  alleged  homicide ;  and  then  asked  R.  P. 
Talley,  one  of  the  defendant's  witnesses,  the  following  question :  *'  Was 
J.  J.  Crow  a  man  of  dangerous  and  violent  character?  "  To  which  the 
counsel  for  the  State  objected ;  which  objection  was  sustained  by  the 
court,  because,  in  view  of  the  evidence  adduced,  and  the  above  state- 
ment of  the  counsel  of  defendant,  said  evidence  was  irrelevant  and 
immaterial.     We  do  not  think  the  court  erred  in  this  ruling. 

It  is  a  good  general  proposition  that  the  character  of  a  person  does 
not  justify  a  taking  away  of  his  life,  when  the  act  would  be  otherwise 
unjustifiable.  Yet  there  are  exceptions  to  this  general  rule.  The  gen- 
eral character  of  deceased  for  violence  may  be  proved  when  it  would 
serve  to  explain  his  actions  at  the  time  of  the  killing.  The  actions 
which  it  would  serve  to  explain  must  first  be  proved,  before  it  would  be 
admissible  as  evidence.  The  Supreme  Court  of  Louisiana,  in  the  case 
of  the  State  v.  Robertson,^  say:  "The  defendant,  who  is  on  trial  for 
murder  can  not  introduce  evidence  of  the  quarrelsome  or  danger  >us 
character  of  the  deceased,  in  justification ;  but  he  may  introduce  evi- 
dence of  such  character  in  excuse  for  the  killing,  provided  he  first  shows 
he  was  actually  attacked  by  the  deceased,  and  that  he  was  aware  of 
the  latter 's  character."  However  bad  and  desperate  the  character  of 
the  deceased  may  have  been,  and  however  many  threats  he  may  have 
made,  he  forfeits  no  right  to  his  life,  until  by  an  actual  attempt  to  exe- 
cute his  threats,  or  by  some  act  or  demonstration  at  the  time  of  the 
killing,  taken  in  connection  with  such  character  and  threats,  he  induces 
a  reasonable  belief  on  the  part  of  the  slayer  that  it  is  necessary  to 
deprive  him  of  life  in  order  to  save  his  own,  or  to  prevent  some  serious 
bodily  injury  from  being  inflicted  upon  his  person.^ 


l80l4LAn.840. 

>  SMvana   •.  SUM.  1  Tax.  (Afp.)  S»l; 


Horbach  v.  State,  43  T«x.  SS4;  1  WhUt.Or. 
Ik.  MO.  eU;  3  BUh.  Or.  L.ei9-«W. 


-  ■-it'A'i-i-  ..■t-y!  ** 


rrr  ;  4:,.,y^'-y*H.l 


-.■,aifiii?M«ij/;-i««*»«?-f>*«*v^'-'i'"''»**'''«'':.<«»«'*'»" 


)UALS. 

The  ill-feeling 
;  three  or  four 

did  nut  Bay,  in 
adeon,  you  have 
cbool-teacber,  in 
[  did  not  say  to 
;o  trouble  yet,'' 
of  April,  1879, 
ae  month, 
er  the  defendant 
the  statement  of 
iimony  to  offer  to 
ition  to  injure  the 
then  asked  R.  P. 
question:  "Was 
"     To  which  the 
sustained  by  the 
,  the  above  state- 
a  irrelevant  and 
ruling. 

of  a  person  does 
ould  be  otherwise 
,1  rule.    The  gen- 
•ed  when  it  would 
ing.    The  actions 
before  it  would  be 
isiana,  in  the  case 
'ho  is  on  trial  for 
ome  or  dangerous 
lay  introduce  evi- 
irided  he  first  shows 
t  be  was  aware  of 
,te  the  character  of 
ireats  he  may  have 
lal  attempt  to  exe- 
at the  time  of  the 
threats,  he  induces 
it  is  necessary  to 
revent  some  serious 


axes.  154;  1  Whut-Or. 

,  cr.  uea-tat. 


HUDSON   V.  STATE. 


1105 


We  believe  the  court  did  not  err  in  refusing  to  permit  the  counsel  for 
defendant  to  read  in  his  argument,  on  the  trial  of  the  cause,  the  cases 
referred  to  in  defendant's  second  and  third  assignments  of  error.  It 
appears  that  counsel  for  defendant  offered  to  read  to  the  court  below 
the  case  of  Marshall  v.  State,^  which  the  court  declined  to  bear, 
because  it  was  sufficiently  advised  of  the  law  of  the  case.  Counsel  for 
defendant  also  offered  to  read  to  the  jury  the  case  of  Horbach  v. 
Statt,^  when  the  court  stated  that  the  eounsel  might  read  so  much  of  the 
anme  as  illustrated  this  case  or  discussed  the  weight,  of  evidence. 
Whereupon  the  counsel  proposed  to  read  the  whole  of  the  case  to  the 
jury,  which  the  court  refused  to  bear,  because  the  court  was  fully 
advised,  and  understood  and  remembered  said  case. 

The  extent  to  which  counsel  may  read  from  legal  authority,  or  from 
works  of  general  science,  rests  within  the  sound  discretion  of  the  court, 
and  the  manner  of  exercising  the  judicial  discretion  will  not  be  revised 
on  appeal,  except  in  a  clear  case  of  its  abuse.  It  has  been  held,  both 
by  the  Supreme  Court  and  this  court,  that  it  is  better  for  the  protectioD 
of  the  rights  of  the  parties  that  the  exercise  of  this  privilege  should  be 
regulated  by  judicial  discretion  than  that  it  be  left  to  the  unlimited  dis- 
cretion of  counsel,  governed  by  the  powerful  motives  of  interest  aod 
ambition.  3 

The  fourth  assignment  of  error  is,  that  "  the  court  erred  in  the  eighth 
paragraph  of  bis  charge  to  the  jury."  This  assignment  presents  a 
question  which,  we  believe,  has  never  before  been  passed  upon  by 
a  court  of  last  resort  in  this  State,  and  upon  which  there  is  quite  a 
difference  of  opinion  among  many  of  our  best  lawyers.  In  order  fairly 
to  present  the  question  here  made,  we  will  copy  the  seventh  and  eighth 
paragraphs  of  the  charge,  which  the  court  gave  as  instructions  to  the 
jury  on  the  law  of  manslaughter :  — 

"7.  By  adequate  cause  is  meant  such  as  would  commonly  produce  » 
degree  of  anger,  rage,  resentment,  or  terror  in  a  person  of  ordinary 
temper,  sufficient  to  render  the  mind  incapable  of  cool  reflection.  In- 
sulting words  or  gestures  are  not  adequate  cause,  in  the  legal  meaning 
of  said  phrase.  Insulting  words  or  conduct  of  the  person  killed, 
towards  a  female  relative  of  the  party  guilty  of  the  homicide,  is  ade- 
quate cause,  provided  the  killing  took  place  immediately  upon  the 
happening  of  the  insulting  conduct  or  words,  or  as  soon  thereafter  as 
the  party  killing  may  meet  with  the  person  killed,  after  having  been  in- 
formed of  such  insults,  and  providing  such  insulting  words  or  conduct 


1  33  Tex.  664. 
>43T«X.M2. 

8  DlFESrCBS 


s  8m  Dampnr  v.  Bute,  3  Tez.  (App.)  4W; 
Hinear.  SUte.S  Tez.  (App.)  483,  and  Mtliot- 
IttM  there  cited. 


70 


1106  CRIMES   AGAINST  THE  PERSONS   OF   INDIVIDUALS. 

were  the  real  cause  of  the  killing,  and  produced  the  state  of  mind 
above  described  in  subdivisions  6  and  7  of  tliis  charge. 

"8    But  insulting  words  of,  about,  and  concerning  a  female  relative^ 
who  is  not  present,  are  not  insulting  words  '  towards '  a  female  re:ation- 
as  used  herein  before,  and  would  not  necessarily  be  '  adequate  causS    , 
as  fixed  by  the  law ;  but,  if  a  person  used  insulting  words  to  anotjier  . 
about  a  female  relation  of  the  latter,  and  in  the  opinion  of  the  jury  the  y 
words  such  are  as  would  commonly  produce  a  degree  of  anger,  rage  or  \ 
resentment  in  a  person  of  ordinary  temper,  snfficient  to  render  the 
mind  incapable  of  cool  reflection,  and  such  condition  of  mmd  is  thereby 
produced,  and  such  second  person,  at  the  time  of  such  provocaUCn, 
killed  such  first  person,  the  act  would  be  manslaughter." 

We  believe  that  the  first  part  of  the  eighth  subdivision  of  the  charge 
of  the  court  was  not  a  correct  enunciation  of  the  law,  and  was  well 
calculated  to  mislead  the  jury.     In  telling  the  jury  -that  insulting 
words  of,  about,  and  concerning  a  female  relation  who  is  not  present 
are  not  insulting  words  '  towards '  a  female  relative  as  used  herem,  and 
would  not  necessarily  be  adequate  cause  as  fixed  by  the  law     we 
think  the  court  committed  an  error.     In  our  judgment,  the  Legislature 
never  intended,  in  subdivision  4  of  article  2254,  Paschal's  Digest,  to 
restrict  the  insulting  words  of  the  person  killed,  -  towards'    a  relative 
of  the  party  guilty  of  the  homicide,  to  remarks  made  to  her  or  m  her 
presence,  but  intended  to  include  insulting  words  about  a  female  relar 
tive,  whether  she  was  present  or  absent.  ^^ 

Mr.  Webster,  in  his  Unabridged  Dictionary,  gives  "toward,    when 
used  as  a  preposition,  the  following  meaning,  to  wit:     -  Toward-  1. 
In  the  direction  to.     2.  With  direction  to ;  in  a  moral  sense,  with  re- 
gard to,  regarding.     3.  With  ideal  tendency  to.     4    Nearly.       If  Uie 
Legislature  had  intended  that  such  insulting  words  must  be  used  by 
the  deceased  to  or  in  the  presence  of  the  female,  i°  o'd^^*^ '«;'"^* 
the  killing  to  manslaughter,  some  other  word  than  -  towards,     and  one 
that  would  have  better  expressed  the  idea,  would  have  been  used  in  the 
statute.    It  appears  clear  to  us  that,  on  the  plainest  principles  of  jus- 
tice  and  reason,  it  could  make  no  difference,  so  far  as  the  provocatiou 
is  concerned  in  this  instance,  whether  the  deceased  to^  th«^»'«  °'J' * 
de  .ndant  that  she  wa8  a  prostitute,  or  her  husband  that  ho  had  ma^ 
ried  a  prostitute.    The  extent  of  the  transport  of  passion,  to  extenuate 
the  euilt  of  the  homicide,  would  be  as  great  in  the  one  case  as  in  the 
other     And  in  every  case  when  such  a  defence  is  relied  on  to  reduce 
rekiUingto  mansU^ghter.  the  jury  must  beat  liberty  to  determnie 
whether,  under  all  the  circumstances,  the  insulting  words  were  the  rea^ 
cause  which  provoked  the  killing.    The  court  did  not  err  in  overruling 
defendant's  motion  in  arrest  of  judgment. 


LS. 

ate  of  mind 

male  relative^ 
male  reiatibn-* 
quate  causS '  « 
Is  to  another  . 

the  jury  the  y 
,nger,  rage  or  \ 
to  render  the 
nd  is  thereby 

proTocatiOn, 

« 

of  the  charge 
,  and  was  well 
that  insulting 
is  not  present 
id  herein,  and 

the  law,"  we 
he  Legislature 
il's  Digest,  to 
•da"  a  relative 
3  her  or  in  her 

a  female  relar 

toward,"  when 
'« Toward  —  1. 
sense,  with  re- 
sarly."     If  the 
ust  be  used  by 
order  to  reduce 
rards,"  and  one 
)een  used  in  the 
inciples  of  jus- 
the  provocation 
the  wife  of  the 
hat  ho  had  mar- 
an,  to  extenuate 
fie  case  as  in  the 
ed  on  to  reduce 
rty  to  determine 
ds  were  the  real 
err  in  overruling 


STATE   V.  MOORE. 


1107 


As  this  case  must  be  reversed  on  account  of  the  error  in  the  charge 
of  the  court,  it  is  unnecessary  to  notice  the  other  assignments  of 
error ;  they  will  not  likely  occur  on  another  trial. 

The  judgment  of  the  District  Court  is  reversed  and  the  cause 
remanded. 

EeverKdand  remanded. 


HOMICIDE  —  MURDER— COOLING  TIME. 

State  v.  Moore. 

[69  N.  C.  267.] 
In  the  Supreme  Court  of  North  Carolina,  1878. 

1.  Ooollnv  Time  is  a  question  o'  law  for  the  court  and  not  a  question  for  the  Jurjr. 

2.  Ooollns  Time — Case  in  Judgment. — The  separation  of  two  persons  engaged  in  h  Sat 

fight,  wh  'cb  eventuully  terminates  in  a  homicide,  to  justify  a  verdict  of  murder  must  be 
for  a  time  snfBcient  for  the  pneeions  excited  by  the  fight  to  hare  subsided,  and  reason  to 
have  resumed  its  sway.  Hence,  where  one  witness  testified  that  the  prisoner  was 
"absent  no  time,"  and  another,  that  after  the  first  fight  he  started  to  go  home,  and  look- 
ing back  the  parties  were  again  fighting,  AeM,  there  was  not  such  sniBcient  cooling  time 
to  justify  a  verdict  of  murder. 

Indictment  for  murder,  tried  before  Loqam,  J.,  at  Spring  Term,  1873, 
of  the  Superior  Court  of  Mecklenburg  County. 

Prisoners  were  indicted  for  the  murder  of  one  Robert  Smith,  and 
having  severed  in  their  trial,  Charles  Moore  was  tried  and  convicted. 

It  was  contended  for  the  prisoner  that  the  crime  committed  was  man- 
slaughter.     The  evidence  for  the  State  was  substantially  as  follows :  — 

Sarah  Ann  Davidson  testified  that  she  lived  a  short  distance  from  the 
deceased  on  tho  same  wde  of  the  alley ;  the  prisoner  lived  on  the  oppo- 
site side  of  the  alley,  and  opposite  the  house  of  the  witness.  Tv'hen 
the  fight  took  place  witness  was  opposite  prisoner's  house,  and  the 
deceased  was  going  along  the  street  towards  the  bouse,  and  when  oppo- 
site tiie  gate  the  prisoner  said,  "Who  is  that?"  Deceased  answered, 
''It  is  me."  Prisoner  said,  "What  do  you  want?"  Deceased 
replied,  "  I  don't  want  you,  but  want  to  see  Mary  "  (living  with  pris- 
oner as  his  wife).  Prisoner  then  said,  "  You  were  listening  to  my  con- 
versation." Deceased  replied,  "That  he  was  doing  no  such  thing." 
Prisoner  replied,  "You  are  a  damned  liar;"  to  which  deceased  said, 
"  You  are  an  infernal  liar."  Curses  followed.  Deceased  was  in  the 
street,  and  said  to  prisoner,  "  If  you  come  out  and  curse  me  I  will  hit 
you."  Prisoner  went  out,  he  and  deceased  continued  to  quarrel,  pris- 
oner alleging  that  the  deceased  was  eavesdropping,  and  deceased  deny- 


1108 


CRIMES   AOAIN8T  THE  FER80N8   OF  INDIVIDUALS. 


ing  it  all  the  while ;  then  they  both  went  together  fighting ;  were  not 
long  engaged  in  a  fight  when  they  stopi)ed ;  prisoner's  so-callcH  vrlfe 
called  him  into  the  house ;  he  went  in,  but  remained  (in  the  language 
of  the  witness)  "  absent  but  no  time."  Deceased  was  still  iu  the 
street ;  witness  wallced  off ;  heard  deceased  say  that  prisoner  had  killed 
him ;  the  parties  were  still  close  together ;  deceased  tV.en  went  home ; 
be  was  stabbed  in  tue  left  side ;  it  was  about  eight  o'clock  p.  m.  ami 
cloudy ;  witness  saw  no  knife ;  deceased  and  prisoner  were  not  friendly ; 
they  did  not  visit. 

On  her  cross-examination  the  witness  testified :  At  first  the  parties 
did  not  appear  mad ;  witness  heard  all  the  talk ;  they  made  considerable 
fuss;  heard  prisoner  say  to  deceased:  "I  will  report  you  to  the 
Mayor." 

J  '.'>'tb,  a  daughter  of  the  deceased,  testified  that  when  she  went 
o'j  '  •<  ^e  fighting ;  she  tried  to  get  deceased  home ;  went  between 

thuia  aanx  iiied  to  separate  them ;  deceased  walked  off ;  prisoner  said : 
"If  you  bit  me  again  I  will  sicken  you;"  Mary  Moore,  prisoner's 
wife,  Bu'A,  "  J..e+-  »'-«^m  fight,"  and  pushed  the  prisoner  to  the  deceased 
and  thej^  wen),  logech^r  fighting;  deceased  jumped  away  and  said, 
*' Charley  has  killed  me;  "  deceased  went  home  and  fell  in  the  door; 
he  was  stabbed  in  the  left  side  and  lived  an  hour  and  a  half. 

Other  witnesses  were  examined  for  the  prosecution,  but  no  new  facts 
were  elicited.  The  prisoner  offered  no  evidence,  but  through  his  coun- 
sel asked  his  honor  to  charge  the  jury :  — 

That  if  the  jury  are  satisfied  that  the  parties  upon  a  sudden  quarrel 
got  into  a  fist  fight,  and  the  prisoner,  before  separation,  gave  the  fatal 
stab,  it  would  be  manslaughter. 

That  a  mutual  combat  with  fists  is  a  legal  provocation,  and  reduces  a 
slaying  by  a  deadly  weapon  (not  shown  to  be  unusual)  to  manslaughter. 

That  the  evidence  discloses  that  there  was  not  sufficient  "  cooling 
time"  between  the  fights. 

Other  instructions  were  asked,  but  as  the  case  in  this  court  turned 
upon  the  last,  they  are  not  necessary  to  an  understanding  of  the 
decision. 

In  answer  to  the  last  instructions,  his  honor  charged  the  jury  that  if 
parties  engage  in  any  affray,  or  thet«)  is  other  legal  provocation,  and 
they  become  separated,  then  if  there  is  sufficient  "  cooling  time,"  it  will 
be  murder ;  that  if  one  of  two  parties,  after  separation,  goes  off  and 
then  returns  and  again  engages  in  an  affray,  then  if  there  was  sufficient 
time  for  the  passions  to  cool,  it  would  be  murder. 

That  it  was  the  duty  of  the  jury  to  apply  these  principles  to  the  evi- 
dence, and  if  they  were  satisfied  that  the  prisoner  was  guilty  of  murder, 
they  should  so  find ;  otherwise  to  find  him  guilty  of  manslaughter. 


LS. 

ig;  were  not 
io-calle(^  vvife 
the  language 
i  still  in  the 
ler  had  kUle<1 
I  went  home ; 
ick  p.  m.  and 
mot  friendly; 

8t  the  parties 
e  considerable 
b  you  to  the 

when  she  went 
went  between 
prisoner  said : 
ore,  prisoner's 
lO  the  deceased 
way  and  said, 
U  in  the  door ; 
talf. 

ut  no  new  facts 
rough  his  coun- 

sudden  quarrel 
)  gave  the  fatal 

a,  and  reduces  a 
0  manslaughter. 
Hlcient  "  cooling 

his  court  turned 
rstanding  of  the 

the  jury  that  if 
provocation,  and 
ling  time,"  itwUl 
on,  goes  off  and 
lere  was  sufficient 

nciples  to  the  evi- 
guilty  of  murder, 
laoslaughter. 


STATE   V.  MOORE. 


1109 


Verdict,  guilty  of  murder.  Rule  for  a  new  trial ;  rule  discharged. 
Judgment  and  appeal. 

Pumell,  for  prisoner. 

Attorney-General  Hargrove,  for  the  State. 

BoTDEN,  J.  We  thinlc  his  honor  erred  in  refusing  the  sixth  prayer 
for  specific  instructions,  to  wit :  That  the  evidence  discloses  that  there 
was  not  sufficient  cooling  time  between  the  fights. 

The  whole  testimony  shows  that  there  was  a  sudden  quarrel  resulting 
in  blows  with  the  fists ;  that  at  length  the  combatants  separated,  and 
the  evidence  as  to  the  length  of  time  they  were  separated  is  first  by  the 
witness,  Sarah  Ann  Davidson,  witness  for  State,  who  says  that  *'the 
prisoner  was  absent  but  no  time."  William  Smith,  another  witness  for 
the  State,  testified  that  he  saw  the  parties  fighting ;  deceased  told  wit- 
ness to  go  home,  and  witness  started  baclc ;  prisoner  and  deceased  had 
separated ;  witness  looked  back  and  saw  they  were  fighting  again,  then 
heard  the  deceased  say  that  the  prisoner  had  killed  him. 

It  is  well  settled  in  our  State  that  the  question  of  cooling  time  is  a 
question  of  law  to  be  decided  by  the  court,  and  not  a  question  for  the 
jury.  It  is  also  settled  that  if  such  a  question  is  left  to  the  jury,  and 
they  decided  the  question  as  the  court  should  have  decided  it,  this  error 
forms  no  cause  for  a  new  trial.  So  the  question  is  distinctly  raised : 
Does  the  evidence  show  that  in  law  there  was  sufficient  cooling  time? 
The  court  here  are  of  opinion  that  there  was  not  sufficient  cooling  time. 
The  two  witnesses  for  the  State,  and  the  only  ones  that  testified  upon 
this  question,  state  the  fact  that  the  prisoner  was  absent  no  time,  in 
other  words,  the  separation  was  so  short  that  she  could  not  compute  the 
time ;  and  the  other  witness  says  the  prisoner  and  the  deceased  were 
separated  and  deceased  desired  witness  to  go  home ;  that  he  started, 
that  he  looked  back  and  they  were  again  engaged  in  the  fight.  It  seems 
to  the  court  that  this  testimony  does  not  show  that  there  was  a  sufficient 
time  during  the  separation  for  the  passions  excited  by  the  fight  to  have 
subsided,  and  reason  to  have  resumed  its  sway,  and  on  this  ground 
there  must  be  a  venire  de  novo. 

This  renders  it  unnecessary  to  notice  the^other  questions  made  in  the 
case. 

Peb  Cubiak. 

Venire  de  novo. 


„i«SLiUOH«B-«SE  O.  DEADIT  WEAPON. 

People  v.  Crowey. 

[56  Cal.  36.] 

to  <le  S.p««  Court  of  Coiy<.r.i«,  ISSO. 

Apped  from  .  convicfon  and  demrt 

MoB,«o»,  C.  J.  [After  P»«ng »"  •«»«  _^;_^.^^^  „„  ^.^j,  rf 

„„w  p«»  to  the  '°Vrrr.md  irmodifyingi.«true«on.nine««. 

Juughter,  and  are  as  follows :  -  ^^^^^^  ^^i^g,  without 

ll.  -Manslaughter  is  the  unla^uUimng^^^^^     mwo  parties  upon 

„,alice,  upon  a  sudden  <1"«^"«^;' J^^^^' ^  equal  terms,  and  one  slays 
a  sudden  quarrel,  fight  J^^^  fbu^  u^^^^^^  *"fl"«"*'^  '!  t 

the  other,  not  in  «f  j^^^^^^'^^^^^^^       „o  undue  advantage  is  taken 
passion  engendered  by  the  ^^if^^         ,^,  p^^y  killing  may  be 
or  dangerous  weapon  «sed,  «^J°J      ^ 
the  aggressor,  be  is  not  guilty  ol  ^^'^'^  ^  ^^^^  deceased,  upon  a 

20  "'  If  the  iury  find  that  John  C^^owey  a        ^^^  ^^^  ^^^ 
sudden  quarrel,  engaged  m  *  ^^^^^  j;,t,\„t  before  the  passion 

deceased  had  ^'^^-^.'""^^^ll^cro^^^^ 

engendered  in  the  mind  oi^^^^^^^^^^  J^  additional  blow  or  blows, 

Tcool,  John  Crowey  ^t-^-^^^^^^^ralon  of  «aid  pa«sion,  he  is  not 
not  with  a  dangerous  weapon,  by  reaso 

guilty  of  murder."  defendant's  counsel,  did  not  contain 

^These  instructions,  as  '^rded  ^  de^^^^  ^^^^  ^^^,^  given 

the  words  itaUcised,  but  t^fy/^^^^^X^        used,"  were  inserted 
to  the  jury,  and  the  -'f^  "  °\tX "ord^      not  with  a  d^r^erous 
in  the  nineteenth  ^°f  "«;^"' 7,  .^entieth  instruction, 
weapon"  were  introduced  into  the  twen  ^  ^^em,  is,  that  if 

The  effect  of  these  instructions  as  ^^^^^        ^,,^,^,  malice,  the 
onl  party  slay  another  in  tb.  heat  of  P^^^^^^^^^  S,eh, 

crime  can  not  be  manriaughter  if  a  dang  .^  ^^^^^^  ^^  ^^. 

in  our  opinion,  u  not  the  ^^'''7^^''''^^^  whether  or  not  a  dangerous 
Sa^gHter,  doe^ot  ^P- ^aCthrch-^^  of  the  crime  depend  not 
weapon  waa  uaea,  »«« 


LS. 


nd  without  mftltM. 
error. 

in  the  Supreme 

e  appellant. 

;tice.]  We  will 
ed  on  behalf  of 
uctions  nineteen 

crime  of  man- 
in  being,  without 
two  parties  upon 
US,  and  one  slays 
8  influence  of  the 
dvantage  is  taken 

killing  may  be 

deceased,  upon  a 
rms,  and  after  the 
nfore  the  passion 
flict,  had  had  time 
aal  blow  or  blows, 
passion,  he  is  not 

sel,  did  not  contain 
court  before  given 
jed,"  were  inserted 
with  a  dangerous 
tion. 

id  them,  is,  that  if 
without  malice,  the 
)on  is  used.  Such, 
5  is  murder  or  man- 
or not  a  daI^^rou8 
le  crime  depend  not 


PEOPLE  V.  CROWEY. 


1111 


upon  the  intention  with  which  the  act  was  done,  but  upon  tlie  charactci 
of  the  instrument  by  means  of  which  the  death-blow  was  inflicted,  is 
not,  in  our  opinion,  justified  b^'  any  legal  principle. 

In  the  case  of  Erwin  v.  State,^  the  following  instructions  were  held 
erroneous:  "  If  3'ou  find  from  the  evidence  that  the  defendant  used  a 
deadly  weapon  in  this  case,  and  that  death  ensued  from  the  use  of  such 
deadly  weapon,  then  the  law  raises  the  presumption  of  malice  in  the 
defendant,  and  also  an  intent  on  his  part  to  kill  the  decedent."  The 
court  says:  "This  was  not  an  abstract  proposition.  It  covered  the 
case  before  the  juiy,  and  in  our  opinion,  a  jury  of  ordinary  intelligence 
might  well  understand  that  the  law  fixed  tlie  guilt  of  the  defendant  as 
a  murderer,  if  the  evidence  showed  that  he  took  tlie  Ufe  of  the  deceased 
by  tlie  use  of  a  deadly  weapon  without  regard  to  othej  circum« 
stances.     •     ♦     • 

"As  an  abstract  proposition,  where  the  circumstances  of  a  homicide 
are  not  known  further  than  the  mere  fact,  tliat  the  deatli  was  caused 
by  the  use  of  a  deadly  weapon,  we  do  not  deny  that  the  jury  may 
from  such  fact  alone,  infer  both  malice  and  a  purpose  to  kill.  But 
where  the  attending  circumstances  are  shown  in  detail,  some  of  which 
tend  to  disprove  the  presence  of  malice  or  purpose  to  kill,  it  is  mis- 
leading and  erroneous  to  charge  a  jury  that  in  such  a  case  the  law  raises 
a  presumption  of  malice  and  intent  to  kill  from  the  isolated  fact  that 
death  was  caused  by  the  use  of  a  deadly  weapon.  In  such  case,  the 
presence  of  malice  or  intent  to  kill  must  be  determined  from  all  the 
circumstances  proven,  including,  of  course,  the  character  of  the 
weapon." 

The  case  of  Cotton  v.  State,^  is  also  in  point.  In  that  case  it  was 
held,  that  the  qualification  by  the  court  made  to  the  third  instruction 
was  clearly  erroneous.  The  court  says:  "The  instruction  is  in  sub- 
stance, that  if  Cotton  killed  Smith,  not  in  pursuance  of  a  premeditated 
design,  but  in  a  sudden  quarrel,  the  crime  of  murder  is  not  made  out. 
The  modification  made,  is, '  unless  Cotton  sought  the  quarrel  and  used  a 
deadly  weapon.'  The  question  was  whether  malice  prompted  the 
accused  to  kill.  He  interposed  as  his  defence  bj'  the  instruction,  '  no 
design  to  kill,  and  that  the  killing  was  on  a  sudden  quarrel.'  The 
court  say  to  him  that  this  is  no  defence,  not  even  to  mitigate  the  crime, 
if  he  bought  the  quarrel  and  used  a  deadly  weapon.  Now,  he  may  have 
done  both  without  being  guilty  of  murder,  for  he  may  not,  by  seeking 
the  quarrel,  have  intended  the  slightest  personal  injury  to  the  deceased, 
and  be  may  from  sudden  provocation  have  used  his  weapon,  or  he  may 
have  been  forced  to  do  so  in  self-defence,  although  he  was  the  aggressor 
in  the  quarrel.    The  modification  amounts  to  this :  That  although  there 


1  29  Ohio  at.  18B. 


3  31  Miss.  BOS. 


1112  CRIMES   AOAIN8T  THE  PERSONS   O.   INDIVIDUALS. 

,  1  as„n  to  take  life  to  constitute  murder,  yet  such 
xnust  be  a  formed  *1««'S«  JfJ*^;  party  killing  seeks  th.  quarrel  and 
design  is  not  necessary  when  "'Ybe  proof  of  malice  in  some  form ; 
„«es  a  deadly  7;;^;- J^a  J  «  l-^^etadly  weapon,  may  be  evL 
the  seeking  of  the  'l"'^"'  *""  i,%i,at  the  defendant  below  was 
dence  for  the  purpose.    But  this  is  w  ^^^^^^^  ^^^ 

endeavoring  to  meet,  ^y'^'^Z^^ 2^^'^^^,  Ldlflcatlon  virtually 
killing    occurred   ^"^    »"»^^«"  ^Z^y  'ht  a  quarrel.'' 
declares  this  to  ^e  -  defenc^  f  f  ;P-^J^^"„^,^^^^^  ^he  jury  a.  foU 
In  the  case  of  People  v.  Freel    xne  iMstween  murder  and 

lows:  ''You  -11  *^««  ^^'^'^V'lt S^fre  i^^^^^^ 

manslaughter  is,  that  in  ^"'^^"KhJ^/^^^'J  ,^^^^ 

either  to  kill  or  do  bodily  harm.  J»»«J""  J^^^^^       .^mmitted  without 

of  a  sudden  heat  of  passion  o^  <>«  an  «nlawf "1  ac      ^^^^^^  .^  ^^^^^^^ 

due  caution  or  «lrc«m«pection       ^8  co"rt  r  ^^^^^^^^^^^ 

erroneous.    Whether  the  homicide  amounts  to  mura 

Lrelydoes  not  depend  upon  ^^^  P^^^^^J.^^^^ln  to  kill  at  the 
kill.    In  either  case  there  may  be  a  present  intentio  ^^^^  ^^ 

moment  of  the  commission  of  the  act.     B«*J^*'";J^^„  ^^^  of  suffl- 

.truck  in  the  heat  of  ^-f^^^^^l'^^^Z^,^,  thetw,  out  of  for- 
cient  violence  to  wnount  to  udeqaitB  P'"'*^"   ^.'r^rd  the  actual  ta- 

Lrance  for  .be  -eata,e»  o«  '■um»J«^e.  »•«  *33e,  although 
teut,«.d,mml»cetheoHcn«toB™Uughter^  in  ^^^^ 

the  intent  U>  Wl  «i»«».  "  «  ?" '''"'i'StuHcr  "  The.,  case. 
,hich  i.  an  c»en.id  f -»' ■»  ^t^'^rj  o^^e "eapon  u.ed  that 
.ufflclenUy  •'»•**'''' "fJJl'tutHU  the  p«.enl=  or  ab«.ce 

r«"^.r  tr:::ee*"t:r;::»  the  cr.». ».«-».-' « 
"ut  ci-»«i,  .uh.hai.0.  t^f  •«trnr:ir».tu»  i:,:^  s:^ 

tt  i„.U.y  the  Jury  In  Hading  the  ««*■'*"'  8^*^^^  '  ^       ^„p„„ 

Jrder  to  th.  «rBt  or  '»^^:  ,^»  S"^'  Sent  for  »,  to  ».y, 
„y  opinion  upon  the  evidence,  and  it  .m  M  •  ^.^j  ,„ 

J,  tlere  wa.  —  «f  ™-  r't^^t^^  coXt',  .hat  ho.h  .ide. 
not  the  aggreaBor ;  that  there  WM  «in  ^^^ ^^ ^ 

„«d  deadly  weapon.,  "*  ™™«J^,^^.''„,'„an.UughUr. 
give*.  Jury,  correct  dtfmuonofttem  „^„«,,  ..  th. 

,nJU" -^^  -  - -^^'  *'  '"°"  "■"*'°'' '°  "  *"' 
iiiBtnictions.  Judgment  and  order  reversed. 

SHABPST.W,  J.,  Md  MTBioE,  J.,  concurred. 

i48CaI.4Se. 


LS. 


STATE  V.  EMMERICH. 


1118 


Icr,  yet  snch 
quarrel  and 
I  some  form ; 
,  may  be  evi- 
b  below  was 
,  bccaase  the 
ion  virtually 

el." 

e  jury  as  fol- 
D  murder  and 
;lon  whatever, 
>ntional  result 
nitted  without 
rhis  is  clearly 
manslaughter 
f  the  intent  to 
to  kill  at  the 
mortal  blow  is 
jn  and  of  sufD- 
iw,  out  of  for- 
d  the  actual  in- 
1  case,  although 
nalicious  intent 
"    These  cases 
>apon  used  that 
ence  or  absence 
lanslaughter   or 

hing  in  the  case 
less  degree  than 
rpose  to  express 
nt  for  us  to  say, 
le  defendant  was 
that  both  sides 
y  of  the  court  to 
ftughter. 

assigned,  as  the 
ined  in  the  above 

order  reversed. 


manslaughter  in  first  degree  — attempt  to  commit 

abortion. 

State  v.  Emmerich. 

[1  W«st  Rep.  780.] 
In  the  Supreme  Court  of  Missouri,  1885. 

I.  An  Xndletment  Ibr  Xanalanvhtor  in  the  flr»t  degree,  bronght  under  the  Bevited 
Statutes  o(  Missouri  i  wliicii  doei  not  ■■.JirKe  tliat  tliu  killing  whs  done  without »  design 
to  effect  death,  nor  while  the  doer  of  I...  act  was  engaged  in  the  perpetration  or  attempt 
to  perpetrate  any  erima  orotisdemeanor  not  amounting  to  a  felony,  is  Insufllclont. 

3.  An  Zndlotmant  brought  under  tee.  1241,  for  the  crime  of  manslaughter  in  the  first 
degree,  perpetrated  In  the  attempt  to  commit  an  abortion.  Is  bad,  whore  the  descrlptlTO 
words  "  pregnant  with  a  quick  child  "  are  not  employed ;  nor  is  it  good  under  section 
1368,  which  defines  the  crime  of  abortion;  since  that  section,  at  the  time  of  the  criminal 
aet,  did  not  apply  to  a  ease  where  death  ensued  in  consequence  of  the  criminal  act. 

Appeal  from  St.  Louis  Court  of  Appeals. 

Indictment  for  manslaughter  in  the  first  degree,  in  perpetrating  the 
crime  of  abortion. 

The  case  is  stated  in  the  opinion  of  the  court. 

B.  O.  Boone,  Attorney-General,  for  appellant. 

The  defendant  attempted  without  a  design  to  effect  death,  to  produce 
abortion,  and  the  death  of  the  woman  ensued  from  such  attempt.  This 
was  murder  at  common  law.^  The  defendant  was  attempting  to  perpe- 
trate an  offlense  which  in  itself  was  a  misdemeanor  under  our  statute ; 
from  his  act  a  killing  resulted  which  was  murder  at  common  law,  and 
he  was  properly  indicted  under  section  7,^  for  manslaughter  in  the  first 
degree. 

Chas.  P.  Jb  John  D.  Johnson,  for  respondent. 

Under  the  indictment  there  could  be  no  conviction  of  manslaughter^ 
either  in  the  first  or  second  degree.*  The  verdict  should  have  been  for 
a  misdemeanor  under  section  84, ^  and  not  for  manslaughter  in  the  first 
or  any  other  degree.  To  destroy  or  to  attempt  to  destroy  a  "  quick  " 
unborn  child  is  made  a  felony  by  our  statute ;  while  to  destroy  or  ta 
attempt  to  destroy  an  unborn  child  not  '*  quick,"  by  way  of  abortion, 
is  only  a  misdemeanor."  In  1879,  and  in  the  Revised  Statutes,^  they 
have  amended  section  34," by  adding  the  following  clause:  "But  if 


1  sec.  1S38. 

3  1  Hale's  P.  0.  (Ut  Am.  ed.),  sees.  439, 
430;  Reg.  V.  Gaylor,  7  Cox.  C.  C,  9S3;  1 
Whart.  C.  L.  (8th  ed.),  sees.  316,  WO;  Whart 
Horn. (2d  cd), sees. 41, 192;  Com.  «. Keeper 
ot  PriBon,2  Ashm.  (Penn.)  297;  Com.  v.  Jack- 
son, IS  aray,  187;  State  v.  Moore,  SO  Iowa, 
128. 


i  p.  778,  Qen.  SUts. ;  teo.  1338,  Rev.  State, 
«  Wag.  Stats.,  ch.  49,  art.  3,  sees.  9, 10, 84. 

•  sec.  84,  ch.  42,  art.  3,  Wag.  State. 

•  Wag.  State.,  aece.  9, 10, 84,  oh.  43,  art.  3. 
'  see.  1268. 

•  oh.  42,  ark  3,  of  Wag.  State. 


•MUD 


MMMP 


1114  CUIMKS   AOAIN8T   THE   PEHSONS   OF   INUIVIUU' LS. 

the  .leatl.  of  such  woman  eu«ac  from  the  means  so  employed,  the  person 
1  nff.MulhiLr  shall  bo  deemed  guilty  of  manslaughter  iu  the  secoiui 
Z;  rut  hows  conclusively  that  when  this  all^g;^ --  -,; 
c  S:Uted  there  was  no  punishment  for  it  but  nndej  -^^^^^^^^^^^^^^^^^^ 
Wmrnor's  Statutes,  which  made  it  a  misdemeanor.  If  the  ch  Id  had  Dten 
'  ou  ck  '  aTresi^ondent  had  tried  to  destroy  it  by  abortion  and  b-^ 
ki     Utaud    he  mother  too  in  the  attempt,  he  could  only  have  b 

of  -  uuick  child  "  In  law,  see  Wharton  on  Homicide,'  Rennm  v.  Wii<ne 
t  •'Be'k' Medical  J"rlsprudence,-raylor'sMed  cal  Jur.spruden^^^^^^^ 

fix  V   PA.7/<>,«    Burden  of  proving  quickening  U  <>"  ^^f ''  J   ' 
fourt  is^Uo  referred  to  the  able  opinion  given  in  this  case  by  B.KEW.... 

J. ,  of  the  Court  of  Appeals. »  ,  .u         .f 

Shehwood,  J.,  deUveredthe  opinion  of  the  court. 
The  indictment  in  this  cause  is  as  follows :  — 


s». 


State  of  Missouki, 
City  of  St.  Loiis, 
St.  Loris  Criminal  Cuubt, 

March  Term,  1S79.       j  ,  .     .u    u  j    «* 

Tlie  grand  jurors  of  the  State  of  Missouri,  within  and  for  the  bod'  of 
the  City  of  St.  Louis,  aforesaid,  now  here  in  court  duly  impa         , 
fwor^  and  charged  uix,n  their  oath,  present  that  Charles  P.  Lmr 
Me  of  St  Lours  City,  aforesaid,  on  the  80th  day  of  December   18. ., 
I  th  force  and  armsf  in  and  upon  the  body  of  one  Maggie  Gibbons,  a 
woman  there  and  then  pregnant  and  big  with  child,  in  the  P-ce  of  «  e 
Ce  thou  and  there  being,  did  willfully,  feloniously  and  «nlawfuUy 
Late    n    ssault  and  then  and  there  unlawfully  and  Jjlou.ously  use  and 
Znlov  in  and  upon  the  body  and  womb  of  the  said  Maggie  Gibbons,  a 
Tr     n^^nlr  of  hard  substance,  the  nature  and  descript  on  whereo 
is  to  these  grand  jurors  unknown,  by  then  and  there  ^^^^'^'^fl^^'l' 
nir  and  forLg  the  said  Instrument  into  :he  private  parts  and  womb  of 
h!  Z\A  Slle  Gibbons  with  the  intent  then  and  there  and  thereby  to 
;rrtraLtion  or  -^^^  f  ^^^^^^^^ 


1  see  sec.  W.  oh. 42,  art. a,  W«g.8t»tt..aiMl 
ao  the  law  stands  to-day;  tut  sec.  U41,  »•▼• 
Stats. 

i  p.  339. 

S  8  C.  &  P.  863. 

4  pp.  353, 177, 278.     • 


i  p.  498. 

•  3  Camp.  74. 

7  Evans  ».  People,  49  N.  Y    86;  Com.  v. 
Thompson,  108  Mass.  461. 

•  State  V.  Emmerich,  13  Mo.  App.  493. 


LH. 


STATE   V.  KMMERICH. 


1115 


d, the  person 
11  the  i4ecoiul 
'd  crime  was 
section  .^4  of 
iliildhad  been 
rtion  and  l'"'' 
ily  have  b 
)  the  meaniug 
ua  V.  Wyher- 
irisprudencc,* 
Stato.'    'IMu- 
by  Bakewell, 


tor  the  bod-  of 
uly  irapa 
3  P.  EniP 
lecember,  I84V, 
5gie  Gibbons,  a 
he  peace  of  the 
and  unlawfully 
(uiously  use  and 
ggie  Gibbons,  a 
cription  whereof 
iserting,  thrust- 
rts  and  worab  of 
and  thereby  to 
bbons,  the  same 
;ie  Gibbons,  and 
the  purpose,  and 
96  of  saii  instru- 
rles  P.  Emmerich 


49  N.  Y    86;  Com.  v. 

m. 

;h,  13  Mo.  App.  492. 


aforesaid,  slic,  the  said  Moggie  Gibbons  tlien  and  tliere  became  gravely 
wounded  and  mortally  diseiisod  of  her  Ijudy,  and  from  tlio  said  3<Kh  «lay  of 
D?cember,  A.  1).  1877,  to  tlie  tiiird  day  of  January,  A.  I).  lH7.i,  In  the 
Ciiy  of  St.  Louis  did  languish,  and  lunguisiiiug  did  lire,  on  which  said 
tliird  day  of  January,  in  the  yoar  and  in  the  city  aforesaid,  the  said  Maggie 
OiI)bons  of  the  mortal  wound  and  disease  aforesaid  did  die ;  and  so  the 
grand  jurors  aforesaid  upon  their  oath  aforesaid,  do  say  that  tlio  saiil 
Charles  P.  Emmerich,  tlie  said  Maggie  Gibbons,  in  the  manner  and  by  tlie 
means  aforesaid,  willfully,  feloniously  and  unlawfully  did  kill,  sluy  and 
murder  contrary  to  tlie  form  of  the  statute "  in  such  cases  made  and 
provided  and  against  the  peace  and  dignitv    .'  the  State. 

Upon  tliis  indictment  the  defendant  wu),  inod,  found  guilty  of  man- 
slaughter in  the  first  degree,  and  his  punisnment  was  assessed  at 
imprisonment  in  the  penitentiary  for  the  period  of  five  years. 

The  various  statutory  provisions  relating  to  tiie  crime  of  abortion  or 
attempted  abortion  are  as  follows :  — 

Sec.  1241.  Manslaughter  in  second  degree.     Every  person  who  shall 
administer  to  any  woman,  pregnant  witli  a  quick  cliild,  any  medicine, 
drug  or  substance  whatsoever,  or  shall  use  or  employ  any  instrument  or 
other  means,  with  intent  thereby  to  destroy  such  child,  unless  the  same 
shall  have  been  necessary  to  preserve  the  life  of  such  mother,  or  sliall 
have  been  advised  by  a  physician  to  be  neces,aary  for  that  purpose, 
shall  If  the  death  of  such  child  or  mother  thereof  ensue  from  the  means 
so  employed,  be  deemed  guilty  of  manslaughter  in  tlie  second  degree.^ 
Sec.  1268.  Abortion    Every  physician  or  otiier    person,  wlio  shall 
•vvillfully  administer  to  any  pregnant  wjman,  any  medicine,  drug  or 
substance  whatsoever,  or  shall  use  and  employ  any  means  whatsoever, 
with  intent  thereby  to  procure  abortion  or  the  miscarriage  of  any  such 
woman,  unless  the  same  shall  have  been  necessary  to  preserve  the  life 
of  such  woman,  or  shall  have  been  advised  by  a  physician  to  be  neces- 
sary for  that  purpose,  shall,  upon  conviction,  be  adjudged  guilty  of  a 
misdemeanor,  and  punished  by  imprisonment  In  a  county  jail  not  ex- 
ceedlng  one  year,  or  by  fine  not  exceeding  five  hundred  dollars,  or  by 
both  such  fine  and  imprisonment;  [but, if  the  death  of  such  woman 
ensue  from  the  means  so  employed,  the  person  so  offending  shall  be 
deemed  guilty  of  manslaughter  in  the  second  degree].* 

The  act  with  which  the  defendant  Is  charged  occurred  December 
30,  1877,  and  at  that  time  section  34,3  ^as  in  force.  Since  then  the 
section  has  been  amended,  and  I  have  given  the  amendatory  words  in 
brackets. 


1  Oen.  StaU.  778,  uc  10. 

>  6  Gen.  Stata.,  p.  7S1,  seo  34.,  amended. 


aen.SteU.781. 


1116 


CRIMES   AGAINST  THE  PERSONS   OF  INDIVIDUALS. 


It  is  insisted  by  counsel  for  the  State  that  the  indictment  is  sufficient 
under  section  1238,*  which  reads:  — 

Sec.  1238.  Manslaughter  in  the  first  degree.  The  killing  of  a  hu- 
man being,  without  a  design  to  effect  death,  by  the  act,  procurement  or 
culpable  negligence  of  another,  while  such  other  is  engaged  in  the  per- 
petration or  attempt  to  perpetrate  any  crime  or  misdemeanor  not 
amounting  to  a  felony,  in  cases  where  such  killing  would  be  murder 
at  the  common  law,  shall  be  deemed  manslaughter  in  the  first  de- 
gree.* 

An  examination  of  this  section  will,  however,  readily  show  that  the 
indictment  was  not  framed  or  intended  to  be  framed  upon  it ;  and  if  it 
were  so  intended,  it  does  not  contain  the  constituent  elements  in  that 
section  set  forth.  It  does  not  charge  that  the  killing  was  done  without 
a  desigr.  to  effect  death  nor  that  it  was  done  while  the  doer  of  the  act 
was  engaged  in  the  perpetration  cr  attempt  to  perpetrate  any  crime  or 
misdemeanor  not  amounting  to  a  felony.  These  things  may  be  inferred 
from  the  allegations  made,  but  this  will  not  answer ;  this  is  no  case  for 
inferences.  And  although  the  grade  of  the  offense  specified  in  that 
section  is  mansiaughter  in  the  first  degree,  and  punishable  by  imprison- 
ment in  the  penitentiary, ^  and  therefore  a  felony,^  it  is  nowhere  charged 
in  the  indictment  that  the  act  itself  which  caused  the  death  was  feloniously 
done.  It  is  true  that  it  is  alleged  that  the  assault  was  made  feloniously 
and  that  a  eertain  Instrument  was  used  feloniously ;  but  it  is  nowhere 
charged  that  the  thrusting,  etc.,  of  such  instrument  was  feloniously 
done.    This  itself  would  be  a  fatal  defect.^ 

There  is  no  rule  of  criminal  law  more  firmly  established  than  that 
which  requires  an  indictment  bottomed  on  a  statute  to  contain  all  these 
forms  of  expression ;  those  descriptive  words,  which  will  bring  the  de- 
fendant precisely  within  the  definition  of  the  statute." 

There  are  cases  where  a  less  degree  of  certainty  will  answer  than  in 
others ;  where  descriptive  words  are  not  used  in  defining  the  crime ; 
where  words  of  equivalent  import  making  the  chaise  certain  to  a  certain 
extent  will  be  sufficient ;  but  this  case  falls  short  of  either  standard. 
And  there  are  cases  where  the  pleader  attempts  to  draft  am  indictment 
under  one  section  and  blunders  into  another;  in  such  case  the  indictment 
may  still  charge  an  offense  after  rejecting  surplusage.''  But  this  is  not 
the  case  presented.  All  redundant  words  may  be  stricken  out  from  the 
indictment  and  still  there  will  not  be  enough  left  to  make  a  valid  indict- 
ment under  section  1238.    Nor  will  the  indictment  fare  any  better  when 


1  R«T.  SUto. 

i  Oen.  StaU.  p.  778,  mo.  7. 

*  Rev.  SUU.,  MO.  mi. 

*  lb.,  HO.  1676, 


*  SUte  V.  FflMtor,  38  Mo.  SSt. 

•  BUM  V.  Helm,  e  Mo.  M3;  SUte  «.  Bom 

SSMo.428. 
'  BU,;«  o.  Seward,  43  Mo.  206. 


DUALS. 

Dent  is  sufficient 

killing  of  a  hu- 
;,  procurement  or 
gaged  in  the  per- 
nisdemeanor  not 
fould  be  mujder 
in  the  first  de- 

ily  show  that  the 
upon  it ;  and  if  it 
it  elements  in  that 
was  done  without 
the  doer  of  the  act 
trate  any  crime  or 
gsmay  be  inferred 
this  is  no  case  for 
e  specified  in  that 
lable  bj*  iroprison- 
is  nowhere  charged 
ath  was  feloniously 
us  made  feloniously 
;  but  it  is  nowhere 
snt  was  feloniously 

jtablisbed  than  that 
5  to  contain  all  these 
I  will  bring  the  de- 
>o 

will  answer  than  in 
defining  the  crime ; 
I  certain  to  a  certain 
of  either  standard. 
1  draft  am  indictment 
icase  the  indictment 
le.''  But  this  is  not 
tricken  out  from  the 
make  a  valid  indict- 
f  «re  any  better  when 


tor,  as  Mo.  8M. 

1, 6  Mo.  843;  StaWV.BOM, 

ird.  43  Mo.  SOe. 


COMMONWEALTH  V.  FITCHBUHG    R.  CO. 


1117 


examined  by  the  light  of  the  other  sections  already  quoted.  It  is  bad 
under  section  1241,i  because  the  descriptive  words :  "  pregnant  with  a 
quick  child ' '  are  not  employed.  Nor  is  the  indictment  good  under  sec- 
tion 12G8,  since  that  section  at  the  time  of  the  commission  of  thecrimi- 
nal  act  did  not  apply  to  cases  where  death  ensued  in  consequence  of 

such  act.  1       u 

It  follows  that  the  defendant  was  improperly  convicted  of  manslaugh- 
ter in  the  first  degree,  and  would  have  been  improperly  convicted  of  any 
deo-ree  of  that  offense,  as  the  indictment  is  insufficient  viewed  in  any 
li^ht  or  from  any  standpoint.  I  regret  to  be  compelled  to  arrive  at  this 
conclusion,  as  thisrecoTd  is  stained  with  a  crime  most  atrociously  cruel 

and  brutal.  .   .         •       j 

It  only  remains  to  say  that  the  judgment  of  the  Court  of  Appeals  and 

its  order  discharging  the  defendant  are  affirmed. 
All  concur  except  Henbt,  C.  J.,  who  dissents. 


MANSLAUGHTER- RAILROAD  COMPANY  -NEGLIGENCR. 

Commonwealth  v.  Fitchbcro  R.  Co. 

[120  Mass.  873.] 
In  the  Supreme  Judicial  Court  of  Maasachuaett$,  1S79. 

1  Wh.N  an  Indlotment  charges  a  lingle  offense  in  eeTeral  countt  as  commltwi  to 
^flewn"  ay  "nconsistent  with  each  olher.  a  general  venllct  .honld  be  "t«'f^«  «««»» 

?hrwLleindi;tment.a.fora.lngleoffeu.e.oraverdlctolguiUyupon*^^^^^^ 
It  either  U  proved,  and  not  guilty  upon  all  the  other. ;  and  it  is  a  mistrial  to  allow  me 
JaS  to  rlrn  a  virdict  of  Juiltyupon  each  count;  and.if  such  a  v''-'"'/' '«*«"J 
t^V  gOTernment  Is  not  enUUed  to  enter  a  noH.  protevU  a.  to  all  the  counts  but  one.  and 
retain  the  verdict  as  to  that  count. 

2  Th.  De«M  of  KwUgenc.  on  the  Part  of  the  servants  of  a  railroad  corporation 
^uSSSTb^prowd^an  indictment  under  the  General  8t.tnte..«  is  not  changed  by 

I^^tuto  of  lEand.  on  an  indictment  under  the  Utter  statute,  if  negligence  of  the 
secants  of  the  co^poratt^n  Is  relied  on.  gross  negligence  must  be  averred  and  proved. 
,  T*  T..ii«»«.«n«  AjMlBBt  a  Ballr'w^  corporation  under  the  General  Statutes,*  and 
"?.SS:^mi.^-ot  .SSSthe^eglect  on  the  par.  of  t^e  corporatlonto 
ilv/meXaU  required  by  law  contributed  to  the  death  of  the  per«.n  kiU.d.  evidw-. 
of  such  neglect  is  inadmissible. 


1  supra. 

<  elt.  6S,  see.  98. 

tolkSSl. 


«  ch.  6S.  sec 

*eb.sas. 


„a    AnATN'ST  THE  PERSON8   OF  INDIVIDUALS. 
1118  CRIMES   AGAINST    inb   ri^n 

„te  of  1871,-^  to  recover  for  the  us  «  the  -clow  ^^^^  ^^^^  ^^^  ^^^^^ 
Keniston,  a  fine,  by  reason  of  ^J^^  of  cars,  of  tbe  defenaant,  at 
T^::^^^^^::^^^!^^^  ^ai^oaa  .osses  Par. 

of  Massachusetts,  -  ^^^^J  ^^^St  ^^^^^^^^^^  this  Common- 

Company,  a  corporaUon  d«ly  j;^^^^^^^^^^^  ^^  pel  engines  and  cars, 
wealth,  and  dnly  authomed  lf'^^^^^l\  \^  railroad  thereafter 
by  the  power  of  steam,  along,  ovei  and  upo  ^^^^  ^^^^^  ^^^ 

described,  was  on  the  seventh  day  -l^'^^^'J^,',,^  j,,  the  owner  of 

thousand  eight  huncked  and  -v-^J^^^^^^^^^^     ^U,^,  i^  the  county  of 
a  certain  railroad  leadmg  and  extendmg^^^^^^^^^  ^^  ^^^ 

Suffolk  in  this  Comnionwea  th  to  a„ci  «,^o^^^^^  ^^  ^^^^  j^  f,,u 

in  this  said  county  of  Mi<  cl  ese,    t"  ^  raUroad,  and  was  a  common 
occupation,  possession  and  use  of  ^?^  ^J"^^  and  merchan- 

carrier,  over,  along  and  upon  ^^^  '-^J^^f^^^^^^^^  i„  such  posses- 

aise,  and  that  said  l^^^^^j;^^!^^^^^^^  ^'"'^'^ 

«ion,useandoccupat.onof  s^draUro^^^^^  ^^^^  ^^.^^  ^^^^^  ,„ 

at  SomerviUe  aforesaid,  by  f^^^J^^^^  the  business  of  said  corpora. 


1  .1,  «3  aec  98:  ■•  If  by  reason  ol  the  neg- 

engine,  or  «'»""'"'*",„„  of  a  public  way 
ryrr1rrn'rnaVedand^x.y.^^^ 


ehown  that,  m  addition  "  «  mere '^^^^^^^^ 

a^wra^hSof  theLuulon.  gv.Uy 
of  LTor  wUlful  negligence,  or  was  acting 
U^ltlon  oftuelaw.andthat  Buch  gTo« 
or  wlUlul  negligence  or  unlawful  act  con 

rii'un^e  of  al  least  eighty  -d'  '-«  J* 
nlace  where  the  road  oroBaea  a  turnpike, 
Sghwryor  townway.uvon  the  Bame  level 

lacb  bell  Bh.U  be  -"«  "'other  oTnttB" 
.ounded.  either  one  »' »f«  "j,»,^*;;!^„,  "a. 

r;Ld\"rsrrortra,eiea 

place." 


and  the  stat- 

ren  of  Charles 

leing  run  o'vcr 

defenuant,  at 

crosses  Park 

Commonwealth 

iburg  Railroad 

this  Common- 

igines  and  cars, 

road  thereafter 

f  our  Lord,  one 

3,  the  owner  of 

in  the  county  of 

r  of  Somerville, 

ras  then  in  full 

was  a  common 

irs  and  merchan- 

il  in  such  posses- 

enthday  of  May, 

ley  being  there  to 

3s  of  said  corpora. 

e  were  legally  en- 

on  to  a  mere  want  of 
lenon  injured,  or  the 
1  ol  his  person  or  prep- 
of  the  coUislon,  guilty 
gUgence,  or  was  acting 
w,  and  that  such  grosi 
B  or  unlawful  act  con- 
f." 

lec.l:  "  Every  railroad 
juso  a  bell,  of  at  least 
n  weight,  and  a  steam 
)d  on  each  locomotive 
I  its  road ;  and  such  bell 
ich  whistle  sounded  at 
Mt  eighty  rods  from  the 
tad  crosses  a,  turnpllie, 
ly,  upon  the  same  level 
like  manner  when  the 
ivelod  place,  over  which 
Hired  to  be  maintained, 
ion  eighty-five  ol  chapter 
1  General  Statutes;  and 
I  rung  or  such    whistle 
le  or  the  other,  oontlnu- 
ly,  until  the  engine  has 
nplke.  way   or  traveled 


COMMONWEALTH    V.  FITCHBURO   R.  CO. 


1119 


gaged  in  the  business  of  said  corporation,  run,  propel  and  drive  by  the 
power  of  steani.  a  certain  locomotive  engine  over,along  and  upon  said  rail- 
aiid  that  by  reason  of  the  unfitness  and  gross  negligence  and  carelessness 
of  said  servants  and  agents,  while  engaged  in  said  business  as  aforesaid, said 
engine  was  then  and  there  run,  propelled  and  driven  as  aforesaid,  rashly 
and  without  watch,  care  or  foresight,  and  with  great,  unusual,  unreason* 
able  and  improper  speed,  and  that  the  said  engine  then  and  there  was, 
by  reason  of  such  unfitness  and  gross  negligence  and  carelv<?8sne8s  of 
said  servants  while  engaged  in  the  business  of  said  corponxtion,  as 
aforesaid,  driven  at,  agait:,tand  upon  the  body  of  Charles  Keniston,  of 
said  Somerville,  he,  said  Keniston,  being  then  and  there  in  the  exercise 
of  due  diligence,  and  not  then  being  in  or  upon  any  car  or  vehicle  of 
said  corporation,  and  not  then  being  a  passenger  of  said  corporation, 
and  not  then  being  in  the  employment  of  said  corporation ;  and  that 
said  engine  did  then  and  there,  while  being  driven  as  aforesaid,  by 
said  agents  and  servants  of  said  corporation,  violently  strike  Charles 
Keniston,  and  did  then  and  thereby  inflict  divers  wounds,  bruises  and 
injuries  in  and  upon  the  head,  body  and  limbs  of  him  said  Keniston,  of 
which  said  bruises,  wounds  and  injuries  said  Keniston  then  and  there 
instantly  died.  And  so  the  jurors  aforesaid  upon  their  oath  aforesaid, 
do  say  that  on  said  seventh  day  of  May,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  seventy-four,  by  reason  of  the  unfitness 
and  gross  negligence  and  carelessness  of  said  servants  anrl  agents  of 
said  corporation  while  engaged  in  its  business  as  aforesaid,  the  life  of 
Charles  Keniston,  he  said  Keniston  not  then  and  there  being  a  passen* 
ger  of  said  corporation  nor  in  its  employment,  and  then  and  there  being 
in  the  exercise  of  due  diligence,  was  lost,  in  the  manner  and  form 
.aforesaid,  whereby  said  Fitchburg  Railway  Company  has  become  liable 
t3  a  fine  not  exceeding  five  thousand  dollars  nor  le^s  than  five  hundred 
dollars,  to  be  recovered  by  indictment  and  to  be  paid  to  the  cxecutoi  or 
administrator  of  said  Charles  Keniston,  for  the  use  of  the  widow  and 
children  of  said  Charles  Keniston ;  and  that  Eliza  Keniston  of  said 
Somerville,  widow  of  said  Charles  Keniston  has  been  duly  appointed, 
and  now  is,  the  administn^trix  of  the  goods  and  estate  of  said  Charles 
Keniston,  and  that  said  Charles  Keniston  had  at  the  said  time  of  his 
decease  two  lawfully  begotten  children,  both  of  whom  are  now  living. 
Againat  the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided." 

The  second  count  was  as  follows :  — 

''  And  the  jurors  aforesaid,  for  the  Commonwealth  of  Massachusetts, 
on  their  oath  aforesaid,  do  further  present,  that  the  Fitchburg  Railroad 
Company,  a  corporation  duly  and  legally  established  in  this  Common- 
wealth, and  duly  authorized  and  empowered  to  propel  engines  and  cars^ 


1120 


CRIMES   AGAINST  THE   PERSONS   OF  INDIVIDUALS. 


by  the  power  of  steam,  along,  over  and  upon  the  railroad  hereinafter 
described,  was  on  the  seventh  day  of  May,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy-four,  and  still  is,  the  owner  of 
a  certain  railroad  leading  and  extending  from  Boston,  in  the  county  of 
Suffolk,  in  this  Commonwealth,  to  and  through  the  city  of  Somerville, 
in  this  said  county  of  Middlesex,  and  further,  and  was  then  in  full 
occupation,  possession  and  use,  of  said  railroad,  and  was  a  common 
carrier,  over,  along  and  upon  said  railroad  of  passengers  and  merchan- 
dise, and  that  said  railroad,  in  its  line  and  course  in  and  through  said 
Somerville,  then  crossed  and  intersected,  and  now  does  a  certain  public 
highway,  called  and  commonly  known  as  Park  Street,  at  the  same  level 
with  said  highway,  and  that  then  and  there  said  Charles  Keniston,  of 
said  Somerville,  was  traveling  upon,  along  and  over  said  highway  at  the 
point  whereat  said  railroad  then  and  there  crossed  and  intersected  the 
said  highway  as  aforesaid,  and  was  in  the  lawful  use  and  occupation  of 
said  highway,  and  of  said  portion  thereof  where  said  railrord  and  said 
highway  then  and  there  crossed,  and  was  then  and  there  in  tlie  exercise 
of  due  diligence,  and  that  said  corporation  did  then  and  there,  by  its 
servants  and  agents,  they  being  thereto  directed  and  being  then  and 
there  engaged  in  the  business  of  said  corporation,  run,  drive  and  propel, 
by  the  power  of  steam,  a  certain  locomotive  engine  along,  over  and  upon 
said  railroad,  and  over,  across  and  upon  said  highway  at  said  point 
where  said  railroad  then  and  there  intersected  said  highway,  and  did, 
by  reason  of  the  unfitness  and  gross  negligence  and  carelessness  of  its 
said  servants  and  agents  while   being  then  and  there  engaged  in  the 
business  of  said  corporation  as  aforesaid,  then  and  there  run,  propel 
and  drive  said  engine  rashly,  carelessly  and  negligently,  and  without 
watch,  care,  or  foresight,  at  a  great,  unusual  and  improper  speed,  and 
did  then  and  there,  by  reason  of  said  unfitness  and  gross  negligence 
and  carelessness  of  said  servants  and  agents  while  engaged  in  the  busi- 
ness of  said  corporation  as  aforesaid,  suddenly  drive,  run  and  propel 
said  engine  at,  against  and  upon  the  body  of  said  Charles  Keniston, 
while  the  said  Charles  Keniston  was  traveling  upon  said  highway  as 
aforesaid,  he  being  then  and  there  in  the  exercise  of  due  diligence,  and 
not  then  and  there  being  in  or  upon  any  vehicle  of  said  corporation, 
and  not  being  then  a  passenger  of  said  corporation,  and  not  being  then 
and  there  in  the  employment  of  said  corporation,  and  that  said  engine, 
being  so  driven  as  aforesaid  did,  by  reason  of  said  unfitness  and  gross 
negligence  and  carelessness  of  said  servants  and  agents,  suddenly  and 
violently  strike  him  said  Keniston,  and  did  then  and  there,  and  thereby 
inflict  divers  bruises,  wounds  and  injuries  in  and  upon  the  head,  body 
and  limbs  of  him  said  Keniston,  of  which  said  bruises,  wounds  and 
injuries,  he  said  Keniston  then  and  there  instantlv  died.     And  so  the 


COMMONWEALTH   V.  FITCHBURO   R.  CO. 


1121 


LS. 

I  hereinafter 
of  our  Lord 
the  owner  of 
;he  county  of 
r  Somerville, 
then  in  full 
13  a  common 
and  merchan- 
through  said 
Bertain  public 
the  same  level 
I  Keniston,  of 
lighway  at  the 
itersected  the 
occupation  of 
Irord  and  said 
in  tlje  exercise 
d  there,  by  its 
eing  then  and 
ive  and  propel, 
over  and  upon 
at  said  point 
hway,  and  did, 
elessness  of  its 
engaged  in  the 
ere  run,  propel 
y,  and  without 
)per  speed,  and 
ross  negligence 
ged  in  the  busi- 
run  and  propel 
larles  Keniston, 
laid  highway  as 
e  diligence,  and 
lid  corporation, 
1  not  being  then 
,hat  said  engine, 
itness  and  gross 
ts,  suddenly  and 
ere,  and  thereby 
1  the  head,  body 
lea,  wounds  and 
led.     And  so  the 


jurors  aforesaid  upon  their  oath  aforesaid,  do  say  that  on  7th  day  of 
May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy- 
four,  by  reason  of  tlie  unfitness  and  gross  negligence  and  carelessness 
of  said  servants  and  agents  of  said  corporation,  while  engaged  in  its 
business  as  aforesaid,  the  life  of  said  Charles  Keniston,  he  said  Kenis- 
ton not  then  and  there  being  in  the  exercise  of  due  diligence,  was  lost, 
in  the  manner  and  form  aforesaid,  and  tliere  being  a  passenger  of  said 
corporation,  nor  in  its  employment,  and  then  and  there  being  in  the 
exercise  of  due  diligence,  was  lost,  in  the  manner  and  form  aforesaid, 
wlierel>y  said  Fitchburg  Railroad  Com[)any  has  become  liable  to  a  fine 
not  exceeding  five  thousand  dollai-s,  nor  less  than  five  hundred  dollars, 
to  be  recovered  by  indictment,  and  to  be  paid  to  tlic  executor  or  ad- 
ministrator of  said  Charles  Keniston,  for  the  use  of  the  widow  and 
children  of  said  Charles  Keniston ;  and  that  Eliza  Keniston,  of  said 
Somerville,  widow  of  said  Charles  Keniston,  has  been  duly  appointed, 
and  now  is  the  administratrix  of  the  goods  and  estate  of  said  Chailes 
Iveniston  and  tuat  said  Charles  Keniston  had  at  the  said  time  of  his  decease 
two  lawfully  begotten  children,  both  of  whom  are  now  living.  Against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  farm  of  the  statute 
in  such  case  made  and  provided." 
The  third  count  was  as  follows :  — 

"And  the  jurors  aforesaid,  for  the  Commonwealth  of  Massachusetts, 
on  t'leir  oath  aforesaid  ;  do  further  present  that  the  Fitchburg  Railroad 
C  )mpany,  a  corporation  duly  and  legally  established  in  this  Common- 
wealth, and  duly  authorized  and  empowered  to  propel  engines  and  cars, 
Ity  the  power  of  steam,  along,  over  and  upon  the  railroad,  hereinafter 
described,  was  on  the  seventh  day  of  May,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy-four,  and  still  is,  the  owner 
of  a  certain  railroad  leading  and  extending  from  Boston  in  the  county 
of  Suffolk,  in  this  Commonwealth,  to  and  through  the  city  of  Somer- 
ville, in  this  said  county  of  Middlesex,  and  further,  and  was  then  in 
full  occupation,  possession  and  use  of  said  railroad,  and  was  a  common 
carrier  over,  along  and  upon  said  railroad  of  passengers  and  merchan- 
dise, and  that  said  railroad,  in  its  line  and  course  in  and  through  said 
Somerville,  then  ci'ossed  and  intersected,  as  now  it  does,  a  certain 
public  townway  of  said  Somerville,  frequented  by  and  open  to  all  the 
good  citizens  of  this  Commonwealth,  called  and  commonly  known  as 
Park  Street,  at  the  same  level  with  said  townway ;  that  said  corpora- 
tion was  then  and  there  bound  and  required  by  law  to  give  warning  of 
llio  approach  and  passage  of  every  locomotive  engine  there  passing 
upon  said  railroad,  by  either  ringing  a  bell  or  sounding  a  whistle  from 
or  upon  such  engine,  giving  either  one  of  said  signals  continuously,  or 
the  one  or  the  other  alternately  without  cessation,  during  the  passage  of 
8  Defences.  71 


1122         CRIME8    AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

riUe,  -.M  traveling  over,  .long  and  u„on  .  ul  to»™.y.  bem  ^^ 

tor.  seated  in  Lis  carriage,  and  I"""  "    '"     °;'°;,  „d  co  neided 
point  of  said  «.y  «l.ereat  -«  -'2'    *;:,  ^w."  as  aforesaid, 

:::rr  i:r,a:.:irrnd"^  ^^^^ 

toy  being  thereto  directed  a,^  tang  ton  .  d*  re^  J,/,„„„,^, 

business  of  »-V?''rT»;er  of  stea^"  cerUi"  loeOMOtlve  engine 
drive  and  propel,  by  ^J^^^J  J^'^J'  ,,,  „ore  than  eighty  rods 
along,  over  and  ui»n  said  radroad,  tro^n     1  townw.y, 

r  trrntthrs:rrrro"S':n7;'ai7t:»n.ay  the„  and  there  in- 
at  said  pomt  7'^«'^7  ^j.^  ,,eii  provided  for  said  engine 

said  ^orvo^^^^j^l^l^yj^^^  warning, 

"'V rLT  no  bdl  :         e'nld  theil  rung,  and  no  whistle  was  then 
:fd\Irrsou"^ed  during  said  passage  over  said  space  of  eighty  rods; 

t  !k  t  iTKeniston  being  so  lawfully  traveling  upon  said  way,  as 
and  that  said  ^emst^n  bemg  J  ^^  ^,^^  ^^^^^^^^^  ,, 

aforesaid   and  not  ^^g  then  ^^^^^  J^^  ^^^^^  ^^  ^^.^^^  ^^  ^ 

said  engine,  -  the  said  en  i     ,         s  ^^.^  ^^. ^^^^  ^^  ^.^^ 

and  unusual  speed,  did  t^^'^'^^d  there,  by  r  ^^^,^^  ^^^  ^^^^ 

said  warning  '^J'^'^''^  ^^ l^2rZle  Zng  drawn  and  traveling  as 
':^tr, irKtr.rrn:  aLld  t^ne  »,  said  eoUision  gniUy 


LS. 

(ursc  of  such 
•oad  and  said 
f  3aid  Somer- 
ing  then  and 
and  upon  the 
ind  coincided 
as  aforesaid, 
iway,  and  was 
lation  of  law ; 
its  and  agents, 
;ngaged  in  the 
said  business, 
motive  engine 
in  eiglity  rods 
said  townway, 
11  and  there  in- 
or  said  engine 
of  said  engine 
course  toward, 
whistle  upon, 
iiuously  during 
•n«ng   given  by 
t  such  bell  and 
ion  of  warning, 
vhistle  was  then 
of  eighty  rods ; 
)on  said  way,  as 
the  approach  of 
driven  at  a  great 
d  failure  to  give 
y  strike  and  col- 
and  traveling  as 
lises,  wounds  and 
ton,  whereof  he, 
the  jurors  afore- 
ston,  on  tlie  said 
lusand  eiglit  hun- 
srson  and  thereby 
corporation  pass- 
at  the  same  level 
Bsaid,  to  give  the 
ed  to  said  injuries 
lid  collision  guilty 


COMMONWEALTH   V.  FITCHBURO   R.  CO. 


1123 


of  gross  or  willful  negligence  nor  then  acting  in  violation  of  law,  nor 
contributing  in  any  way,  either  by  gross  or  willful  negligence  or  by  any 
unlawful  act  to  such  collision  or  injury  whereby  said  corporation  has 
become  liable  to  pay  a  fine  not  exceeding  five  thousand  dollars,  nor  less 
than  five  hundred  d(tllars,  to  be  recovered  by  indictment  and  to  be  paid 
to  the  executor  or  administrator  of  said  Charles  Keniston,  for  the  widow 
and  children  of  said  Charles  Keniston ;  and  that  Eliza  Keniston,  of 
said  Somcrville,  widow  of  said  Charles  Keniston,  lias  been  duly  ap- 
pointed, and  now  is,  the  administratrix  of  the  goods  and  estate  of  said 
Charies  Keniston,  and  that  said  Charles  Keniston  had  at  the  said  time 
of  his  decease  two  lawlully  begotten  children,  both  of  whom  are  now 
living.  Against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided." 

Trial  in  the  Superior  Court,  before  Alduicii,  J.,  who  allowed  a  bill 
of  exceptions,  which  after  stating  that  Keniston  was  killed  at  the  time 
and  place  mentioned  in  the  indictment,  by  a  locomotive  engine  of  the 
defendant,  and  that  there  was  evidence  that  the  said  engine  was  going 
at  great  and  unusual  speed,  and  that  no  bell  or  whistle  was  heard  by 
those  near  the  place  of  the  accident,  at  the  time  the  locomotive  engine 
approached  and  passed  the  crossing,  set  forth  the  evidence  on  the  ques- 
tion of  due  care  on  the  part  of  the  deceased,  and  the  evidence  on  th« 
question  whether  Park  Street  had  been  established  as  a  public  way 
(which  is  omitted  as  immaterial  to  the  point  decided),  and  proceeded 
as  follows :  — 

The  judge  instructed  the  jury  that  before  they  would  be  authoriztd 
to  convict  the  defendant,  upon  the  first  count,  they  must  be  convinced 
by  the  evidence  beyond  every  reasonable  doubt  that  Keniston,  at  the 
time  he  lost  his  life  was  in  the  exercise  of  due  diligence,  f»nd  that  his 
life  was  lost  by  reason  of  the  gross  carelessness  and  negligence  of  the 
servants  of  the  defendant  corporation ;  that  the  instrument  contained 
no  charge  of  negligence  or  carelessness  on  the  part  of  the  corporation 
itself  or  of  unfitness  on  the  part  of  his  servants,  and  that  therefore  the 
jury,  before  they  could  convict  on  the  first  count  must  find  that  the 
gross  carelessness  or  gross  negligence  of  .the  servants  of  the  corpora- 
tion was  the  sole  cause  of  the  death  of  Keniston,  and  that  his  want  of 
due  diligence  in  no  manner  contributed  to  his  death,  that  if  they  enter- 
tained a  reasonable  doubt  as  to  the  afflmative  proof  of  either  of  these 
propositions  they  should  return  a  verdict  of  not  guilty  upon  the  first 
count,  and  that  the  burden  of  proof  in  support  of  both  of  the  fore- 
going propositions  was  upon  the  [)rosecution. 

In  relation  to  the  second  and  third  counts,  the  jury  were  instructed 
that  if  they  should  be  satisfied  beyond  a  reasonable  doubt,  upon  all  the 
evidence,  that  the  corporation  did  not  give  the  signals  required  by  the 


1124  CRIMES   AUA1N8T  THE  rEB«>K«  OT  ,»mV.D«ALS. 

corUuo,>  to  eWo  B»i.l  signal.  7"' '';;^\;1':  :,  ,,,„,,,.,  u*» 

H?,,,^,,.  „r  „n,aw,„,  «- -^rl  .V':    ^ oJ'lu  count  .„. 

The  iu,y  mTO  lUreeteil  to  ";""" '°  „.  ,„  „  ,„ji„t  „,  guilty  on  eaul, 
,.,ely  »hiel.  tUey  dM  -•»'^';°B^' "  ^  mWI  exception,. 

The  case  was  argued  at  tbe  bar,  ami  w 
written  arguments.  defemlant. 

G.  A.  SomUery  an.  ^^-f-^!  ;;7'j;^.  ^d,^,  with  them),  lor  the 

Commonwealth.  po,,tained  five  counts,  and,  as 

Louu,  J.     The  imlictment  m  t^"«  -^^/^'f  J^^^^  ^„,„,,,  .ui^ough  it 

appears  by  the  bill  of  exce,.  urns,  ^  ^  /- *»^^^^^^^^^^  :„„,  ,,,  aifferent 

is  not  alleged,  as  somet.mcs  ,t     ,  that  tUe  >ar  ^^^^  .^^.^^ 

modes  of  cl'^'g^'g  <''«  ^*™^  "**'"'"\  j  jem^^^^^^      i„  different  counts 
this  Commonwealth  to  cl.aj-ver^^ 

of  the  same  ind.ctmen  ,  -^  ^o^^^     ^ ,  ^^..,,  ,,,  ,,.„«  effect  as  if  a 
aev  iral  eount»,   in  tlio  same  maiui  .iianre      It  lias  also 

sep,.r„to  indictment  ha.1  been  "=""•"«'!  "l"'"'""''  *Xge. ,  a,  com- 
Je„lou,e,tabUabea  tl,at  •^'<^"'r^::^^ZX^'>^  <»«"'« 

evidence  is  applicable.  person  named 

The  first  count  charges  generally  a  »^'"*"S  of  the  P 

crossing  at  grade  of  a  highway  in  feomerviUe,  by  reason 

°i;rt«  count  .3  -  - --  r»zi  e-r.: 

1  ch.  81,  Bee.  1. 


L8. 


COMMONWEALTH   V.  FITCHBURO   K.  CO. 


1125 


jHry),an{l  if 
le  part  of  the 
f  Keniston's 
junta,  unless 
on  to  tt  mere 
it  ti;e  time  of 
ir  willful  neg 
OS9  or  willful 

lb  count  sepa- 
guilty  ou  each 
tions. 
ibmittcd  upon 


them),  for  the 

jounts,  and,  as 
ise,  although  it 
ts  ftrc  different 
the  practice  in 
lifferent  counts 
ments  upon  the 
3  effect  as  if  a 
re.     It  has  also 
larged,  as  cora- 
k-arious   distinct 
;uilty  upon  such 
a  single  offense, 
ent  to  which  the 

3  person  named 

gross  negligence 

of  a  locomotive 

ly  collision  at  the 
ason  of  the  same 

id,  either  by  the 
ts,  by  collision  at 
md  that  it  was  by 


reason  of  neglect  of  the  servants  and  agents  in  charge  to  ring  the  bell 
or  sound  the  whistle  upon  api)roaching  said  crossing  as  required  by 
law. 

It  is  not  necessary  to  refer  to  the  other  counts,  as  there  was  a  ver- 
dict of  not  guilty  upon  them. 

The  jury  relumed  a  verdict  of  guilty  upon  each  of  the  first  three 
counts,  'i'lie  court  are  all  of  opinion  that  tliis  must  be  deemed  to  have 
been  a  mistrial.  But  one  offense  was  ciiarged,  and  tiio  jury  should  have 
been  instructed  to  return  a  general  verdict  of  guilty  or  not  guilty, 
upon  the  whole  indictment  as  for  a  single  offense,  which  would  have 
been  in  conformity  with  the  long  and  well  established  practice  in  this 
Commonwealth,  or  they  should  have  been  instructed  to  return  a  verdict 
of  guilty  upon  the  count  proved,  if  either  was  proved,  and  not  guilty 
upon  all  the  others.  As  the  record  now  stands,  the  defendant  coipora- 
tion  was  charged  with  five  distinct  misdemeanors,  of  three  of  which  it 
was  found  guilty  and  of  two  of  which  it  was  found  not  guilty.  The  bill 
of  exceptions,  however,  shows  that  but  one  offense  was  committed  and  it 
is  suggested,  that  a  voile  lyroaequi  may  be  entered  as  to  two  of  the 
counts  and  judgment  upon  the  other.  It  is  obvious  that  inasmuch  as 
the  several  counts  may  be  supported  by  different  evidence,  and  as  they 
are,  at  least  to  some  extent,  inconsistent  with  each  other,  it  is  impos- 
sible to  determine  which  was  proved,  it  being  certain  that  all  could  not 
have  been.     The  verdict  must  therefore  be  set  aside. 

Several  questions  were  raised  at  the  argument  upon  the  sufficiency  of 
the  several  counts  of  the  indictment  in  the  matter  of  form.  In  refer- 
ence to  the  first  count,  whether  it  is  sufficient  in  form,  and,  if  not, 
whether  the  objection  was  oi)en  at  the  time  of  the  trial,  appear  to  the 
court  upon  consideration  to  be  questions  of  much  difficulty ;  and  as  a 
new  trial  must  be  had  upon  other  grounds,  in  the  course  of  which  these 
questions  may  not  be  material,  no  opinion  is  expressed  upon  it. 

As  to  the  third  count,  it  does  not  allege  gross  negligence  upon  the 
part  of  the  servants  of  the  corporation,  except  by  implication.  It 
charges  that  the  death  of  the  party  was  caused  by  the  neglect  of  the 
servants  to  ring  the  bell  or  sound  the  whistle,  but  it  does  not  charge 
that  such  neglect  was  gross  negligence  on  the  part  of  the  servants. 

The  learned  judge  who  presided  at  the  trial  correctly  instructed  the 
jury,  that  inasmuch  as  the  first  count  of  the  indictment  contained  no 
charge  of  negligence  on  the  part  of  the  corporation  or  of  unfitness  of 
its  servants,  that  count  could  be  sustained  only  by  proof  of  gross  neg- 
ligence by  its  servants.  Suck  gross  negligence  must  be  averred  if  re- 
lied on.  Mere  neglect  to  ring  the  bell  or  sound  the  whistle  may  be  the 
act  either  of  the  servant  or  of  the  corporation.  If  it  be  a  corporate 
act,  one  done  under  the  direction  of  the  corporation,  it  is  an  act  for 


1126         CRIMES   AGAINST  TlIK  PERSONS   OP   INDIVIDUALS. 

■^n'tllnalTrS^tSwon  U  cUnrgc..  U,  have  been  .t 

™  no  chanre  that  the  bell  wi»  not  rung  or  tbe  wlurtlo  sounde. .  lUe 
;,"  ,  eSuou.  reports  a-  in,tr,.cUon  given  upon  the  ■e-""  «»- 
2w.,.l .«  think  must  have  been  admitted  by  inadvertence.  The  rasti  iii. 
r      tr  tb«  H  the  ory  were  satisflert  that  the  neglect  on  the  part  of 

was  not  in  fault  according  to  th«  meamng  of  the  law.     But  the 
count  did  not  aver  the  neglect.  Exceptions  austaintd. 


MANSLAUGHTEB-BAILttOAD  CORPORATION  -  KILLING  PASSENGER. 

Commonwealth  v.  Fitchbuuo  R.  Co. 

[120  Mas>8.  472.] 
In  the  Supreme  Judicial  Court  of  Masmchusetts,  1879. 

.      .     *  -  v.iiwtB^  rornoratlon  under  the  Miusachuietto 

L  Under  An  Indiot«.nt  f,'^'*^*  J^^S^e  She  ser.anU » of  ihe  corporation 

Statutes  which  alleges  as  the  only  «^'"' "J"f°"^7ch,care  or  foresight,  and  with  great. 

ran  a  locomotlye  engine -rashly  "»^  ;*'"';^' Jj^'J'^^^^^^^  to  show  that  the 

8  Gen.  Stats,  ch.  68,  sec.  98;  Stat.  1871.  ch. 
1  ch.  88S.  ,  jgjj     gge  the  provtslont  in  full,  aii««i  p. 

*  eh.  81.  4  ch.  68,  sec.  98. 


COMMONWEALTH   U.  FITCHBUKO   K.  CO. 


1127 


ILS. 

dictment.     H 
e  corporation 
t  is  not  neces- 
ent.     If,  liow- 
iCi\:int9  acting 
I  scope  of  thfir 
lUst  be  charged 
erhaps  entirely 
iippo8ed  by  the 
lense,  so  fur  ns 
whether  or  not 
conduct  of  the 

to  have  been  at 
'3  railroad  there 
I  sounded.     Tlie 
le  second  count 
je.     The  instruc- 
ct  on  tlie  part  of 
ite  of  1862,''  con- 
arized  to  find  the 
the  person  killed 
But  the  second 

iions  sustained. 


.INQ  PA8SEWGEB. 
Co. 

etts,  1879. 

inder  the  Maesachusetto 
vanta » ol  the  corporation 
:orealght,and  with  great, 
missible  to  show  that  the 
le  whistle. 

ral  Statntea,*  charging  the 
relesineiB  of  lt«  aerrantt 

.  63,  sec.  98;  Stot.  1871,  ch. 
ialona  in  fall,  tmU,  p. 


while  engaged  in  Its  businosB,  by  vuniilng  ii  locomotlTO  engine  with  groiil,  iinuitunl. 
unrc»8onal>lo  iind  Improper  op  ud,  l8  ncil  nuHtnlnod  by  i>ri><>f  tlial  ill  Uiu  liiin^  t.l  the  Isill- 
ins,  H'u  ontrliio  whs  run  nt  ii  liJKh  riilo  of  npoud,  In  the  iibsenco  of  eviUenoo  tlial  the 
servants  in  so  ilolng  wore  acting  In  violalUm  of  their  duly.  ^ 
8.  If  a  Jury  has  once  been  Impaneled  in  a  criminal  case,  it  is  loo  late  to  move  to  quash 
the  Indictment  for  formal  defects  apparent  on  lis  face,  althoHgh  tho  motion  Is  mad* 
beforo  the  Impaneling  of  the  jury  for  a  now  trial  of  the  ease,  the  former  verdict  having 
been  set  aside. 

Indictment  on  the  General  Statutes,'  and  tlio  Statute  of  1871,'  to 
recover,  for  the  use  of  tho  widow  and  children  of  said  Charles  Ken- 
iston,  a  fine,  by  reason  of  the  loss  of  his  life,  from  being  run  over  on 
May  7,  1874,  by  a  locomotive  engine  and  train  of  cars  of  the  defend- 
ant, at  a  place  in  Somerville,  where  the  defendant  railroad  crosses  Park 
Street,  so-called,  at  grade. 

Tho  first  and  second  count  of  the  indictment,  upon  which  alone  the 
case  was  tried,  a  nolle  prosequi  having  been  entered  as  to  the  third 
count,  are  given  in  full  in  the  report  of  tho  case  at  a  former  stage ;  ^ 
and  the  material  parts  of  them  are  stated  in  the  opinion. 

After  the  former  decision,  and  before  the  jury  were  impaneled,  the 
defendant  filed  in  the  Superior  Court  two  motions  to  quash  tho  indict- 
ment. Pitman,  J.,  overruled  the  motions.  The  case  was  then  tried, 
the  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged  excep- 
tions, the  substance  of  which  appears  in  the  opinion. 

O.  A.  Somerby  and  W.  S.  Stearns,  for  the  defendant. 

T.  II.  Sweetser  and  O.  S.  Knapp  (J.  D.  Adams,  with  them),  for 
the  Commonwealth. 

MoKTON,  J.  The  first  count  of  the  indictment  charges  the  killing  of 
the  person  named  therein,  within  the  city  of  Somerville,  by  reason 
of  the  unfitness  and  gross  negligence  and  carelessness  of  the  servants 
of  the  defendant  while  engaged  in  its  business. 

The  negligence  alleged  is  that  the  servants  who  were  running  an 
engine,  ran  it  "  rashly,  and  without  watch,  care  or  foresight,  and  with 
great,  unusual,  unreasonable  and  improper  speed."  The  second  count 
varies  f  i-om  the  first  only  in  charging  that  the  killing  was  by  a  collision 
at  the  crossing  at  grade  of  a  public  highway  in  Somerville,  called  Park 

Street. 

Neither  count  alleges  any  negligence  of  the  corporation;  neither 
count  alleges  as  negligence  of  the  servants  that  they  did  not  ring  the 
bell  or  sound  the  whistle,  as  required  to  do  at  grade  crossings ;  or  that 
they  did  not  seasonably  close  the  gate  at  the  crossing.  Upon  these  last 
points  evidence  was  admitted  at  the  trial,  and  it  was  competent  upon 
the  issue  whether  the  person  killed  was  using  due  care ;  but  it  was  not 
competent  and  could  not  be  considered  by  the  jury  upon  tho  issue 


ch.  AS,  arc.  98. 


1  ch.  SBS. 


SiaOMaM.Sn. 


1128 


CRIMES   AOAIN8T  THE   PER.SON8   OF   INDIVIDUALS. 


of  tho  gross  negligence  of  tlie  servants  of  tlie  defondnnt.  Tlie  only 
negligence  siilllcicntly  cluirgod  is  that  the  servants  ran  tlie  engine  witli 
great,  iuuisuhI,  uiircasonal)le  and  imiiroper  speed.  Tlio  addition  of  the 
words  "rashly  and  without  watch,  care  or  foresight,"  can  not  enlarge 
the  allegation  so  as  to  make  it  eciiiivalent  to  an  averment  that  the 
servants  neglected  to  ring  the  liell  or  sound  tiic  whistle.  It  does  jiot 
inform  the  defendant  with  reasonable  certainty  that  sucii  negligence  is 
intended  to  l»o  charged. 

It  does  not  follow  tliat  the  indictment  is  to  be  quashed.  It  contains 
the  substantive  allegation  that  the  servants  of  the  defendant  ran  the 
engine  with  unreasonalilo  and  improper  speed ;  mid  no  objection  to 
the  generality'  of  the  allegation  having  been  reasonably  taken,  if  the 
government  can  prove  that  such  servants,  in  violation  of  their  dntv, 
ran  the  engine  at  great  speed,  under  circumstances  which  made  hucIi 
running  gross  negligonce  on  their  part,  a  verdict  of  guilty  might  be 
justifiable,  althoiigh  such  8er\'ants  rang  the  bell  and  sounded  the 
whistle,  or  although  they  were  not  required  to  do  either.  But  the 
government  is  confined  in  its  proofs  to  the  allegations  of  the  indict- 
ment, and  having  alleged  one  act  of  negligence,  can  not  claim  a  ver- 
dict upon  proof  of  another  act  not  alleged. 

We  are  thus  brought  to  the  question  whether,  upon  such  of  the  evi- 
dence in  this  case  as  was  competent  to  bo  considered  by  tho  jury,  their 
verdict  was  justifial)le.  The  bill  of  exceptions  purports  to  state  all  the 
evidence  material  to  the  exceptions.  Upon  a  careful  examination  of 
this  evidence,  we  flml  that  all  the  competent  evi<lence  merely  proves 
that,  at  the  time  of  the  accident,  the  servants  of  the  defendant  were 
running  the  engine  at  a  great  rate  of  speed.  All  that  the  evidence 
shows  is  that  a  detached  engine  was  run  at  a  high  rate  of  speed  over  a 
crossing  at  grade  of  a  traveled  street  in  Somerville.  But  there  was  no 
evidence  that  the  speed  was  greater  than  was  allowed  by  the  rules  and 
regulations  of  the  corporation,  and,  as  evidence  that  tlie  bell  was  not 
rung  or  the  whistle  was  not  sounded  was  not  admissible  upon  this  issue, 
there  was  no  evidence  that  tlie  servants  in  charge  of  the  engine  were 
acting  in  violation  of  their  duty.  In  other  words,  there  was  no  compe- 
tent evidence  of  the  gross  negligence  or  carelessness  of  the  servants  of 
the  corporation. 

We  apprehend  that  the  real  dif!ic.:'ty  in  this  case  is  "  allega- 

tions of  the  indictment  are  not  adapted  to  the  facts  in  p;  it  fails  to 

allege  the  neglect  to  ring  the  bell  or  sound  the  whistle,  lich  appoars 
upon  this  bill  of  exceptions  to  have  lieen  the  act  of  neglect  of  th'-  ser- 
vants of  the  corporation,  but  which,  as  we  have  before  said,  cou.  1  not 
properly  be  considered  by  the  jury  upon  this  issue. 

In  regard  to  the  defendant's  motions  to  quash,  they  were  both  made 


ALS. 

It.  Tlio  only 
le  engine  ■vr'iih 
addition  of  the 
m  not  enlarge 
nunt  that  tlie 
.  It  docs  not 
negligeticc  is 

It  contains 
idnnt  run  the 
i  ohji'ction  to 

taken,  if  the 
)f  tlieir  duty, 
L'li  made  sncli 
lilly  miglit  be 

sounded  tlie 
ler.  But  the 
of  the  indict- 
b  claim  a  ver- 

.•h  of  the  evi- 
;lio  jury,  tiieir 
9  state  all  tlie 
Tcamiuation  of 
neiely  proves 
fendant  were 
the  evidence 
speed  over  a 
I  tliere  was  no 
the  rules  and 
I  bell  was  not 
>on  this  issue, 
e  engine  were 
'^as  no  compe- 
le  servants  of 

ailega- 

it  fails  to 

iiicii  appears 

et  of  th''  ser- 

kid,  cou.  1  not 

ire  both  made 


COMMONWKALTH   V.  BOSTON   A  MAINK   R.  CO. 


1129 


after  a  jury  had  been  sworn  in  the  Superior  Court,  and  the  objections 
to  tlie  indictment  are  for  formal  defects  apparent  on  the  face  thereof. 
We  are,  therefore,  of  oi)inion  that  they  were  riglitly  overruled. 

As  the  view  we  have  taken  ai.i)lies  equally  to  the  firnt  and  second 
counts,  it  is  not  noeossury  to  discuss  the  (juestion  whetlier  there  was 
evidence  of  the  establishment  of  Park  Street  as  a  pu»)lic  highway. 

Exceptiona  austained. 


MANSLAUGHTER -NEGLIOKNCE  OF  SERVANTS  OF  RAILROAD  -  NEG- 
LIGENCE OF  RAILROAD. 

Commonwealth  v.  Boston  &  Maine  R.  Co. 

[133  Mass.  383.] 
In  the  Supreme  Judicial  Court  of  Massachuaetta,  1882. 

A-  T.rfintment  Asainat  a  Sallroad  corporAtlon  under  the  Massachusetts  SUtuto  ol 

^1^4  '  °or"ming  a  ,m^^^^^^  that  the  death  was  caused  by  the  failure  of 

ho  CorS  t,^  reduce  the  rate  of  speed  of  o..e  of  It.  engines  and  to  g've  -rt.ln 

lignaU.  U  «it  .npported  by  proof  that  the  Heryant.  of  the  corporation  neglected  to  do  so. 

Indictment  in  four  courts,  on  tlie  statute  of  1874,no  recover,  for 
the  use  of  tlie  widow  and  only  child  of  Sherburne  T.  Sanborn,  a  fine, 
by  reason  of  the  loss  of  bis  life,  from  being  run  over  on  September  22, 
1880,  at  a  place  in  Wilmington,  where  the  defendant's  railroad  crosses 
a  highway  at  grade. 

At  the  trial  in  the  Superior  Court,  before  Gardner,  J.,  the  judge  sub- 
mitted tlie  case  to  the  jury  upon  the  third  and  fourth  counts  only.  > 
Tcneral  verdict  of  guilty  on  these  counts  was  returned ;  and  the  de- 
fendant alleged  exceptions,   the  substance  of  which  appears  in  the 

opinion.  ,      ,  -     ,     i. 

D.  S.  Richardson  and  O.  F.  Richardson,  for  the  defendant. 

W.  Gaston  and  L.  J.  Elder,  for  the  Commonwealth. 

C.  Allen,  J.  The  first  question  to  be  considered  in  this  case  is, 
whether  the'third  court  of  the  indictment  is  good  in  Itself,  or  is  sup- 
ported by  the  evidence.  The  court  in  substance  charges  that  at  a  cer- 
tain place  the  railroad  crossed  a  highway  upon  the  same  level ;  that  one 
Sanborn  was  traveling  on  the  highway,  and  in  the  exercise  of  due  dili- 
crence;  the  locomotive  engine  attached  to  a  freight  train  was  passing 
the  place  of  intersection;  that  a  locomotive  engine  was  coming  in  the 


1  St       1864,  ch.  250,  sec.  1;  Com.  ».  Brig- 
bam,  iOd  Mass.  457. 


'  ch.  372,  sec.  163. 

>  cb.  372,  sees.  163,  164. 


^k^.^i*M^ai 


1130         CRIMES    AGAINST   THE  PERSONS   OF   INDIVIDUALS. 

.       V      f!«n .  tl.-iL  while  the  corporation  was  thus  running  the 
opposite  direction;  that  wmle  tne  ^  J  the  corporation,  when 

last  named  locomotive  engine  it  ^^^.^^^.^^^y^J^.'^^fp^^^iUon  if  said 

'"Thfs'cornt  is  founded  on  the  statute  of  1874,'  which  imposes  a  penalty 

or  of  anv  person  being  in  the   exercse  01  due  aui^.i.L  ,  o 

or  Of  any  pti  „  emulovment  of  said   corporation,  is  lost.     The 

of  these  statutes  the  ne„^g^^^^^^^^^^^^^  ^^^  corporation 
rf*    id  ^ottr  arts  "'order  to  make  the  corporation  punishable 

cases  winch  are  loportea,  wuor^  h„^„  o„(i    Worcesler 

either  of  tbese  statutes.    In  Commonwealth  y.  Boam  ana    yro 

t^a.'  the  indictmeut,  ^Uoh  «as  .ounded  "P°"  f"""  '„;  .i'^^n- 
road."    The  indictment  in  Commonweartft  v.  East  Boston  Ferry  i.om 


1  ch.  372,  nec.  163. 
t  ch.  80. 

3  ch.  63,  sec  97. 
1  ch.  iU,  ieo.  1. 

*  cb.  63,  see.  98. 

•  11  0'i8b.  613. 
T  ch.  80. 


8  10  Allen,  189. 
»  ch.  63,  sec.  98. 
10  106  Mass.  7. 
U  ch.  63,  see.  97. 
U  120  Mass.  373. 
U  136  UmB.  61. 


'li^tHJ-i  f-nflSt*-'  ^ 


[DUALS. 

thus  running  the 
corporation,  when 
e  position  of  said 
reduce  its  rate  of 
it  the  corporation 
an  over  and  killed 

.  imposes  a  penalty 
carelessness,  or  of 
servants  or  agents 
being  a  passenger 
nee,  and  not  being 
tion,  is  lost.  The 
ness  or  gross  neg- 
e  corporation,  but 

E  liability  to  indict- 
i  upon  this  subject. 
>f  a  passenger  were 
se  respecting  liabil- 
,  were  the  statute  of 
a  were  blended  to- 
;  is  framed.     In  all 
servants  or  agents 
of  the  corporation 
poration  punishable 
iserved  in  all  of  the 
I  been  founded  upon 
mton  and    Worcester 
I  the  statute-'  1840,' 
ts  aud  agents  in  run- 
laib-oad,^  the  indict- 
js,^  contained  similar 
sachusetts  Bailroad,^'^ 
[  Statutes,"  contained 
in  Covimonwealth  v. 
ston  and  Lowell  Rail- 
H  Boston  Ferry  Com- 

B. 
98. 

f3. 

L. 


COMMONWEALTH  V.  BOSTON  &  MAINE  R.  CO. 


1131 


pany »  which  was  founded  upon  the  General  Statutes,"  imposing  a  similar 
liability  upon  other  carriers  under  like  circumstances,  set  forth  that  tlie 
loss  of  life  occurred  through  the  negligence  of  the  corporation  itself, 
in  not  providing  a  suitable  drop  connected  with  the  landing  place,  for 
passengers  on  the  boats  of  the  corporation. 

It  thus  appearing  that  there  is  a  distinction  between  the  negligence 
or  carelessness  of  the  corporation  itself,  and  the  gross  negligence  or 
carelessness  of  its  servants  or  agents  whib  engaged  in  its  business,  it 
becomos  necessary  in  framing  an  indictment,  to  select  and  set  forth 
with  accuracy  the  ground  which  is  to  be  relied  on.    The  negligence  of 
the  corporation  itself  is  one  thing,  and  the  gross  negligence  of  its  ser- 
vants or  agents  is  another  thing,  and  an  averment  of  one  is  not  sup- 
ported by  proof  of  the  other.     In  many  cases,  it  is  true  that,  as  a 
corporation  usually  acts  by  agents,  an  averment  of  neglignce  on  the 
part  of  a  corporation  may  be  supported  by  proof  of  negligence  on  the 
part  of  its  agents.     But  this  is  not  applicable  to  a  liability  imposed  by 
statute  which  expressly  distinguishes  between  the  grounds  of  liability 
as  does  the  statute  now  under  consideration.     In  such  a  case  as  the 
present,  negligence  on  the  part  of  the  corporation  can  not  be  estab- 
tablished  by  showing  negligence  on  the  part  of  its  servants  or  agents 
and  by  invoking  the  aid  of  a  presumption  that  their  negligence  must 
be  presumed  to  have  been  in  pursuance  of  orders  of  the  corporation 
itself.     The  statute  makes  a  plain  distinction ;  the  pleader  selects  the 
ground  on  which  the  liability  of  the  defendant  is  to  be  made  to  rest ;  a 
lina  of  precedents  recognizes  and  illustrates  the  distinction  between  the 
two  grounds ;  and  to  allow  the  pleader  to  select  the  negligence  of  the 
corporation  itself  as  the  ground  on  which  its  liability  is  to  be  main- 
tained, and  to  support  it  by  proving  merely  the  negligence  of  servants  or 
agents,  and  by  asking  a  court  or  jury  to  infer  the  existence  of  negli- 
gence on  the  part  of  the  corporation  from  mere  proof  of  negligence  on 
the  part  of  its  servants  or  agents,  would  be  to  obliterate  the  distinction 
expressed  in  the  statute,  and  to  depart  from  the  comraon  rule  of 
pleading.3 

Looking  at  the  third  count  of  this  indictment  in  the  light  of  these 
principles,  we  are  of  opinion  not  oniy  that  it  was  unsupported  by  the 
evidence  in  the  case,  but  that  it  is  not  a  good  count  in  itself .  There 
was  no  proof,  and  there  is  no  averment,  that  the  corporation,  by  gen- 
eral rule  or  otherwise  had  given  to  its  servants  or  agents  any  instruc- 
tions which  were  improper  or  unsuitable,  or  had  so  far  failed  to  give 
proper  and  suitable  instructions  that  the  omission  could  justly  be  attri- 
buted to  it  as  negligence ;  but  the  evidence,  and,  by  fair  implication, 


1 18  Allen,  589. 
I  oil.  160,  ■•&  84. 


s  See  Com.  «.  Fltehbnrg    BaUroMl,  198 
Mms.  t7S. 


^^—^^^^a^tm 


.«.INST   THE   PEU80N8   OF   INDIVIDUALS. 
1132         CRIMES   AGAINST  TH«-  _^^    ^^ 

,,e  avcment  show  tbat  ^Ue  -f  ^X'^tc^^^^^^^^^^ 
r. hat  ought  ^--^^Hs  Ts'^o^^^^^^^^        *r-"CeTs 
particular  o^'^^^^"" '  ^^^'Vlht  trai^  at  a  highway  crossing.    There  « 
unexpectedly  meeting  a  ^^^'g^^J^^'J^^^  the  rate  of  speed  for  either  of 
no  averment  that  the  ^^^P^^"  ^^^^^^^^ 

tb .  trains  as  it  was  run ;  or  that,  ^'^l^f'^"^^^^    ,^  .^eet  at  that  place ; 
t'Jorporation,  the  trains  - -f  ^^^^;^^^^^  aud  that  it  was  the 

or  tlmt  such  an  emergency  was  l.Kely  ^^^^^^^^  i,y  suitable  rules 

duty  of  the  corporation  to  ™f^«  ^l^,  ..a  that  this  corporation  had 
or   instructions  to  its  ^.'^^-f;  «  ^f^f^;  that  the  corporation,  m  view 
Neglected  to  do  its  duty  m  t^"* 'Xus'power  to  re^luce  the  speed  of  the 
of  the  special  emergency,  l^'^*^.  ^^  ^^j^^  ^r  that  the  corporation  ought 
;lrTcuJr  train  or  to  f^^'^^^o^.,.  for  the  betteM^ro- 
to  have  provided  a  gate  or  flag°>»"      of  ne^rligence  is  simply  that  it 
tec  on  of  travelers,  but  the  ----^Xlof  ,« l--^^^  *>'  *^"  *"^'' 
las  the  duty  of  the  co^P^f  ^«;' ^"  X  passenger  train,  and  to  give 
Iraiu,  to  reduce  the  rate  f  ^^^^^  ngl^-e  wh'^h  is  specified  issim- 
proper  signals  and  -rmngs.    The  „eg  g  ^^^  ^^^^  .^  ^ .^^       , 
ply  the  neglect  to  do  what  ««Sht  to  u  ^^^  ,^ee  of  the 

emei-ency.    These  acts  of  '''^^'"^^^^,^^^^^^ 

„d  Ime/t  to  be  acts  of  «- -7.XX„ey  called  for  a  reduction 
not  of  the  corporation  it.eW.  «  ^«  ^  ^f^  J,  earnings,  there  »n^ 
of  speed,  and  the  gmng  of  «P^"*J  f  ^^  j^,  servants  or  agents  to 
presumption  that  the  -rp-a  ^^^^^^^^^^^^  „„d  warnings-,  but  i^^« 
Lke  such  reduction,  or  to  8-^  ;;  ;,,ts,  if  such  omission  existed 
plain  that  the  omission  to  do  such  i  I  ^^^^^^^  ^^  ^^^^.^  „  so,  in 
\oM  prima  facie  be  *^'"^"*;^'' *  ^  for  their  negligence,  U 

nrrler   to  hold  Che   corporation    respon  that  such  neg- 

:^ddblecessary,underthestatute,toave^^^^^^^^    ^^.^^^  ^^^^ 

^g  nee  was  gross.     J..  ^'^^^^J^^:;^:,,^,.  arespecified  in  the  third 
onlv  such  acts  of  negligence  or  «»»«7'"r  negligence  or  careless- 

:   fntmust  either  charge  themasactsog^^^^^^^^^  ,,       ^t 

nessonthepart  of  ^^JfJ     ^  ^  e«ect  to  m^         corporation 
,et  forth  other  facts  which  ^'^^  ^*  carelefisness. 

responsible  as  for  its  own  BegUgence  or  c  ^^  ^^^^  ,^to  the 

Tf ,  passing  from  the  averment   of  th«  ^^^  ,t  appears,  that  m 

evidence  by  which  it  was  «°"g^*  ^''J' 'Xted  to  meet  at  the  place 

point  of  fact,  the  two  ^^^^^  7'ZX^7^^^-ot\nr.^  ^«  «'°^  '"''  '""^ 
There  the  loss  of  life  occurred,  '^^^ '^'Jj ^^,^,,  to  reduce  the  speed 
lorporation  was  -spo-ible  *  or  t^-^«^^^^^^^  ^^^„j„g,,  ,,eept  the  evi- 


JALS. 

lie  omission  to 
jurastances  of  a 
passenger  train 
ssing.  There  is 
eed  for  eitlier  of 
or  time-tables  of 
[■t  at  tliat  place ; 
ad  that  it  was  the 
by  suitable  rules 
3  corporation  had 
rporatioii,  in  view 
e  the  speed  of  the 
Borporation  ought 
:or  the  better  pro- 
is  simply  that  it 
tion  of  the  freight 
train,  and  to  give 
is  specified  is  sim- 
1  view  of  a  present 
n  the  face  of  the 
lie  corporation,  and 
lied  for  a  reduction 
arning8,therei9no 
(rants  or  agents  to 
warnings ;  but  it  is 
ch  omission  existed, 
ar  agents.  If  so,  in 
their  negligence,  it 
prove  that  such  neg- 
it,  which  sets  forth 
specified  in  the  third 
gligence  or  careless- 
corporation,  or  must 
make  the  corporation 

unt,  we  look  'nto  the 

id,  it  appears,  that  in 

to  meet  at  the  place 

jthing  to  show  that  the 

re  to  reduce  the  speed 
rnings,  except  the  evi- 
lose  acts  on  the  part  of 


COMMONWEALTH   V.  HARTWKLL. 


1133 


ts  servants  and  agents,  and  the  reference  sought  to  be  drawn  from  such 
omission. 

It  was  suggested  in  the  brief  for  the  Commonwealth,  that  no  motion 
was  made  to  quash  the  indictment  for  informality,  and  that  under  tlie 
statute  of  18G4,i  it  was  too  U've,  upon  the  trial  of  the  case,  to  raise  tlie 
objection  to  this  court.     Under  that  statute,  an  objection  for  a  formal 
defect,  apparent  on  the  face  of  the  indictment,  must  be  taken  before  tlie 
jury  has  been  sworn.     The  objection  to  this  court  is  not  of  that  charac- 
ter.    There  is  nothing  on  tae  face  of  this  count  which  would  enable  the 
court,  on  inspection  thereof,  to  determine  what  shouM  be  added  or 
changed,  to  meet  tlie  _case  intended  to  be  relied  on.     The  statute  on 
which  the  count  is  founded  allows  two  kinds  of  negligence  to  be  set 
forth ;  negligence  of  tlie  corporation,  and  gross  nogligcnce  of  its  ser- 
vants or  agents.     Apparently,  the  pleader  intended  to  rely  on  the  former ; 
and  in  that  case,  it  is  necessary  to  aver  some  substantive  additional 
facts,  in  order  to  show  such  liability.     If,  however,  the  negligence  of 
servants  or  agents  of  the  corporation  was  intended  to  be  relied  on,  the 
oinissioa  of  a  direct  charge  that  there  was  gross  negligence  or  circum- 
stances on  their  part  can  not  be  considered  as  merely  formal.     In  either 
case  the  objection  w^s  well  taken  ft  the  trial. 


manslaughter  — clonductob  of  railroad  train. 
Commonwealth  v.  Hartwell. 

[128  Mass.  ^15;  35  Am.  Rep.  391.] 
Ill  the  Supreme  Judicial  Court  of  Massachusetts,  1880, 

Tha  Prisoner,  a  Conductor  of  a  Freight  Train,  •s'»«  indictee!  for  manslanghtBr.  The 
indictment  clmrgcd  Ihut  the  prisoner  negligently  omitted  wliilo  crossing  with  his  train 
from  the  outward  track  of  the  road  across  the  inward  track  to  a  side  track,  and  again 
across  the  inward  to  the  outward  track,  to  ^  ^nd  forward  any  t  ignal  to  warn  the  driver  of 
a  passenger  train  which  the  prisoner  well  .i;?w  wa»  due  and  about  to  arrive  at  that  part 
of  said  railroad,  whereby  said  passenger  tram  collided  with  the  prisoner's  train,  caut^ing 
the  death  of  a  passenger.  There  was  no  proof  given  on  the  trial  that  the  prisoner  knew 
of  the  approach  of  the  passenger  train.  J7«{<i,  that  the  conviction  could  not  be 
sustained. 

Endicott,  J.  This  is  an  indictment  for  manslaughter  in  which  the 
defendant  is  charged  with  negligence  and  omission  of  duty,  as  con-- 
ductor  of  a  freight  train,  whereby  another  train  was  thrown  from  the 
track,  and  a  passenger  thereon  was  killed. 

1  jh.SSO.seo.  3. 


^h^^iMM^H 


1134  CR.M..8   »OAI»8T  THE  PEB80N8   OP   INDIVIDUALS. 

8,  lti78,  ill  chargo  of  a  freight '""»  °°  t„  j^e  Wolhslon 

h„a  been  run  over  the  ou  w.rd  '«^.'°""  ""'.„„  had  estab- 
gutio.  in  Quinoy,  under  ill.  *7;'^^'  J"  ;^/::li/„.  rule,  and 
Mied  for  .be  guidance  »'  '"J^t^^^^Aue  inward  trade,  o.er 
regulations,  '»""f, ''  'S^/:  *VZ  „n'  by  locomotive  engine,  and 
wliicii  trains  passed  »»""-"  ""J' "  °.  '  i  „|,ii,h  luie,  and  regu- 
train,  u,ing  or  running  upon  ^^^T"^^^^;^  ZZ  ««"""»■"•  ""^ 
Ution,  -ere  in  '^''^  ^''J^Zy'^:^'^:!:.  W,  locomotive  engine 
that  it  became  and  wa,  his  duty  not  "»  j, 

r  tr;:tr  :;Var^^^^^  3tr:?'uny .«.  approach. 

The  iucUctment  ^^^^  .^^^^^f^V,  j^^ "^^^^^^^^^  a  certain  train,  to 

well  knowing  t»-  l^^  J;;,^!  oLr  ^^^^         steam  engine,  and 
wit:  a  train  consisting  of  ;"*;'"  7^^^^  „„,i  drawn  thereby,  vras 

divers,  to  wit,  twenty  cars  a  taclied  J';^;^;"  "  ^^^  along  the 

then  and  there  lawfully  *r«^^f  ^^^  ^^'^wSnl^^  ^^rive 

said  inward  track  «V^' V"  Hn  OufncTa^^^^^^^^^^^  the  WoUaston 

station  aforesaid  l^^VSaUv  and  feloniously,  and  in  a  wanton,  neg- 
satne  time  and  place,'  willfully  and  leion  o     y, 

ligent  and  improper  manner,  and  ««"^"^7^ '^J^^^^'^die  and  about  to 
and  while  the  last  mentioned  train  w.is  ^^J^^^^^^^^^^^^^  direct  to 

be  c<.nducted  and  dnven      n  ^^^^       ^^^^^  ^^^  ^g^^„ 

track  to  a  side  trade,  and  '^ttac^ied  to  ^^^^^  ^^^^.^^  ^^^^ 

:-S\hr  ::t/^:  ::;  ^o  -nne.  t.  ra.  ..  .^^^^ 

-t^^at^rSS^S:^--'"-^ 

with  the  rules  and  re.ula.ons  of  the  company.  ^^^^  ^^  ^^^^^^  ^^^^  ^.^ 
The  indictment  a  teiaga^^^^^^^^^^^^^^  ^^  ^^^^   ^^^^^^^  ,, 

then  due,    and  ^^^^J^^^^^  in  substance  that,  by  means    of 

required  signal    proce^^BO^c^^^^^^^^^  ^^^^,^^  ^^  the  defendant, 

the  premises  and  the  felonious  neg.ei.t  WoUaston  Station, 

.be 'driver  o,  the  «P7-';";traV  T-^'iruubroiien  and  unob- 

rtr;r=;trt--.-^^^^^^^^ 

Patrick  Reagan,  was  killed. 


L8. 

actor  in  the 
9  on  October 
ipany,  wliich 
he  WolHston 
ly  had  estab- 
jnt  rules  and 
d  track,  over 
e  engines  and 
jles  and  regu- 
efendant,  and 
motive  engine 
t  first  sending 
n  approaching 
t  stopping, 
said  Hartwell, 
jrtain  train,  to 
im  engine,  and 
n  thereby,  was 
1  and  along  tlie 
about  to  arrive 
■  the  WoUastoa 
alf  did,  '  at  the 
a  wanton,  neg- 
in  that  behalf, 
lue  and  about  to 
lit  and  direct  to 
sross  the  inward 
,  cars,  and  again 
reby  leaving  the 
upon  the  inward 
;ver  to  warn  the 
,"  in  accordance 

twenty  cars  was 
■nd  forward  the 
at,  by  means  of 
)f  the  defendant, 
/"ollaston  Station, 
broken  and  unob- 
iiot  stop,  but  con- 
ent  of  the  switch, 
ret  therein,  named 


COMMONWEALTH   V.  HARTWELL. 


1135 


It  appeared  in  evidence  that  the  train  thus  thrown  from  the  track  was 
an  extra  train,  and  that  the  defendant  had  a  written  notice  from  the 
superintendent  of  tlie  company,  that  it  would  run  on  that  day.  lUe 
notice  contained  the  time-table  of  the  train,  and  it  was  due  lu  Boston 
soon  after  five  o'clock  in  the  afternoon.  The  defendant  s  tram  left 
Boston  on  its  regular  time,  at  half-past  six,  more  tlian  hour  after  the 
extra  train  was  due  in  Boston,  and  reached  the  Wollaston  Station  soon 
after  s*:  en.  The  extra  train  was  tlien,  according  to  the  time-table 
contained  in  the  notice  received  by  the  defendant  more  than  two  hours 

behind  time.  .  ♦„  *ua 

The  defendant,  while_At  the  Wollaston  Station,  in  obedience  to  the 
directions  from  the  freight  agent,  took  the  freight  cars  from  the  side 
track,  crossing  the  inward  track  as  set  forth  in  the  indictment,  and  with- 
out  sending  forward  tiie  required  signal  to  warn  any  train  approaching 
on  that  track.  No  evidence  was  introduced  by  the  Government  that 
the  defendant  knew  that  the  extra  train  was  then  due  and  »»>""*«> 
arrive  at  the  Wollaston  Station.  On  tlie  contrary,  it  appeared  by  the 
evidence  that  he  then  understood  it  was  in  Boston,  and  stated  to  his 
engineer  before  he  left  Boston  that  it  had  arrived. 

Amon-  other  instructions  requested,  the  defendant  asked  the  court  to 
rule,  that  the  averment  that  Hartwell  well  knew  that  a  certain  tram 
u  was  then  and  there  lawfully  traveling  and  being  propelled  on  and 
along  the  said  inward  track  of  said  railroad,  and  was  then  due  and 
about  to  arrive  at  that  part  of  said  railroad  in  Quincy  aforesaid,  near 
the  Wollaston  Station  aforesaid,"  was  a  material  averment,  which  must 
but  proved  by  the  Commonwealth,  and  there  was  no  evidence  in  the  case 

to  support  that  averment.  ,  .     •■  j  u    *».„ 

The  court  declined  to  give  this  ruling;  and  it  is  contended  by  the 
Government  that  this  averment  need  not  be  proved  as  laid,  but  can  be 
rejected  as  surplusage.  But  we  are  of  opinion  that  '.he  ruling  should 
have  been  given,  and  that  the  defendant's  exceptions  on  this  point  must 

be  sustained.  , 

The  precise  question  is  whether  this  averment  can  be  rejected  as 
mere  surplusage,  or  whether  it  is  of  such  a  character  as  not  ""Iv  «  ^e 
descriptive  of  the  negligence  charged,  but  in  it%««""«f  ^  "f'^^^'i^, 
other  parts  of  the  indictment,  is  notice  to  the  defendant  of  the  exact 
charge  wliich  he  has  to  meet. 

The  defendant  is  charged  with  the  crime  of  manslaughter,  and  the 
specific  nature  of  the  charge  is  that,  by  reason  of  his  culpable  negli- 
gence and  omission  to  perform  his  duty,  Patrick  Reagan  was  killed^ 
ilis  guilt,  therefore,  depends  solely  upon  the  question  whether  he  waa 
negligent,  and  failed  to  perform  his  duty  upon  a  given  occasion,  and 


^v^*'****^**'*'^*****^ 


1136  CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

and  extent  of  the  negligence,  which  connects  him  witii  the  deatli  of  Rea- 
gan,  fully  and  plainly,  substantially  and  formally  described  to  him  in 

the  indictment. 

This  the  indictment  does  or  attempts  to  do,  and  charges  in  suhstance 
that,  well  knowing  the  rules  of  the  road,  and  his  duty  in  that  regard, 
and  what  signals  should  be  given  when  an  engine  or  train  from  the  out- 
ward track  crosses  the  inward  track,  and  also  well  knowing  that  this 
particular  train  was  tlien  due  and  about  to  arrive  upon  that  track,  he 
neglected  to  give  the  required  signals,  and  the  death  of  Reagan  was 
the  result.     The  pleader  has  made  the  knowledge  of  the  defendant  that 
the  express  train  was  due,  as  well  as  his  knowledge  of  the  rules  and  his 
duty  in  regard  to  them,  an  essential  and  material  portion  of  the  descrip- 
tion of  thlacts  and  conduct  of  the  defendant,  which  go  to  constitute 
the  ne^Tliijence  charged,  and  the  negligence  charged  is  not  merely  that 
he  failed  to  give  the  signal  required  to  notify  any  approaching  tram, 
but  that  he  failed  to  give  it  wiien  he  knew  there  was  an  instant  and 
pressing  necessity  for  so  doing,  this  particular  train  was  then  due  at 

that  point.  ,         ,.     ui    ♦ 

This  was  not  an  impertinent  averment,  or  foreign  or  inapplicable  to 
the  charge,  because  proof  of  such  knowledge  would  estabhsh  the  most 
culpable°negligence.     The  gist  of  the  indictment  is  the  defendant's  neg- 
li<rence ;  and  in  alleging  it,  this  specific  act  of  negligence,  to  wit,  a  dis- 
re°'ard  of  his  duty  to  warn  tliis  train,   which  he    knew  then  to  be 
imminent,  is  made  a  part  of  the  description  of  that  which  is  essential  to 
the  charge.     The  general  neglect  of  duty  is  resolved  into  this  particular 
manner  of  neglecting  it;  and,  having  charged  a  general  neglect,  tlie  in- 
dictment  notifies  the  defendant  that  the  neglect  of  his  general  duty  was 
in  this  specific  mode.     While  it  is  unnecessary  to  decide  whether  or  not 
it  woulrl  be  sufficient  in  this  case  to  allege  in  general  terms  a  neglect 
of  duty,  in  not  sending  out  a  signal  to  warn  any  approaching  tram, 
without  alleging  that  the  defendant  knew  that  the  inward  track  was 
liable  at  any  time  to  be  used  by  an  approaching  train;  it  is  clear  that, 
when  not  merely  general  neglect  of  duty  is  alleged,  but  the  particular  in 
which  it  was  violated   is  carefully  and  with  precision  set  out,   the 
defendant  has  the  right  to  assume  that  the  specific  negligence  thus 
alleged  is  the  mode  in  which  the  general  duty  has  been  violated. 

The  government  having  selected  the  precise  ground  upon  which  to 
stand,  in  describing  and  expressing  the  nature  and  extent  of  the  de- 
fendant's negligence,  it  must  be  confined  to  the  limits  which  it  has  pre- 
scribed  for  itself.  For  it  is  well  settled  that  an  allegation  must  be 
proved  which  is  descriptive  of  the  identity  of  the  charge,  or  of  that 
which    is  legally  essential  to  the  charge;  and  when  any   allegation 


COMMONWEALTH   V.  HARTWELL. 


1137 


AL8. 

I  death  of  Rea- 
becl  to  biia  in 

es  in  9uh  stance 
in  tliat  regard, 
1  fiom  the  oiit- 
iwing  that,  this 
that  track,  he 
[)f  Reagan  was 
defendant  that 
lie  rules  and  his 
I  of  tlie  descrip- 
go  to  constitute 
lOt  merely  that 
iroaching  train, 
an  instant  and 
ivas  then  due  at 

inapplicable  to 
tabhsh  the  most 
defendant's  neg- 
3e,  to  wit,  a  dis- 
new  tlien  to  be 
L'h  is  essential  to 
to  this  particular 
1  neglect,  tiie  in- 
general  duty  was 
le  whether  or  not 
I  terms  a  neglect 
iproaching  train, 
iward  track  was 
;  it  is  clear  that, 
;  the  particular  in 
iOn  set  out,   the 
:  negligence  thus 
n  violated, 
nd  upon  which  to 
extent  of  the  de- 

which  it  has  pre- 
llesation  must  be 
harge,  or  of  that 
n  any  allegation 


under  such  circumstances  that  he  may  be  held  criminally  responsible 
for  the  death.  He  is  entitled,  therefore,  to  have  the  nature,  character 
narrows  and  limits  that  which  is  essential,  it  is  necessarily  de- 
scriptive.^ The  same  principle  has  been  recognized  ia  those  cases  in 
this  Commonwealth,  in  which  it  has  been  held  that  an  averment  might 
be  treated  as  surplusage  when  not  descriptive  of  the  identity  of  the 
charge,  or  of  anything  essential  to  it.'^ 

It  is  undoubtedly  true,  that  when  an  indictment  alleges  the  commis- 
sion of  an  offense  by  various  means,  it  is  sufllcient  to  prove  enough  of 
the  means  to  constitute  the  offense ;  as  in  the  familiar  case  of  obtaining 
money  by  false  pretenses,  proof  of  all  the  pretenses  charged  ia  not 
necessary ;  it  is  sufficient  if  enough  are  proved  to  establish  the  charge. 
But  when  the  indictment  states  a  pretense  in  general  terms  and  then 
specifies  the  particulars,  it  is  the  particular,  and  not  the  general  state- 
ment which  must  be  proved ;  as,  for  example,   if  it  alleges  that  a 
defendant,  as  a  representation  of  his  ability  to  pay,  stated  that  he 
owned  a  large  amount  of  stock  in  corporations  and  then  specifies  a  cer- 
tain number  of  shares  that  he  claimed  to  own  in  a  particular  stock,  the 
allegation  being  thus  qualified  and  limited,  the  proof  must  relate  to  that 
particular    stock.     In     Commonwealth    v.    Jeffries,^   the   indictment 
charged  that  the  defendant  falsely  pretended  that  he  had  an  order  from 
a  certain  person  in  New  York,  whose  name  he  did  not  disclose,  to  pur- 
chase goods ;  the  proof  was  that  he  falsely  pretended  that  he  had  an 
order  to  purchase  them,  without  stating  that  it  came  from  a  person  in 
New  York ;  and  it  was  held  that  the  variance  was  fatal,  and  there  was 
evidence  to  support  the  charge.*    And  when  a  person  is  charged  with 
stealing  a  white  horse,  the  specific  averment  of  color  is  not  necessary, 
but,  being  descriptive  of  that  which  is  material,  it  can  not  be  rejected 
as  surplusage,  but  must  be  proved  as  laid.s 

In  the  case  at  bar,  the  negligence  of  the  defendwit  is  essential  to 
support  the  charge  of  manslaughter.  The  specific  averment,  that  he 
knew  that  this  particular  train  was  then  due  bears  directly  upon  that  ques- 
tion, and  being  set  out  in  that  part  of  the  indictment  which  charges  the 
negligence,  it  is  descriptive  of  the  facts  and  circumstances  which  sur- 
rounded the  defendant  at  the  time,  in  vifew  of  which  he  acted  or  failed 
to  act,  and  of  the  kind  and  character  of  the  negligence  of  which  he  is 


1  Com.  V.  WelUngton.  7  Allen,  299,  and 
cases  cited;  Oom.  V.Jeffreys,  7  Allen,  548; 
Com.  V.  Hughes,  6  Allen,499;  Com.  v.  Uayln, 
121  Mass.  94  and  cases  olted;  U.  S.  v.  How- 
ard, 8  Sumn.  12;  U.  S.  v.  Porter,  3  Day,  283; 
ChurchUl  V.  Wtllrlns,  1  J.  B.  447;  Brlstow  v. 
Wright,  2  Doug.  665 ;  1  Chit.  Cr.  L.  294, 557 ;  1 
Greenl.  Ev.,  sec.  69. 

8  DBFBMCns.  72 


S  Com.  V.  Pray,  13  Pick.  359;  Com.  v.  Ran- 
dall, 4  Gray,  36;  Lyons  v.  Merrick,  105  Mat*. 
71 :  McNeil  V.  OoUlnson,  128  Mass.  313. 

s  itMtupro. 

*  See  Rex  v.  Plestov,  1  Camp.  494. 

•  3  stark.  Ev.  (Ist.  ed.),  1531.  See,  also. 
State  V.  Moble,  15  Me.  476;  Com.  v.  Oavln, 
121  Mass.  54. 


1138        CR.MEB  AOA.NST  THB  PE»0»S  or  ,Nm«IP«A..S. 
sieged  .0  tav.  been  guiUy.    There  being  no  evidence  to  eupport  it.  tbe 
Tnt;°:r:Mb:"::::l",tbec,n..,  «nneee.s„y  to  consider  «>. 
ottier  queelion.  fuUy  wd  .bly  .rgned  at  tUe  ^^'-^^^^  ^„i^. 


NOTES. 

..  ,       Mnrder  muBt  be  committed  by  some 
piS:l:rwe==--r'.",  ..c..o,t.„o.c....t.. 

murder.*  ^, _„ 

It  i,  not  murder  to  give  false  testimony 
§678.  Murder- False  8''««rtf«--"/;^°* "Convicted  and  executed.^ 
Jereby  one  on  trial  lor  a  '^'^P'^f  J^'^^^ ^tL  trlld  before  Mr.  Justice 
At  the  Old  Bailey,  In  "^4,  one  Joshua  K^de^w  ^^  ^^^  ^^^^^^  ^ 

FOSTER,  for  robbing  Mary  Jones,  widow,  «°  tj«^  «  ^J  swore  very  positively 
crown,  and  two  shillings  and  six  pence.  J"^;  P^^^^^^^^  ^,  ,^,  .^bbery,  In  which 
to  the  person  of  the  prisoner,  and  to  the  ci'^J^Un  ^^^^^^^^  ^^  ^^^^^ 

she  was  confirmed  by  one  ^^'J;  JJ"  J^^^t^e  first  of  March  following,  t^ 
witnesses,  was  convlctedand  e^J^^f '  'J'J  ^i„  ^„d  Mary,  « to  those  who 

reward  of  forty  pounds,  8'7J"''yJ/;f,Ld  between  the  prosecutrix  Mary 
Bhallconvlct  a  highway  robl^r,  was  dlvldea^^^  The  history  of 

a  conspiracy  and  contrivance  to  obtain  the  rewar  „i^„,„t3  concerned 

Diligent  search  was  accordingly  made  to  JPP'J^«°         j„  j„„,  gesslon,  1766. 

lu  this  extraordinary  transaction,  and  at  the  o^^*    (^^^^^  before  Mr.  Jus- 

Stephen  Macdanlel,  ^^-^'''\^^,.fZ  fhe  wlWu  xnurder  of  Joshua  Kldden 
tlce  roster,  present  Mr- faronSmythe  for  t^e^^J  ^^,^^,y  recused,  tried, 

in  maliciously  causing  him  to  ^e  «n]«««y^  ^P'*  ;,  „,  ^^e  fact  laid  to  his 

convicted,  and  executed,  well  ''»°^»°8J''^^^^  ^he  reward,  etc.  The  prisoners 
charge,  with  an  intent  to  share  to  **'«?'^'^^*"  ^^^Ltory  evidence  of  the  fact; 
tre  c;,nvlcted,  upon  the  «>«««f  .J^f^^/U^t^^^^^^  unexampled.  The 
and  a  sense  of  depravity  was  ^ff^^^^'^l^^^r^et^^er  an  Indictment  for  mur- 
judgment,  however,  was  respited  ''P^"  *  J°"^;^;,,,  ^ere  accordingly  entered 

L  would  He  m  this  case.  T^^P^^^tnTfiuXg  o7  the  jury, «« That  Justice 
upon  the  record,  together  with  an  add  tlonainn^  ^^  ^^^^^. 

Hall,  m  the  Old  Bailey,  Is  situated  ^'l*''"  f^  """"^x.  from  time  immemorial 
and  ihat  felonies  ---"»«\»"  ^^^  7,°  T  j^  order  Sthe  point  of  law  might 
have  been  accustomed  to  be  triedthere      in  order  ^^^  ^^^  ^^^^^^ 

be  more  fully  c<>'»l<^«"'*' TLZ^d  iL  ar^fu  »nd  prisoners  were  at 
ii«ni»r  the  attorney-general,  declined  to  argue  IV,  » 

fsJbsCnt  L-^n  discharged  from  that  Indictment. 


1  Com.  V.  Webrter,  5  Onrt. 
Deo.  711  (MM). 


395;  B2  Am. 


t  B.  ».  Macdanlel.  1  Leach,  M  (1756). 
>  cb.  9. 


MA. 

tupport  It,  the 
)  consider  the 
nt  sustained. 


MURDER — ELEMENTS   OF  THE   CRIME. 


1139 


mmltted  by  some 
terror  can  not  be 

re  false  testimony 
d  and  executed. * 
efore  Mr.  Justice 
one  guinea,  a  half 
ore  very  positively 
5  robbery,  In  which 
dence  of  these  two 
arch  following,  the 
iry,  '  to  those  who 

prosecutrix  Mary 
r.  The  history  of 
tors  until  the  9th  of 

Blackheath  having 
)vered  to  have  been 

ilscreants  concerned 
1  June  Session,  1766, 
cted  before  Mr.  Jus- 
erof  Joshua  Kldden, 
ilsely  accused,  tried, 
of  the  fact  laid  to  his 
,  etc.    The  prisoners 
evidence  of  the  fact; 
IS  unexampled.    The 
tt  Indictment  for  mur- 
e  accordingly  entered 
le  jury,  "  That  justice 
the  City  of  London; 
rom  time  immemorial 
He  point  of  law  might 
nent.    But  Sir  Robert 
the  prisoners  were  at 


lel.l  Leach,  M  (1756). 


Sir  William  BlackBtone,  however,  says,  that  there  were  grounds  to  believe.  It 
was  not  given  up  from  any  apprehension  that  the  point  was  not  maintainable, 
6ut  from  other  prudential  reasons. 

In  May  session,  1859,  they  were  again  put  to  the  bar,  upon  an  indictment  for 
conspiracy  to  defeat  the  pubUc  justice  of  the  kingdom,  in  causing  Joshua  Kldden 
to  be  executed  for  a  robbery  which  they  knew  he  was  Innocent  of,  with  Intent 
to  get  into  their  possession  the  reward  oftered  by  act  of  Parliament;  but  no 
evidence  appearing,  they  were  all  acquitted. 

§  679   Mew  Bom  inftmt— Inlantlclde.  -To  constitute  a  human  being, 

the  subject  of  murder,  an  infant  must  be  fully  delivered,  and  have  an  Independ- 
ent  circulation  from  that  of  the  mother.^  There  must  be  an  Independent  clrcu- 
lation  in  s  new  born  child  to  make  its  kUling  murder ;  that  It  has  breathed  is  not 
enough.' 

I  eso   Death  Must  Take  Place  Within  a  Year  and  a  Day.  ~  "  Mnrder 

18  a  com'plex  term  denoting  several  facts  of  which  the  death  of  the  party  is  one 
•1  the  most  essential.  The  mortal  stroke  or  the  administering  of  poison  does 
not  constitute  the  crime  unless  the  sufferer  dies  thereof  within  a  year  and  a 
day  "  »  The  Indctment  must  show  that  the  death  occurred  within  a  year  and  a 
dayafter  the  wound  or  It  will  be  bad.*  The  crime  Is  committed  not  on  the  day 
when  the  victim  dies,  but  on  the  day  on  which  the  fatol  injury  le  received.* 

(  681  Homicide— Death  Must  be  in  Ooneeauenoe  of  Prleoner'a  Art.— 
In  JB  V  Hilton*  the  prisoner  was  indicted  for  manslaughter.  It  appeared  by 
tne  evidence  that  it  was  his  duty  to  attend  a  steam  engine.  That  on  the  occa- 
sion in  question,  he  had  stopped  the  engine,  and  gone  away;  and  that,  during 
his  absence,  a  person  came  to  the  spot,  and  put  It  In  motion,  and  being  unskll  ed 
^as  not  able  to  stop  it  again.  It  further  appeared  that  in  consequence  of  the 
engine  being  thus  put  In  motion,  the  deceased  was  killed.  Alderson,  B., 
stopped  the  case,  observing  that  the  death  was  the  consequence,  not  of  the  act 
of  the  prisoner,  but  of  the  person  who  set  the  engine  In  motion  after  the  prls- 
oner  had  gone  away.  That  it  Is  necessary.  In  order  to  a  conviction  for  man- 
slaughter,  that  the  negligent  act  which  causes  the  death,  should  be  that  of  the 
party  charged. 

S  682  Homicide -Death  Oocaaloned  Partly  by  a  PredlspoBln*  OfcttW*--- 
In  i?  V  Johnson,''  the  prisoner  was  Indicted  for  manslaughter.  It  appeared  in 
evidence,  that  he  had  been  lighting  in  the  house  where  he  lodged,  at  Knaves- 
borough  In  the  scuffle  he  struck  his  antagonist,  Edward  Cattln,  on  the 
stomach,  upon  which  he  feU.  The  surgeon  who  opened  the  body,  was  exam- 
ined and  deposed  as  follows:  "The  muscles  of  the  stomach  were  distended, 
and  the  vessels  of  the  brain  were  in  a  like  state.  On  the  external  surface  of 
the  stomach  there  was  a  slight  discoloration;  a  blow  on  the  stomach  In  this 


1  state  V.  Wlnthrop,  48  Iowa,  61t.  And  Me 
Wallace  v.  SUte,  7  Tex.  (App.)  670  (1880). 

s  R.  V.  Enoch,  5  0.  *  P.  689  (1838) ;  B.  ». 
Poulton.e  O.  &  P.  8»  (18SS) ;  B.  ».  SellU,  7  0. 
A  P.  860(1889). 

3  Parker,  O.  J..  In  Com.  v.  Parker,  3  Pick. 
668  (18M). 


«  SUte  •.  OrreU,  1  Dev.  (L.)  139;  17  Am. 
Dec  668;  People  ».GI11,6  Oal.687  (1866); 
People  «.  Aro,  6  Oal.  208  (1866). 

e  People  «.  Gill,  6  Oal.  687  (1866). 

•  2  Lew.  214  (1838). 

t  1  Lew.  164  (1827). 


1140         CRIMES   AGAINST  THE   PERSONS   OF   INDIVIDUALS. 

State  ol  things,  arislnR  from  passion  and  Intoxication,  wan  calculated  to  oc- 
caslon  death,  but  not  80  If  the  party  had  been  sober." 

HULLOCK,  B.,  directed  an  acquittal  observing,  "  that  where  the  death  was  oc- 
casioned partly  by  a  blow  and  partly  by  a  predisposing  circumstance,  it  was  Im- 
possible  so  to  apportion  the  operations  of  the  several  causes,  as  to  be  able  to 
•ay  with  certainty  that  the  death  was  Immediately  occasioned  by  any  one  of 
them  in  particular."  > 

6  6820.  Homicide-  Death  Oooaeloned  by  One  of  Two  Oaueee,  But  which 
Uncertain. -In  B.y.  Wrigley,*  the  prisoner  was  Indicted  for  manslaughter. 
It  appeared  that  ho  had  been  lighting  with  the  deceased,  and,  that,  when  the 
deceased  was  doWn,  the  prisoner  struck  his  head  against  the  ground  The  de- 
ceased  was  afterwards  laid  at  full  length  on  a  form  or  stool,  from  which  he  fell 

bodily  to  the  ground.  ..  ^u     *u    ^- 

The  surgeon  on  his  examination  said:  "  I  think  It  uncertain  whether  the  de- 
ceased  died  In  consequence  of  the  bruises  he  had  received,  frora  his  head  being 
knocked  against  the  ground,  or  from  the  subsequent  fall  from  the  stool  j  but 
that  It  was  more  probable  he  died  from  the  knocking  of  his  head  against  the 

*'baylky,  J.,  doubted  whether  this  was  evidence  to  go  to  the  jury;  but  he 
allowed  It  to  go  to  them,  at  the  same  time  intimating,  that  In  the  event  of  the 
conviction,  he  would  respite  the  judgment,  and  take  the  opinion  of  the  judges. 
The  jury  acquitted  the  prisoner. 

8  688   Homicide  -  Death  from  Subaequent  Medical  Operation.-  In  Cofman 
V.  bomnionwealth,^  In  the  Court  of  Appeals  of  Kentucky,  the  law  was  laid  down 
as  follows     The  court  said :  '<  The  evidence  tended  to  prove  that  the  appellant 
Inocked  tke  deceased  down  with  his  fist,  and  that  he  fell  with  his  head  against 
a  cost  from  which  a  nail  protruded  one-half  or  three^iuarters  of  an  Inch,  and 
that  his  head  struck  the  nail  and  the  scalp  was  cut;  that  the  appellant  stamped 
Ipon  he  bod,  of  the  deceased  with  his  foot,  and  that  the  latter  was  Insensible 
?rom  that  time  until  his  death,  the  symptoms  Indicating  that  there  was  com- 
JreTslon  of  the  brain.    A  medical  witness  testified  that  he  cut  Into  the  skull  at 
Se  wound  made  by  the  nail,  but  discovered  no  evidence  of  injury  to  the  bone; 
int  he.  and^ther  physicians,  believing  there  was  compression  or  extravasation 
o?  biood  on  the  brain,  and  that  the  patient  would  die  unless  he  could  be  relieved 
Sy  trephlnlns,  they  as  a  last  resort  sawed  out  a  piece  of  the  skull  bone  about  an 
Kn  dlame  er  and  removed  it.  and  found  clotted  blood  resting  on  the  brain; 
Sat  Sey  did  not  remove  the  blood,  but  placed  the  piece  o  bone  in  the  aperture 
and  left  It  there.    This  was  a  day  or  two  before  the  patient  died     In  view  of 
this  evidence  the  court  gave  the  following  instructions,  viz. :  -The  court  in 
fltructe  the  jury  that  though  they  may  believe  the  death  of  Harrison  was  caused 
?,  tS^surXToperatlon.  yet  If  the  operation  was  performed  by  physicians  as 


1  Note.  -  the  learoed  Judge  cited  from 
his  notes  the  following  caies,  viz. :  — 

Brovm'$  Gate,  April,  1824.  Indictment 
charged  with  kUlIng,  by  •trlklng.  Jury 
found  that  the  death  was  occasioned  by 
over- exertion  in  the  fight.  The  Judges  held 
that  the  prisoner  was  entlUed  to  an  acquit- 

Anonytntnu.    Indictment    charged  with 


kUling  by  striking  with  a  brick.  The  Jury 
found  that  the  deceased  was  killed  by  tail- 
ing upon  a  brick  In  consequence  of  a  blow. 
The  Judges  held,  that  the  Indictment  was 
not  supported  by  the  finding. 

i  1  Lew.  171  (1829). 

» 10  Bush,  495.  And  see,  Livingston's 
Case,  14  Oratt.  593. 


L8. 

:ulated  to  oc- 

death  was  oc- 
Dce,  it  was  Im- 
8  to  be  able  to 
by  any  one  ol 

e«,  But  wblob 
manitlaughter. 
tlmt,  when  the 
ound.  The  de- 
m  which  he  fell 

whether  the  de- 

i  tils  head  being 

the  stool ;  but 

ead  against  the 

le  jury;  but  he 
the  event  of  the 
I  of  the  judges. 

on.—  In  Cofman 
V  was  laid  down 
lat  the  appellant 
his  head  against 
I  of  an  inch,  and 
ipellant  stamped 
ir  was  insensible 
there  was  com> 
Into  the  skull  at 
ury  to  the  bone ; 
or  extravasation 
could  be  relieved 
[11  bone  about  an 
Ing  on  the  brain; 
le  in  the  aperture 
died.    In  view  of 
:  '  The  court  in 
■rison  was  caused 
by  physicians  as 


HOMICIDK  —  IMPROPKR   MEDICAL   TREATMENT. 


1141 


a  remedy  for  the  wounds  iutlicted  by  the  defendant,  they  can  not  acquit  him  on 
that  ground.'  We  ciin  not  approve  this  as  a  principle  of  the  law  of  the  land. 
The  nicri!  fjict  that  the  operation  was  performed  by  physicians  as  a  remedy  for 
the  wounds  Inflicted  by  the  appellant,  without  any  reference  to  the  question 
whether  such  an  operation  was  reasonably  deemed  to  be  necessary,  or  was  per- 
formed by  men  of  ordinary  skill  as  Hurgcons,  or  in  an  ordinarily  skillful  manner, 
can  nut  render  the  appellant  legally  responsible  for  the  death  of  Harrison,  if  in 
fact  the  operation  and  not  the  injuries  inflicted  by  him  caused  his  death.  The 
rule  deducible  from  the  authorities  seems  to  be  that  where  the  wound  Is  appar- 
ently mortal,  and  a  surgical  operation  Is  performed  in  a  proper  manner,  under 
circumstances  which  render.lt  necessary  In  the  opinion  of  competent  surgeons, 
upon  one  who  has  been  wounded  by  another,  and  such  operation  is  itself  the 
immediate  cause  of  the  death,  the  person  who  inflicted  the  wound  will  be  re- 
sponsible.!  But  If  the  death  resulted  from  grossly  erroneous  surgical  or  medi- 
cal treatment,  the  original  author  will  not  be  responsible."  It  should,  there- 
fore, have  been  left  to  the  jury  in  this  case  to  say  whether  the  operation  per 
formed  on  the  deceased  was  such  as  ordinarily  prudent  and  skillful  surgeons, 
such  as  were  to  be  procured  in  the  neighborhood,  would  have  deemed  necessary 
under  the  circumstances  in  view  of  the  condition  of  the  patient,  and  whether  It 
was  performed  with  ordinary  skill;  and  they  should  have  been  told  that  if  they 
found  the  affirmative  of  these  propositions,  the  appellant  was  responsible, 
although  the  operation  and  not  the  wound  Inflicted  by  him  caused  the  death; 
but  that,  if  they  found  that  the  operation  would  not  have  deemed  necessary  by 
such  ordinarily  prudent  and  sltlilful  physicians  and  surgeons,  or  If  it  would 
have  been  deemed  necessary  and  was  not  performed  with  ordinary  skill,  and 
the  death  resulted  from  the  operation  and  not  from  the  injuries  inflicted  by 
appellant,  they  ought  to  acquit  him,  even  though  they  might  believe  such  In- 
juries would  eventually  prove  fatal.  For  the  errors  indicated,  the  judgment  is 
reversed,  and  the  cause  is  remanded  for  further  proceedings  not  inconsistent 

with  this  opinion. 

"Judgment  reversed." 

Where  a  person  in  loco  parentis  whips  a  child  and  compels  It  to  work  beyond 
its  strength,  and  the  child  dies  of  consumption,  its  death  being  hastened  by 
such  treatment,  it  will  not  be  murder  in  him,  but  manslaughter,  although  the 
punishment  was  cruel  and  excessive,  It  be  believed  the  child  was  shamming 
Illness  and  was  able  to  do  the  work.^ 

684.  Improper  Medical  Treatment  — Texas  Statute.  —  Under  the 

Texas  Criminal  Code,  If  there  be  gross  neglect  or  improper  treatment, 
which  aids  the  fatal  effects  of  the  injury,  the  death  of  the  injured  party  is  not 
murder  in  the  party  inflicting  the  original  injury.' 


a  brick.  Tlie  Jury 
1  was  killed  by  fall- 
sequence  ol  a  blow, 
the  indictment  wa» 
iding. 

1    »ee,  Livingston'* 


§  686.  Corpus  Delicti  Must  be  Proved.  —Before  a  conviction  of  homi- 
cide can  be  bad,  it  must  appear  that  the  body  of  the  murdered  person  has  beea 


1  Com.  V.  McFlke,  3  Cash.  181 ;  Parsoni  v. 
State,  21  Ala.  3M.  * 

a  21  Ala.  300. 


8  R.  v.Oheeseman,  7  O.  ft  P.  416,  (1886). 
*  Morgan  v.    State,  16  Tex.    (App.)  S9S 
(188i). 


wjn'-"  pw'mii  {tmmim 


.„.  .o»lS8T  THE  mSBSOSS  OF  INDtVIDUAUl. 

ol  Mr..  Loretody,  between  *.  '»""  "  ^a.,,  «>lHn|l  W».  W"!' "  '°  ™ 

lire  and  had  burned  up.  ^^d  ,ound  Mrs.  ^ovelady  dead. 

The  witness  thereupon  ^«°*  *"*\*°*     ,"    within  one  or  two  leet  ol  the 

rS»et.o.lc..«.-"..<b.^^^^^^^^^^ 

nrodnced  by  consumed  sticks  of  s™*"  °'"  qq  the  coals.    The  witness 

it  home,  and  requested  him  to  go  lo  ^^^^^^  ^^^  ^^^^  body  lay  was 


Mo.  m  (iKi) ;  ""i""  •• '~'  • 


S4TM.  (App.)M»  (IwJ)- 


I  ALB. 


CORPUS   DELICTI   MUHT   I»E   IMIOVKD. 


1148 


tin  Without  proof 
bpon.* 

■ult  of  Orim*— 
[charged  the  ap- 

lence  appears  to 

day  of  Janaaryi 
be,  and  by  throw- 
J  The  trial,  which 
I  conviction  of  the 

the  penitentiary 

Lte.    He  testified, 

relady,  In  January 

ind  the  deceased 

I  stood  about  two 

night  ot  the  death 

witness,  who,  with 

J,  saying,  aa  he  un- 

Are."    The  witness 

nd  standing  at  his 

lefendant  wringing 

d  crying.    The  wit- 

I  had  fallen  Into  the 

Mrs.  Lovelady  dead, 
or  two  feet  of  the 
room,  and  her  arms 
'  angling  rather  than 
ivas  burning,  nor  did 
ve  coals,  such  as  are 
nlng  in  the  fireplace. 
I  coals.    The  witness 
1  some  two  hundred 
ir  Mrs.  Richards  was 
ther  neighbor,  which 
9  dead  body  lay  was 
floors,  one  of  which 
nt's  third's  wife,  had- 
the  time  of  her  death 
defendant  had  three 
ive  years  old. 
and  his  family  were 
the  night  in  question. 
s  o'clock  when  he  was 
mce  he  placed  his  two 
to  the  witness'  ques- 
[e  was  then  crying  or 

SUte.SB  Ala.  187,  (187S); 
I  Mo.  536  (1874). 
64B  (1883). 


appeared  to  be.  The  fireplace  spoken  of  was  deep,  and  about  throe  and  a  half 
or  (our  feet  wide.  The  chimney  was  constructed  of  earth  and  sticks,  with  the 
backi*  and  Jambs  of  brick.  The  opening  of  thin  ctilmnoy  In  front  was  about  four 
feet  from  the  level  of  the  floor.  It  wits  about  two  feet  deep  to  the  back,  and  It 
was  ai)out  eighteen  Inches  from  the  end  of  the  floor  to  the  jambs.  The  hearth 
had  Huuk  down  from  three  to  five  Inches  and  was  very  uneven. 

The  witness,  after  he  returned  from  Mrs.  Jenkins*  was  requested  by  the  de- 
fendant to  go  to  Wlnnsboro  and  notify  Mr.  Cnrlock,  the  coroner,  of  the  death  of 
his  wife,  and  to  request  his  presence  with  a  pliyslclaii  to  hold  an  Inquest.  He 
requested  also  that  the  witness  en  route  should  go  by  Dock  Lovelady's  house  and 
notify  him.  Accompanied  by  Jesse  Robinson,  whom  the  defendant  provided 
with  a  horse,  the  wltne.ss  complied  with  this  request.  As  he  and  Robinson 
started  they  met  Mr.  Crane,  who  told  them  to  charge  Mr.  Carlock  to  come  to 
the  bouse  witliout  fall,  and  to  bring  two  good  physicians.  When  the  witness 
reached  the  defendant's  house  on  his  return,  day  had  just  broken,  and  a  large 
number  of  people  had  collected.    All  of  this  occurred  In  Wood.  County,  Texas. 

James  Grant,  the  second  witness  for  the  State,  testified  tLrt  he  had  resided 
In  the  northern  part  of  Wood  County  between  fifteen  and  twenty  years.  He 
was,  however,  a  stranger  In  the  neighborhood  of  the  defendant's  bouse  at  the 
time  of  Mrs.  Lovelady's  death.  He  was  at  tlie  house  of  Mrs.  Jenkins  when 
Browning  came  for  her  on  that  night,  and  at  the  time  was  sitting  by  the  fire 
with  his  family.  He  accompanied  Mrs.  Jenkins  to  the  defendant's  house.  This 
was  about  nine  o'clock.  When  he  and  Mrs.  Jenkins  arrived  at  the  defendant's 
house,  the  defendant  was  standing  on  his  gallery,  dressed.  He  had  on  hat, 
pants  and  boots,  but  no  coat.  Three  children,  dressed,  were  standing  near 
the  back  of  the  house.  The  deceased  was  lying  on  the  fioor  near  the  fireplace 
with  her  limbs  extended  towards  one  of  the  beds.  The  limbs,  except  the  feet, 
were  then  covered  with  a  sheet.  One  bed  was  rumpled  as  though  It  had  been 
occupied.  The  other,  and  remaining  one,  had  the  cover  smoothly  turned  down 
as  though  It  had  been  prepared  for  occupation.  It  did  not  look  like  it  had  been 
occupied  since  it  was  made  up.  A  bucket  half  filled  with  water  sat  within  four 
feet  of  the  body.  A  large  load  of  split  wood  was  on  the  fire,  and  was  slowly 
burning  when  the  witness  reached  the  house.  It  soon  ignited  and  burned  well. 
The  witness  remained  with  the  crowd  at  the  house  all  night.  He  had  not  pre* 
vlously  known  the  defendant  or  the  deceased. 

Doctor  T.  N.  Skeen,  a  graduated  physician,  was  next  introduced  by  the  State, 
and  examined  as  a  witness  and  ad  expert.  He  testified  that  in  January,  1882, 
he  was  called  upon  by  Coroner  Carlock  to  make  a  post  mortem  examination  of 
the  body  ot  Anna  Lovelady.  He  reached  the  defendant's  house  about  two 
o'clock  on  th«  day  after  her  death,  and-  began  the  examination  about  three 
o'clock,  In  the  presence  of  the  jury  of  inquest.  The  body  had  been  laid  out, 
washed  and  dressed.  Examination  disclosed  that  the  head,  breast,  the  upper 
part  of  the  back,  arms  and  hands  had  been  badly  burned,  in  some  portions  to  a 
crisp.  On  the  left  side  of  the  cheek  and  near  the  ear,  the  witness  found  a  small 
but  deep,  though  not  dangerous,  wound,  about  which  the  blood  had  settled 
showing  that  it  was  inflicted  by  a  blow  or  fall.  The  witness  could  not  deter, 
mine  whether  it  was  an  old  wound  or  one  of  recent  date.  The  hair  had  been 
burned  from  the  head.  The  witness  found  a  second  wound  on  the  back  of  the 
head,  just  above  the  roots  of  the  hair.  This  was  a  deep  bruise  as  large  as  a 
man's  hand,  extending  down  the  back.  The  blood  had  settled  about  it,  and 
down  the  back  and  spinal  column  for  several  inches.    The  skin  was  broken  to 


-.•«»=.»-— .-.-^..r. 


1144 


CRIMES  AGAINST  THE  PERSONS  OF   INDIAMDUALS. 


the  skull,  leaylng  the  skull  bare  over  a  space  as  large  as  n  silver  dollar.  This 
wound,  produced  by  vhaterer  cause,  whether  by  a  blow,  fall  or  effect  of  flre 
upon  this  part  of  the  head,  would  have  ca'^sed  instantaneous  death. 

On  the  top  of  the  bead  the  wltncjs  to  and  two  cuts  crossing  each  other  at 
right  angles.  The  one  extended  from  the  front  to  the  rear  and  was  about  three 
Inches  long.  The  other,  about  two  inches  long,  crossed  the  first,  running  in  a 
(ilrect  line  from  ear  to  ear.  These  two  were  well  defined  smooth  cuts  to  the 
skull,  and  gaped  open  along  the  edges.  The  corners  at  the  crossing  point 
turned  up.  They  were  cuts  to  the  skull,  but  not  such  as  would  produce  death, 
nor  even  such  as  would  stun  or  fell  the  deceased.  They  appeared  to  have  been 
Inflicted  with  some  sharp  instrument.  The  witness  was  of  the  opinion  that 
they  were  insufficient  to  .sum  deecasod,  because  the  skull  was  not  fractured, 
and  because  no  blood  had  settled  about  them.  Neither  the  wound  on  the  cheek 
Dor  those  on  top  of  the  hoad  produced  death,  but,  in  the  opinion  of  the  witness, 
death  resulted  from  the  wound  on  the  back  of  the  head. 

Upon  bis  cross-examination  the  witness  reiterated  that  he  did  not  regard  the 
wounds  on  the  cheek  and  on  the  top  of  the  head  as  dangerous  wounds,  and  they 
did  not,  in  his  opinion,  contribute  to  the  death  of  Mrs.  Lovelady.  He  did  not, 
at  the  time  he  made  the  eT°n:.  lation,  nor  did  be  yet  know,  what  caused  the 
wound  on  the  back  of  u. :  head.  He  was  and  is  still  undecided  as  to  how  the 
wound  was  inflicted.  It  might  have  been  inflicted  by  a  fall  or  a  burn.  He 
could  reach  no  conclusion  about  it  that  would  satisfy  his  own  mind.  The  skin, 
to  the  size  of  a  silver  dollar,  was  broken  from  this  wound,  and  the  skull  was 
exposed  just  above  the  roots  of  the  huir,  where  the  skin  over  the  skull  is  about 
one-sixteenth  of  an  inch  thick.  The  parts  at  this  point  were  badly  scorched 
and  burned.  The  witness  cut  them  away  and  fouii  I  that  blood  had  settled  and 
coagulated  near  by  and  down  'he  back  for  several  inches.  It  was  possible  that 
this  condition  might  have  beon  produced  by  the  action  of  the  flre  alone,  the 
effect  of  a  burn  being  to  stop  the  blood  and  cause  it  to  coagulate  as  it  does  in  a 
bruise.  The  wound  appeared  to  the  witness  more  like  a  bruise  than  anything 
else.  At  this  point  the  hypothetical  question  anu  answer  quoted  in  the  opinion 
^ere  objected  to  and  admitted. 

Re-crossed  by  the  defendant,  the  witness  deposed  as  follows:  "I  have 
already  stated  that  blood  will  settle  and  coagulate  in  the  region  of  a  severe 
burn  just  as  it  will  in  the  region  of  a  bruise.  The  settling  of  the  blood  down 
the  back  and  the  neck  of  the  deceased  may  possibly  may  have  been  produced  by 
the  burn  alone.  The  burn  on  the  back  of  the  head,  that  biHween  the  shoulders 
on  the  back,  and  that  on  the  breast  and  the  face,  would,  in  this  instance,  have 
produced  almost  instant  death,  without  any  other  cause.  The  deceased  was 
terribly  cruised;  her  face  was  burned  to  a  crisp;  her  nipples  were  burned  off, 
and  she  was  burned  to  the  hollow  or  inside  both  from  the  breast  and  the  back, 
and  would  have  died  from  this  cause  if  there  had  been  no  other.*' 

John  Richards,  the  next  witness  for  the  State,  v  stifled  that  at  the  death  of 
Mrs.  Lovelady  he  resided  on  the  defendant's  place,  about  one  hundred  and  fifty 
yards  from  the  defendant's  house.  He  went  to  the  defendant's  house  that  night 
about  nine  o'clock  and  saw  the  «iefendant  at  his  fence.  He  was  then  making  a 
noise  as  though  weeping,  but  the  witness  8a.v  no  tears.  Witness  heard  several 
persons  talking  ab  >ut  sending  for  a  coroner  to  hold  an  inquest,  but  did  not  know 
who  made  the  suggtstiop.  He  heard  Crane  ^ay  that  if  it  was  his  case  he  would 
send  to  Winnsboro  for  Coroner  Oarlock  and  two  of  the  best  physicians  to  be 
had,  and  have  the  matter  investigated.    The  defendant,  in  reply,  complained 


DUALS. 


com  US   DELICTI   NOT  PROVED. 


1145 


illver  dollar.  This 
ill  or  effect  of  fire 

death. 

iSHing  each  other  at 
nd  \ra8  about  three 
e  first,  running  in  a 

smooth  cuts  to  the 

the  crossing  point 
ouid  produce  death, 
peared  to  have  been 
of  the  opinion  that 

was  not  fractured, 
wound  on  the  cheek 
Inion  of  the  witness, 

le  did  not  regard  the 
us  wounds,  and  they 
velady.  He  did  not, 
>w,  what  caused  the 
ecided  as  to  how  the 
fall  or  a  burn.  He 
wn  mind.    The  skin, 

d,  and  the  skull  was 
ver  the  skull  is  about 

were  badly  scorched 
jiuod  had  settled  and 

It  was  possible  that 
of  the  fire  alone,  the 
igulate  as  it  does  in  a 
bruise  than  anything 
quoted  in  the  opinion 

as  follows:  *<I  have 
le  region  of  a  severe 
ng  of  the  blood  down 
ave  been  produced  by 
)i3tween  the  shoulders 
in  this  instance,  have 

e.  The  deceased  was 
>ple8  were  burned  off, 
e  breast  and  the  back, 
1  other." 

;d  that  at  the  death  of 
one  hundred  and  fifty 
laut's  house  that  night 
He  was  then  making  a 
Witness  heard  several 
luest,  but  did  not  know 
was  his  case  he  would 
)  best  physicians  to  be 
;,  in  reply,  complained 


that  to  have  two  doctors  from  Winnsboro  would  involve  him  in  too  much  ex- 
pense, and  suggested  that  Doctor  Perey,  who  lived  some  two  miles  distant,  be 
sent  for.  ▲  little  later  than  this,  the  defendant  invited  the  witness  to  walk 
with  him  a  short  distance  from  the  house,  where  he  asked  the  witness,  "  What 
in  the  d— 1  do  you  suppose  Capt.  Crane  wants  with  a  coroner's  jury  and  two 
doctors  from  Winnsboro?  "  When  the  witness  saw  the  body  of  the  deceased  it 
was  wrapped  in  a  sheet  and  lay  on  a  plank  in  the  back  of  the  house.  Cross- 
examined,  the  witness  stated  that  he  and  his  wife  left  home  on  the  Saturday 
before  Mrs.  Lovelady's  death,  which  occurred  on  Monday,  and  the  defendant 
knew  that  fact.  Witness  and  his  family  were  the  neighbors  nearest  to  the  de> 
fendant  at  the  time  of  the  death  of  his  wife.  The  witness  did  not  know  whether 
or  not  the  defendant  was  actually  weeping  at  the  fence.  On  the  next  day  before 
tho  body  was  removed  f  orl>urial,  the  defendant  "  got  to  carrying  on  "  —  cried 
or  pretended  to  cry.  Witness  saw  no  tears,  ar.d  to  him  defendant  did  not  ap- 
pear like  a  man  weeping.  The  defendant  then  went  to  the  grave  with  the  burial 
party. 

W.  L.  Stevenson  next  testified,  for  the  State,  to  the  effect  that  he  lived  near 
and  worked  for  the  defendaut  In  1881.  He  did  not  know  that  the  defendant  had 
any  weapon  about  his  plac<3  at  the  time  of  the  death  of  bis  wife.  He  had  an 
iron  wedge,  a  hatchet  and  a  pocket  knife  about  his  premises  in  1881.  The  wit- 
ness did  not  know  t,  the  deceased  at  any  time  left  the  defendant,  though  he 
was  so  lUformed  by  tiie  defendant  himself.  The  deceased  came  to  th  house  of 
the  witness  during  the  fall  of  1881,  and  got  an  umbrella,  at  which  time  the 
witness  understood  that  she  was  leaving  him.  About  plowing  time  during  the 
summer  of  1881  the  defendant  slapped  the  jaws  of  the  deceased.  The  defend- 
ant told  the  witness  that  his  wife  quarreled  at  him  for  not  helping  her  cook ; 
that  he  tried  to  help  her  cook  and  undertook  to  grind  some  coffee,  when  his 
wife  grabbed  him  and  he  threw  her  off;  that  she  grabbed  him  again  and  he 
spilled  the  coffee,  whereupon  he  slapped  her  jaws  and  she  fell  against  the 
smoke  house.  Cr6ss-examlued,  the  witness  stated  he  heard  the  slap  given  by  the 
defendant  to  the  deceased.  He,  the  witness,  was  sitting  on  hia  gallery  at  the 
time,  from  a  hundred  to  one  hundred  and  fifty  yards  distant  from  the  defendant. 
He  did  not  and  could  not  see  the  slap  from  where  he  was.  He  did  not  know  that 
it  was  the  defei^dant  who  did  the  slapping,  or  that  it  was  the  deceased  wlio  was 
slipped,  until,  as  above  stated,  the  defendant  told  him  in  the  tall.  At  this 
point  the  witness  was  confronted  with  his  written  testimony  given  before  the 
examining  court,  which  on  the  subject  in  hand  reads  as  follows :  "I  was  coming 
through  the  field  belonging  to  Capt.  Crane,  and  heard  a  racket  v  .■  :toise  toward 
Mr.  Lovelady's  house,  and  heard  him  slap  his  wife's  jaws  aiifl  L  r  crying  after- 
wards." Asked  to  explain  and  reconcile  these  two  statements  if  he  could,  the 
witnest  replied;  "  I  know  1  was  sitting  in  my  gallery  leaning  back  against  the 
wall.  Capt.  Crane's  field  is  near  defendant's  house,  and  I  heard  the  noise  as  I 
walked  along,  and  when  I  got  home  I  heard  the  lick  or  slap." 

The  witness  stated  that,  as  he  had  a  defective  memory,  he  eoaird  not  now  say 
exactly  how  the  defendant  came  to  confess  to  him  that  be  bad  slapped  his  yrH^'t 
jaws.  It  came  about,  however,  in  this  manner:  Th«  witness  went  into  the 
woods  about  a  quarter  of  a  mile  from  defendant's  bo«*e,  where  the  tVlendant 
was  catting  blocks  for  house  sills,  md  the  defend***  told  blm  about  tb«  matter 
in  the  manner  related  in  his  testimony  in  chief.  T^is  was  tlM<«a)y  time  def^-nd- 
ant  had  ever  teld  him  about  it.  The  witne»*s  wa.x  i«re  reque^teii  to  reconcile 
this  statement  with  one  he  made  before  the  exaiisiiif  court,  which  was  read  as 


1146 


CRIMES  AGAINST  THE   PERSONS   OF   INDIVIDUALS. 


follows:  *' The  defendant  told  me  that  he  slapped  his  wife's  jaws.  He  came 
to  our  house  and  there  told  ine  that  he  slapped  her  jaws  the  summer  before; 
that  she  grabbed  him  while  he  was  grinding  coSue  and  caused  him  to  spill  it, 
when  he  slapped  her  jaws  and  slung  her  up  against  the  smoke-house."  The  wis 
ness  stated  that  hia  memory  was  bad  and  he  could  not  explain  the  vari^ince  be- 
tween the  two  statements.  He  was  not  mad  at  the  defendant.  On  Saturday 
before  the  death  of  Mrs.  Lovelady  the  witness  attempted  to  obtain  credit  in 
Winnsboro,  but  was  refused  in  default  of  an  order  from  the  defendant.  The 
witness  bought  no  goods  on  that  day,  nor  did  he  utter  threats  against  the  de- 
fendant. He  sent  his  mother  to  the  defendant  when  he  got  home  on  that  Satur- 
day night,  but  made  no  threats.  The  witness  left  the  defendant's  premises  and 
did  no  more  worlc  for  him. 

Green  Fevey,  the  defendant's  family  physician,  testified,  for  the  State,  that 
he  was  called  to  treat  the  deceased  about  the  middle  of  September,  1881,  and 
made  one  or  two  visits  between  .!  at  time  and  her  death.  She  was  a  strong 
healthy  woman,  but  was  then  pregnant,  and  In  the  course  of  nature  would  haM 
given  birth  to  a  child  within  two  months  later  than  the  time  of  her  death. 
About  the  middle  of  September,  1881,  she  came  to  the  witness'  house,  sobbinK 
and  weeping,  and  apparently  in  great  distress.  She  complained  to  the  witness  of 
a  bruise  on  her  left  side.  She  remained  at  the  witness'  house  that  day  and 
night,  and  next  day  until  evening,  when  the  witness  persuaded  her  to  return  to 
her  home,  which  she  did,  or  at  least  she  started  in  that  direction  after  the  witness 
refused  her  request  to  remain  at  his  house  until  she  should  recover  from  her 
bruised  side.  She  was  then  suffering  from  hemorrhages  of  the  womb,  caused, 
the  witness  believed,  by  the  bruise  on  the  side,  which  then  seriously  threatened 
abortion.  The  witness  treated  her  for  this  disarrangement,  off  and  on,  up  to 
the  day  of  her  death,  and  prevented  abortion  with  great  difficulty.  Up  to 
the  time  that  she  received  this  bruise  she  was  free  from  hemorrhage  or  other 
symptom  of  abortion.  The  witness  did  not  examine  the  bruise  on  the  day  that 
the  deceased  came  to  his  house  and  informed  him  of  it,  but  in  a  month  or  two 
thereafter  the  witness  visited  her  and  examined  it.  It  was  then  about  the  size 
of  a  silver  dollar,  and  was  of  a  blue  or  darlc  color.  The  witness  treated  her  for 
hemorrhage  of  the  wonjb  for  four  or  five  months,  and  up  to  the  day  preceding 
her  death.  She  and  the  defendant  were  separated  on  the  occasion  of  Iior  visit 
to  the  witness,  but  they  afterwards  became  reconciled  and  lived  together, 
The  witness  attended  upon  hi-r  on  the  day  before  her  death  by  direction  of  the 
defendant,  and  left  six  duses  of  Dover's  powders  for  her  totalie  leaving  direc- 
tions as  to  how  they  should  be  taken.  The  witness  knew  the  deceased  before 
her  marriage  to  the  defendant,  when  she  was  Miss  Auna  Wood.  She  lived  with 
the  defendant  t'len,  who  waited  on  her  and  paid  her  bills  —  at  least  he  paid  her 
doctor's  bills.  The  defendant  always  appeared  to  be  a  kind  and  affectionate 
man  to  his  w'.fe  and  family,  so  far  as  the  witness,  who  had  good  opportunities 
for  doing  so,  could  judge.  The  families  of  the  witness  and  the  defendant  were 
intimate.  The  six  powders  left  with  the  deceased  by  the  witness  were  intended 
to  allay  pain  and  to  prevent  abortion. 

Mrs.  Lizzie  RichardSt  for  the  State,  testified  that  in  October,  I88I,  the  de- 
ceased passed  her  house,  weeping  bitterly.  On  the  Sunday  week  before  her 
death,  witness  called  upon  her  &t  the  house  of  the  defendant,  and  found  her 
sitting  by  tbe  flre  weeping.  She  displayed,  and  complained  very  much  of  a  red 
bruise  oa  the  side  of  her  face  near  the  ear.  She  had  her  head  tied  up,  but  ex- 
hibited the  bruise  to  the  witness.    The  defendant  was  not  in  the  house  at  the 


ILS. 


CORPUS   DELICTI   NOT   PROVED. 


1147 


laws.  He  came 
fummer  beforo ; 

him  to  spill  it, 
ise."  The  wit- 
the  variance  be- 
On  Saturday 
>btaiQ  credit  in 
llefeadant.  Tlie 
against  the  de- 

ou  that  Satur- 
1*8  premises  aad 

the  State,  that 

imber,  1881,  and 

le  was  a  stroii;: 

bure  would  hew 

e  of  her  death. 

house,  sobbinK 

to  the  witness  o( 

se  that  day  and 

her  to  return  to 

afterthe  witness 

ecoverfrom  lier 

e  womb,  caused, 

ously  threatened 

>ff  and  on,  up  to 

ifflculty.    Up  to 

lorrhage  or  other 

i  on  the  day  that 

I  a  month  or  two 

m  about  the  size 

s  treated  her  for 

tie  day  preceding 

a^ion  of  her  visit 

lived  together. 

f  direction  of  the 

>ke  leaving  direc- 

deceased  before 

She  lived  with 

leattt  he  paid  her 

and  affectionate 

ckI  opportunities 

defendant  were 

88  were  intended 

)er,  1881,  the  de- 
wee|{  before  her 
,  and  found  her 
•y  much  of  a  red 
tied  up,  but  ex- 
tfae  house  at  the 


time.  On  the  Friday  following  the  deceased  was  at  the  house  of  the  witness 
and  the  bruise  was  not  then  visible. _  O'  Saturday,  which  was  two  days  before 
her  death,  the  defendant  passed  the  house  o*  'le  witness  very  early  after  day- 
light, going  from  home.  Some  hours  later,  at  about  eleven  o'clock,  the  wittiess 
saw  the  deceased  going  towards  her  home.  She  was  weeping  violently  and, 
seemed  In  great  distress.  She  said  she  was  going  then  to  get  her  clothes.  Mrs. 
Stephens,  a  neighbor,  persuaded  the  deceased  to  remain  and  not  to  leave  the 
defendant.  Cross-examined,  this  witness  stated  that  she  did  not  see  the  de- 
ceased leave  home  on  the  Saturday  before  her  death — only  saw  her  as  she  was 
returning.  Witness  did  not  know  of  her  own  knowledge  that  the  deceased  had 
then  separottid  from  the  defendant. 

Mrs.  Etha  Browning  testified,  for  the  State,  that  she  went  to  the  defendant's 
ho'ise  on  the  night  of  the  death  of  Mrs.  Lovelady.  She  saw  no  weapous  at  the 
lojse.  She  saw,  but  did  not  particularly  notice,  an  iron  wedge  which  was 
picked  up  near  the  bed.  She  also  saw  some  smoothing  irons,  but  saw  no 
hatchet  or  knife.  The  deceased  was  at  the  house  of  the  witness  some  time 
during  the  fall  before  her  death.  She  came  one  evening  during  the  absence  of 
he  witness,  and  the  witness  did  not  see  her  until  next  morning.  She  said  that 
tshe  ca  'i'<  from  Doctor  Fevey's.  When  she  met  the  witness  next  morning  she 
threw  hui  arms  around  the  ''fitness  and  wept  violently  and  begged  the  witness 
to  go  home  with  her.  ^'.^  at  the  same  time  showed  the  witness  a  bruise  on  her 
side,  of  which  she  complained  very  much.  It  was  tiien  uncovered,  having 
neither  plaster  nor  medicine  on  it.  After  remaining  at  the  house  of  the  wit- 
.iis  ■:  for  a  while  the  two  started  to  the  defendant's  house.  When  tliey  got  there 
'M  !  jfendant  was  in  the  flel(1,  but  being  called  by  one  of  the  children,  he  came 
lo  t^ie  bouse,  when  the  deceased,  who  was  then  crying,  told  him  that  she  had 
come  for  her  things  and  was  going  to  leave  him  forever.  The  defendant  began 
crying  and  begged  her  not  to  leave  him.  The  deceased  replied  that  he  had  so 
abused  her  she  could  not  live  with  him;  that  he  had  kicked  her  out  of  the 
door  and  made  that  bruise  on  her  side,  which  had  nearly  killed  her;  that  he 
had  always  Imposed  upon  her,  and  made  his  daughter  Luella  abuse  and  mistreat 
her;  that  it  she  remained  with  him  he  would  eventually  kill  her.  She  told  the 
witness  In  the  presence  of  the  defendant  that  the  defendant  was  good  and  kind 
to  her  in  the  presence  of  company,  but  at  other  times  wag  abusive  and  cruel. 
The  defendant  did  not  deny  or  reply  to  any  of  these  reproaches,  but  hung  his 
head,  and  appeared  to  be  crying.  Witness  left  the  deceased  talking,  and  both 
of  them  crying.  Cross-examined,  the  witness  stated  that  she  looked  at  the 
bruise  on  tlie  morning  of  the  occurrences  deposed  to.  .t  was  on  the  side,  above 
the  hip,  and  appeared  to  be  nearer  the  back  than  the  stomach.  The  deceased 
theu  walked  without  assistance,  and  did  not  appear  crippled.  She  did  not  limp. 
The  witness  accom^^anied  her  to  her  house  at  her  requjst. 

W.  F.  Richards  testified,  for  the  State,  that  lie  reached  the  defendant's  house 
on  the  night  of  his  wife's  death  at  about  nine  o'clock.  While  the  crowd  were 
standing  about  the  fire  discussing  what  was  best  to  be  dene.  Captain  Crane 
suggested  that  the  coroner  and  two  of  the  best  doctors  in  Winnsboro  be  sent 
for.  The  defendant,  in  an  aside,  asked  the  witness,  •'  Why  in  the  d— 1  does 
Crane  want  the  coroner  and  two  doctors?  "  The  witness  thereupon  called  Crane, 
and  the  defendant  said  that  Winnsboro  two  doctors  would  cost  too  much — , 
that  Doctor  Pevey,  who  lived  near,  would  answer  every  purpose.  The  defend- 
ant had  both  hands  wrapped  up,  and  complained  more  of  them  than  anything 
else.    During  the  night  the  witness  asked  the  defendant  for  au  account  of  liis 


1148  CRIMES   AGAINST   THE   PERSONS   OF   INDIVIDUALS. 


wife'8  death,  and  heard  him  give  ♦,hree  separate  and  diSerent  accounts  of  It, 
One  of  the  accounts  was  to  the  effect  that  all  of  his  family  had  gone  to  bed, 
himself  and  his  wife  sleeping  together;  that  some  time  after  he  retired  his 
daughter  Luella  aroused  him,  when  he  found  the  house  full  of  smoke;  that  he 
sprang  from  his  bed,  opened.the  door  and  then  discovered  hls.wlf e  In  the  tire  and 
pulled  her  out.  A  second  account  which  he  gave  to  Willis  Richards  was  that 
when  his  daughter  awakened  him,  he  Immediately  discovered  his  wife  in  the  fire, 
her  clothes  burning,  when  he  pulled  her  out.  His  third  account  was  that,  when 
arouaed,  he  was  enabled  to  see  his  wife  in  the  fire  by  a  small  blpze,  when  he 
spravgnp,  dragged  her  out  and  then  opened  the  door  and  gave  the  alarm.  During 
the  night  the  defeudant  "  took  on  ftod  made  a  great  fuss  "  over  his  hands. 
Just  before  day  the  defendant  requested  the  witness  to  select  a  convenient  place 
to  bury  the  body,  and  to  get  It  interred  as  soon  as  possible.  This  was  after 
Browning  and  Robinson  had  returned  from  their  trip  to  Wlnnsboro  after  the 
coroner.  The  witness  did  not  see  the  deceased  until  she  was  taken  from  the 
fireplace  and  laid  out. 

C.  B.  Gorman  testified,  for  the  State,  that  as  one  of  the  coroner's  jury,  in 
company  with  Mr.  Oarlock  and  Doctor  Skeen,  he  reached  the  body  in  the  after- 
noon on  the  day  following  the  death.    The  witness  assisted  Doctor  Skeen  In 
making  the  examination,  and  first  called  the  doctor's  attention  to  the  bruises  on 
the  face,  hoad  and  neck.    The  bruise  just  below  the  cheek  bone  was  nearly  as 
large  and  w.de  as  the  witness'  hand.    It  was  a  very  severe  brui  se,  blue  or  black 
of  color,  and  exten-'.ed  below  the  cheek  bone.    The  doctor  lacerated  the  bruise 
disclosing,  after  'uttlng  through  the  bruised  parts,  white  flesh  that  resembled 
pork  fat.    The  blaik  spot  on  the  back  part  of  the  head  commenced  just  above 
or  a  little  below  tht  point  where  the  hair  Is  usually  "  done  u  p."    It  was  longer 
than  a  ruan's  hand,  and  ranged  down  the  back  of  the  neck  between  the  shoulders 
and  Immediately  over  the  back  bone.    At  its  topmost  point  a  space  the  size  of  » 
silver  dollar  was  cut  to  the  skull.    The  bruise  Itself  was  very  deep,  the  flesh 
was  reduced  to  a  jelly  or  mush,  and  was  black  with  bruised  olood.     This  condi- 
tlon  was  confined  to  the  circle  of  the  bruise.    When  the  knife  passed  from  this 
circle,  the  flesh,  as  to  color  and  solidity  appeared  natural.    The  cuts  on  the  top 
of  the  head  formed  a  complete  cross,  and  were  well  defined,  clean  and  clear, 
and  conformed  to  the  description  given  by  Doctor  Skeen.    No  bruises,  black  or 
mashed  spots,  were  found  near  the  cross  cuts.    The  chimney,  to   the  fireplace, 
was  constructed  of  sticks  and  earth,  except  the  back,  jambs  and  hearth,  which 
were  of  brick.    The  hearth  had  sunk  some  four  or  five  Inches  below  the  level  of 
the  floor.    There  were  no  rough  places  anywhere  about  the  flre place.    The  fire- 
place contained  two  old  andirons,  the  end  feet  of  which  were  broken  off.    The 
andirons,  though  somewhat  rough  at  their  broken  parts,  had  no  sharp  edges. 
The  witness  examined  for  but  found  no  weapons,  other  than  an  Iron  wedge, 
such  as  are  In  use  for  splitting  wood  or  rails.    This  was  either  a  new  one  or  H 
had  been  recently  "  set."    Its  head  was  square  and  unbattered,  and  the  point  to 
sharp  for  an  iron  wedge  that  the  witness  believed  that  it  had  never  been  usee' 
In  splitting  wood.    The  witness  examined  but  found  no  blood  on  the  wedge,  or 
elsewhere  In  the  house,  save  a  very  little  on  the  hearth.    Cross-examined,  the 
witness  stated  that  the  wound  on  the  back  of  the  head  was  at  least  three  inches 
wide.    He  inserted  his  finger  to  the  distance  of  an  inch  or  more  and  extracted 
clots  of  blood  and  hair.    It  extended  fu'ly  six  Inches  down,  and  when  cut  the 
flesh  all  fell  out.    The  skin  was  not   cut  off  all  around  this  bruise.    At  the 
point  where  It  was  cut  to  the  skull,  the  wound  yia  filled  with  hair  and  blood— 


kLS. 

iccounts  of  it, 
(!one  to  bed, 
he  retired  his 
smoke;  that  he 
In  the  dre  and 
hards  was  that 
kvifn  in  the  Are, 
was  that,  when 
birze,  when  he 
larm.  During 
ver  his  hands. 
>nTen!ent  place 
This  was  after 
sboro  after  the 
taken  from  the 

roner's  jury,  in 
ly  in  the  af  ter- 
octor  Skeea  in 
>  the  bruises  on 
I  was  nearly  as 
le,  blue  or  black 
rated  the  bruise 
that  resembled 
iced  just  above 
It  was  longer 
in  the  shoulders 
ace  the  size  of  f^ 
■  deep,  the  flesh 
id.  This  coudi- 
)a88ed  from  this 
cuts  on  the  top 
lean  and  clear, 
ruises,  black  or 
x>  the  fireplace, 
i  hearth,  which 
slow  the  level  of 
;)lace.  The  flre- 
roken  oS.  The 
no  sharp  edges. 
\  an  iron  wedge, 
a  new  one  or  H 
and  the  point  to 
never  been  useO 
in  thti  wedge,  or 
is-examined,  the 
ast  three  inches 
'e  and  extracted 
id  when  cut  the 
bruise.  At  the 
lair  and  blood  ^ 


CORPUS   DELICTI   NOT  PROVED. 


1149 


the  Are  having  left  the  hair  longer  at  this  point  than  elsewhere  on  the  head 
Thi.  skin  was  not  burned.    At  this  point  the  State  closed. 

Mrs.  R.  M.  Feden,  the  mother  of  the  defendant's  iirst  wife,  testified,  for  the 
defence,  that  she  had  known  the  defendant  SiUc  j  he  was  four  years  of  age.  He 
lived  in  her  household  for  three  years,  in  Mississippi,  and  the  witness  had  lived 
in  his,  in  Texas,  for  two  years.  She  liad  always  known  him  as  a  peaceable  man 
and  as  a  quiet,  kind  and  affectionate  husband  and  father.  The  witness  visited 
the  defendant  and  the  deceased  in  August,  1881,  remaining  with  them  three 
weeks.  She  saw  tliem  daily,  and  throughout  her  stay  with  them  the  deceased 
appeared  cheerful  and  content.  The  witness  did  not  h'ar  during  that  time  a 
single  word  of  discord  between  her  and  defendant.  The  witness  visited  them 
.;galn  some  time  after  this,  and  found  them  living  togetlier  pleasantly  and  agree  • 
ably.  Sh9  had  never  heard  anything  of  the  sickness  or  bruises  of  the  deceased. 
The  witness  lived  within  three  miles  of  the  defendant  during  the  deceased's 
lifetime.  She  visited  them  no  oftener  than  stated,  because  she  was  in  bad 
health  and  had  no  means  of  transportation.  She  lived  with  the  defendant  dur< 
Ing  the  lifetime  of  his  first  wife,  who  was  the  witness'  daughter.  She  had  no 
iiard  feelings  against  the  defendant's  second  or  third  wives. 

Captain  F.  M.  Crane  was  the  next  witness  for  the  defence.  He  testified  that, 
being  sent  for,  he  arrived  at  the  defendant's  house  about  nine  o'clock  and 
found  the  body  lying  on  the  floor  near  the  fireplace,  with  the  feet  extended  to- 
wards the  back  o'  the  house.  He  described  the  chimney,  fireplace,  hearth,  etc., 
as  they  had  been  described  by  other  w'tnesses.  A  slow  wood  fire  was  burning 
when  the  witness  arrived,  and  the  defendant  was  wringing  his  hands  and  crying. 
Some  one,  the  defendant  perhaps,  suggested  the  propriety  of  sending  for  thj 
coroner  and  two  doctors.  While  this  suggestion  was  being  discussed.  Buck 
Richards,  who  was  t'lon  talki;ag  with  the  defendant,  called  the  witness,  and  the 
defendant  complained  that  two  Winnsboro  doctors  would  entail  too  much  ex- 
pense, and  asked  why  Doctor  Fevey  would  not  do.  The  witness  merely  replied 
that  if  he  were  defendant  be  would  have  the  coror  ac  and  the  two  best  physicians 
obtainable.  Later,  Browning  and  Robinson  started  to  Winnsboro  for  the 
coroner  and  doctors.  The  witness  followed  them  to  the  fence  and  directed 
them  what  to  do.  The  witness  knew  nothing  about  the  separation  of  the  de 
ceased  and  defendant,  and  knew  nothing  about  how  they  had  got  along  together. 
He  did  not  know  who  directed  Browning  and  Robinson  to  go  to  Winnsboro. 
He  did  not,  in  the  first  instance,  but  advised  with  them  after  they  had  started. 

J.  A.  Lovelady,  the  defendant's  brother,  testified  that  he  was  told  of  the 
death  of  the  defendant's  wife  about  twelve  o'clock  on  the  night  that  it  occurred, 
by  Browning  and  Robinson.  He  started  at  once  to  his  brother's  house,  but 
changed  his  mind  because  of  high  water  in  the  creek,  and  then  pursued  and 
overtook  Browning  and  Robinson  en  route  to  Winnsboro,  and  traveled  with 
them  until  their  return  to  defendant's  house  at  daylight,  when  he  found  his 
brother's  wife  dead.  This  witness,  who  had  occupied  the  defendant's  house 
since  his  arrest,  described  the  chimney,  fireplace  and  hearth  as  they  were  de- 
scribed by  other  witnesses,  except  that  he  stated  that  some  few  bricks  were 
loose  in  the  flreplacr>.  The  defendant  and  his  wife  always  got  along  well  so  far 
as  he  could  see  or  knew.  He  knew  nothing  of  his  own  knowledge  of  a  separa- 
tion between  them. 

Luella  Lovelady,  the  thirteen-year-old  daughter  of  the  defendant,  testified, 
to:  the  defence,  that  on  Saturday,  the  second  day  before  the  death  of  Mrs.  Love- 
lady, the  defendant  went  to  Quitman  and  remained  all  day.    If  the  deceasad 


1150 


CRIMES   AGAINST  THE   PERSONS   OP  INDIVIDUALS. 


abandoned  the  defendant  that  day  or  entertained  an  idea  of  doing  so,  the  wit- 
ness knew  nothing  about  it.  She,  the  deceased,  folio  ved  the  defendant  to  the 
gate,  and  afterwards  went  to  Mrs.  Stephens'  house  and  got  two  smoothing 
Irons,  with  which  on  her  return  slie  went  to  Ironing.  The  defendant  was  told 
to  go  by  Doctor  Pevey's  place  and  send  him  to  see  the  deceased,  who  was  then, 
and  had  been  for  some  time,  quite  ill.  Doctor  Fevey  arrived  at  the  huuse  later, 
and  left  six  doses  of  powders  for  the  deceased  to  take.  These  w.:re  placed  on 
the  mantel  piece,  and  two  of  them  were  taken  by  the  deceased  during  the  next 
day.  On  Monday  the  deceased  was  worse  than  nsual,  and  walked  about  the 
house  only  with  the  assistance  of  the  witness.  She  had  swimming  of  the  head. 
She  lay  down  shortly  before  night,  and  the  witness  did  not  see  her  get  up  again. 
The  defendant  worked  about  the  place  all  of  that  day,  returning  before  night 
and  assisting  In  the  preparation  for  supper.  The  witness'  two  little  sisters  went 
to  bed  shortly  after  supper,  occupying  places  in  the  witness'  bed.  The  defend- 
ant next  went  to  bed  with  the  deceaaed,  occupying  the  front  part  of  the  bed. 
The  witness  read  her  school  book  awhile,  and  having  latched  the  front  door, 
retired  and  went  to  sleep. 

There  were  two  beds  in  the  room  on  the  same  side.  The  one  occupied  by 
the  witness  and  her  sisters  stood  in  the  corner,  with  the  head  towards  the  fire- 
place and  the  foot  towards  the  back  of  the  house.  The  one  occupied  by  the 
defendant  and  the  deceased  stood  with  the  foot  towards  the  foot  of  the  witness' 
bed,  and  the  head  against  the  side  of  the  house.  When  the  defendant  went  to 
bed  he  asked  his  wife  how  she  felt,  and  she  replied  that  she  felt  worse,  and  was 
in  great  pain.  The  defendant  asked  her  where  the  pain  was  located  and  she 
told  him.    The  witness  did  not  hear  them  speak  again. 

After  a  time,  she  did  not  know  how  long,  the  witness  was  awakened  by  a 
smoothering  sensation,  and  found  the  room  full  of  smoke.  She  called  twice 
to  the  defendant  before  he  awakened.  He  sprang  from  bis  bed,  ran  to  the  door, 
opened  it,  and  tlien  exclaimed;  "Lord,  have  mercy  I  Anna  is  in  the  fire  I" 
He  then  pulled  the  deceased  from  the  fire  on  to  the  floor,  burning  his  hands 
severely.  The  clothing  around  the  deceased's  neck  was  then  burning,  making 
a  faint  light.  The  defendant  then  blew  a  horn  from  his  door  to  arouse  the 
neighbors  Mr.  Browning  arrived  shortly,  and  was  followed  by  others  after  a 
while.    Three  doses  of  the  powders  were  found  on  the  mantel  piece. 

Cross-examined,  the  witness  stated  that  the  bedsteads  were  low — not  xbovo 
eighteen  Inches  lu  height.  The  footboards  were  low.  The  deceaaed,  as  usual, 
slept  behind  that  night,  and  the  witness  could  not  say  how  she  got  out  oi  bed 
without  awakening  the  defendant.  There  was  an  iron  wedge  in  the  house  used 
for  propping  the  door  open.  There  were  two  borrowed  smoothing  irons  in  the 
house.    The  defendant  owned  a  hatchet,  which  was  In  the  yard  on  that  night. 

The  motion  for  a  new  trial  averred  that  the  proof  tailed  to  show  the  use  by 
the  defendant,  or  other  person,  of  any  of  the  deadly  weapons  charged  in  the 
indictment;  a  total  failure  to  show  express  BMlice:  and  that  the  evidence,  in 
Its  circumstantial  or  other  character,  was  insufficient  to  inculpate  the  defendant 
beyond  a  reasonable  doubt. 

WxLLSON,  J.  I.  It  was  not  error  to  permit  the  State's  witness.  Doctor 
Skeen,  to  answer  the  hypothetical  question  propounded  to  him  by  the  district 
attorney.  That  question  was  as  follows:  "  Suppose  thata person  should  strike 
another  on  the  back  of  the  head  at  the  place  described  by  you,  where  the 
skin  was  off  the  size  of  a  dollar  on  the  back  of  the  head  of  deceased,  with 
the  large  end  of  an  iron  wedge,  sufficiently  hard  to  tear  off  the  skin  and  open 


AL8. 

ling  so,  the  wit- 

lefendant  to  the 

two  smoothing 

!cndant  was  told 

I,  who  was  then, 

the  house  later, 

w.:re  placed  on 

during  the  next 

wlked  about  the 

ling  of  the  head. 

her  get  up  again. 

ling  before  night 

little  sisters  went 

ed.    The  defend - 

part  of  the  bed. 

1  the  front  door, 

e  one  occupied  by 
towards  the  flre- 
e  occupied  by  the 
)ot  of  the  witness' 
iefendant  went  to 
elt  worse,  and  was 
i8  located  and  she 


ras  awakened  by  a 
1,  She  called  twice 
3d,  ran  to  the  door, 
ina  Isintliefire!" 
burning  his  hands 
en  burning,  making 
door  to  arouse  the 
id  by  others  after  a 
tel  piece. 

ire  low — not  \bovc 
deceased,  as  u^ual, 
she  got  out  ol  bed 
;e  in  the  house  used 
}othlng  irons  in  the 
ard  on  that  night, 
to  show  the  use  by 
tons  charged  In  the 
lat  the  evidence,  in 
ilpate  the  defendant 

'8  witness.  Doctor 
I  him  by  the  district 
person  should  strike 
by  you,  where  the 
id  of  deceased,  with 
I  the  skin  and  open 


CORPUS  DELICTI   NOT  PROVED. 


1161 


the  wound  to  the  skull,  and  produce  a  bruise  down  the  back  of  the  neck  several 
inches  long,  so  that  the  blood  would  settle  there,  would  such  a  blow  produce 
death?"  This  question  was  answered  by  the  witness  as  follows :  "Of  course 
such  a  blow  would  produce  death  instantly.  At  this  particular  portion  of  the 
cranium  la  the  scat  of  life;  a  concussion  here  will  injure  the  spinal  column  and 
produce  paralysis  and  death."  It  was  objected  to  the  question  that  it  waa 
hypothetical,  and  not  based  upon  a  state  of  facts  already  iu  evidence ;  and  that 
It  did  not  involve  a  question  of  science  or  skill  such  as  would  warrant  the  ad- 
mission  in  evidence  of  the  opinion  of  the  witness. 

In  putting  hypothetical  questions  to  an  expert  witness,  counsel  may  assume 
the  facts  in  accordance  with  his  theory  of  them;  it  is  not  essential  that  he 
state  the  facts  to  the  witness  as  they  have  been  proved.'  Of  course,  as  stated 
by  Mr.  Wharton,  if  the  facts  ou  which  the  hypothesis  is  based  fall,  the  an- 
falls  also.*  Nor  would  it  be  a  proper  practice  to  allow  hypothetical  questions 
having  no  foundation  whatever  in  the  evidence  in  the  case. 

In  the  case  atba-*,  the  witness  was  shown  to  be  a  medical  expert,  and  it  was 
further  shown  that  there  was  a  severe  wound  upon  the  back  of  the  deceased's 
bead,  which  could  have  been  inflicted  with  an  iron  wedge,  and  that  au  iron 
wedge  was  found  near  the  body  of  deceased  shortly  after  her  death.  We  can 
not  say  that  the  hypothetical  question  objected  to  had  no  foundation  in  the  evl- 
deuce  in  the  case.  It  was  the  theory  of  the  prosecution  that  deceased  was 
killed  by  a  blow  inflicted  upon  the  back  of  her  head  with  an  iron  wedge  in  the 
hands  of  the  defendant,  and  it  was  proper  to  submit  this  theory  to  be  supported 
by  the  hypothetical  question  cbjected  to.  As  to  the  other  objection  to  the 
question,  it  is  also  untenable.  This  precise  question  is  discussed  and  settled 
in  Waite  v.  State,*  in  which  case  the  authorities  in  support  of  the  admissibility 
of  such  evidence  are  cited. 

11.  We  nowapproach  the  principal  and  most  diflScult  question  in  this  case.  It 
is  as  to  the  sufficiency  of  the  evidence  to  support  the  conviction.  Circumstantial 
evidence  alone  is  relied  upon  by  the  prosecution.  Is  it  of  that  cogeut,  satis- 
factory and  convincing  character  which  the  law  demands  to  sustain  a  conviction 
of  crime?  It  is  unnecessary  for  us  to  reiterate  the  rules  of  the  law  inregard  to  the 
nature,  strength,  sufficiency,  etc.,  of  circumstantial  evidence.  They  have  been  so 
often  and  so  fully  stated  and  explained  in  previous  decisions,  that  we  need  only 
refer  to  the  case  of  Pogue  v.  State,*  where  the  authorities  upon  the  subject  will 
found  cited. 

In  prosecutions  for  murder,  the  State  must  establish  clearly  and  satisfactorily 
the  corpus  delicti.  This  corpua  delicti  consists  of  two  things :  flrst,  a  criminal 
act;  and  second,  the  defendant's  agency  in  the  commission  of  such  act.  Thus, 
in  the  case  at  bar,  the  burden  of  proof  was  upon  the  prosecution  to  establish, 
first,  that  Anna  Lovelady  was  dead,  that  her  death  was  produced  by  the  crimi- 
nal  act  of  some  one  other  than  herself,  and  was  not  the  result  of  accident  or 
natural  causes;  and  second  that  the  defendant  committed  the  act  which  pro- 
duced her  death.*  Mr.  Wharton  says:  "It  has  been  already  stated  that  the 
corpus  delicti  includes  two  things ;  flrst,  the  objective,  and  then  the  subjective 
elements  of  criminality;  iu  other  words,  flrst,  that  the  overt  act  took  place { 


1  Gaiterman  et  al,  v.  Liverpool,  etc., 
Steamship  Co.,  83  N.  T.  85t;  Oowley  v.  Peo- 
ple, /<!.  464 ;  1  Ureenl.  Bt.  440. 

i  Wiuurt.  Cr.  Ev.  418. 


3  IS  Tex.  (App.)  179. 

*  ISTex.  Ot.  (App.)  283. 

*  Wbart.  Cr.  Ev.,  see.  826;   1  Bisli.  Cr. 
Froo.,  see.  1066. 


o    *«AfNST  THE  PER80N8   OP   INDIVIDUALS. 
1152  CRIMES   AGAINST  THB.   riu^ 

u     i«i«»i  aaencv     01  homicide,  therefore,  It 

secondly,  that  It  took  place  through  "'"^"^.'^'^'/deceased  8hould  be  shown  to 
"^Stbe'UdesBentlal  toaconv  ct  on  fl^t^th^^^^^^^^^^  de^^^^  ^^^^  ^^^  p^„,,,  , 

have  been  Wiled;  and  »«°«;*^^y'*J*„VJhe  well  known  principle  that  In  capital 
have  been  criminally  «''«««^- ..  f/^^^J^^^^^^^^^  not  be  proved  on  his  c.niess Ion 
cases  this  criminal  agency  of  the  ^^etenaant «  ^  ^^^^^^  ^^  j^g^uy 

alone,  wlthont  proof  of  the  ^^^^^'^'^^^l^^Z  dead,  but  that  his  death  was 
aconvlctlon  In  such  a  case.  *^*' f;^'''„7*/,j^^^  l«  P'«'«^' 

crlmlnaUy  produced.    Unless  ^^^J^^^'^^^  ^  conviction." »    W  !»  V^rtcc^y 

tJcon'us  delicti?    We  will  refer  to  It,  ana  ajal^^^^^^^^    ^^^  ^^  ^^^  ^^^^^ 

beyonJan,  doubt  the  death  °*  J^'^"^ J^^J^^^^  J  t^^  This  Is  the  first 

laLrefore  beyond  controversy.  ^f;*JJy\„d  satisfactorily  settled  by  the 
question  to  be  solved,  and  «^^"  "^^/^^^^^^^  produced  by  the  criminal  act  or 
iTldence  that  the  death  of  Anna  Lov«day  w      P  ^^  ^^^^^^  ^j  j,  ^^ 

agency  of  some  person  <>tl»«V%\"ff  ^ponant  matter  be  left  In  doubt,  the 
consideration  of  the  case;    or  ^J  s   X„^  and  the  superstructure 

loundatlon  of  the  P'08e^"«°V;  tTe  "v'^ence  that  the  deceased  was  In  an 
can  not  stand.    It  Is  shown  by  the  evwe  ^^    ^  ^^^^^^        ^^     , 

Tdvanced  state  of  P^g"'*"!^^  "T  *^"  Vdeathjthat  she  had  been  afflicted  with 
health  for  some  months  P""'/;  ^^' J'^^^t  s^e  was  under  the  treatment 
excessive  hemorrhage  from  the  ^o^^' ;J*\^,„  threatened  with  abortion; 
of  a  physician,  and  had  '«' ««^«'»\7^:X  walk  about  the  house  without 
that  she  was  weak   and  unable  a^  ^^^^^^een  taking  medicine  prescribed 
help;  that  on  the  day  of  ^«'f^**^ j^f"/ ^er  death  she  complained  of  being 
by  her  physician;  that  ^-^^JJ^ .".^^J^offlnlshed  taking  aU  the  me^^^^^^^ 
worse,  and  In  much  P^^"'  J'f '''*  J  „-^^^^^^     six  powders  or  doses  of  medicine 
Tcrlbedby  her  physician;  ^J''* ^l^^f/^X^   thTdo^^  lour  yet  to  be 

,or  her  to  take;  that  sue  '^^^.^^'^^'^eXe  over  the  fireplace.  When  her  dead 
taken,  and  these  were  upon  the  ^^^^'^^^^°^^^^  i„,tront  of  the  fireplace  and 
body  Us  found.  It  was  upon  the  floor  ot^^^^^  ^odyitsel    was 

near  to  it;  the  '^^othii^^''^^'>^,'^^Z^^^^^ 

terrlblyburned;  ^^^j^f ' ^f .  "n?d  to  t^^  hollow  and  the  breasts  were  con- 
both  on  the  back  and  In  ^'^''''^"^s  were  discovered  upon  the  body,  oneof  the 
•  sumedbytheflre.  B^^^f  ^"^7"^  two  cl  on  the  top  of  the  head,  crossing 
cheeks  was  badly  bruised;  tt'*"  ^1'*;^^^^^^^  produced  by  some  sharp  In- 
each  other  at  right  angles,  ^^^^^^J^"  ^  bruise  on  the  back  of  the  head  and 
strument.    There  was  a  "v«re  wound  or  ^^^  ^^,^  ^are  the  skull,  and 

neck.  Just  where  the  head  i«l°«  ^^^.Jf^i  J^^  the  region  of  it,  and  extern  ing 
was  ll  large  as  a  silver  J^^^'^^^^^f  .^^^^^^^^^^        discoloring  the  body  at  that 


1  Whart.  on  Horn.,  sec.  641. 
«lBUh.Or.Pr.,1067. 


3  1  Bish.  Cr.  Pr.,  sec.  1069. 


ALS. 

Ide,  therefore,  It 
)uld  bo  shown  to 
been  proved  to 
le  that  In  capital 
tn  his  confession 
shown,  to  justify 
lat  his  death  was 
ispects  U  proved, 
1    It  Is  perfectly 
Idence,"  but,  as  is 
as  to  the  corpus 
part  of  the  case  is 

s  case  to  establish 
,11.    It  establishes 
I  the  corp««  delict 
i    This  is  the  first 
irlly  settled  by  the 
the  criminal  actor 
lo  farther  with  the 
I  left  In  doubt,  the 
the  superstructure 
leceased  was  In  an 
i  delicate    stote  of 
1  been  afflicted  with 
Qder  the  treatment 
ined  with  abortion; 

the  house  without 
medicine  prescribed 
omplalned  of  being 
aU  the  medicine  pre- 
I  or  doses  of  medicine 
avlnR  four  yet  to  be 
ace.    When  her  dead 
it  of  the  fireplace  and 
d  the  body  itself  was 
the  body  was  In  places, 
the  breasts  were  con- 
,on  the  body,  one  of  the 
>  of  the  head,  crossing 
ced  by  some  sharp  in- 

back  of  the  head  and 
aid  bare  the  skull,  and 
on  of  it,  and  extending 
lorlng  the  body  at  that 
actureotthe  skull. 
,e  top  of  the  top  of  the 
r  fell  the  deceased,  but 

r.,  sec.  1069. 


OPIMON   IN   LOVELADT  V.  STATE. 


1153 


that  the  wound  upon  the  back  of  the  head  was  sufficient  to  cause  death.  This 
physician  also  stated  that  he  did  not  know  what  caused  the  wound  at  the  back 
of  the  head;  he  had  examined  the  wounds,  and  he  says:  •«  lara  now,  and  have 
always  been  unili^clded  as  to  how  any  of  the  wounds  came  there.  It  may  have 
been  done  by  a  fall  or  burn.  It  is  possible  it  may  have  been  done  by  the  fire. 
I  am  unable  to  decide  how,  satisfactorily  to  my  own  mind." 

Again  he  says :  "  The  settling  of  the  blood  down  the  neck  and  back  of  deceased 
may  possibly  have  been  proiUiced  by  the  burn  alone.  The  burn  on  deceased  at 
the  back  of  the  head,  also  between  the  shoulders  on  the  back,  and  that  on  the 
breast  and  face,  would  have  produced  death  almost  instantly  without  any  other 
cause." 

This  constitutes  the  only  expert  testimony  as  to  the  probable  cause  of  the 
death  of  the  deceased.  What  does  It  establish?  Nothing  more  than  that  there 
were  wounds  upon  the  body  which  might  have  beeu  produced  by  violence  In- 
flicted by  another,  or  by  an  accidental  fall,  or  by  burning.  There  Is  no  cer- 
tainty in  testimony  like  this,  and  it  is  entitled  to  but  slight  consideration. 
This  expert  was  present  soon  after  the  death,  and  examined  the  dead  body  and 
surroundings,  and  he  candidly  admits  and  states  In  his  testimony  that  his  mind 
has  never  been  satisfied  as  to  how  the  wounds  upon  the  body  were  produced. 
We  certainly  can  not  hold  that  the  testimony  of  this  witness  establishes  the 
essential  fact  that  the  death  of  deceased  was  i^used  by  the  criminal  act  of  an- 
other person. 

What  other  evidence  is  there  In  the  case  tending  to  establish  that  fact?    It 
was  proved  that  some  months  prior  to  the  death  of  deceased,  her  husband,  the 
defendant,  had  Ill-treated  her;  had  in  fact  struck  and  kicked  her;  that  her  death 
occurred  early  In  the  night,  between  eight  and  nine  o'clock;  that  the  bed  upon 
which  the  defendant  claimed  to  have  been  sleeping  on  the  night  of  her  death 
was  found  to  be  smooth  and  unrumpled  when  the  neighbors  reached  the  scene 
on  that  night ;  that  there  was  an  iron  wedge  found  In  the  house  that  night, 
which  instrument  was  capable  of  inflicting  such  wounds  as  were  found  upon 
the  body  of  deceased;  that  the  children,  who  were  claimed  by  defendant  to 
have  been  asleep  in  the  house  at  the  time  of  the  tragedy,  were  up  and  dressed 
and  had  on  their  shoes  .when  the  nearest  neighbor  reached  there  that  night; 
that  the  body  of  deceased  was  cold  and  stiff  when  the  neighbors  reached  it 
between  eight  and  nine  o'clock  at  night,  and  that  there  was  no  fire  in  the  fire- 
place except  a  bed  of  V.,e  coals.    We  have  recited  in  substance  every  fact  tes- 
tifled  to,  as  presented  in  the  record  before  us,  which  in  our  judgment  even  re- 
motely tends  to  prove  that  the  death  of  deceased  was  caused  by  the  criminal 
act  of  another.    Unexplained,  this  state  of  facts  might  be  held  suflScient  proof 
that  deceased  lost  her  life  by  the  criminal  act  of  another.    We  are  not  called 
upon,  however,    to  determine  this  question.    Much  of  this  evidence,  which 
might  otherwise  appear  inconsistent  with  the  innocence  of  the  defendant,  Is,  to 
our  minds,  explained  in  a  manner  which  very  much  weakens  its  cogency.    Thus 
It  is  shown  that  there  was  a  live  bed  of  coals  of  fire  In  the  fireplace  on  that 
1  night;  that  the  fireplace  was  a  large  one;  that  the  hearth  was  lower  by  four  or 
five  inches  than  the  floor'of  the  room ;  that  there  was  a  mantel-piece  above  the 
fireplace  on  which  were  the  four  doses  of  medicine  which  the  deceased  had  yet 
to  take;  that  after  her  death  three  only  of  the  four  doses  of  medicine  were 
I  found  upon  the  mantel;  that  the  back  and  jambs  of  the  fireplace  were  brick, 
[and  the  brick  were  broken  out  of  the  back  and  had  faUen  Into  the  fireplace; 
3  Defences.  78 


1154  CU.MK8   AUAINST   THB   PEUSOXS    OV   INDIVIOUALS. 

.nattUore  were  two. ro.euauairoa.ta  the  nre  place.  a.u,  o..e  o.-  two  ol.  iron 

^7;rr ;Ueo.  o.  t..  ae.nce  ---^nLfl ZeJ^Z.^r; 
went  to  tlu.  Ih-cplace  to  get  a  dose  «/  ;";  ",  ^^  u.cea  by  lalllug  upon  the 
the  rtr...  ana  that  the  woun.ls  upon  '«;>f  7;;^ ',,,,,  ^,  „y  the  actlou  ol  the 

.roken  andlro„«.  ^"^^^Z^^;^ ^^'^^Z^^^  P-POunCe,!  upon  this 
flre.  Is  this  theory  Improbable  oi  «  ™\  ,^  „„aer  such  clrcumstauccH? 
Btate  of  facts?  Mljjht  not  such  '^"  ^  ';'  V  o  n  I  the  house  had  been  kept 
It  was  proved  that  the  iron  wed.c  ^^  ^^  /2'  ,\,y  ,,,,i„,,  ,„d  no  bled 
thero  to  prop  open  the  ^»""  • '^  '^^^^^^^^^^  "^  lulllctlng  wounds  was  found  upon 
or  other  Indication  of  ^^'^^"^^.^^I'^.n  ho  awoke  the  body  of  deceased  was 
,t.  It  was  claimed  byjl^'  "^  he , nmed  it  f  rom  the.tlre  on  to  the  floor  and  in 
lu  the  (ire  and  J"-'";,  anclj^^^^^^^^^^  ^^  ^,^^  ,,  ,,,er  and  threw 

doln-  so  burned  hU  hands  «^vereiy  "  corroboration  of  this,  it  was  proved 

it  upon  the  body  to  extinguish  ^J^f/^^/^".^?,;  ^°  ^^.^  the  dead  body,  and  that 
that  a  bucket  with  some  ^^'^^^^^  j"  "  ^j^^^^^*-^^^^^^^^  ^Iso  proved  by  the  thlr- 

the  defendant's  hands  were  severely  burned^    n  wa  i  ^^^^ 

teen-year-old  daughter  of  ^•^^''"f "  :;';;j,;'l'l\'Ld  she  awoke  her  father, 
^^■hen  she  awoke  the  house  was  «"'^,^7/.'^^ '"  "''Jt'^^l.^ased  out  of  the  flre,  etc. 
and  he  sprang  out  c.  j;;^^;;;^ -,7,"^'^^^:^  and  himself 

lu  regard  to  the  '''^f J"  ^^'^'^^^^^^^^^^^^  ^^h  and  unrumpled,  there  Is  no  expluna- 
were  sleeping  on  that  "^^'^  ^^^Jf  /J^^  ,^,,  ^ed  is  testified  to  by  but  one  witness. 

r^nr;sC:::.rthi^^^^^^^^^^^ 

res  gestce.  ,.  ..     ,,vldence.  we  find  our  minds  in 

After  a  very  careful  «=«««»f  j^f  ""J^,^" '^^ol  or  Skeel    We  are  unable  to 
the  same  condition  as  that  of  ''^\^^^?^^^;^ZToX'^h^t  means  the  death 
determine  from  the  facts  before  us  ^^J^^f  .7"";'^,"'i /J.^s.  accident,  or  the 
of  the  deceased  was  ^lf;^^\'^'^\Z,^X^^^^^ 
criminal  act  of  anotlier  person.    There  is  <=^"*'"  f' '  ^  ^^^  produced 

„..„otthatmoraIcertaint^^^^^^^^^^  rin'tu  su^'Lses  imperatively 

by  the  criminal  act  of  *°°^^^';'''°'''"  "^  „„^t  ....gu^e  the  defendant  innocent 

the  evidence  of  the  ^f-^'';''%^^'-}^^^\^Z  upon  by  the  Lte  to  sup- 
that  such  is  not  the  character  of  J^;  ^J  f /^^^^^^^^^^^^  verdict  of  a  jury  upon 
port  this  conviction.  We  always  hesitate  *«  ^'^*"'°  "*,  J;^gi„ie„t  evidence  to 
?he-  facts  of  a  case,  and  we  never  do  so  -J-  the™  ^-^^^^^  ^^^,,,, 
sustain  the  verdict,  even  where  the  great  ^J^^';'^^''!'^^^ ^'^l^^^y  msafflclentto 
the  verdict.    But,  where  in  our  j.geme^t^^^^^  ^^  ^^^  ^^^ 

Bupporta  conviction;  where  it  J^^J^/  *  ^^^  ^^^ 
and  of  reason;  where  it  leaves  ^^^'^^''^^2^'''"''^^^  u  does  in  this  case, 

a  reasonable  theory  of  <l«f«-<^^°*' ^7:^,8'  te  have  uniformly  considered  it 
this  court,  and  the  Supreme  Court  of  th  s  St^te.  have  unuorm  y 
not  only  within  their  province,  but  their  imperative  duty,  to  interpose 


LS. 
two  old  Iron 

roin  hur  bed, 

and  tell  luto 
lUug  upou  the 
I  action  ol  thi.' 
idc.l  upon  tills 
ircumstauces? 

had  been  kept 
1  and  no  blood 
as  found  upon 
I  decuiised  was 
;ho  floor  and  In 
ater  and  threw 
),  It  was  proved 
body,  and  that 
ired  by  the  thir- 
that  night,  that 
iroke  her  father, 
t  of  the  Are,  etc. 
ised  and  himself 
■e  l9  no  expluua- 
but  one  witness, 
y  of  defendant's 
bed,  and  also  by 
ice  as  part  of  the 

ind  our  minds  in 
Ve  are  unable  to 
means  the  death 
accident,  or  the 
ence  presented  to 
ith  was  produced 
ises  Imperatively 
efendant  innocent 
i  any   reasonable 
irerthrown  by  the 
Ities,  conjectures, 
t  and  satisfactory 
loubt  arising  from 
compelled  to  say 
f  the  State  to  sup- 
let  of  a  jury  upon 
Qcient  evidence  to 
jvidence  is  against 
holly  insufficient  to 
jmands  of  the  law 
loubt,  and  presents 
t  does  in  this  case, 
ormly  considered  it 
» interpose  between 


MURDKIl  —  DEORRKS  OF   MUIlDEn. 


1155 


the  State  and  the  citizen  and  guarnutee  to  the  latter  a  fair  and  impartial  trial 
in  accordance  with  the  full  measure  of  the  law.  By  pursuing  this  course 
guilty  persons  may  and  do  somutimes  escape  the  puulsliraent  which  they  de- 
serve, but  it  Is  far  better  that  It  be  thus  than  that  the  Innocent  should  be  con- 
demned. 

Believing  that  the  evidence  in  this  case  is  insufficient  to  establish  the  corpus 
delicti,  in  that  it  fails  to  satisfactorily  prove  tiiat  the  death  of  the  deceased  was 
caused  by  the  criminal  act  of  another,  it  becomes  uimeccssary  for  us  to  con- 
sider the  case  further,  and  the  judgment  Is  reversed  and  the  cause  is  remanded 

for  another  trial.  ,  ^  ^ 

Beversed  and  remanaea. 


§  C87.  Murder - 
to  kill  is  essential.! 


Intent  to  Kill  Baaentlal.  —  To  constitute  murder  an  intent 


§  C88.  Murder  by  PolaoBlncr  —  Knowledge  must    be    Proved. — To 

constitute  murder  by  poisoning,  knowledge  of  the  prisoner  of  the  former  char- 
acter of  the  article  used  which  produced  the  death,  must  be  proved ;  that  he 
knew  the  article  was  not  harmless  is  insufficient.' 

§  689.  SyniptomB.  —  And  symptoms  of  poisoning  alone  are  not  suffi- 
cient on  which  to  found  a  conviction.^ 

§  690.  Intent  to  Commit  Felony  —  Misdemeanor.  —  A  killing  while 

the  person  is  engaged  in  committing  a  misdemeanor  is  not  murder,  it  Is  only 
manslaughter;  to  constitute  murder  the  intent  must  be  to  commit  a  felony.* 

§  691.  Malloe  When  not  Presumed.  — There  is  no  legal  presump- 
tion of  malice  where  the  facts  are  sufficiently  disclosed  to  show  the  motive  .^ 


§  C92.  Intent  to  Take  Llfe- 

sential  under  the  New  York  statute." 


■  MUrder.  —  An  intent  to  take  life  is  es- 


§  693.  —  Degreeeof  Murder. — There  were  no  grades  of  murder  at  com- 
mon law.  By  the  statutes  of  many  of  the  States  the  crime  of  murder  has  been 
divides  into  degrees,  the  first  only  being  punished  capitally.  The  statutes  are 
in  some  respects  similar  and  in  others  different  in  their  language  and  effect.' 
It  is  believed,  however,  that  all  of  them  require --as  to  murder  in  the  first 
degree— the  elements  of  intent,  deliberation  and  premeditation. 

§  694.  Degrreea  of  Murder — Intent  Requisite. —To  constitute  mur- 
der in  the  first  degree  under  the  American  statutes  the  killing  must  be  willful, 
there  must  be  specific  intent  to  take  life." 


I  Wellar  v.  People,  30  Mich.  276. 

i  People  V.  Stokes,  2  N.  T.  Orim.  Rep.  382. 
(1882). 

3  Joe  V.  State,  6  Fla.  &91 ;  69  Am.  Deo.  619 
(1866). 

*  Smith  V.  State,  33  Me.  4S  (1851).  And 
see  State  v.  Shnnk,  68  Mo.  665. 

<>  State  V.  Coleman,  Q  Rich.  (S.  C.)  is.i. 


•  2  Rev.  Stats.  657;  Darry  v.  People,  ION. 
Y.  210  (1854). 

^  For  a  collection  ot  these  statutory  pro- 
Tisioiis  see,  18  Am.  t)ec.  774  et  seq.,  note  to 
Whitelord  v.  Com.,  6  Rand.  721 ;  18  Am.  Dec. 
771. 

H  Fields  V.  State,  52  Ala.  348;  Keenau  v. 
Com.,  44  Pa.  St.  61, 56. 


n    »«4IVv;T  the   PKUSOXS   OF   INDIVIDUALS. 
1156  CUIME8    AOAINhT   Tllf-    i  r  » 

......Hill  But  Intent  alone  Is 

meditation  and  deliberation,! 

♦  Prim*  Faole  Murder  In  Flret  Degree.  -  Prima 

J  696. A.  Killing  not  P^"*  f  *f  '  *.  ^^j  the  om,  U  on  the  prosecu- 

f^ie  a  killing  U  munl.r  In  the  second  .egreo. 
Son  tor.l.e  theoflonse  to  the  flrnt  degree. 

Prflmedltatlon. — Premeditation 
5  C97.  --»«-rrTn\te'rc:;d  JeTee-Tu^here  can  he  no  murder  ot  thla 
laeseentlal  to  murder  In  the  seconu  ucb'" 
grade  without  this  requisite.^ 

In  Piekett  V.  Statti^  on  a 
§  698.  I-Plle*  -•""^-■"°°**raSS°' whenever  It  Is  conclusively 
trill  lor  murder  the  jury  -«- ^"'^^'^^^f^  "^^.Z  not  appear  beyond  a  rea«. 
ahown  that  one  person  has  killed  »»«  *  ^^^  In  pursuance  ol  a  design 
sonable  doubt  from  the  ^'^^j'""!  ^Jf,  ^^  "  ^you.  and  where  there  Is  no  evl- 
deliberately  lormed,  as  »^"«'f ''^^f"  "^X^^^^^  to  manslaughter  or  negligent 
dence  which  reduces  or  tends  to  reduce  the  ^^^  ,,  deemed  In  law 

homicide,  or  which  excuses  or  jusUfls  the  kming,         this  wa.  held  error,  the 
tohavebeen  done  with  express  malice.      on    pp 

court  saying :  -  convicted  of  murder  ol  the  first  degree, 

HOBT.  J.    The  appellant  Pickett  ^'■'^^^J^      ^^^  penitentiary  lor  llle. 

his  punishment  being  assessed  a  conflne^^^^^^^^  ^elow  charged  as  loUows.  "  ith 
Upon  express  and  Implied  "'^  f  *»'«  ^^  ^^ate  mlud  and  a  deliberate  and 

Express  malice  Is  when  one,  with  a/=alm  ana  s  ^^^^^  ^^^^j^,^„ 

Lmed  design.  In  P-r^'/bv'rx^rnaf  clrcultlnces.  such  as  lying  In  wait 
of  mind  is  usually  evidenced  j'/  «  «'"^'^\i^^^^^^^^  acts  ol  preparation,  etc     You 
antecedent  menaces,  lormer  g-^^jse^' f '"''^7  ^p^ess  malice,  that  In  order  to 
will  notice  Irom  the  loregolng  f «"  "°",^^^^^^       the  slayer  must  be  cool  and 
constitute  a  killing  upon  ««P'«  »  ^^Jf^'^^^^^^^^^^  the  design  to  kill,  and 

sedate,  and  while  In  this  <^°f  "^^^.J,^  ""^^^^^^^^  such  lormed  design-,  or,  II  the 
have  actually  WUed  the  party  In  pursuance  ot  ^^^^  ^^^  .git^ted,  then,  lu 

design  to  kill  was  lormed  ^l^^^^'^^  ^f  ^^^^^^  there  must  have  been  time  lor 
order  to  make  the  killing  upon  "P"*"^™*""''  u^erate  upon  the  character  ol 
tiemlnd  ol  the  slayer  to  cool  andjr  ^  J»  ^^J^'g^'oee^^^^^  And  II  the  killing 
the  act  he  was  about  to  commit,  belore  the  kl  ling  ^^^^^^  ^^  ^^^^  ^^, 

occurred  while  the  mind  ol  *f  ^^SJ''^';^^^^^^^^^^  character  ol  the  act  he  v.a. 

same  was  Incapable  ol  f  f  „'f;'"°°  "^t Ve  uP""^  "P^"''  ""'"°*'    ^^ 
about  to  commit,  then  the  ''f  °8 J^^^^^^f,,,;  the  mind  must  be  entirely  Iree 

ruSuo^^oiir^^^^^^^^^^ 

nature  ol  the  act. 


1  people  «.  Sancue*.  24  Cal.  17  {19S4); 
Pamore  V  8Ute.29  Ark.  *«;  State  .Fo.. 
ter.ClMo.  649;  People  •.  Walworth  8  Alb. 
L  J  19;  People  v.  Batting, 49  How.  Pr.  892, 
Peip  ''r.Foren.25Cal.361;  S.ate      :rown 
W  Minn.  B38;  Fahnstock  v.  Statv      '  Ind. 
231-  Nye  «.  People.  85  Mich.  W;  SulKvan  v. 
PeoDle    1  Park.  0.  0.  847  (1852);  Clark  v. 
JSle".  1  P""  O-  C.  3M  C1852) ;  people  v. 


Mongano.  1 N.  T.  Or.  Bep.  4U  (18^  PeoJ 
V.  Conroy.  2  N.  Y.  Or.  »«P-  *"  ^'^^jf  »  " 
OurtlB.70Mo.54;  State  -■^^"^'^^?;^l 
i  McDanlel  v.  Com.,  77    Va.  281  ^l'so3), 
PUomimg  V.  State.46  WIS.  516. 

3  State  V.  Robinson.  73  Mo.  306,  State  v. 
Curtis,  70  Mo.  64. 

tllTex.  (App.)  86  (1882). 


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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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IMl'MKI)    MALICE. 


.!57 


"6th.  Implied  malice  Is  wh^re  one  party  kills  another  without  the  clrcum' 
stances  and  formed  desis^u  as  a:  >  required  to  constitute  a  liilling  upon  express 
malice,  but  under  such  circumstances  as  do  not  reduce  the  killing  to  man« 
ilaugliter  or  negligent  homicide,  or  which  excuse  or  just'fy  the  killing. 

"(Jtii.  Whenever  it  is  conclusively  shown  that  one  person  has  killed  another, 
and  it  does  not  appear  beyond  a  reasonable  doubt  from  the  e  lence,  that  the 
killing  was  in  pursuance  of  a  design  delil)erately  formed,  i..-.  hereinbefore  de- 
lined  to  you,  and  where  tliere  is  no  evidence  wliich  reduces  or  tends  to  reduce 
the  killing  to  manslaughter  or  negligent  lioraicide,  or  which  excuses  or  justifies 
the  killing,  the  killing  is  deemed  in  law  to  have  been  done  with  express 
malice." 

This  sixth  paragraph  is  clearly  erroneous;  so  palpably  so  that  it  requires  no 
analysis  to  n.,.ke  the  error  appear.  If  Implied  instead  of  express  had  been  in- 
serted, it  would  not  have  been  objectionalile  as  a  charge  upon  Implied  malice. 
From  the  preceding  paragraphs  and  its  own  context,  we  believe  this  charge  was 
intended  to  apply  to  implied  malice,  and  that  the  word  express  was  not  in- 
tended, or  that  there  was  a  mistake  in  the  transcript.  We,  however,  must  be 
goTerned  by  the  record.  Assuming  this  charge  to  have  been  given,  which  we 
ftre  compelled  to  do,  the  judgment  must  be  reversed." 

§  G9!).  Implied  Malice  —  Erroneous  Obargra  —  Wbltaker  «.  State.  —  In 
Whitaker  v.  State,^  the  conviction  below  was  for  murder  in  the  second  degree. 
On  appeal  the  following  opinion  was  delivered  by  the  court:  — 

WiLLSON,  J.  The  law  of  this  case  can  not  be  properly  discussed  and  under- 
stood without  first  reciting  the  facts  in  evidence.  In  September,  1873,  E.  Town- 
ley  died  at  a  store  or  grocery  house  kept  by  one  John  Henderson,  in  Denton 
County.  For  the  purpo.ses  of  this  opinion  it  will  be  assumed  as  a  fact  that  his 
death  was  caused  by  a  wound  inflicted  upon  his  head  with  a  rock  weighing  two 
or  two  and  a  half  pounds,  and  that  the  fatal  blow  with  the  rock  was  stricken  by 
the  defendant.  The  deceased  went  to  Henderson's  grocery  on  the  morning  of 
the  day  of  his  death,  and  drank  whisky  until  he  became  somewhat  intoxicated. 
Henderson,  Hood,  Snider,  Adkins  and  Horton  were  at  the  grocery.  It  seems 
that  all  these  parties  were  more  or  less  under  the  influence  of  liquor,  and 
Snider,  Horton  and  the  deceased  were  very  much  under  its  influence,  Horton 
and  deceased  had  a  flght,  which  resulted  in  Ilorton's  getting  whipped.  This 
occurred  before  defendant  went  to  the  grocery.  Horton  was  defendant's 
brother-in-law.  Defendant  went  to  the  grocery  in  the  afternoon,  /ind  after 
reaching  there  took  two  drinks  of  whisky,  one  a  large  drink.  He  remarked 
when  he  first  went  to  the  grocery  that  he  had  heard  that  some  of  them  had  been 
Imposing  on  Horton  while  he  was  drunk,  and  that  they  couldn't  do  that  while 
he  was  there.  Henderson  told  him  that  no  one  had  Imposed  on  Hortoti  —  that 
it  was  a  drunken  row,  and  that  Horton  had  only  got  what  he  deserved.  The 
defendant  replied  then  that  it  was  all  right.  Deceased,  at  the  time  of  these  re- 
marks, was  playing  on  a  fiddle,  and  if  he  heard  the  remarks,  seemed  to  pay  no 
attention  to  them.  Snider,  being  quite  drunk  and  boisterous,  Henderson  pro- 
posed to  tie  him.  Snider  went  to  a  tree  and  told  Henderson  to  come  and  tie 
him.  Henderson  took  a  rope  and  wrapped  it  around  Snider  and  the  tree. 
This  was  all  in  fun.  Hood  and  deceased  started  to  go  to  Snider  to  untie  him. 
Henderson  and  defendant  interposed  to  prevent  them  from  untying  Snider. 


12  Tex.  (.Vpp.)  436  (1882). 


1158  CIUMKS    AdAINSr   Till.    1 

1      _  all  in  fun  —  Hood  trying  to  get 
«..rt  anrt  Henderson  scuffled  with  each  otuei  defendant  was  sit- 

foSni        "unnehi,n.and  "-<!"«- \°;;:r:Vaec^ed    started    to  «nae 

C    n  tb«  <^->-  «'  ^^"^  '^"""  ":raho  t  elM     feet  stooped  and  plcked  up 
Snider.    He  got  up.  and  after  go.n;^  about  e.u  ^   ^^^^^    ^^^    ^_^^^^,^    ,^,„  ,. 

f  ockorrocKs.    Witness     thou  h      t^U    h.    ^^^     ^^^^^^^^^^^^    ^^^,. ,  , 

r,.roaq..d  went   to    Snider    as    If   to    u"i         ,.  you  shan't  unlle  mm."    T)f- 
re:::a^v\th  the  roc.s  in  his  haj.d  and  s    d.     You  s  ^^^^^^^ 
ceased  Haid  he  reckoned  he  won  drefenda  ^^^^  started  again  towad. 

and  said  he'd  be  d-d  It  he  should  untie  him.    1  ^^^^^^^^^  ,,  ^ted 

<n?der  when  defendant  pushed  h.m  »''^^^ '/'' "'T"  „o,,, ,  ..  i  looked  and  saw 
a  i.  .--»  «"•'''-••  -•'  ^'"r "nt^oerrit  -a  a  up  as  If  to  strike.  I  md 
dS  n<lant  with  his  right  hand,  -^^^^^^'^....a.,  and  don't  know  what  he 
not  see  Townley  at  this  time  -  did  uo^^^*-  J  ,^  ..m,  uis  rijiht  hand     He 

VL  doing.  I  saw  c^efemlant  maXe  a  -  -  J^,  ,,,,,  ,,ehes  of  his  hea  and 
held  his  hand  up  over  his  f ""'  ^"^'^ ;;'„;,^  ^,  to.s  It,  holding  the  palm  of  his 
„adc  a  motion  as  If  to  strU.e  wlU  ^^  ^  ^a  on  his  knee  and  fall  to  t^^e  ground^ 
hand  to  the  front.  Y''''\'^^''''l^'Z  rock  leave  ^'^^endant's  hand.  There 
I  did  not  see  him  hit,  nor  did  I  see  tne  ^^^  ^^^^  ^^^^  ^^  ^^e  head, 

was  but  one  wound  upon  ^'^\'<''''''''''^Zlxu\  a  half  Inches  long,  and  the 
Tbove  and  behind  the  ear.  and  -a^  abont^one  at         ^^  ^^^^^^^  ^  ^.^j^,^^ 
skull  appeared  to  have  been  broken.  Jho  ^^^^^  deceased  got 

and  he  died  about  9  o'clock  p.  m.  I^^'^^^-^^J^j,^^  „^  deceased  until  he  died, 
water  and  bathed  him,  sent  [^^^^^'^l^J^^'^^Z^  ue  would  be  all  right  a.  soon 
Idoclor  came  and  examined  deceased,  a"^  ^auw  ^^^         ^^  ^^^^  p^^. 

ttrwhlsky  died  in  him.  ^-J.^^^r^^^'ittirg  by  the  side  of  To^^^^^^^^^^^ 
cerv,  after  the  death  of  Townlev,  '^^''-"^  ,. ..  oet  down  and  see  what  yon 
a^>d  ookednpat  witness  and  fughed  and^«^^^  ^^^^^^^^^  „,,„,  ,,eighmg 

;:' think  of  this  case.'.    ?  wl^a  1   tl^^^^^^^^^^  "^''^  ^'^^"^'tld  a^d 

about  150  or  IGO  pounds;  he  was  a  little  1  ^.^^^^^^  ^^^^^  ^Id  and 

and  his  punishment  assessed  at  AvO  «  defendant's  counsel,  in  the  pro- 

No  less  than  twenty  errors  a.e  a-'  '^  ««     -         necessary  to  discuss  and  de- 
ceedlngs  In  the  court  below,    ^e  do  not  think  ^^^^^^^  ^^^^  ^^^^^ 

Smln!  all  the  ^"-^^Va'sruTe^^^^^^^^  a^^we  deL  of  importance  with  ret- 
our  opinion  to  such  of  the  assi^nt 

»rpnce  to  this  particular  case.  ,  t^e  court  which  Is  as 

"one  error  assigned  points  to  "^  P^'^'^'^"  °  ^^^^^ ;.  I'hlch  results  lu  the  death 
lollows :  "  It  an  Injury  be  Inflicted  in  a  J  "e^^^W  instrument  not  likely  to 
of  hrparty  injured,  though  it  was  1"^' ^^^^^^^'^^nilng  will  be  murder  if  com- 
proSnce  death  under  ordinary  f '="";; J^^^^^^^;^,  ^o  you  In  fifth  section  of  these 
mltted  upon  implied  malice  as  heretofore  dclhieat    y  ^^^^^^^^^^  ,,uh  li.s 

rnstri' tlons..  and  if  yoa  believe  ^--^f^^J'i  ^  upon  said  E.  Townley,  wi  h 


^^m 


IMl'LIKO   iMALICi:  —  WHlTAKKIt    r.    STATK. 


115U 


il  trying  to  get 
ulant  was  sit- 
.itud    to  ""'i*' 
iiul  ricked  up 
11    each    'viiHl. 
WL'Ut    up    to 
He  nim."    !>«- 
[leceased  b;\ck, 
1  again  towards 
et-eased  started 
looked  aud  saw 
to  strike.    I  did 
t  know  what  lie 
vi<:lit  liaiid.    He 
of  Ids  head,  aud 

the  paim  of  his 
ill  to  the  ground. 
9  hand."  There 
ide  ol  the  head, 
les  long,  anil  the 
3  o'clock  p.  m.' 
Ith  deceased,  got 
iscd  until  he  died. 
3  all  right  as  soon 
he  got  to  the  gro- 
e  side  ol  Townloy, 

and  see  what  you 
lar  umu,  weighing 
le  defendant  at  the 
:cn  years  old  and 
te  was  twenty-one 
detendant  left  the 

Missouri,  in  1879, 
urtli^r  of  Townley, 
,n  the  second  degree 
,e  penitentiary, 
coansel,  in  the  pro- 
y  to  discuss  aud  de- 
sel.  and  shall  confine 
Importance  wUh  ref- 

he  court  which  Is  as 
li  results  m  the  death 

trumcnt  not  likely  to 
ill  be  murder  If  com- 
i  fifth  section  of  these 
e  defendant,  with  his 
laid  E.  Townley,  with 
hlch  he  died,  you  will 
•  This  charge  was  ex- 
9  bill  of  exceptions. 


We  tliink  tlie  charge  is  correct  as  an  abstract  proposition  of  law.'    '•  Implied 
malice"  is  malice  presumed  liy  law  from  tlie  commission  of  .my  (lelil)crate  and 
cruel  act,  liowcver  sudden,  done  or  coinmitted  witliout  just  cause  or  excuse.'-^ 
If  t!ic  injury  wliich  caused  the  death  was  iiitlicted  in  a  cruel  manner,  the  law 
wonld  certainly  ii.iply  malice,  notwithstanding  the  instrument  used  in  inflicting 
tlie  injury  lie  one  not  likely  to  produce  death.     It  is  the  cruel  manner  in  which 
the  act  is  committed  that  stamps.it  as  malicious.     If,  then,  the  evidence  in  the 
case  before  us  warrants  the  clmri;e  under  discussion,  we  are  of  the  opiidon 
that  It  Is  unobjectiouable.     But  it  is  ct)nteiided  that  there  are  no  facts  in  this 
case  which  authorize  such  a  charsjo,  and  that  therefore,  it  was  error  to  give  It. 
We  have  searched  the  statement  of  facts  carefully  to  find  evidence  which 
would  authorize  the  court  to  .submit  to  the  jury  the  issue  ns  to  whether  or  uot 
this  homicide  was  perpetrated  in  a  cruel  manner.    We  can  see  nothing  in  the 
facts  and  circumstances  of  the  killing  which  fiive  to  it  the  character  of  cruelty, 
anymore  tlian  is  found  in  most  cases  of  homicide.    It  is  cruel  in  one  sense  to 
take  human  life  under  any  circumstances.    But  when  we  speak  of  the  cruel 
manner  in  which  a  homicide  was  committed,  we  mean  that  the  killing  was  done 
In  an  unusual  way, —that  there  were  circumstances  surrounding  the  tragedy 
which  rendered  the  act  peculiarly  heinous,  and  showed  in  the  slayer  a  wicked, 
malicious  heart,  —  a  mind  fatally  bent  upcm  mischief.    In  t'-  -  case  before  us  the 
defendant  struck  the  deceased  but  a  single  blow,  and  made  no  attempt  to  strike 
again.    He  might  have  stricken  other  blows;  there  was  nothing  to  prevent  his 
doing  so.    The  manner  in  which  he  inflicted  this  single  blow  did  not  evince 
cruelty  in  the  sense  in  which  the  law  regards  that  word.    As  soon  as  deceased 
fell,  and  the  defendant  ascertained  that  he  was  injured,  he  at  once  busied  him- 
self to  assist  him,  and  sent  lor  a  physician,  and  stayed  by  the  wounded  man. 
nursing  and  caring  for  him  the  best  he  could  until  he  died.    We  can  not  agree 
that  these  facts  justitl  d  the  charge  in  the  language  in  which  it  was  given,  and 
we  think  it  was  well  calculated  to  mislead  and  prejudice  the  minds  of  the  jury, 
to  the  injury  of  the  defendant's  ri;,'hts. 

And  what  makes  this  portion  of  the  charge  more  ol)jectionable  than  it  other- 
wise would  be  is  the  fact  that  it  is  followed  by  another  paragraph  embodying  to 
some  extent  the  same  Idea,  thus:  "  When  the  circumstances  attending  a  homi- 
cide show  an  evil  or  cruel  disposition  on  the  part  of  tlie  party  committing  the 
homicide,  or  that  it  was  the  design  of  the  person  offending  to  kill  the  deceased, 
and  If  he  commit  the  homicide  upon  his  Implied  malice,  he  Is  guilty  of  murder 
in  the  second  degree,  although  It  may  appear  that  the  means  he  used  were  not 
in  their  nature  calculated  ordinarily  to  inflict  death."  Tliis  Is  also  a  correct 
law,  and  would  have  been  unobjectionable  in  tliis  case  if  it  had  omitted  the  word 
cruel;  but  in  using  that  word  it  submitted  to  the  jury  an  issue  which  was  not 
raised  by  the  evidence,  and  following  as  it  did  the  previous  paragraph  in  which 
the  cruelty  of  the  manner  ol  committing  the  act  ol  homicide  is  relerred  to,  It 
made  the  leature  of  cruelty  still  more  prominent  aud  was  calculated  to  impress 
the  jury  with  the  belief  that  the  court  viewed  that  particular  homicide  as  a  cruel 
one,  and  therefore  murder  in  the  second  de;?ree.  The  tenth  subdivision  of  the 
charge  upon  this  branch  of  the  case  was  a  proper  charge,  applicable  to  the 
facts,  and  was  entirely  sufficient. 

The  charge  ol  the  court  Is  also  objected  to  because  it  does  not  sufficiently 
define  murder  In  the  second  degree.     It  very  lully  and  clearly  deflues  murder  in 


1  P.  0.,  arts.  fiU-617. 


'  Jordan  v.  Stale,  10  Tex.  479. 


1160  rU.MK«    AGAINST   THK   VEUSONS   OV   INDIVIDUALS. 

t.e  fl.t  decree.  a„a  i„..uct.  tUe  Jury  t-t  unjler  ^e  ovU,.>ce  t- .c^nda^i^ 
not  guilty  of  murder  iu  t'- "-^  ;^^«^-  ;,  ^^^;;  "^^^^^  au- 

malice  as  follow. :     "  I."pl  cd  ma  c     ^^  .^^»  ;^;;";,.^^  ,,,,,^  to  constitute  a 

other  Avithout  the  formod  design  a,  d  «  '^^''^^^  ;  "J"^,,  eir  u.nstauces  as  do  not 
UllUng  on  e-Pr-s  -allce  but  tu>der  >^^^^;^^^,,^^  „,  ,,,,eh  do  not  ox- 
reduce  the  killing  to  manslaughu-i  or  °efe"^  dellnition  of  murder  in 

cuse  or  ).Atlfy  the  killing.'  Th.s  Is  the  ^''^^^^  ^l\^.^  ,^,,^,,,,,,  i^,t,u,ted  as 
the  second  degree  as  given  in  ^"" '^J'^'^'^  ./'l"  ;;\h,  uilling  to  manslaughter. 
to  the  state  of  circumHtauces  vrhich  wou  d  red"- t^^^^^^^^^^^^  ^^  ^,^ 

It  is  contended  by  counsel  for  ^^'^^f^.^^^^'^'^j  ,f ^  j*^,"  ^  ,„rther  definition  of 
second  degree,  as  given  »«/'--»''^'-8''' *  '^^'^'^S'^JeouM  the  jury  know,  with- 
rtt^Uonfrrir^^^^^^^  ilrcumstanees  won.  reduce  the 

^^r^ll^g^lnXMens  .e  1- ^  ^  ^^  ^^^^^  .- 
second  degree  if  It  '«. -'^-\-S\^^^;,7?^'^°leb  t  se'ms  to  us  that,  to  have 
flable  homicide.    Having  told  the  l^-^y^^f'j  ."^"^/^^..d.r  in  the  second  degree, 

constitute  all  the  lower  degrees  of  l^°™;*;;j^..„_t  homicide  that  it  concludes  by 
It  is  also  f  iected  to  t.e  c  arge  u^n^^^^^^^^^^^^  ^^^^  ^^^  ^^,^„,,,, 

instructing  the  ]ury  that,  if  ^' ^  ^"Z  "^*  *  . .  j^  him,  as  that  oflense  was 

^as  guilty  of  egllgent  '7;';':^^^' f  ^'^  .^^^IS  i  by  'defendant's  counsel 
barred  by  tY  statute  of  *'"'*;^;"  . /^/^.^a^^^e^nd  calculated  to  injure  the 
that  this  was  a  charge  upon  the  weight  «  ^^^^^^^^  ^^^,,^,,ci  the  defendant 
defendant  by  telling  the  jury,  m  effect.  '^''^^^^i;^^J^,,,^,^^y,  There  was  avi- 
of  murder  in  the  second  degree  ^^^^'J  ™"  J  ^^^.'^^^  ^ the  defen^^^ 
dence  in  the  case  to  show  that  mmediately  ^f^^^^J^^J'';^  ^^^  ^i,^,  that  absent 
the  country,  and  was  *«--f  !,  "^  f^^^^^;  J/'^^^^u^n^tment  in  September, 
in  the  State  of  Missouri  until  after  «  «  "^^  "''J';;      ^^^  before  the  i.ulict- 

,8;o.-the   homicide  J-  "«,;;-  "/tS 20700^       Criminal  P.^cedure. 
ment  was  presented.    It  is  provuiea  "y  «"  '        -      g  is  absent  from  the 

..That  the  time  during  which  a  person  a«°"«f  ,°^,J"  °°^?  NegU-ent  homicide 

ant.  assumed  as  a  fact  ti^^t^*- ««---:  ^n  Im  It^od 'rthe  juryfor  their 

rr;rn^t!:nr  V^ZZ^^^.  -  statue  .  such  case 

positively  demands  a  "^^^'^'^^.f;  j^f^ich  we  will  not  discuss,  as  they  are 
There  are  other  questions  In  th  s  case  ^^ich  w  ^  determln- 

not  likely  to  occur  upon  another  trial.    And  it  Is  not  neces      y 
atlon  of  this  case  that  they  should  be  decided .  jjenerted  and  remanded 

5  700.  implied  Mallce-BrronsouB  Charge -Reynolds  v.  State.- In  i^ey- 

■!  Code  Cr.  Proc.  art.  686. 
1  Code  Cr.  Proc,  nrt.2iH). 


!VL8. 

he  defendant  Is 
ixpliiiu  Implied 
lonallykill  au- 
l  to  constitute  a 
:iiuce8  as  do  not 
,  hich  do  !iot  ex- 
un  ol  murder  In 
ro  instructed  as 

0  manslaughter. 

1  murder  in  the 
ther  definition  of 
jury  know,  with- 
oukl  reduce  the 

lot  murder  in  the 
icusable  or  justi- 
0  us  that,  to  have 
le  second  degree, 
acts  which  would 

,at  it  concludes  by 
hat  the  defendant 
3  that  offense  was 
fendunt'8  counsel 
lated  to  injure  the 
cted  the  defendant 
y.    There  was  evi- 
!  the  defendant  left 
id  after  that  absent 
ent  in  September, 
8  before  the  indict- 
!riminal  Procedure, 
is  absent  from  the 
Negliaent  homicide 
d  be  barred   by  the 

rable  to  the  defend- 
»e  evidence  left  that 
to  the  jury  for  their 
of  evidence.  While 
rror,  yet  the  charge, 
statute  in  such  case 

t  dlscuBS,  as  they  are 
(Bsary  to  a  determln- 

verted  and  remanded 

la  V.  State.  —  In  Bey- 


IMl'LIED   MALtCK 


KEYNOLD9    V.    ST\TE. 


1161 


nolda  V.  State,^  the  indictment  charged  the  appellant  with  the  raurc'er  of  J.  H. 
Barnes,  on  tlw  eighteenth  day  of  September,  1878,  in  Frio  County,  Texas.  His 
trial  resulted  in  a  conviction  of  murder  in  the  second  degree,  and  he  was 
awarded  a  t'jrm  of  five  years  in  tlic  penitentiary  as  punishment. 

W.  C.  Daugherly  was  tlio  first  witness   for  the  State.    He  testified  that  he 
was  in  the  town  of  Frio  on  the  eighteenth  day  of  September,  1878,  wlien  tlie  de. 
fendaut  shot  and  killed  James   U.  Barnes.     Tlie  witness  went  down  Into  the 
cellar  under  Bibb's  store  just  before  the  shooting.    On  coming  up  he  saw  the 
defendant  slttlu:|  on  his  horse  In  front  of  the  store.    The  defendant  spoke  to 
the  witness  as  the  latter  came  up,  and  said :  "  What  kind  of  people  have  you  got 
here  tliat  they  will  beat  up  an  old  man  like  the  one  over  at  the  grocery?  "    About 
that  time  the  deceased,  who  was  drinking,  and,  in  the  opinion  of  the  witness, 
drunk,  came  up  to  the  wituess  and  the  defendant,  and  of  the  latter  asked :  ''Do 
you  take  It  up?  "    The  defendant  replied:  "  I  don't  know  but  what  I  do."    It 
was  the  impression  of  the  witness  that  the  defendant  then  took  out  his  pistol. 
The  deceased  then  laid  his  right  hand  upon  or  around  the  horse's  neck,  and  his 
left  hand  on  the  defendant's  leg  about  his  pants'  pocket,  of  which  he  took  hold. 
The  defendant  once,  or  perhaps  twice,  ordered  the  deceased  to  release  him 
which  he  did  not  do.    Thereupon  the  defendant  struck  the  deceaseci  over  the 
head  with  his  pistol.    The  deceased  released  the  horse's  neck  and  the  defend- 
ant's leg,  and  caught  the  bridle  reins  of  the  defendant's  horse  with  both  hands. 
The  horse  wheeled  around  and  the  defendant  fired,  the  ball  taking  effect  in  the 
shoulder  and  near  the  neck  ol  the  deceased  and  ranging  downward.    The  wit- 
ness  took  hold  of  the  deceased  and  eased  him  down,  and  with  the  assistance  of 
other  parties  carried  him  into  a  house  near  Bibb's  store.    He  never  spoke  after 
he  was  shot,  and  was  dead  by  the  time  the  parties  got  him  into  the  house.    Tlie 
pistol  which  was  here  exhibited  to  the  witness  was  the  pistol  which  was  worn 
by  the  deceased  at  the  time  he  was  shot.    Then,  as  now,  it  was  tied  into  the 
scabbard  with  large  white  buck  skin  thongs,  without  untying  and  removing 
which  It  could  not  be  withdrawn  from  the  scabbard.    The  deceased  was  in  his 
shirt  sleeves  when  he  was  shot,  and  bis  pistol  so  tied  in  the  scabbard  was 
plainly  in  view.    The  deceased  made  no  effort  to  strike  the  defendant  nor  to 
draw  his  pistol,  nor  other  hostile  demonstration  that  the  witness  saw,  nor  did 
he  make  any  other  remark  than  that  stated.    The  defendant  lived  at  that  time 
In  Uvalde  County,  and  was  but  slightly  acquainted  In  Frio  County.    The  witness 
saw  the  defendant  and  the  deceased  together  that  day,  and  saw  them  take  a 
drink  together. 

D.  J.  Feehan  testified,  for  the  State,  that  he  was  present  when  the  deceased 
was  killed  by  the  defendant.  While  the  witness  was  standing  In  front  of  Bibb's 
store,  the  deceased  passed  along  in  front  of  the  store,  going  from  the 
direction  of  Harkness'  grocery.  He  passed  around  the  corner  of  the 
store,  and  out  of  sight  for  the  time.  He  was  drunk  and  staggering.  A 
short  time  later  the  defendant  rode  up  to  the  front  of  Bibb's  store  from 
the  same  direction,  and  the  witness  heard  him  spv-ak  to  some  one.  The  de- 
ceased, who  had  returned  from  behind  the  store,  walked  up  to  the  defendant, 
and  put  his  right  hand  on  the  horse's  neck,  and  his  left  on  the  defendant's  thigh. 
The  witness  did  not  hear  what  was  said  by  the  parlies,  but  saw  the  defendant 
strike  the  deceased  over  the  head  with  his  pistol,  knocking  the  ramrod  and 
guard  off  the  weapon.    The  deceased  staggered  back  and  fell  in  front  of  Bibb'* 


,  art.  ( 


1  M  Tex.  (App.)  427  (1883). 


1102  CUIMKS    AUMNST   THK   IMCUSOKS   OK    1Nn.vn>UAI-S. 

l„g  tl>e  deceased  In  the  .houKler  -■"  ^''^  ^^J;^  ";,,,  alter  he  .-us  shot.  The 
took  the  deceased  iuto  the  houso^  *;:  '  ,  tUolceased  until  he  went  to  ns.ist 
witness  did  not  see  Daugherty  take  1  old    f  the    . c  ^^^^^.^^^  ^^  ^^_^_  ^_^^^,^,,^ 

in  carrvini?  him  in  after  he  ^va.  "''"^V  ",;.,;',';;„,  ^t  all.  U".  ^M  not  know 
all  the-tlme.  He  did  not  see  ^'-^^;"- j;'  .^rcease.l  first  appro.che.l  hiuK 
that  the  defendant  drew  h..s  p.stol  'f  f°''''    ....^ck  the  deceased  on  the  hoad 

Witness  llrst  saw  the  P'«^«V'  %rrttodr  v  M  Pistol.to  strike  the  defendant, 
withit.    Thedeceasednmdeno.cfforttod.awiP  Deceased  was 

or  to  do  him  violence  <^l  -^l^Z^^^^^on.  ^^^y '^^  ^'^'^ '^''^ ''y^ 

*rS:^:^e  state.  .avesn.s.a,n.^^^^ 

as  that  given  by  Daugherty.  addmg     -'^  ^ ,^  ^  ;,,,,  „,,,,«  he  llred.     Ul^  tes- 
hls  order  to  the  deceased  ^»f  ^^^  .^.f  "ieopinion  of  the  conrt. 
tlmony,  however,  is  set  ont  In  if''^'^^^^'^^,,^,  of  the  killing,  testified,  for 
A.  S.  Curetan.  a  justice  of  the  peace  at  ^^'  ^^^„„,,,,  „ut  reached 

the  State,  that  he  was  not  in  town  -;'^;'-;;^^,°  ,«  ,  ,,as  getting  ready  to 
town  just  afterward.  He  was  ^;  '^  °'  ^^^^.^'"^.u^'g  «„  uis  hor.e  In  front  ol 
go  an.,  arrest  the  ^l^'t«"''';"^\^^f,,^rred  and  with  pistol  in  hand  rode  toward 
^Bibh-s  store,  when  he.  defendant     u   u-d  aM  w     ^^P^^^  ^^^^  ^^^^^^^^  ^^  ^ 

the  house  where  witness  was.    "^J^^'y "^^  ,^  Ben  White :  "Come  on  Ben ; 
r::;  r  E::rS  ;!:;rr  ST^eTsfrulu  mo  town.-    ue  then  rode  off, 

^^bnidley  testified  for  the  SUJ.  1^  ^  ^  ^^n^^^^^^X C 
the  defendant  rode  up  to  the  door  an ^  «'  v  "^  ^  ..  ^^oever  did  that  is 

^bere  he  had  been  knocked  down     Thc^l  ftnd  ^^  ^^^    ,,  ^  ^^^^^^  ^^^„ 

a  d-d  coward,  and  I  can  whip  1^^™-  W,'^"'^^  ^olped."  The  defendant  then 
U,  Bill ;  it  has  been  done  now  and  ^^^^  ^"^  .^^f„„^  J,,  ^e  was  going  to  .ee  BUI 
s  id  that  he  would  not.  He  then  roc^  ^,f  ^'^^  o"rtLe.  He  did  not  tell  the  de- 
Daughcrty.    The  witness  heard  a   ho   xn  ash  ^^^^^     cross-examined,  the 

lendant  who  the  man  was  that  l^'^/*  ^°'"J'°      ^.      on  the  floor.    He  wrfs  very 
witness  said  that  old  man  Everett  ^^^^^^  "^J^  ^^  ^  ,uort  time  before.    The 
bloody.    He  had  been  l'»"«>^«'^,^«;'"^Vnnd  Everett  were  acquainted, 
v^itness  did  not  tiunk  that  the  f/^f^J^"  ^J^^ter    "e Iceased  left  his  saloon  the 
J.  C.  B.  narkness  testified  that  ^^^J^^  j";^';;„,,,  „«  to  Bibb's  store.    Wit- 
defendant  rode  up  and  spoke  to  RuHey.  ^;^»^^;°;;  ^  defendant.    He  saw  him 
fels  was  induced  by  -^^^  «^f  ^/^^^Vst  "  erC  and  then  shoot.    Parties 
strike  the  deceased  over  the  head,  and  J^a-e'     ^^  ^^,„  off  up  Frio  R.ver. 
rushed  in  and  around  tl-  deceased  and  the  ^^^^-  ,^^,. 

The  witness  went  into  Blt)b's  store  and  saw  xn  shooting.    He  gave, 

^'john  Henman  testified  that  he  ^^^'-^f^.^.tlSess  Daugherty.  except  that 
in  detail,  an  account  similar  to  t^ja'  S^ven  by  t^^^^^^^  i,,„g,erty.    De- 

he  said  nothing  about  the  words  ;™Pf;"*  ^^^^  ^  J  defendant  that  the  witness 

ceased  made  no  hostile  d^^^'^f ^'^'^^';°  ^'J.t^JVa"  t  e^  1°  ^he  scabbard,  for  he 
Lw.    Witness  knew  that  the  deceased    P     °\^;^\,,  ,,„„ard  while  riding 


^rfk 


iiiu  flrcrt,  strlk- 
ertyuuiloiliiTS 
wusshot.    Ttiu 
:  went  to  »9>i«l 
igattlK'  I'iii'tii''* 
1,!  dill  not  Ui'.i'W 
pproiiclifil  liim. 
isuil  on  thf  hoiul 
etho  defendant, 
Deceased  was 
Ixty  yards  apart, 
ty  having  a  diffl- 

unt  of  the  affray 
A  times  repiated 
e  fired.     III!*  tew- 

llng,  tcstlfled,  lor 
rred,  but  reached 
i  getting  ready  to 
hor>e  In  fi'>nt  ol 
hand  rode  toward 
distance  in  a  t^low 
i;  "Come  on  Ben; 
He  then  rode  off, 

kness'  saloon  when 
t  lying  on  the  floor, 
iVhoever  did  that  is 
a:  •<!  would  not  do 
The  defendant  then 
ras  going  to  see  BUI 

did  not  tell  the  de- 
Crosfl-examined,  the 

floor.     He  v/its  very 
rt  time  before.    The 
acquainted, 
ed  left  his  saloon  the 
o  Bibb's  store.    Wlt- 
mdant.    He  saw  him 

then  phoot.  Partus 
le  off  up  Frio  River, 
dead. 

e  shooting.  He  gave, 
Jaugherty,  except  that 
s  by  Daugherty.  De- 
ndant  that  the  witness 
In  the  scabbard,  for  he 
scabbard  while  ruling, 
n  this  case  before,  but 


IMl'Lir.I)    MALKK  —  KltUONKors    ClIAUdr,. 


1103 

Till'  deceased 


,nent  l.ein.' assessed  at  conllncment  in  the  penitentiary  for  five  years. 

t  is    rlintlv  the  case  that  there  is  evidence  tending  to  P/^"   '"««^"* 

de  "e        f    •   l..:.>.le  ho.nieide.     And  in  this  ease  it  was  insisted.  In    he  .n..t  on 

1.,     .,„t  the  eourt  erred  in  its  cliar-e  upon  impUed  malie.e,  uml  in 

;:ui:g  t:  ::i:t,;":;:;in.e  to  man...hter.  ---'v'p;.u  tue  -p. 

ose^sround  that,  there  was  evidence  presentinf;  manslaughter.  II  ^l'*-  «  ^^^ 
'  ilf .  te  din-  to  present  the  issue  of  manslaughter,  anern.neous  Instruction 
:i;'t^t^on  ,;;::^l  nuUlee  nu.y  ..ave  worked  an  Injury  to  f -o  -lofen^u.  ; 
L  ft  ere  was  snch  evidence,  n.ost  evidently  a.  failure  to  charge  the  law  ap- 
m  a  le  to  th  t  cie-'ree  of  culpable  homicide  was  calcuiate.l  to  injure  defendant, 
!.;'::hTn  om!:;sU.nClng  the  effect  to  con.lue  the  jury  to  the  higher  degrees, 
and  to  force  tlu.m  to  convict  of  the  higher  or  aeqn.t  al  ogether. 

be  murder  In  the  second  degree." 

T   .       *  1.,.  fi...  iih.«tvitions  siiven  by  the  learned  judge,  anci  see  u  luty  pui 

of  implied  malice,     luenrsiis.  ^r  iu^^fy  the  act,  the 

evidence  sufficient  to  show  express  malice,  no   ^^  .7;;;;;?'^.  J^-^j  J„„  1,  binder 


»^^«SB-V?*l3*^»'™»*»'  ■■ 


UG4  CU.MK.   AOMNST   THE    PKUSON.   OK    INUIVIDUALB. 

„e,U«ent  ho.uicUlc  or  -'"--f  ^'^  ;^,.^^;    Jf    .u,^...,.  L.uidCe.  a  part  of 

raised  by  cvldcuco  la  this  case  ^^  '^-;;:  '  J,.  .,,  ,„ltructiou8  a.kc.l  by  cK- 
tuero  beln«  no  objections  '"'""^^^f  .\.,';  f  ^  .  ,,  a  different  standpoint.  The 
fendunt.  wo  would  treat  the  ^^'I'^^^^TL.^  ont  of  tbe  case -whether 
question  would  then  '^^  " '^' V*^^^, .'  \';;'  "  rupou  implied  malice,  or  upon 
I  failure  to  Bubmit  a  P^'-^'-^'^  ^^  ?,f  ,';''rniury  to  defendant?  Let  «.  now 
malice  of  the  second  de^ee,  ^vrou^  t  a.»  '^^         ,„anslau,d,tcr  as  an  issue 

proceed  to  ^^^^^^J'^-J^::'^:^:;::..  evidently  calculated  to  injur- 
in  the  case;  for  II  so,  iul  ciiuit, 

lously  aflect  the  rights  of  defendant  ^^^       ^^^  ^^^^  ^j  ev- 

It  appears  from  the  f^-;;"j;;,/;:;:;r  deceased,  in  Ilarkness'  saloon, 
erett  had  been  knocked  ^'«^^'".  f , °';' J^.'^ofendant  rode  up,  looked  in  thesa- 
and  while  he  was  lying  "P""  ^.^^''"""^''r^  floor,  said  ...vhoever  did  that  was 
loon  and,  seelngthe  old  '"'"^'^'f  7*'" '^'  i.nvWphlm.''  The  witness  Ridley 
a  d-d  coward,  and  that  he  (defeud.^^^^^^^  -^  ^^  jl^lpl  ^^^        ^^  ^^  ^^^^  ^^^^^^ 

spoke  to  defendant,  "telling  ^  "   ^h'tt    ^  w°u     ,^^  ,,o„ui  not,  stating  that  he 
conld  not  be  helped."    1]^'^^'^^ '^^Ctl,^^  ^^^^  When  defendant 

wanted  to  see  Bill  I>a«Shtery,  an    rode  over  t  ^^       ^^  ^j^^  of  people  have 

got  to  Blbb'9  store  he  spoke  to  ^^"3"  >-y  and  sai  K  ^^  ^^^  ^^^^^^^^  „ 

^o«  got  here  that  will  beat  ^ -J'*;*;;",   '  and  asked  defendant  if  he  took 
iboutthat  time,  Barnes,  the  J  ««  J  «d     «  ^^,^,^,  ^^^,,,^,  ..  i  don't  know 

,t  up.    The  witness  D''"«f  ;7 .  ''  "^^j  the  witnesses  are  not  harmonious. 

but  what  I  do."    As  to  ^^ilat  «>1«^^  '^^  ..  i  ^as  present  when  James  H. 

T.  B.  Bibb,  a  witness  for  ^J^^  ^J'^*^' 'J  ^^  ^^^,  ,„town  that  day  on  busfess. 

Barnes  was  killed,    deceased  and  Benman  cam  ^^^^^^^^^  ^^^ 

When  I  came  up  out  of  the  cellar  Ij«»f  ^J^7„\\„ ^r.  Daugherty,  and  asked 
Reynolds  rode  over  to  the  «tore  and  spok^,  I  hm  ^^^  ^^^  ^^^^^^  ^^^^^ 

„    hat  was  the  way  they  treated  f^\^';^^^'l,^.^,,al  and  caught  Mr.  Rey- 

him  if  he  took  it  up,  and  ^^^'^f^^^^^^.n   hand,  and  with  the  other  he  took 

nold's  horse  by  the  mane  "^    ^^  ^^ 'Jip .  and  the  horse  Mr.  Reynolds  was  on 

hold  of  him  somewhere  on  the  ^»"Sh  '^'^'P '      ^j^s  told  Mr.  Barnes  to  turn  him 

whirled  around  once  or  ^--^^-^^JJ^.fj^ruck  him  over  the  head  with  his 

loose.  Barnes  did  not  ^'«  J\' ^"^,f  *\";„es  staggered  back  toward  the  gallery, 
Uol.andwhenhestruckl^M.Barne   s^^  ^^^^^^    ^^^^^  ^^^^ 

and  still  held  onto  'l^^  '^'•'^""  °*;^';",,;„d  Mr.  Barnes  came  up  again,  and 
and  it  seems  to  me  *^«  ^^^^^^  ^^.^tfj^,  and  Mr.  Reynolds  told  him  sev- 
the  horse  whirled  around  t«o  or  three  u.  ^^^  ^^^^^^^^^^  ^^^j^^own, 

eral  times  to  turn  him  lose ;  and  M';  «^> "^  ''J^  ,,.^  ,„d  laid  him  down.  I  do 
and  some  one,  I  tj^^^^^^^^-^..^  fwheti   r  he  died  after  we  carried  him  in  the 

rr^^^^rHr  S^X^ -fled:  ..  was  there  whe. 
Cr<.ss-e«.n.l»o<l  l>y  the  *'"'«»•*  7;;1.„  .„,  „.«1«B  to  get  bin  to  tak. 

Z!::'^:'jTZJ  risrr»o.>a .« .„t„  t^u...  ^ .».. . 

1  13  Tex.  (Apr.)  536. 


^M 


ALS. 

(Ifgrecs,  to  wit, 

niclile,  a  piirt  of 
ssed  lu  Meijland 

ghtcr  Is  (in  Issue 
.U'd  by  eviiU'iice, 
ions  nisked  by  tlt- 
iitiuulpoliit.  The 
ecuse  — whetlur 
inallco,  or  upon 
It?  Let  us  now 
ijlhtcr  as  an  issue 
ilculated  to  hijur- 

y  the  name  of  Ev- 
Ilarkncss'  saloon, 
,  looked  in  the  sa- 
ocver  did  that  was 
Mie  witness  Ridley 
as  It  was  done  and 
lot,  stating  that  he 
When  defendant 
{Ind  of  people  have 
r  at  the  grocery? " 
lefenilant  if  he  took 
ed:  "1  don't  know 
harmonious, 
sent  when  James  H. 
lat  day  on  bus\iie88. 
cultyonhand.    Mr. 
lugherty,  and  asked 
id  Mr.  Barnes  asked 
id  caught  Mr.  Rey- 
th  the  other  he  took 
Mr.  Reynolds  was  on 
■.  Barnes  to  turn  him 
,er the  head  with  his 
It  toward  the  gallery, 
,    Avith  both   hands; 
s  came  up  again,  and 
eynolds  told  him  sev- 
[r.  Barnes  sank  down, 
laid  him  down.    I  do 
we  carried  him  In  the 

1:  <«I  was  there  when 
•iug  to  get  him  to  take 
rouble.    The  reason  I 


l.AIPLIEI)    MALICK  —  KHIJOXEOIS    <  IIAHUK. 


1105 


thought  he  woul.l  get  into  troul)le  was  on  account  of  what  occurred  with  Barnes 
and   old   man  Kv.iett.    When  Reynolds  came   up  ho  sj.okc  to  Mr.  Daugherty. 
When  deceased   w.nt  toward  Mr.  RoynoMs  he  went    iu  a  southwest  direction 
from  my  store.     He  can..-  from  a  northeast  direction,  and  caught  the  horso   ol 
Mr.   Reynold's  by  the  mane  or  bridle  with   one  hand.     Mr.  Reynold.s  tried  to 
null  the'horselooHe  from  him.  an.l  I  don't  think  he  turned  the  bridle  loose.    I 
don't  know  whether  ho  was  trying  to  get  hold  of   Reynolds  or  the  pistol;  it 
looked  to  me  like  he  was  trying  to  get  hold  of  Reynold's  pistol.    After  he  w^s 
struck  I  can't  sav  what.     I  do  not  know  exactly  how  long  I  have  known  the  de- 
fendant.   I  think  I  met  him  some  time  after  I  came  to  Texas,  which  was  sev- 
eral  years    a-o.    I    .lo  not  remember  how  long  it  Is.     I  had  known  Barnes 
several  months;  he  lived  at  Mr.   Crouch's  ranch  In  this  county.     Reynolds  is  a 
cattle  man,  and  lives  at  Uvalde.     Mr.  Barnes  was  not  drimk  when  he  left  my 
store.    I  hallooed  at.Mr .  Reynolds  not  to  shoot,  but  he  did  not  hear  me,  for  just 
as  I  spoke  the  pistol  llred."  ^    »u  * 

Instead  of  proving  that  defendant  knew  that  Barnes  was  the  party  that 
knocked  old  man  Kvcrett  down  In  the  saloon,  the  evidence  leads  to  different 
conclusion.  It  will  also  be  borne  In  mind  that  defendant  made  the  remarks  lo 
Daugherty  in  referenci!  to  this  matter,  and  not  to  the  deceased. 

But  .suppose  there  is  evidence  tending  to  prove  that  defendant  provoked  the 
dilllculty,  this  would  only  present  another  phase  of  the  case.  The  question  tha^ 
IS  decisive  of  this  case  is  whether  there  is  evidence  tending  to  raise  the  issue  of 
manslaug!  >r.  Suppose  the  jury  should  take  the  view  of  the  case  which  Is 
presented  by  the  testimony  of  the  Blblj?  Or,  to  present  the  point  in  another  ight, 
suppose  the  evidence  of  Bibb  constituted  tlie  case  the  whole  case?  ^^  oukl  it  not 
have  been  the  duty  of  the  trial  judge  to  have  submitted  to  the  ]ury,  by  proper 
instructions,  the  law  of  manslaughter?  We  think  so.  Defendant  was  seized 
by  Barnes,  he,  Barnes,  being  armed  with  u  pistol,  and  his  (defendant  s)  own 
weapon  being  attempted  to  be  taken  from  hlra.  He  demanded  repeatedly  to  be 
released,  and  to  effect  his  release,  struck  Barnes  with  his  pistol.    This  falling, 

^  While  I™may  be  true  that  Barnes'  pistol  was  fastened  to  its  scabbard  so  that 
it  could  not  be  drawn,  this  fact  Is  not  shown  by  the  evidence  to  have  been  known 
by  the  defendant.  He  mayor  may  not  have  known  It.  The  testimony  being 
silent  at  this  point,  what  is  the  presumption?  It  is  in  favor  of  the  defendant, 
as  all  presumptions  are  in  his  favor  until  they  are  eliminated  by  proof. 

We  win  not  enter  upon  a  discussion  of  the  facts,  but  will  say  that  in  our 
opinion  they  tend  to  present  the  question  of  manslaughter.    This  belug  the 

case,  what  Is  the  rule? 

We  do  not  believe  that  a  clearer  statement  of  the  correct  rule  upon  this  sub- 
ject  can  be  made  than  is  made  by  Mr.  Thompson  in  his  little  work  on  charging 
the  jury.    He  states  it  thus :  — 

"The  judge  instructs  hypothetically  upon  whatever  state  of  facts  there  is 
evidence  tending  to  prove.  It  is  error  for  him  to  submit  to  the  jury  a  fact  or 
state  of  facts  which  there  is  no  evidence  tending  to  prove,  or  to  give  an  instruc- 
tion with  reference  to  a  sUte  of  facts  not  in  evidence.  But,  In  order  to  justify 
him  in  giving  an  instruction  predicated  upon  a  supposed  state  of  facts,  it  is  not 
necessary  that  he  should  be  entirely  satisfied  of  the  existence  of  such  facts; 
but,  if  there  Is  evidence  from  which  the  jury  may  Infer  them  to  be  true,  it  is 
his  duty  to  declare  the  law  thereon,  and  it  Is  not  error  for  him  to  do  so  even 
when  the  evidence  is  very  slight."    The  principles  enunciated  by  Mr.  Thompson 


lice.  CKIMKS    AdAINST   TlIK    I'KliSONS    or    INDIVIDUALS. 


arc  sustained  by  .i  Io^k   \\w  <-(  dccisiuns   l.y  our   Supremo  as  well   as   this 

''^  Because  the  court  ern-M  in  its  charge  upon  Implied  raallee,  anil  because  the 
law  cf  manslannhter  was  not  ^'ivun  in  chui'Ke  to  the  jury,  the  juilymeut  is  i.- 
vtrsed  uua  the  chuso  remanded.  ^^^^^^^^^^  ^^^^^  remanded. 

S  701    Evidence  Insufflolont  to  Convict  of  Murderln  First  Degree  -  Cox 
V  Btato.-  In  O..C  v.  StaU;'  tlic  indicln.enl  diarjied  the  ai-i-elUml  with  Ih.^  nnu-- 
Uer  (if  I'    W.  Uai.d..ii.h,  en  February  8,  1878.    The  State  first  Introduced  Jam,. 
Itandolph,  a  oonsiu  of  the  deceased,  who  testltled  that  himself,  hl.s  brother  .[ohn. 
nnd    one   Bob    Wilev  were  i-re-eut  at  the  mill  of   witness'  father,  in  ^^  alUer 
County,  when  the  killing,'  occurred.    Wiley  waslnor  about  the  mill,  and  witn.v., 
his  brother  John,  and  the  deceased  were  lyin-  on  the  ground,  whlttlini;  with 
their  pocket-knives,  when  the  a|,pellaut  came  up  behind  them  and  said  they 
ou-'ht  to  piy  him  for  the  turkey  which  the  do-s  of  the  party  had  killed.     De- 
cc^^ed  replied :  "Our  do-s  did  not  kill  your  turkey,  it  was  my  dog  tliat  did  it. 
Appellant  said  that  ho  was  in  the  habit  of  killinj?  do;,'s  that  killed  his  turkeys, 
and  that  if  he  was  not  i,aid  for  this  turkey,  somebody's  do-  would  come  ui- 
misaiu".     Deceased  then  said,  "  If  you  kill  my  do;:,  you  had  better  hunt  your 
hole  "    When  the  deceased  said  this,  appellant  came  arouud  by  witness,  draw- 
in-  his  knife  -  a  pocket-knife  witli  a  bla.lc  about  the  leu-th  of  witness'  linger  - 
hoUliu-' it  with  the  blade  to  the  back  of  his  hand,  ttud  stoi)ped  In  front  of  de- 
ceased? a  step  or  two  dis'ant.    He  appeared  to  be  very  angry,  an<l  s.,m    "  G-<1 
d-n  it,  I  will  tell  vou  1  am  a  man,  and  won't  bo  run  ovr  by  any  set  of  men. 
Witness  then  Kot  up  aud  asked  appellant  what  he  meant  by    '..sing  and  cutting 
„P  so     Witness'  brother  John  then  told  api.ellaut  to  go  away;  but  he  did  not 
Ko  ^   Deceased  then  got  up  from  the  ground  and  pushed  the  appellant  with  his 
left  hand,  holding  his  pocket-knife  iu  h.s  right  hand,  down  by  his  .s.de,  which 
k.dte  had  both  end-blades  open,  and  which  were  broken  off  and  blunt, -the 
third  of  each  blado  broketi  oft.    Deceased  did  not  hold  the  knife  iu  a  threateu- 
iug  attitude;  did  not  strike  with  it,  or  attempt  to,  or  do  more  than  push  appel- 
lant  with  his  left  hand.     Appellant  then  cut  and  stabbed  deceased  in  the  right 
breast,  striking  one  lick.    Deceased  said  he  w«.s  killed.    Appellant,  at  the  time, 
held  the  knife  at  about  right  angles  to  his  body,  his  arm  being  drawn  forward 
in  a  striking  attitude.     The  bloo.l  spurted  out  from  the  wound,  and  deceased 
died  In  about  two  hours.    The  appellant',  k.  Ife  was  drawn  and  presented  in  a 
threatening  attitude  when  deceased  got  up.    Appellant  left,  after  the  stabbing, 
and  was  afterwards  arrested  in  Leon  County.    The  deceased,  when  he  got  up, 
did  not  appear  angry,  nor  did  he  speak  in  au  angry  manner  when  he  told  ai>pe  - 
lant  he  would  have  to  hunt  his  hole  it  he  killed  his  (deceased's)  dog.    Appel- 
lant did  not  retreat  or  give  back  during  the  difficulty.    The  witness  was  present 
some  three  weeks  before,  when  deceased's  dog  killed  or  injured  the  appellant  s 
turkey.    They  were  driving  stock  by  appellant's  house,  when  the  dog  got  after 
the  turkey  and  crippled  or  killed  it.    Deceased  whipped  the  dog  and  tried  to 
pull  him  oS  from  the  turkey.    During  the  conversation  on  the  evening  of  the 
killing,  appellant  said  he  ate  the  turkey;  and  deceased,  after  telling  him  that  he 
whipped  the  dog  at  the  time,  and  tried  to  keep  him  from  injuring  the  turkey, 
said  he  did  not  think,  since  appellant  had  eaten  the  turkey,  that  he  (deceased) 
ought  to  pay  for  it. 

1  A  Tex.  (Arp)  193  (1879). 


MUUDKi: 


IN    1II;,ST    Dr.dltl'.K— lysl'KKIClKNT    I'lJOOl' 


IICJ 


LS. 

1  wrll  as  thi.x 

111  l)('iausc  tlic 
luttsmeiit  Is  n- 

ul  remctndcd. 

Deirreo  —  Cox 

,  Willi  the  iiiui- 
roducuil  Jaiiu  .^ 
)  brolliorJohn, 
lior,  ill  Walkor 
II,  ami  wltiu'^s, 

whlttliiit;  Willi 

anil  said  they 
ad  killiHl.  1)1- 
og  that  did  it." 
■d  Ills  turkeysi 
voiild  comu  uii 
tlur  hunt  your 

witness,  draw- 
Itness'  linger  — 
I  in  front  of  de- 
,nd  s -111,  ■'  G— <l 
iiy  set  of  men." 
du-;  and  cultiug 
;  l)nt  he  did  not 
pellant  with  his 
■  his  side,  which 
md  l)lunt,  —  the 
fc  in  a  tlireaten- 
,lian  push  appel- 
ised  in  the  right 
,aut,  at  the  time, 
H  drawn  forward 
id,  and  deceased 
id  presented  in  a 
ter  the  stabbing, 

when  he  got  up, 
en  he  told  appel- 
I's)  dog.  Appel- 
ness  was  present 
id  the  appellant's 
the  dog  got  after 
dog  and  tried  to 
he  evening  of  the 
dllng  him  that  he 
aring  the  turljey, 
lat  lae  (deceased) 


On  cio.-M-ex!Uul nation,  witness  miu<1  llial  Imtli  apiiellunl  and  deeeaNOd  cursed 
a  snod  (leid.  Witness'  brotlier  J.iliii  ealled  to  wiliie-s  and  told  him  to  come 
aw:iy  or  go  away,  and  have  nulhiiiLt  U<  do  with  llie  .lililnilly.  Wih'y  wiis  in  ihu 
luillduring  tlie  occurrences  narrated.  Witness,  when  he  got  up  (I'.iip  the  ground, 
had  ills  liulfe  in  liis  hand.  Deceased  <lld  not  striiic  ai>pellant,  luit  pushed  him 
witli  Ids  lelt  hand,  when  apiiellant  stablied  lilin. 

John  Handolpli  tesiiiled,  for  the  State,   that  lie  was  present   at  the  Ivilling- 
Soini;  three  weel;s  pie\  ions,  liiinself,  James  Handolidi,  and  deceased  were  diiviiig 
stock  past  the  house  of  the  npi'ellant,  when  d.eeased's  dog  ran  after  ap|iellaiit's 
lurkey,  and  elllier  killed  or  erl|>pled  it.     Deceased  whipped  the  dog,  and  tried 
•o  imll  Idin  off  the  turkey.     On  the  eviniug  of  the  klUi'ig,  tlie  some  three  were 
lMii:igin_' on  the  ground  in  front  o[   tlie  mill,  where  they  all  worked,  whittling 
with  their  knives  — two  blades  of  the  knife  of  di'ceased  opened  at  either  end  of 
the  handle,  and  about  one-third  of  each  was  brok.  ii  off.    Ap|>ellaut  came  up 
behind  them,  and  said  their  dogs  had  killed  Ids  turkey  and  he  oiiglit  to  be  paid 
lor  it.    Decea-^ed  said,  "  Don't  say  '  we;  '  It  was  my  dog  that  did  it,"    Appel- 
lant said  ho  wa.s  iu  the  habit  of  killing  dogs  that  killed  his  turkeys.     Deceased 
answered  that  he  had  l)eaten  li'.'^  dog  and  tried  to  keep  him  off  the  turkey. 
Appelhint  aiisweriMi,  "Asilwasyoiu  dog,  I'll  reckon  I'll  have  to  let  him  off,"  and 
turned  awav.     Deceased  said,  "1  /■  ckoii  you    will  have   to  lei  him  off;  "  and 
appellant  turneil  back  and  said,  "  If  I  <loii't  get  pay  for  my  turkey,  somebody's 
dog  will  come  up  missing;  "  -o  whlc'i  the  decei.scdans.vered,  "  You  kill  my  dog 
and  you  had  better  hunt  -j  aiv  hole."    Aipcllant  tlien  cur.sed,  ai:d  said,  "By 
G— d,  gentlemen,  I'll  let  you  know  I   im  a  man,"  and  came  back  from  l)ehindi 
when  witu'ss'  brother  James  got  n;s  and  app'diant  drev.'  his  kr.ile,  opened  it, 
and  took  position  about   two  -teps  in  front  of  deceased,    Wilness'  brother 
James  then  asked,  "  What  do  you  mean  cursing  and  cutting  up  so?  "    Wilness 
then  told  appellant  to  go  away.    Deceased  tlieii  got  up  with  his  V-iife  iu  his 
right  hand,  which  hung  down  by  his  side.    Wii     ss  went  between  the  parties, 
and  again  told  appellant  to  go  away.    Witness  then  p;'ssed  on,  and  did  not  see 
the  cutting.    Saw  tliat  deceased  had  been  stabbed,  and  heard  him  say  that  he 
was  killed!    Appellant  was  not  employed  attho  mill,  and  had  no  Imsiness  there. 
On  cross-cxa^nination,  witness  did   not  remember  that  ho  told   his  l)rother 
James  to  go  away,  or  call  him  away,  but  migiit  have  done  so.     Deceased  may 
have  advanced  towards  appellant  two  steps,  but  witness  is  not  positive.     Did 
not  see  the  deceased  either  strike  or  push  the  appellant.     Bob  Wiley  was  pres- 
ent.   Appellant  worked  in  witness'  father's  shop,  about  one  hundred  yards  from 
the  mill.    Both  appellant  and  deceased  cursed  eacli  other. 

Phelau  Randolph,  for  the  State,  testified  that  at  the  time  of  the  killing,  ap- 
pellant was  working  at  Mr.  Clinton  Randolph's  shop,  near  the  mill.  Witness, 
from  what  appellant  had  previously  said  to  him,  judged  that  he  was  very  much 
displeased  about  the  killing  of  his  turkey,  afid  seemed  to  think  that  he  ought 
to  have  been  paid  for  it.  He  had  been  working  at  the  shop  for  about  twelve 
months  before  the  stabbing. 

Bob  Wiley,  for  the  defendant,  testined  that  at  the  time  of  the  killing  hj  was 
in  tlie  mill  of  Mr.  Clinton  Randolph,  and  from  there  saw  a  part  of  the  difficulty. 
Tlie  hands  had  just  quit  work,  but  witness  was  getting  extra,  pay  to  keep  up  a 
liro  under  the  boiler.  Deceased,  James  and  John  Randolph  were  lying  on  the 
ground  near  the  mill,  with  their  knives  out,  whitfng.  Appcl'ant,  who  had  been 
working  at  the  shop,  came  by  the  mill  and  lit  hi  pipe  at  the  furnace,  which  he 
was  in   the  habit  of   doing  every  evening  after  the  day's  work  was  over. 


y^ 


11G8  CRIMES   AGAINST   THE   PERSONS   OF    INDIVIDUALS. 

He  lived  about  one   mile  from  the  mill  and  workshop.    After  lighting  his 
floe    h*  went  up  to  «here    deceased  and   the  others  were    lying  ou   the 
g  ound  and     ntered  into  a  conversation  with  them.    Witness  did  not  hea 
«;«  o   the  talk  before  the  dilliculty  than  that  the  appeMant  said  he  "  ouffh 
to  be  paid    or  it."    After  some  lurther  conversation,  witness  heard  appellant 
Bay   "  AS  tL  isyour  dojr,  I  will  let  you  ofl;  "  to  which  the  deceased  responded 
"i'ou  w  1    have'to."    Appellant  then  said,  "  somebody's  dog  -'S  ^t  -me  up 
missing"  and  turu.dofl.    Deceased  then  said,  "  If  you  kill  my  doLS,  G-d  d-n 
Z  yo  1  will  have  to  hunt  your  hole."    Appellant  then  turned  round  and  said, 
uG;ntleme     what  I  first  said  was  in  a  joke,  but,  by  G-d,  I  can  let  you  know 
I  am  a  man  '.    James  Randolph  then  got  up.  with  his  knife  in  his  hand,  and 
ask  cr  appellant  what  he  wanted.    Appellant  then  puUed  out  hU  knife  an  1 
opened   t     Deceased  then  got  up  and  said,  -You  d-d  black  son  of  a    -1 . 
do  vou  draw  vour  knife  on  me?  "  and  advanced  towards  appellant   vUh  his 
knife  "n  his  hand.    John  Randolph  called  to  his  brother  to  have  nothing  to 
do     ith  i'     Witness  did  not  see  the  killing,  but  saw  aP-Uant  ,.ving  back^ 
Deceased  advanced  on  appellant,  with  his  knife  drawn,  some  twelve  or  tif  een 
^.et     Saw  deceased  after  he  was  cut.    He  went  into  the  m  11,  and  «ent  f or  h^ 
n,'cle,  Clinton  Randolph.    Witness  was  then  and  is  now  in  the  employ  of  Clm. 

"on^:r:!:trrn"  Witness  states  that  the  reason  he  says  it  was  twelve  or 
fifteen  feet  that  deceased  udvanced,  is  because  it  is  that  distance  from  where 
rclifficulty  first  commenced  to  where  the  deceased  was  ^vl.en  he  said  he  wa 
lill«      Appellant  then  picked  up  his  hat  and  went  ofi.    Don't  know   Imt  he 
went  homef  knows  that  he  ran  ofl.  us  he  was  arrested  in  Leon  County ;  has  not 
seen  appellant  since  the  difficulty  until  in  court,  at  the  time  of  the  tnah    Wi  - 
nte    'ever  told  Phelan  Randolph  that  he  did  not  see  the  difficulty,  and  kew 
nothrabout  it;  but  did  tell  him  that  he  did  not  see  the  killing     Has  talked 
to  no  one  about  this  affair  until  with  Capt.  HiglUower  (defendant's  attorney), 
this  moaning.    No  one  of  the  parties  attempted  to  use  his  knife  or  cut  the  ap- 
p^nant     o  far  as  witness  knows.    When  James  Randolph  got  up  he  did  not 
advance  on  appellant,  nor  attempt  to  use  his  knife,  but  appellant  did  back  off 

''"It'irdeiudbfr  from  the  testimony  that  the  appellant  is  a  negro.    The  jury 
found  him  suiity  of  murder  in  the  first  degree.  .        ^        a 

FcTOR  P  J     The  defendant  was  indicted  for  the  oflense  of  murder,  charged 
to  have  b^en  committed  with  express  malice,  and  on  the  trial  thereof  was  con 
victed  of  murder  in  the  first  degree,  and  adjudged  to  be  executed.    A  motion 
was  made  for  new  trial,  which  was  overruled,  to  which  ruling  the  defendant 
excepted,  and  gave  notice  of  appeal  to  this  court. 

tEc  main  question  to  be  decided  in  this  case  is:  Does  the  evidence  in  the 
record  make  out  a  case  of  murder  committed  with  express  malice?  In  this 
State,  all  murder  committed  with  express  malice  is  murder  in  the  first  degree, 
and  all  murder  not  of  first  degree  is  murder  in  tlie  second  degree. 

"Express  malice  is  where  one  with  a  sedate,  deliberate  mind,  and  formed  de- 
sign doth  kill  another;  which  formed  design  is  evidenced  by  external  circum- 
stances  discovering  tlat  inward  intention,  -  as,  lying  in  wait,  antecedent 
mraces.  former  grudges,  and  concerted  schemes  to  do  him  some  bodily 
harm."  » 

1  4  Bla.  Com.  198. 


^■Jm 


LS. 


MLI!Di:il    IX    FIRST   DEGUf:E IN&lFl'ICIENT   PHOOF.       1169 


r  lighting  his 
lying  ou   the 
did  not  hear 
mid  he  "  oiiffht 
card  appellant 
sed  resi'Ouded, 
night  come  up 
do;;,  G— d  d— n 
■ouud  and  said, 
n  let  you  know 
1  his  hand,  and 
hU  knife  and 
sou  of  a  b — h, 
)ellant  with  his 
lave  nothing  to 
lut  feivlng  back, 
twelve  or  fifteen 
and  sent  for  his 
employ  of  Cliu- 

it  was  twelve  or 
mce  from  where 
1  he  said  he  was 
»'t  know  that  he 
County ;  has  not 
[  the  trial.    Wlt- 
Iculty,  and  knew 
lug.    Has  talked 
dant's  attorney), 
Ife  or  cut  the  ap- 
»t  up,  he  did  not 
lant  did  back  off 

negro.    The  jury 

f  murder,  charged 

thereof  was  cou. 

jcuted.    A  motion 

ing  the  defendant 

he  evidence  in  the 
s  malice?  In  this 
In  the  first  degreei 
;ree. 

id,  and  formed  de- 

)y  external  clrcum- 

walt,  antecedent 

him  some  bodily 


Where  one  man,  with  a  cool,  cdmposed  mind.  In  pursuance  o2  a  formed  de- 
sign to  kill  another,  or  to  Inflict  upon  liim  snmo  serious  bodily  harm  which 
would  probably  end  lu  dcprlvlnij;  iiim  of  life,  docs  kill  such  person  In  the 
absence  of  the  circumstances  which  ruciuco  the  offense  to  negligent  homicide  or 
nianslaug'iter,  or  which  excuse  or  justify  the  homicide,  such  killing  would  be  a 
murder  committed  with  express  malice.  In  looking  through  the  evidence  in  the 
record,  we  are  not  satisfied  that  It  makes  out  a  case  of  murder  In  the  first  degree 
under  t,h"  law. 

Because  the  verdict  Is  against  the  weight  of  the  evidence,  the  judgment  of 
the  District  Court  is  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 

§  702.  Bvldence  InBufBcient  to  Convict  of  Murder  In  the  FlretDeerrea  — 
Benevldes  v.  State.  —  In  Beuevides  v.  Htnte,^  the  Indictmeut  charged  the  appel- 
lant with  the  murder  of  Pedro  Garcia,  in  McMullen  County,  Texas,  on  the  thir- 
teenth day  of  July,  1882.  The  conviction  was  for  murder  in  the  first  degree, 
and  the  punishment  awarded  was  a  life  term  In  the  penitentiary. 

Ilamp.  Kuykendall  was  the  first  witness  for  the  State.  He  testified  that  on 
or  about  August  15,  1882,  he  found  a  v.iillet  in  the  mesquite  brush,  about  two 
and  a  half  miles  northwe&t  from  Tllden,  in  McMullen  County,  Texas.  The 
wallet  was  spread  out  upon  the  ground,  and  was  covered  with  a  piece  of  brown 
paper,  upon  which  lay  a  piece  of  sun-wilted  cheese.  It  was  evident  to  the  wit- 
ness that  some  party,  or  parties,  had  stopped  there  to  eat.  This  was  on  the 
McKlnnon  ranch,  in  a  chapparel  thicket,  about  three-quarters  of  a  mile  from  a 
road  leading  from  Tllden  to  Kuydeu('airs  ranch.  About  fifteen  feet  distant 
from  the  wallet,  paper  and  cheese,  the  witness  found  a  bullet  hole  In  a  mes- 
(lulte  brush,  which  indicated  that  the  ball  was  fired  from  a  slanting  direction 
with  a  downward  range.  In  the  wallet  the  witness  found  a  leaiher-back  mem- 
orandum book,  which  he  here  identifies,  containing  a  note  written  In  Spanish 
and  a  pencil  memorandum  for  merchandise,  which  two  papers  the  witness  also 
here  Identifies.  Some  fifty  steps  distant  from  where  the  witness  found  the 
wallet,  he  found  a  black  "  slicker,"  which  he  here  Identifies. 

On  or  about  September  26,  1882,  the  witness  found  a  human  skeleton,  about 
one  hundred  and  fifty  yards  from  where,  on  August  15,  1882,  he  found  the  wal- 
li't,  paper  and  cheese.  Near  the  skeleton,  he  found  a  light  colored  hat  with  a 
powder  burned  bullet  hole  near  the  band,  a  butcher  knife,  a  pair  of  shoes  con- 
taining the  bones  of  the  feet,  and  to  which  was  attached  a  pair  of  unmatched 
s])urs,  and  a  pair  of  ducking  pants  with  blood  on  the  legs.  These  various  arti- 
ck  s  were  here  exhibited  to  the  witness  and  identified  by  him.  A  forty-four  or 
forty-five  calibre  ball  had  entered  the  back  of  the  head  and  gone  out  between  the 
eyes.  The  articles  descrl'red  were  so  scattered  as  to  Indicate  that  the  deceased 
liud  run  in  a  zig-zag  course  from  the  wallet  to  the  place  where  he  was  shot,  or, 
rather,  to  the  place  where  the  skeleton  was  found.  On  finding  the  skeleton, 
tliu  witness  went  to  Tllden,  reporti  d,  and  returned  with  the  jury  of  inquest. 
The  deceased  had  been  dead,  the  witness  judged  from  appearances,  about  three 
months  when  the  skeleton  was  found.    The  skeleton  was  almost  entirely  fieshless. 

Andrew  McKlnnon  testified,  for  the  State,  that  he  knew  Pedro  Garcia  before 
iiis  death,  and  for  three  months  prior  to  that  event  he  had  the  same  Pedro  in 
iu  his  employ  ou  his  sheep  ranch.    On  the  twelfth  day  of  July,  1882,  he  sent 


3  Defences. 


1  14  Tex.  (App.)  378  (1883). 
74 


«    *nMNST  THE   PERSONS   OF   INDIVIDUALS. 
1170  CRIMKS   AGAINST    int.  ^ 

Peoro  0.rc,«  to  T„„.»,  McMuUon  CO"^;,'-^.':,:^^:'- J^^ 

,„„„<.  by  K«,ke».l"'l  acr  h.  *';'»;;;  „„„,,  „„  .Ue  trip  «.  ^ "*'- JJ'„': 

F,  II.  Crom«ell  f.lincl,  lor  t''°  »";,,,        „„  i,„„es,  on  July  16, 1863- 
X        ....imer  "  was  stamped  ou  lUi.  imin=,  entered  tue  head  ^. 

^  !;      ,,  ,t  offered  lu  evidence,  as  the  hat  wn  ca  »  ^^  ^j^^^.^, 

also  t»-;"Vhf  shoes  he  also  Identified  as  J"7  «;,^jf  ,f  ^^  Jted  spurs  and 

It  since. 


ALS. 

il.  Pedro  roile 
il  hat.  The  luit 
,he  witnt'Sh,  au'l 
to  TiUku.  The 
.  uuil  A.  Oppen- 
le  jury. 
Antonio,  the  day 

to  the  witness' 
ntles,  on  the  day 
nd  arranged,  and 

the  cause  of  dt- 
I's  store,  and  that 
he.  The  witness 
witness  recovered 
but  has  not  since 
orandum  here  ex- 
lumber  six  shoes, 
bad  iinown  Pedro 

horse  described  by 
,  on  July  16, 1883- 
no  bridle  or  saddle 

the  jury  of  inquest 
tlie  chapparel  some 
,tlfitd  the  hat  exhib- 
and  of  "D.  an'   '• 
I  as  seen  now.    Tue 
i  entered  the  head  o! 
cated  by  the  skull  of 
ear  where  the  walkt 
y  inside,  encased  the 
,lace,  and  some  were 

lach. 

V  Pedro  Garcia  in  his 
McKlnnon.    McKin- 
oy  shetJherds,  and  the 
ivhich  Garcia  had  cou- 
to  Tliden,  the  witness 
for  a  pair  of  number 
Eotty-four  calibre  carl- 
one  in  evidence,  and 
n^ed  to  and  was  worn 
kfore  or  just  as  Garcia 

.  of  unmated  spurs  and 
58  of  these  articles,  and 

the  skeleton,  and  Idcn- 
Iro  Garcia  on  the  morn- 
ed  Garcia  a  six  shooter, 
Lhe  witness  has  not  seen 


MURDER   IN   FlUST   DKGUEE  —  INSUFFICIENT   PROOF.       1171 

R  Jordan  testitled,  for  the  State,  that  he  knew  Pedro  Garcia  before  his  death. 
Garcia  came  to  witness'  store  in  TUden,  McMulIen  County,  on  the  twelfth  or 
thirteenth  of  July,  1882,  and  said  h^  caine  to  town  to  employ  shepherds  for 
McKlnnon.  He  tlen  handed  the  witness  a  check  on  San  Antonio  for  thirty  dol- 
lars, which  the  witness  cashed,  partly  in  currency,  and  partly  in  nilver.  The 
icfeudant  Benevldes,  was  not  present  when  the  witness  cashed  this  check,  but 
the  witness  saw  him  and  Pedro  together  at  liis  store  shortly  afterwards.  The 
witness  knew  the  defendant  before,  andldentilled  the  man,  Sylvester  Benevldes, 
now  on  trial,  as  the  man  he  saw  talking  with  Garcia  in  his  store  at  the  time 
mentioned.    Witness  did  not  see  defendant  and  Garcia  leave  town. 

Roque  Elisondo  testified,  for  the  State,  thiit  he  gave  Pedro  Garcia  a  paper, 
written  in  Spanish  for  him  by  Francisco  Bella,  on  the  thirteenth  day  of  July, 
1882,  In  Tilden,  McMulleu  County,  Texas.  The  paper  was  an  order  to  collect 
for  the  witness  the  sum  of  six  dollars,  which  v  ,3  due  him  by  one  of  the  shep- 
herds on  McKlnnon's  ranch.  The  witness  gave  Garcia  this  order  at  Bella's 
house,  just  as  the  latter  was  ready  to  start  back  to  McKlnnon's  ranch.  The 
defendant  was  at  Bella's  house  with  Garcia,  and  started  off  with  him  in  a  north- 
westerly direction.  Witness  saw  them  traveling  together  for  alxjut  fifty  yards 
and  noticed  them  no  further.  Garcia  left  on  horseback,  and  the  defendant  on 
foot,  jvalking  by  tlie  side  of  the  horse.  Antonio  and  Francisco  Bella  were 
present  when  the  defendant  and  Garcia  left  together. 

Antonio  Bella,  testified,  that  he  kept  an  eating  house  In  TUden,  McMullen 
County,  Texas.  He  knew  the  defendant,  and  also  Pedro  Garcia  In  his  lifetime. 
Garcia  and  tlic  defendant  were  at  the  witness'  house  on  July  13,  1882,  and  left 
the  house  together  on  the  afternoon  of  that  day.  Garcia  was  riding  and  the  de- 
fendant walking.    Garcia  had  a  pistol  on  tliat  day. 

Francisco  Bella  testified,  for  the  State,  to  tlie  same  facts  stated  by  Antonio 
Bella,  and,  la  addition  stated  tluit  he  wrote  a  note  .  n  Spanish  for  Koque 
Elisondo,  authorizing  Garcia  to  <;o!lect  six.  dollars  from  a  shepherd  at  MoKin- 
non's  ranch.    He  recognized  the  paper  in  evidence  as  the  one  he  wrote. 

John  Kaltener  testified,  for  (he  State,  that  Garcia  came  to  his  house  In  July, 
1882,  and  paid  him  three  dollars  and  a  half  for  making  him  some  clothes.  He, 
Garcia,  had  two  ten  dollar  bills  In  a  small  leather  memorandum  book  similar  to 
that  in  evidence.  Ho  had  in  all  about  twenty-four  dollars  when  he  left  the  wit- 
ness' house.  The  witness  .saw  Garcia  and  the  defendant  toget  that  evening 
at  Bella's  eating  house.  They  were  then  on  the  eve  of  leaving  town 
together.  Witness  asked  if  Garcia  was  going  to  take  the  defendant  to  the 
ranch  as  a  shepherd.  Both  answered  «'  no,"  but  that  defendant  was  going  out 
on  a  short  pleasure  trip.  Defendant  tied  a  bundle  on  the  horse  behind  the  sad- 
die.  He  had  his  coat  and  a  pistol  over  his  shoulder.  The  two  left  town  to- 
gether going  in  a  northwest  direction.  The  witness  saw  them  togetlier  until 
they  got  Into  the  chapparel  on  the  edge  of  town.    This  was  on  the  evening  of 

July  13,  1888. 

R  C  Holland  testified,  for  the  State,  that  he  lived  In  McMullen  County, 
about  three  quarters  of  a  mile  northwest  from  Tilden,  near  where  the  San  An- 
tonio and  Kuykendall  ranch  road  forks.  He  saw  the  defendant  :-id  the  deceased 
ahoiit  three-quarters  of  an  hour  before  sunset  on  the  evening  of  July  13,  188a. 
Tliey  passed  his  house,  both  riding  the  McKlnnon  bay  horse,  the  deceased  in 
front,  and  the  defendant  behind.  The  defendant  was  very  well  dressed  and  had 
a  pistol  buckled  around  hlra.  The  deceased  had  on  a  light  colored  hat  like  that 
m  evidence,  and  a  pair  of  ducking  pants.    U  he  had  a  pistol  witness  did  not  see 


1172 


.,^ST   THE    VKUSON8   OF   INDIVIDUALS. 


K«yUendairsr«.ch^    Th    -^^^^,  ou  ^>-  ^^tTirom  'rind  through  to  the 
ducking  pantsjM'^-hw  ^^^^^^^^  ^,„  'f/'^iuy -"er  the  day  on  which 

The  skeleton  l'-^^ J^'"'  ,^^  McKluuon  horse  well,    ^^'''l     ,^  ^orse  at  a  .vater- 
iront.    Witness  l^"^;^  '\^^,,,,  ^he  .vltness  saw  MeKluuou  s        ^^^^  ^^^^^^^. 

these  parties  P*^''"^^ ''^^^^^^^^^^^      the  body  was  ^««"^- Jf^hese  two  men  on  the 
hole  about  one  nide  i^o  "  v;hcr  ^^^^  ^^^^^^^^^  ''^rone  armed  man. 

twoen  two  and  ^^J^^^^,  .as  then  a-J  i-ow  ^  ^  1  atTsUeker,  shoes. 
McKlnnon  »'»";•  J^^'.^erlff  and  jailor,  te^tlfled  th^t  th         ,  ^^  ^^^  ^^  ^,^ 

L.  A.  Scoggln,  deputy  «  evidence,  were  tiuncci 

,purs,  --or-;^rw  -  iu  tl'samc  condition  as  vj-  he/-  ^^  ^^^^^^^^ 

ness,  arrested  the  '»«t«^°  '        ^,  p^aro  Garcia  j^^^  ^nown  the 

charging  W'«  ^^'^^1"  ™or  the  defence,  that  for  ^^^:^^l^^'^y    ue  left  the  em- 
Frank  Hall  tcf'title^l.  tor  tn         ^^  ^Uy  good  cl^f'^'^J^'-.  ggg  ,,^a  returned 
defendant  the  latter  lu.d  borne  a     g    ^^  „  J^J^   ho   le'it  witness   in 
ploy  of  the  v'ltness  to  wjk^  ^^^^^^   .^^^    ^''f^^l;  an  amount  he  said  he 
\o  work   for  ^^^"'"f^Jfiy  dollars  with  which  to  pay  an  ^^^  ^.^^^^^^^ 

This  he  did  on  S«P\^™°"'^  j^^^i  ^„feed  for  him 

.rrest  ou  October  5,  1882^  ^j^^^  ^^6  defendant  hatt  ^^^^ 

'"j.  M.Campbell  testified    or  t^.e^^^^^^.^^^^  ^      "SVa'lng  l  m  lorty-one 

at  different  times  since  1877^   H^^^^,^  ^^^  „,  •'"'^' if'S^or  the  witness. 

•      --^  ^""^'^d  :;«  c-X;    mce  Which  time  he  has  n  ^  .orked^  ^^^^  ^^^  ^^^^^ 

dollars  and  live  <^',7  '         ti,e  witness  said:      The 

speaking  of  his  character,  ^^^  ^^^^^^^^^  ^^  ^ 

nlng."  ,„   .  .„,  the  State,  that  the  reP^^ation  ^^^^  ^^g. 

The  motion  for  new  ^^^  ^^^^^^^  ^,j  tue  conn 

dence,  and  denounced  as  punishment 

in  the  second  degree.  ,,,,™  of  murder  of  the  first  degree,  tne  p 

HURT,  J.    This  IS  a  convict  on  om^^^^^y  j„,  uje. 

Jng  aBsessed^--r;r    1'^^^^^^^  i-y  a  c^J';5-r:jrdX^^     I>^'- 
The  trial  udge  failed  to  s  ^^^  ^^^^^r  of  the  se  ^^  ^^^ 

ia  cases  of  murder  "PO'^,^™^"^ j^^u  „,otlon  this  Is  express  y  made       ^^^  ^^^ 
endant  moved  a  ne^  trlaj.  and  m  ^^^^^  ^^  f^^^^Xhre  plicated  I., 

grounds.    Itbelngthe  du^^y  on  ^^  ^^^^  ,,,  ^Ce  whole  evidence -- re- 

Ippllcable  to  the^«^a««;j^^^^^^^^  ^^  ,t,,  evidence  the  whole       ^^  ^^^^^  ^^^ 

:rrerarge--utoi:"^erof  the  second  de.ee, 


rALS. 

ranch  leading  to 
est.    He»awtlie 
ro  blooily  insWi: 
d  through  to  the 
the  day  on  which 
horse  at  ft  water - 
,ciy  was  found  bo - 
,0  two  men  on  the 
armed  man. 
,at,  slicker,  shoes, 
ver  to  him  by  the 
^celved  tUem. 
m  Mr.  Morgan,  the 
aed  them  over   to 

Idence  to  Mr.  Mar- 
er'sjury.  He,  vrit- 
County,  on  a  capias 

xs  he  had  known  the 
jr."    Ue  left  the  em- 
i   1882,  and  returned 
he   left  witness   in 
,1  amount  he  eald  he 
,ack  to  the  witness, 
,0  work  out  bl9  debt, 
workedout  that  debt. 

the  witness  until  his 

,nt  had  worked  for  him 
,9  in  July,  1882.  Wlt- 
,  paying  him  forty-one 
orked  for  the  witness, 
exicans  call  him  Ugbt- 

1  of  the  defendant  as  a 
id  '« ready  to  make  des- 
[or  trivial  things.    He  is 

supported  by  law  or  evl. 
Jo  charge  npon  murder 

t  degree,  the  punishment 


le^on  the  law  governing 
i  the  second  degree.    De- 

.vnresslv  made  one  of  tnt 
'^ll  to  charge  the  law 
aycases,  tocnaig 

question  here  presented     , 
the  whole  evidence --re 

;   II  the  case  Is  such,  or, 


MLUDKU    IN   FIKST   DKORER  —  INSUFFICIENT   PKOOF.       1173 

What  Is  the  same  tliini:,  if  the  evidence  Is  of  that  character  us  to  place  it  alone 
within  the  sphere  of  murder  in  tlie  llrst  degree,  and  tliat  tiie  l^illing  was  upon 
express  malice,  or  done  in  the  perpetration,  or  tlie  attempt  at  the  perpctnition, 
of  certain  offenses  named  In  article  006  of  the  Penal  Code,  the  trial  judge 
sliouid  conlluc  tlie  charge  to  such  a  case,  so  made  by  the  evidence,  omitting 
instructions  aiiplical)le  to  all  lower  grades. 

From  tlie  above  proposition  it  follows  that  the  correct  rule  is  this:  To 
relieve  the  trial  judge  of  tiie  duty  of  charging  upon  lower  degrees  of  culpable 
homicide,  tlie  evidence  (tlie  case)  must  estal)lish  tlie  highest  degree.  For,  if 
there  be  reasoniiblo  doubt,  the  court  can  not  solve  the  doubt;  this  must  be 
done  by  tlie  jury.  We  believe  this  rulo«to  be  correct,  whether  applied  to  cases 
of  homicide  or  to  all  cases  In  which  the  greater  includes  lesser  degrees  of  cul- 
pability. 

To  establish  murder  in  the  first  degree  under  the  evidence  In  this  case,  the 
State  relied,  and  was  forced  by  the  case  to  rely,  npou  proof  of  express  malice, 
or  that  the  killing  was  done  in  the  perpetration  or  attempted  perpetration  of 
robbery.  Hence  the  State  must  prove  one  or  the  other  of  these  grounds  so  con. 
clusively  as  to  place  the  existence  of  one  or  tlio  other  beyond  a  reasonaijle 
doubt.  The  burden  is  upon  the  State,  not  only  to  prove  that  defendant  killed 
deceased,  but,  where  she  demands  a  conviction  and  punishment  for  murder  of 
the  first  degree,  to  prove  that  the  killing  was  with  express  malice  or  In  the  per- 
petration, etc.,  of  some  of  the  offenses  specifically  mentioned  In  the  Code. 

When  the  trial  judge  comes  to  submit  his  instructions  to  the  jury,  he  should 
carefully  look  to  all  of  the  evidence,  analyze  and  weigh  tlie  same,  and  if  the 
killing  is  not  shown  to  have  been  with  express  malice,  or  under  the  circum- 
stances which  would  make  the  homicide  murder  of  the  first  degree,  he  should 
charge  upon  the  lower  degree  or  degrees,  as  indicated  by  the  evidence.  To 
justify  an  omission  to  instruct  upon  lower  degrees,  he  should  be  able  readily, 
without  pressing  or  straining  facts,  to  grasp  the  facts  or  circumstances  which 
place  the  case  alone  wUhln  the  sphere  or  boundary  lines  of  the  highest  degree. 
No  presumption  from  facts  or  a  combination  of  facts  can  be  Indulged,  unless 
they  lead  to  the  conclusion  sought,  and  to  no  other.  For  If  such  cogency  is 
wanting,  the  jury  might  doubt;  or  If  the  evidence  or  any  part  thereof  lead  to 
other  conclusions,  uncertainty  appearing,  the  jury  might  take  that  which  is  not 
so  unfavorable  to  defendant,  or  might  have  a  reasonable  doubt  as  to  which  is 
the  correct  conclusion. 

Looking,  then,  to  the  record  In  this  case,  can  we  point  to  a  fact  or  a  com- 
bination of  facts  or  circumstances  which  lead  to  the  conclusion  that  the  defend- 
ant is  guilty  of  murder  of  the  first  degree?  Does  this  appear  so  evidently  and 
conclusively  as  to  justify  the  court  below  in  withholding  this  matter  from  the 
consideration  of  the  jury?    We  think  not.     , 

In  order  that  there  may  be  no  misunderstanding  of  our  views  upon  this  sub- 
ject, we  win  Illustrate. 
I  1.  Suppose  the  case  is  one  in  which  murder  of  the  first  degree  Is  clearly  and 
conclusively  established  in  the  opinion  of  the  trial  judge,  but  there  is  evidence 
tending  to  rebut  this  conclusion  or  to  establish  murder  of  the  second  degree, 
Sliould  the  judge  submit  a  charge  upon  the  lower  degree?  Unquestionably  he 
should.  Wliy?  Because  it  is  the  province  of  the  jury,  and  not  that  of  the 
court,  to  pass  upon  the  credibility  of  the  witnesses  and  the  weight  of  the  evi- 
dence. 2.  Suppose  the  evidence  Is  of  that  character  as  to  leave  no  doubt  that 
the  homicide  was  of  the  first  degree,  and  there  Is  no  evidence  tending  to  reduce 


1174  CRIMES   AOAINST   THE   PEUSOSS   OF    INDIVIDLALS. 

th..  offense.    Must  the  trial  judge  submit  a  charge  upon  the  lower  degree?    We 

^^crrr:itheguida^.t.3^.tr.ug^^^^^^^ 

^Thelr  duty  is  culte  distinct  ^/^  „^-\  ^^^  ^ant    r  n.  the  Lw  as  given 
the  guilt  and  the  degree  of  the  guilt  of  the  «'-«""''•  ^„  ^y^, 

them  by  the  court  and  the  evidence  f;'"-^.:P°;^;t^^:.l„  ^o  the  evidence, 
of  the  credibility  of  the  witnesses  and  the  v.^lght   o  be  given  ^^^^  ^^^ 

This  can  not  be  done  by  the  ^^^  "  J^'^;^",,;  .^^f^^^^^  viewed  as  a 

applicable  to  every  phase  of  the  case  presenieo  oj 

""wc  Z«lTi:2:  .h.  ,v,<„„.e,  b.U«,„g  th.t  „or.  Ugh. <»»  ^  ^«;',"P»" 

.taghter,  H.l.cy  Gl...,  .n.l  1>«  e  ^"'"°  '"„„,",  u,,  hoU8eoa.be  same 

woman    I    am   looking   lor.        >i  ■  j^  ^i  j  think 

secrets  and  I  have  kept  then..  >     ■        -.^^^     Jj^  ^^^       ;^^^^g  ^^^.^ 

you  are  a  g«°f J^..^;;:;/ ,>,:,     :,:.aaovertheheadlastnlghtandllked 
Washington,  witness'  brotuer)  = . .  w.       . ...  ^^^    j  ^^^^ 

to  have  killed  her?"  Witness  th.r       i^^^^*^;  ;°;^' ,f^^»aon'tgo,  Iwasnot 
goingrlghtdowntoseeabo^Ut^^    -^^^^^^  Defendant  then 

:rbS:;rdH;nryrcirT.ai^,n^^^  «--^- 

16Tex.(App.)  347  (1884). 


^^H 


MUUDEll    IN    FIKST    DKOUEE  —  INSUFFICIENT   PROOF. 


1175 


tlugree?    We 

rce,  or  If  the 
!  by  llie  Irlnl 
)e  given  upon 
Igliest  to  the 
cou't,  autl  by 
•ges  upon  the 
•ge8  preferred 

sc.  The  jury 
Infer  that  the 
I  the  evidence. 
<i  to  determine 
!  law  as  given 
hey  can  judge 
»  the  evidence, 
ubmlt  the  law 
e,  viewed  a8  a 

m  be  had  upon 
the  facts.) 
rder  of  the  sec- 

ind  remanded. 

Degree  —  Rob- 

»nvlcted  in  the 

jrpetrated  upon 

A  life  term  in 

ind  the  deceased 

the  time  of  the 
•fendant  and  her 
a  house  on  Mr. 
use  on  the  same 
,t  and  her  Idiotic 
the  fatal  Friday, 
asked  if  witness 
she  could  keep 
You  are  not  the 
u  have    told  me 
ave,  and  I  think 
(meaning  Henry 
st  night  and  liked 
ry  do  that?    I  am 
3n'tgo;  I  was  not 
Defendant  then 
1  her.    Some  time 


later  George  Ann  O'Nealaud  Nancy  Gla.scamc  to  witness'  !'«»««• '^"'\^'*';'\';^' 
la'  e  wSngton  .as  burned  up.    Witness  luunediately  star  ed  to  t lu-  hou  e 
•  :.  ,-o,.«metthe  defendant,  who  asked  what  ^-^^^^"^^^'t^uJt 
defendant  caught  witness  and  told  her  not  to  go  to  "--y  .,  tha    sic  would  n 
inro  herself  as  she  was  then  far  advanced  in  pregnancy.    The  witness,  on  rtacn 
'the  hou  e  found  no  one  but  Henry  Washington  at  first,  but  .soon  dlscove  ed 
he  dectnsed  S  in  the  Are.    She  called  to  Henry  t.  pull  his  wife  out  of  the 
:  b"   1  e  d   I    ot  do  it  then.    Jhn  Freenuu.  being  called,  ran  Into  the  house 
,d  had  Henry  pulled  J.nc  out.    She  was  dead.    During  an  acquaintance  of 
;      .en  or  twenty  years,  the  witness  had  never  known  the  deceased  to  have  fits. 
S  ;    ad  nJ "C  ve  .   ived  near  the  witness  for  some  time  until  the  year  pre- 
V  ous  to  led").    The  deceased  and  the  defendant  lived  In  constant    rouble 
vrutHn.T  Washington.    Witness  had  a  conversation  with  the  defendant  on 
he  da"b"  ore  Jane's  death.    She  said  that  Jane  had  (lied  a  co.nplatnt  aganst 
h  ratMarlin,  and  that  they  (deceased  and  defendant)  would  "ever  -ce    a    a 
trial     Wittiess  looked  hard  at  defendant  when  the  remark  was  made,  and  di- 
■„nt!lld   "  You  think  I  am  goln;;  to  hit  that  woman,  but  I  am  not.    1  nm 
S  to        'iu  n     bed  at]  pray'to  G^d  to  klllher."    In  this  same  conversation 
de  endan   said  that  deceased  had  gone  to  Marlln  and  slandered  her,  and  that  If 
«1  fcou^d  ke  r„o  the  deceased  a,»d  burn  her  up  without  destroj.ng  Mr. 
mUl^s  LS  rwould  do  so.    Cross-examined,  the  witness  stated  that  she 
haS  never  observt'd  any  undue  intimacy  between  Henry  and  the  defendant, 
a^d  had    se  n    no    conduct    of    theirs   to  justify    Jane's   jealousy.    Henry 
w<frked   land  on   Mr.  Battle's  place,  and  the  defendant  and    her  children 

''^::^ZVS^^i^  witness  for  the  State.  She  testified  that  she 
had  known  deceased  as  a  healthy,  robust  woman  for  a  long  time,  and  had  never 
had  known  «e«:casLU  a  ''uness  was  near  the  house  at  the  time  deceased 

known  I'or  subje  t  to  «t-Tl.e  witness  wa^^^^^^  ^^^^^^  ^^^^  ^^^^^^^^^  ^^^^^^^ 

;:;;?nd"Bucrplrue     Shewerto  Henry  Washington's  honse,  where  she  saw 


1170  CKIME8    AGAINST   TIIK    I'EUSONS   OF    INUIV1DUAL8. 

postmortem  exaimnatioa  of  the  sRuu,  in  lu    i'  ,i  laceration 

iie  scalp  was  burned  ^--O'"  ^^'»«  ^''^^^^^'^L^^tirt  orfire  and  sun  and  heat 

turougn  the  scalp  on  '^^^^^l^^o'.ro^^^^^^^^^  Heatstroke  is 

is  doubtless  the  same,  both  capable  ot  ^J^^"^^""^  j        ^^^^  ^..^  self- 

heartor  brain,  asphyxia,  etc.,  are  "°' "^^''^^  P'^^' '''  \*e  ,k„il.    Epilepsy, 
toms.    The  witness  ^^^;^:'^ZS  :,:ZZTfrll  pos'mortL 

he  positively  s,nelled  coal  oil  on  the  rag  «;»«1  ^^/^^  f  ■^"^^^'  ^^^  a  Jur-  nch  wound 
grease  spot  on  the  floor  that  smeUed  Ike  -al  oiL    He    -  a  o  ^^^^^^  ^^^^^^^ 

stance,  that  on  the  -^^^'\'^'-\'^ ''''^'J'^^^^^^^  said  had 

near  b^,  and  asked  her  to  ^^^  J^^  ^^^^^  tp  ^e^^^  ^  a  rag.  sugar  and 
been  in^^^^^  "^  J^^^^  trwoun7on  the  head  after  death.  It  was  the  same 
turpentine.    W^ness  saw  tne  w  regarded  this  wound  serious ;  it  was 

wound  she  had  bandaged  She  ^^  "°  ^  J^^^^^  ,,  ^onse  and  saw  the  body 
nothing  more  than  a  small  8*'^'  ^f  ^?, 7',  "^  ^  evidence  of  coal  oil  about 
after  death.    She  smclled  no  coal  oil,  and  saw  °**  7/"  .  ^    ^^  ihurs- 

the  body  or  house.    Defendant  and  Jane  appeared  perfectly  friendly  ott 
day  evening  before  the  death  of  the  Utter. 


chimney  was 
riftcil  south- 
the  chimnoy. 
•y  of  liKiuest^ 
lust  Imvo  lain 
oward  tlio  op- 
thi-  llri'-i)liicf. 
the  buru.s  i-x- 
long  was  dls- 
>ni  the  ear  had 
I  been  dressed 
ituess  saw  no 
1  closely,  dls- 
:  with  which  a 
\o"el,  and  that 
tnemselvus  to 

le  last  witness, 
jr  of  kerosene 
,    He  found  no 

dy  and  made  a 
ury  of  inquest, 
niall  laceration 
d  sun  and  heat 

Heatstroke  is 
QOtion  and  self- 
irery  is  complete 
juenlly  ensue  as 

like  character, 
eurism  of  either 
imonitory  symp- 
ikull.  Epilepsy, 
ra  a  post  mortem 
i  brain. 

d,  in  addition  to 
of  that  jury,  that 
lai  lie  saw  a  small 
four-inch  wound 
he  skull  broken, 
to  the  same  effect. 
,  testified,  in  sub- 
to  witness'  house 
hichshe  said  had 
1  a  rag,  sugar  and 

It  was  the  same 
Qd  serious ;  it  was 
md  saw  the  body 
of  coal  oil  about 
rleudly  oa  Thurs> 


MUUDEU 


IX   FIKST   DEOREE  — INSUFFICIENT   PUOOF. 


1177 


Fred.  Berry  testified  that  he  had  heard  the  deceased  and  defendant  " ore  than 
once  quarrel  ai.ont  llcnry  Washington,  and  in  one  quarrel  heard  .lefendant 

'"  K;lh\v:'i;i';r;;^"rv's  brother,  testUie..  for  the  State,  in  substance,  that 
l.otL  a  au  in  1  1  ouse,  exu.nlned  ,he  body,  and  both  saw  au.i  smelled  coal 
olo  tlet>dyafU.r  d.,at ..  Wlu..  he  romark..!.  after  examining  ll.o  body  : 
".  n^i  ord  JeJuH  Christl  This  won.an  Is  murder...;  and  "f  ";7"';::;;;  ;;'« 
keroscned,"  Henry  Washington  put  his  hand  in  hU  pocket  and  said ;  "  M  ut  ui , 
J  ion-t  w;.t  such  talk  around  hor-."  Witness  was  nut  on  «-;''  ^  '  ^  ^ 
his  brother  Henry.  Nelth.  :•  Sank  nor  Sandy  Washlr.ton  wore '  *  \^^"^^ 
wh.le  witness  w.s  there.  Some  time  prior  to  Jane's  der  h  defe  dau  t^  Id^lt 
„e.s  that  Jane  had  gone  to  Marlln  and  abused  her,  anu  that  .he  would  kill  Jane 

'"  Th:r:u;r  ™r::;timony  of  .eter  CrutchfleUi,  for  the  State,  was  .la. 
he  passed  Henrv  Washington's  house  between  one  and  two  o'clock  on  Novem- 
b  r's  8  "and  saw  defendant  and  her  daughter  washing  some  llf  tc.n  o.-  twenty 
Tps  from  the  h.nise.  The  house  was  closed  ^^^^  "-'^''^^1^ Tu  and 
ing  out  of  the  chimney,  and  the  witness  smelled  a  strange  odor,  like  lags  and 

"Tttatell  part  of  the  testimony  of  Dick  Payne,  a  witness    foi^  thc^  State 
was,  in  effect,  that  he  occupied  a  portion  of  the  house  «^'="''  ^  .^J'  'j^^'  '^^;;, 
He  knew  that  the  defendant  and  Henry  Washington  were  very  intimate.    Henry 
paid  rauentions  usually  paid  to  a  wife.    Witness  had  nej.r  ^^^^ 
defendant  in  bed  together,  but  had  often  gone  to  bed  leaving  them  m  defend 
anteroom  together     The  defendant  and  deceased  were  constantly  quarreling 
aboutHenry     Witness  had  heard  the  defendant  threaten  to  kill  the  deceased^ 
On'ne  ocllon.  in  May,  1883,  defendant,  with  a  hatchet  and  ^'-J^t'  -;^^J° 
George  Ann  O'Neal's  house  looking  for  Jane.    On  her  return  she  said  tha    she 
Wished  God  would  provide  her  a  dark  night,  that  she  might  put  on  a  bla  k 
dress  and  imeher  aim.    Witness  had  never  told  this  until  now     He";^^;^. 
tn  lorJo  deLndant  was  rather  constant.    Henry  and  the  defendant  had  a 
tentlon  to  ««»ena'inj  oefenuant  came  out  of  her  house  with  a 

n:ZT.Z^tZ:Xr^^n,  Henry.  She  said  ^^^^-o.^l^^^^t] 
that  day  -  would  kill  from  the  largest  to  the  least.  Je.se  Blocker  testified,  for 
tSe  StaL  that  some  time  before  Jane's  death  he  saw  defendant  standing  n  the 
roacf  w ith  a  club  i"  her  hand,  daring  Jane  to  breathe.  He  remembere<l  the  oc- 
c^sorwhcn  Freeman  brought  the  deceased  to  his  house,  suffering  from  a  fit 
nttwl^hsh^  had  f  lien  on  her  way  home  from  church.  Tony  Grant  testified, 
ntovUicbsncnaai  H^nry  Washington's  house  on  the  day  that  Jane 

Is'l^^d  L  r^e^or  tL  ev"nt  tLk  place'  Jane  and  the  ^^^^endant  were  In 
The  house  quarreling.  He  then  went  to  Henry  Washington,  who  was  with  Dave 
war  enln  the  Lid  Hannah  Blocker  testified.  In  substance,  that  he  deceased 
was  brought  to  her  house  one  day  In  August  by  Jim  Freeman,  '^'^ving  fal  n  in 
Te  road  on  her  way  from  church.  Deceased  told  the  witness  that  Henry 
WashConhadbeat  her  nearly  to  death.  The  complaint  against  the  defend- 
rntmade  by  Jane  Washington,  referred  to  in  the  opinion,  was  next  introduced 

*"?hfr«ceof'tr;;acewho  presided  at  the  Inquest  testified,  for  the  de- 
fen!'  t^at  he  fa  led  to  detect,  by  any  means,  the  presence  of  kerosene  about  he 
body  or  premises.  Ti,e  jury  was  divided  as  to  whether  a  certam  rag  smelled 
like  It  had  been  saturated  with  kerosene. 


.,v.T   TIIK    PEHSONS   OF    INDIVIDUALS. 
1178         CUIMES   AOAlNi-T   Tin.   1  •'•'  .,,  i,ovme 

Al.x    WashluRtoa  U.sUlU.a,for  the  •'«f*=»';:;:  *;;';fJ;;rp^'"to  t^ri.ous.-  at 

Henry.    Heury  r-^''^''-''''\'"y  «uiockecl  the  door,  and,  «P^-»''\"f*:^  ';„/„. 
,vent  to  the  honse  to;.ethe  •    ^1^^^  'j^j^.^^.^t,  here  is  tW«  ^^"'"l"  "  V^I^         -' 
feudttnt,^vl.o  w.  near,  sad       ^^'^^  «^,^      You  are  the  very  man  that  kniedbtr^ 
Sr:  J -rS^ir  P^ ;•  and  pushed  the  defendant  .ac. 

-t::;rrnotu„owho..r.ro.^«;;^^ 

aft^  the  melon.    The  cotton  ;va.  too  tal   f^,r  ^^  ^^^  ,^^,,^,  „ 

door  when  Heury  unlocked  It.    This  w 
WUness  and  IMck  Payne  fof  Jj-.^^XJ  ol  that  kind.    Wit-ss  assisted    « 

deceased's  death.^  H^„„ah  Blocker  to  state  ^'1^'^*  *»«  ^^^ 

™,     ,       ,    state     14  Tex.   (App.)    ^^' 
1  Taylor  ■*   Mate,    « 
Euoker«.State.7Tex.(App.)M9.  ^ 


iiiii 


Henry's  liouso 
Lo  the  Ik.usc  ut 
■e  mercy!  TliU 
,"  Juno's  iHxty 
no  rtefence,  tUal 
,f  „o  l.)vo  affair 
lie  nionilna  tluil 
,11  that  moriiluK. 

Uousc.     He  was 
I  durlna  Iltii'i'y''^ 

loll.    li»  'I  "'""'*■ 
Haywood  left  ou 
to  woluli  cotton. 
;it  WHS  the  matter 
nec\  ttua  Informed 
Fitness  and  Henry 
peaking  to  tlie  de- 
)mauiniiere1)"rn- 
,n  that  killed  licr." 
adant  back  as  she 

vent  when  ho  went 
Ho  did  not  know 
the  llild  after  Hay- 
3use,  the  defendant 
ilrectlon  of  Winnie 
eturning  toward  the 
e  after  Tony  Grant 

a  warm  evening  In 
.church,  the  witness 
lined  consciousness, 
•arms.  Witness liad 
Witness  assisted  to 
lelled  coal  oil.  This 
tVashlngton's  actions 

adant  on  the  night  af- 
perfeetly  ignorant  of 

on  the  part  of  the  de- 
evidence  the  amdavlt 
r  the  defendant  with  a 
3se  of  having  said  de- 
>endlng  at  the  time  of 

r  to  state  what  the  de- 
,g  her  nearly  to  death. 


MUKUKU    IN    111!>*T 


UEUUlir.— INSfl't'ICIENT    I'UODF.       1179 


This  w.s  hearsay,  and  was  no  part  of  the  rex  gestk,  a.ul  1..  no  way  connected 

:l;;Vde:::S::U,  ;vas  m  ..xpianatlon  of  her  then  sickn..s.  a.,  was  a  part  o, 

^'Turr^;;;;!:""^::' appellant's  ..unsel  that  the  cou.   .red  ...  I. 
,       .    .    .1,..  inrv  or  in  refusini?  special  Instructions  reciuesto.l  by  t  lo  d.  Itna 

::;S:r  whatever  that  Violence  h.id  heenu^  ^  ^  ^^^^  "^^^ 
,nade  no  outcry  that  was  heard  and  no  "«;;• '  ''^^^^;;';;,  ^.^  ^,  ,,,.,,„,  within 
house  at  the  time  of  her  death;  and  >^^'.''  ''^^^.^J^ .^Z,  \,  „  J„  ,vho  wem-hed 
hearing  of  the  place  of  lu-r  death  at  the  '^'^'^■^'^;^l,,  apparently 

one  hundred  and  thirty  or  o.e  ''''"•^'•^"V'    1.    lu  le  tia     sl^^  h  ve  been 

in  good  health.    It  is  not  reasonable  to  conclude    hat   she  cou 
nairdered  without  a  stru^-gle  or  an  outcry  on  her  pait,  and 
evidence  of  violence  being  left  »P«»  ^er  Person 

It  was  the  theory  of  the  prosecution  tl"^\'';-''°««^*' °"  ^^  "'\vi.ile  it  Is  ^os- 
a„dthatshewastlienUirownlntothei.an^^u^^^^^^^^^^^ 

sible  that  this  theory  is  correct,  It  s  not  est  dusil  '    ■  ^^.^^^ 

the  contrary,  to  our  minds,  the  -^^^----^  \  ^^  fl  C'bu  one  chunk  of 
„.as  thus  produced.  There  --J^^'j"/^  '  ^•^;'';  ^.^ ^lic aln^  in  or  about  the 
lire,  as  some  of  the  witnesses  ^^^^'^^ 'Z^^/-,  "  ^^'^^ta^^  u.^d  which  was  being 
flre-place  of  a  struggle;  a  pot  and  a  ^^lllet,  contal^^^^^^^^    i.  ^^^^ 

cooked,  were  In  the  flre-place.  -"^  J-;' "^^^ 

found  about  the  house,  though  some  °*  «  ^^^'"^^'''o  .trwltnesses,  however. 
it,  and  one  witness  said  he  savv  some  °"  ^^^"""^  .j^j;;,"^  ;;,  fl  ,or,  and  conld 
testified  that  they  examined  closely  and  «7  °«  f  "  ;«;  j;  Jii,ed,  or  nearly 
smell  none  about  the  body.  Bu  .  it  is  said  P'^^^^^^^^'  ^^^  „^  ^  ^eon  the 
Uiiled,  and  then  saturated  with  o  I  -^^P/^-^J^^^^^^^^^^  to  kill  or 

ease,  it  is  reasonable  to  suppose  ^'^'*' ^*/^f^'''J^;^V,„eh  violence  would  have 
render  her  helpless  had  been  -f .«.«"«;;  ^^^^^^^^      ^  conclusive  that  no  such 

: -refwrf::;-^^^^^^^^^^  -  --  -^^  -« - 

1  Hammel ».  Slate,  14  Tex.  (Api>.)  326. 


IIHO  (Ul.MKH   AOAINST   TIIK    I'KUfSONH    OF    INDIVIDUALS. 

hunie.l  iiiiil  i)artlcularly  t'xuuiliifd  by  iiii  cxpiTl  for  thf  imrposo  ..f  (llscoverlng 

Imllt'llUoll.S  vt   vlolflK.'l'. 

On  tlie  ollKT  hand,  It  appoars  from  tlio  cvUleucc  of  u  pl\y«lolan  who  tcstl- 
fled  in  thu  caHu,  that  there  are  various  diseases,  and  Home  of  which  are  not  In- 
IriMiiu'nt,    that    produce   death  or    nnconscloiiNni'sn    sudch'niy,    w.lliont    any 
prfinoidtion.     Among  these  he  mentions  heatstroke,  catalepsy,  eplle|i8y,  heml- 
ple;;ia,  aM|)hyxla,  anenrLsm  of  the  liearl  or  brain.    Woulil  It  not  he  as  reasonable 
to  sii|>pose  that  tiie  deceased  was  suddenly  stricken  down  by  some  one  of  these 
diseases,  and  fell  upon  the  lire,  as  to  coneUule  from  the  evldeneo  that  she  was 
murdered  by  the  defendant  or  any  other  person?    Would  not  this  supposition, 
that  lier  death  was  thus  naturally  produced,  account  for  the  absence  of  all  ex- 
ternal evidences  of  violence  Inllicted  ui)on  her?    And  is  not  this  theory  perfectly 
consistent  with  the  Innocence  of  the  defendant?     Is  there  anything  unreasona- 
ble In  sueh  a  theory?     In  connection  with  this  hypothesis.  It  Is  worthy  of  notice 
and  consideration  that,  In  August  previous  to  the  death  of  deceased  in  Novem- 
ber, while  she  was  returning  home  from  church,  she  suddenly  fell  In  the  road, 
helpless  and  unconscious,  and  iu  this  condition  was  conveyed  to  a  house  near 
by,  wliere  she  was  attended  to,  and  In  a  little  while   restored  to  health.    This 
sudden  attack  was  at  the  time  supposed  l)y  tiiose  who  witnessed  It  to  be  heat, 
stroke,  the  weather  at  that  time  being  very  warm.    Might  slie  not  on  the  occa- 
Hion  of  her  death  have  been  heatstrickeu?    Her  deatli  occurred  near  midday, 
and  while  slii  was  apparently  engaged  in  cooking  over  the  Ure,  and  the  physi- 
cian who  tesUlled  in  the  case  Informs  us  that  Are,  as  well  as  the  heat  of  the  sun, 
may  produce  heatstroke. 

Giving  to  tlie  evidence  before  us  lull  credit  and  weight,  admitting  as  true 
every  portion  of  tlie  State's  evidence,  we  think  It  falls  far  short  of  establishing 
with  that  degree  of  certainty  which  "the  law  demands  that  the  deceased  came  to 
her  death  by  violence  Inflicted  upon  her  by  another.  And  It  further  falls  far 
short  of  proving  t.ia'  i'  :iach  violence  was  inflicted  It  was  inflicted  by  the  act  or 
agency  of  the  ('efendant.  In  short,  we  are  of  the  opinion  that  the  evidence,  in- 
stead of  clearly  and  satisfactorily  establishing  the  corpus  dilecti,  leaves  it  in 
great  doubt  and  uncertainly,  and  is  altogether  too  uncertain  and  inconclusive 
to  warrant  this  conviction.' 

We  think  the  court  erred  in  refusing  to  grant  the  defendant's  motion  for  a 
■ew  trial,  and  because  of  such  error  the  judgment  is  reversed  and  the  cause  re- 

"""'       '  Beversed  and  remanded. 

§  704.  Murdoi  In  Seoond  Degree  — Bvldeno*  Intuffldent.  —  In  several 
cases,  also  in  the  appelis-tc  conrts,  the  evidence  has  been  reviewed  and  held  in- 
sufficient  to  convict  of  murder  in  the  second  degree^* 

§  705.  Murder  In  Seoond  Degree  —  Evidence  Insufllclent.  —  In  Holly  v. 
&Y«te,"TuRLKY,  J.,  delivered  the  following  opinion  of  the  court:  "We  l.ave 
been  much  astonish.^l  at  the  verdict  upon  which  judgment  In  this  case  has  been 
given.  The  prisoner,  a  youth  of  some  fifteen  years  of  age,  has  been  found 
guilty  of  murder  In  the  second  degree ;  to  constitute  which  crime,  malice  afore- 


1  Lovelady  v.  State,  13  Tex.  (App.)  646; 
Walker  v.  State,  Id.  n09. 

2  Turner   v.    Stnte,  10    Tex.   (App  )    433 
(1884) ;  Trcadwcll  v.  Slate,  10  Tex.    (App.) 


560  (1884);  Nolen  •.  State,  14  Tbx.  (App.) 
474   (1883);   Stnte  i:  PackwooU,  26  Mo.  840 

(185S), 
o  10  Humph.  141  (1849;. 


MIKDKK    IN    SICCONl)    IMXHtRK 


INSllTIflENT    PUOOF.    1181 


ILS. 

"f  discovering 

3lan  who  testl- 
ilcli  are  not  In- 
w.lliout  any 
L'lillepsy,  liL-ml- 
iL'iis  rciiH()ual)lL- 

111!  Olio  of  tllUHl! 
1-0  tllilt  Hhl'  WUB 

il8  oiippuMltlon, 
4L'nce  of  all  ex- 
;heory  perfectly 
lug  uiirotisoiia- 
rorthy  of  notice 
useil  In  Novcni- 
uU  In  the  roiul, 
to  a  house  ntar 

0  health.    TliiH 

1  It  to  be  heat, 
not  on  the  occa- 
il  near  miilday, 
,  and  the  physl- 

heat  of  the  sun, 

Iniittlng  as  trae 
t  of  establlHhing 
uceased  came  to 
further  (alls  far 
Leil  by  the  act  or 
the  evidence,  In- 
ecti,  leaves  it  in 
ind  inconclusiTe 

t's  niotiou  for  a 
\u(i  the  cause  re> 

and  remanded. 

int.  —  In  several 
!wed  and  held  In- 


It. —  In  Hollj/  V. 
ourt:  "We  have 
his  case  has  been 
,  has  been  found 
ime,  malice  afore- 


UO,   14  ToJt.   (App.) 
ckwood,  26  Mo.  840 


thouul.t  Is  a  Mcco.sary  Ingre.llenl,  under  clrcumstanros  f  n,m  which,  !n  our  judg 
nuMU   It  not  onlv  .Mn  not  be  lufrr^ed,  but  which.  Indoed.  dhv.tlv  d  spn.vo  it. 
.  xNtfUco.     It  aiM'-ars  that  the  prisoner,  w'  '   some  othrr  yonthsof  hlsown  •••■so, 
«as  playuig  nmrUl.s,  wh.n  the  dfceuscd,  a  full  Krawn  n.an,  Interfere.l  lu  the 
game   and  upon  beln«  nTUoustratcl  with  for  .h.lng  ho,  bocauu.  t»-rou  e.a   am 
commencd  lullU'tln-^  personal  cl>astlH,Mn..nt  upon  one  of  tl.o   '"y-* '    '';'™, 
h,,  was  In  th.  a.-.,  of  doing  this,  the  prisoner  thr.nv  a  st.me  at  dm,  ^vl'l^J^^^'    '^ 
hhn  on  the  iu-ad  and  Inlllct.-l  a  woun.l  of  whl.h  h.  afu-rwards  dl...     Ihat  the 
prisoner  had  no  i.r.vlous  lU-wllI  against  the  decasnl,  and  that  the  blow  stru-k 
was  not  upon  premeditation,  but  the  result  of  sudden  excitement  prod,..vd  oy 
the  uuHconduct  of  the  prisoner  himself,  can  not  be  questioned;  urn  the  weapon 
used  was  not,  lu  the  hands  of  the  person  using  It,  of  a  dangerous  character,  and 
one  well  caleulate.l  to  produce  the  result  which  followed  lis  use.    The  result 
must  have  been  wholly  un.leslgned  and  accidental ;  the  san.e  boy  or  any  other 
ml'ht  have  thrown  the  .«.ime  stone,  or  one  like  it,  with  the  design  of  mnietlug 
luiurv  a  thousaiKl  times  or  more,  without  producing  death;  and  yet,  the  jury 
have  thought  it  proper  to  hold  the  ^vouth  resi)onslt)le  as  for  murder.    This  can 
notl)e  permitted;  for  murder  has  not  been  commuted  either  In  desiiru  or  by 
Implication  of  law.    A  boy  who,  from  being  provoked  wantonly  and  improperly 
by  a  man,  becomes  excited  and  throws  a  st-me  ot  him,  and  It  accidentally  so 
(ill-,  a.  in  violation  of  all  reasonable  calculation  of  chances  to  kill  han,  Is  to  be 
held  guilty  of  murder  and  punished  as  a  mi;rderor.    This  would  be  cruelty  and 
uot  iustice.     It  is  true  that  the  kind  of  .nurdcr  of  which  the  prisoner  has  been 
found  guilty  is  not  now  punished  by  death;  but  that  it  is  not  so  Is  owing  to  the 
luterposiilon  of  a  statute,  for  It  Is  murder  as  described  at  common  law,  and  it 
is  requisite  yet  that  It  should  have  been  perpetrated  with  malice  aforethought, 
either  expresse.l  or  implied.    There  is  no  express  malice;  and  it  can  not  be 
implied  from  the  nature  o(  the  weapons  used.    The  Attorney-Generai  argues 
that  a  very  serious  wound  was  inflicted,  one  which  did  produce  death,  and  that 
It  is  a  (air  implication  that  tlie  weapon  used  was  of  a  character  to  pro.luce  the 
effect  it  did.    This  is  Ingenious,  but  (allaclous;  (or  the  same  thing  might  be 
argued  of  any  case  in  which  death  accidentally  ensued  from  the  use  of  a  weapon 
not  calculated  to  kill.    And,  moreover,  the  wound  of  which  the  decease  J  died  is 
shown  to  have  been  of  such  a  character  as  to  make  it,  to  say  the  least  of  it, 
problematical  whether  it  was  Inflicted  l>y  the  stone  thrown  by  the  prisoner.    We 
have  no  hesitation  in  saying  that  the  prisoner  is  not  guilty  of  murder,  though 
the  deceased  died  of  the  blow  struck  by  him.     vvhether  he  be  gul  ty  of  man- 
slaugl:*er  or  not  is  a  question  depending  upon  other  propositions  for  Its  solu- 
tlonrand  to  be  submitted  to  a  jury,  with  all  other  matters  in  connection  with 
the  transaction,  upon  -  new  trial.    Judgment  reversed  and  case  remanded. 

Gkkfn  J  In  this  case  I  think  tlie  throwing  the  stone  by  the  defendant  was 
clearly  unlaw(ul.  and,  as  death  ensued,  it  is  a  clear  case  of  mauslaughter. 
McKiNNEY,  J.  Not  being  present  in  court  when  this  case  was  heard,  I  decline 
any  expression  of  opinion  upon  the  point  in  respect  to  which  my  associates 
disagree. 

§  705a  Evidence  Ineufflclent  to  Convict  of  Murder  In  Second  I>e»ree.- 
Nolen  V  State.  -In  Nolen  v.  State,^  the  indictment  charged  the  appellant  with 
the  murder  o(  Sandy  Winn,  on  April  6,  1879.    The  conviction  was  (or  murder 

1  U  Tex.  (App.)  475  (1883). 


1182  CRIME8   AUAIN8T   THK   PERSONS   OF    INDIVIDUALS. 

Of  the  second  decree,  and  the  punishment  awarded  was  a  term  of  twelve  years 

"^tn^iT^^'i^^  nrst  witness  introduced  by  the  State.    He  testifjcd,  ,„ 

«ub"     n^   1  a   ou  the  mornin,  of  April  7,  187'.),  he  was  informed  of  the  d.seov- 

e^v  o     ra^es  of  a  "  drag  "  in  his  nei,hl3orhood.  in  Medina  County.    He  we,. 

to  tl"o  p  ace  indicated,  ami  found  an  abandoned  camp,  which  Imd  been  occupied 

ly  a  pa  tv  o    men  with  a  wa.on.     Investigation  disclosed  a  poo    o^  ^lood  near 

where  tie  wagon  had  stood.    It  had  been  covered  with  dirt,  eviUo^ly  w.  h 

7iew  of  hiding  it.    A  "  dn.u^  "  of   some  heavy  body  or  ol>3ect  led  off  from  th. 

bloXo'ri- witness  and  his  companions  followed  this  drag  a  a  ..ance  o 

ZtZ.  hundred  yards  up  a  rocky,  brushy  hill,  and  found  the  dead  bo  y  o^ 

man  lying  face  downwards  with  the  feet  up  and  the  head  down  the  hill.    Pa 

Znat  «;  .lisclosed  that  the  head  from  a.c  ears  forward  had  »^-n  ^^^^  '-^^'^  ^ 

bovfromsome  heavy  instrument.    All  appearances  indicated  that  the  body 

had  been  dragged  to  the  spot  feet  foremost.    The  clothi^^had  been  toi-n  by  the 

brush  ad  drf^n  up  on  the  body.    The  '♦  drag"  led  bad  from  where  the  body 

Som     to  where  the  wa.on  stood.    It  was  evident  that  it  had  been  dragged 

Ttwo    orle^.  o£  which  one  was  shod  all  lound.    From  the  body  the  wUnoss 

an.  hH  p  trty    ollowed  the  tracks  over  the  brow  of  the  hill  an.l  around  its  base 

back        l"  direction  of  the  camp.    The  trail  of  the  wagon  and  of  a  number  of 

horses  h.d  off  in  a  southeasterly  direction.    Tne  trail  of  the  wagon  indicated 

Jh  V  the  h  nd  wheel  on  one  side  did  not  follow  directly  in  the  track  of  the  front 

Iheel  a      t  lis  peculiarity  was  sufllelently  marked  to  enable  any  one  to  follow 

The  t'lU  readily     The   places  where  both  the  camp  and  the  body  were  found 

ire  Jn  Medina  County,  no.r  the  Uvalde  County  line,  about  two  and  a  half  mdes 

Houtheast  of  the  residence  o?  Sam  Johnson. 

Henry  Shane,  the  next  witness  for  the  State,  corroborated  th.  testimony  of 
White  as  to  the  appearance  of  the  camp  and  body,  and  testified  in  addition  that 
^company  with  Sergeant  Car. .hers  of  the  Sta  ,  force,  he  followed  the  trail  of 
thewa'on  and  horses  from  the   camp  where  the  blood  was  discovered  in  a 
southeasterly  direction  to  the  house  of  Jeff  Jonnson,  where  the  wagon  had 
evidently  stopped.    Thence  he  followed  the  trail  to  a  point  near  the  residence 
of  Capuiin  Toms,  in  Wilson  County,  where  he  and  Caruthers  found  the  wagon 
and  a  bunch  of  horses  in  the   possession  of  one  Ed  Swift.    The  Worses  and 
wagon  were  the  property  of  the  defendant,  or  were  claimed  to  be.    T'^«"'^«  ^h" 
witness  and  Caruthers  went  to  the  residence  of  John  Camp,  on  the  San  Antonio 
Uiver.near  Floresville,  where  they  found  the  defendant  on  the  gallery.    He 
had  si.pt  tliere  all  night,  and  was  pulling  on  his  boots  when  witness  aucl  Caru- 
thers  arrested  him.     This  was  between  daylight  and  sunrise.  -From  here  which 
was  some  ninety  miles  distant,  the  witness  and  Caruthers  took  the  defendant 
to  the  camp  where  the  blood  was  found.    The  defendant,  who  was  under  arrest, 
manifested  great  emotion  when  the  camp  was  reached,  the  tears  running  down 
his  cheeks     The  wagon  was  a  home-made  vehicle.    One  wheel  did  not  track 
accurately,  and  the  trail  was  easily  followed.    Witness  saw  this  wagon  a  few 
days  before  the  killing.    It  was  then  at  the  defendant's  camp.    The  defendant, 
deceased  and  Ed.  Swift  were  then  with  it.  ,  ,    ,  «      ,„„, ,  070 

Sam  Johnson  testified,  for  the  State,  that  in  the  early  part  of  the  year  1879 
the  defendant  passed  ids  house  with  a  herd  of  horses  and  cattle,  going  north- 
west  and  the  witness  believed  that  the  deceased  was  with  him  at  that  time. 
About  April  1.  thereafter,  the  defendant  In  company  with  the  deceased  and  Ed. 
Swift,  returned  to  the  witness'  ncighburhood  with  a  wagon  and  twelve  or 


A^i 


LLS. 

jf  twelve  years 

He  testified,  In 

of  the  (Uscov- 
mty.  Ho  went 
I  been  ov;cupie(i 
I  of  blood  near 
dently  with  tin- 
id  off  from  tlic 
ig  a  luM-ancc  of 

dead  body  of  a 
n  the  hill.  Ex- 
cn  cruslied  by  a 
I  that  the  body 
been  torn  by  tlie 

wliere  the  body 
id  been  dragged 
lody  the  witness 
around  its  base, 
I  of  a  number  of 
wagon  indicated 
racli  of  the  front 
.ny  one  to  follow 
body  were  found 

and  a  half  miles 

th-  testimony  of 

in  addition  that, 

lowed  the  trail  of 

discovered  in  a 

e  the  wagon  had 

lear  the  residence 

found  tlie  wagon 

The  horses  and 

)  be.    Thence  the 

1  the  San  Antonio 

the  gallery.    He 

yituess  aucl  Caru- 

•From  here,  which 

)ok  the  defendant 

w.as  under  arrest, 

jars  running  down 

leel  did  not  tracli 

this  wagon  a  few 

.    The  defendant, 

rt  of  the  year  1879 
attle,  going  north- 
1  him  at  tliat  time. 
3  deceased  and  Ed. 
?on  and  twelve  ov 


MUItniiU   IN 


fiECONl)    DKUREE INSUFI'ICIENT    I'KOOF.    llf>3 


thirteen  head  of  liorses  and  mules,  camping  in  tiie  neigliborhood  for  a  weelc  or 
two  during  whicli  time  the  defendant  went  to  Nueces  caQon,  in  Uvalde  county. 
Before  going  to  tlie  canon,  the  defendant  came  to  the  witness  and  requested  the 
loan  of  sixty  or  seventy  dollars  which  he  said  he  owed  the  deceased  and  was 
anxious  to  pay,  as  the  deceased,  who  wanted  to  go  to  Fort  Claric,  was  annoyiug 
him  about  it.     He  proposed  to  transfer  horses  to  the  witness  to  raise  the  mom^y. 
Witness  liad  never  heard  the  defendant  speali  unkindly  of  the  deceased.    The 
defendant  came  to  the  witness'  house  on  the  morning  of   April  7,  1870,  with 
Ed   Swift,  who  was  driving  his  wag(m,  and  aslced  witness  to  guide  hira  to  the 
road  leadinx  to  Jeff.  Johnson's  neigliborhood.    The  witness  sent  Danzer,  a  man 
in'hls  employ,  to  guide  defendant  and  Swift  as  requested,  and  to  drive   up  a 
yoke  oxen  on  his  return.    The   deceased  was  not  then  with  the  defendant. 
Witness  rode  off  after  giving  Danzer  directions,  and  seeing  him  saddle  his  horse 
to  go  with  defendant  and  Swift.    TlUs  witness  corroborated  Shane  and  White 
as  to  the  flnding  of  the  body  and  c.unp  and  the  appearance  of  each.    The  body 
of  the  deceased  was  found  about  three  miles  southeast  of  the  residence  of  the 
witness,  in  the  direction  of  Jeff.  Johnson's  on  the  evening  after  the  defendant 
passed  the  witness'  house  going  eastward. 

On  cross-examination,  the  witness  stated  that  Danzer  returned  home  late  in 
the  evening,  .stating  that  he  had  been  hunting  oxen.  This  man  Danzer  had  been 
working  for  the  witness  about  a  month,  and,  the  witness  tliought,  was  unac- 
cuainted  with  the  defendant.  Their  actions  did  not  imlicate  an  acquaintance. 
In  a  day  or  two  after  the  discovery  of  the  body,  Danzer,  without  giving  notice, 
quit  the  employment  of  the  witness  and  left  the  country,  riding  a  gray  pony 
which  he  owned,  since  which  time  he  has  never  been  seen  or  heard  of.  Danzer 
owned  a  rifle,  but  no  pistol.  The  witness  had  often  seen  the  deceased  about  the 
neighborhood.  He  Invariably  carried  a  pistol,  and  generally  rode  h  small  blue 
mare.    Dauzer  was  a  loose  character,  and  was  liable  to  quit  working  for  a  man 

at  any  time.  .,  ., 

Jcfl  Johnson  testified,  for  the  State,  that  he  lived  about  twenty  miles  south- 
east  of  Sam.  Johnson,  on  the  road  leading  from  Sam.  Johnson's  to  Camp's  place, 
near  Floresville,  in  Wilson  County.  About  the  time  of  the  murder  of  the  de- 
ceased in  April,  1870,  two  men,  with  a  wagon  and  a  herd  of  twelve  or  thirteen 
horscs'and  mules,  camned  near  the  house  of  the  witness.  They  came  late  In  the 
cvenin"  and  left  next  morning  about  sunrise.  Two  days  later,  Henry  Shane 
came  by  the  witness'  house  In  pursuit  of  a  party  with  a  wagon  and  bunch  of 
horses  and  mules.    The  witness  did  not  know  the  campers. 

Geor-e  Stokelev,  for  the  State,  testified  that  he  had  seen  the  deceased  in  the 
employ  of  the  defendant.  On  or  about  the  fifth  day  of  April,  1879,  the  defend- 
a  old  a  stock  of  cattle  to  witness'  father,  in  Nueces  canon,  Uvalde  County, 
receiving  therefor  a  check  for  about  fifteen  hundred  dollars,  and  an  order  on  the 
witness  for  a  lot  of  horses  and  mules,  to  be  delivered  to  the  defendant  at  John 
Camp's  in  Wilson  County.  Witness  went  to  Camp's  to  deliver  the  animals,  and 
was  there  when  the  defendant  was  arrested  by  Caruthers  and  Shane. 

W  S  Hiler  testified,  for  the  State,  that  he  was  present  when  the  defendant 
was  brought  to  the  place  of  the  homicide  Defendant  looked  dejected,  down- 
Tarted  and  sorrowful.    He  was  then  ..ed  on  his  horse,  and  was  under  arrest. 

The  State  rested  at  this  point.  „  ^   ^  . ,  ti,    .j„ 

George  Brown,  the  first  witness  for  the  defence,  testified  that  he  saw  the  de- 
fendant  in  company  with  the  deceased  about  April  1.  1879^  They  camped,  with 
a  wagon  and  a  bunch  of  horses,  for  a  week  or  two,  near  Sam  Johnson  s.    Dur- 


1184  CUIMKS   AGAINST  TUB   TEUSOXS   Or  INUIVIOUALS. 

,„,  U.S  time  the  delendant  maae  a  tj.p  to  N---  --- J^^^^rn't 

present  at  Sam  Johnson's  on  the  ^^  ^^^  to  Sam  Johnson's  and  asKed 
and  swift,  with  the  wagon  horscB  and  J»^  •^^-"^  ^,^^^„„  ,,,,,,,a  Danzer  to 
for  a  guide  to  the  road  '«-»^»«^  ^/'''"j/^^S  !^^^^^^^^^  at  that  time  stated  that  the 
guide  the  defendant  as  ''-l'''^^^^^  .  ^^',\  i^.l^re,  and  that  he,  the  defendant, 
fleceased  was  at  the  camp,  and  had  lost  1  8  m     ^  ^^^^^^^  ^^^  ^j^^,„ 

had  promised  to  return  and  -f  ;/^;^;^",  ^^^^  nan.er  hadturne.l  the  horses 
starting  on  acow  hunt.  As  ^'^J'^'J' J^^^;*^  ^^^  ,,,,  ,„  the  point  of  starting  In  a 
out  of  the  lot,  and  the  wagon,  dr  ven  by  *>''"'  ,,,^ck  towards  the  old  camp. 

Southeasterly  direction.  J'^;;^^tml'rst?aU  a  -nd,  and  always  went  armed 
r  rr^or  ^^C:  rhXwrfound.  «ms  o,  no  ..d  were  fouod 

^^rh:rt  Kichter  -Uhed,  for  the  defence  «^^^^^^^^^^^^ 

thirty  miles  from  Sam  Johnson's  and  --  ^^ J"*^^"      ^^  ,„„,,  ,„d  told  witness 
about  April  10,  1879,  Danzer  came  to  w  tn^s^  1         ^^^^  ^  ^^^^^  ^^^^^     ,^,, 
that  his  horse  had  given  out,  ''"^  ^^^J^wo  distant,  and  was  shown  a  small 
ness  went  with  D  mxer  to  a  1-f 'y^^^'-j^^^'^^  ,i,i„ed,  stating  that  he  got  her 
bine  roan  mare,  shod  all  *'«""^; ."^^j^^*;  °"^  witness  traded  with  Danzer, 

from  his  partner,  Bill "';"  *f J^^f' uan.er  also  offered  to  sell  a  pistol  to 

giving  him  a  fresh  horse  for    h«  m-^'^^^^^'^j^  ^  ^.^uerly  direction,  towards 
rntrSt,rranr:Corty."wr^  had  never  seen  or  heard  of  lum 

--.„„.berofcltlzensof^.^C.un.-^^ 

man-  ^   ^    ,,    „„,  of  «hane  on  being  recalled,  which  testimony 

The  opinion  states  ^^^ ^^^^^^^^^^^  Z  opinion.    Th.  motion  for  new 
raised  the  question  principally  dlscusseu  in  w 
SlalsedV  questions  treated  in  the  op  ^^^^^^  ,„ 

WiLLSON,  J.    Defendant  ^I'P^*^^^,  ™/i,^^i„„  been  set  aside  upon  appeals 

2.  We  find  m  the  record  ^'^^^o"'"'"'^  ^^^  after  the  State  and  de- 

bered  that  on  the  trial  of  ^^-/''^^^^.'.y'ttZ.'lng  arguments  for  both  State 
fendant  had  closed  their  -'^/"f '/g^^Ve  .h^^^^^^  attorney,  asked 

and  defendant  had  been  ^'''''''^'l^:Zlto  prove  the  acts  of  defendant 
leave  to  recall  the  ^^   °*=^«  "^  '/^.^^^^^  ,o  which  pro- 

„hen  broughtbackto  thespot  ^'^""^^^^^^^^^^^         ^^y^  objection  being  overruled 

1  8TCX.  (App.)  685:  9Tex.  (App.)  419. 


^^m 


5  witness  wai 
;he  defendant 
Ill's  and  asked 
ted  Daiizer  to 
tated  that  the 
the  dele\.dant, 
;ness  wa3  then 
•aeil  the  horaes 
)f  starting  iu  a 
)  tlio  oidcanip. 
tys  went  armed 
ud  were  found 

twenty-five  or 
Danzer.  On  or 
nd  told  witness 
se  trade.  Wit- 
9  shown  a  small 
;  that  he  got  her 
led  with  Danzer, 

0  SL'll  a  pistol  to 
ection,  towards 
or  heard  ol  him 

jlie  defendant  for 
roved  his  reputa- 
kceable  and  quiet 

,  which  testimony 
«  motion  for  new 

of  murder  in  the 
.side  upon  appeals 
lew  questions  nec- 

1  application  for  a 
tendant  alleged  he 
idence  to  have  been 
does  not  appear  at 
d,  to  the  defendant 

s:  «'Be  It  rcmem- 
r  the  State  and  de- 
lents  for  both  State 
Lrlct  attorney,  asked 
he  acts  of  defendant 
litted;  to  which  pro- 
;tion  being  overruled 
the  district  attorney 


MUHDEU    IN   SKCOXl)   DKOHKK — INSUFFICIKNT   I'UOOl" 


118.3 


what  was  said  to  defendant  after  he  was  brou^'iit  back  to  said  ppot  where  tlic 
murder  was  eoinmitted.  Witness  replied  that  he  asUcd  the  defendant  what  hud 
been  done  with  llu-  body,  to  which  tlie  defondaut  replied  by  poinlins  to  tli';  hi  i 
where  the  dead  body  of  deceased  had  been  previously  found.  Defendant  was 
under  arrest  at  tiie  time,  and  had  been  for  two  or  three  days  previously.  Said 
defeiHlantand  Swift  had  been  handcuffed  together,  and  part  of  tlie  time  tied 
Willi  a  rope.  Witness  had  talked  with  defendant  aboiitthc  murder  of  deceasid. 
and  defendant  was  informed  of  wliat  he  was  under  arrest  for.  Defendant  was 
not  cautioned  tliat  hii  admissions  might  be  used  against  him.  To  all  of  wini  h 
proceedings,  and  to  the  testimony  of  said  recalled  witness,  defendant,  by  coun- 
sel, excepted,"  etc. 

It  was  within  tlic  discretion  of  the  court  to  admit  further  testimony  neces- 
sary to  a  due  administration  of  justice,  at  any  time  before  the  argument  of  the 
cause  was  concluded,  and  the  exercise  of  such  discretion  will  not  be  revised 
by  tins  court  unless  it  plainly  appears  to  have  been  abused. • 

But  the  question  remains,  was  this  evidence  admissible  at  any  time?    It  Is 
very  clear  that  under  the   circumstances,  if  the  defendant  had  confessed  his 
gidlt,  such  confession  would  not  have  been  admissil)le  against  him.     It  was  so 
determined  by  this  court  on  a  former  former  appeal  of  this  case.^    But  does 
tlie  rule  which  excludes  confessions  which  are  not  brought  wltliiu  the  excep- 
tions of  the  statute,''  also  apply  to  and  exclude  the  acts  of  the  defendant  done 
under  the  same  circumstances?    This  Is  the  question  directly  presented  by  the 
defendant's  bill  of  exceptions,  and  is  one  upon  which  we  find  some  conflict  ol 
opinion.    It  was  the  opinion  of  the  learned  judge  who  tried  this  case,  that,  while 
the  statements  or  confessions  of  defendant  made  while  under  arrest  were  not 
admissible  against  him,  yet  the  acts  performed  by  him  were  admissible;  and, 
holding  tlds  view,  he  allowed  the  prosecution  to  Introduce  the  evidence  ob- 
jectedto  by  defendant,  and  set  forth  in  the  bill  ol  exceptions  wo   have  quoted. 
This  opinion  of  the  learned  judge  was  no  doubt  based  upon  the  opinion  of  this 
court  In  lihodes  v.  State,*  where  it  is  said:     "A  distinction  has  always  been 
made  between  acts  performed  and  confessions  made  by  a  defendant  while  under 
arrest.    The  former  are  admitted,  whil-t  the    latter  arc  not,  unless  coming 
srictly  within  the  letter  of  the  statute."    In  tlds  Rhoden''  Case,  the  defendant  was 
charged  with  the  theft  of  money  and    was   under  arrest,   and,   while  under 
arrest,  she  was  taken  to  the  house  where  the  stolen  money  was  supposed  to  be 
concealed,  and  there  she  pulled  up  a  plank  in  the  floor  ol  tlic  lionse  and  looked 
uuder  the  floor  as  11  she  was  looking  for  the  money,  but  produced  nothing. 
These  acts  of  the  defendant  were  proved  by  the   State  over  the  objections  of 
defendant,  and  this  court  held  that  such  evidence  was  admissil)ie.     In  support 
of  the  doctrine  ainmunced  in  that  case  the  court,  in  its  opinion,  cites  EUzaUeth 
v.  Statc,^    Walker  v.  State^  and  Preston  v.  ,S«a«e. '  and  the  first  named  case   i.s 
especially  referred  to  as  a  case  Ip  point. 
That  case,  Elizabeth  v.  State,  was  a  trial  for  murder  of  a  child.    While  the. 


1  Code  Cr.  Pr.,  art.  661 ;  Kemp  v.  State, 
38  Tex.  HO;  Bittick  v.  State,  40  Tex.  117; 
(ioins  V.  Stale,  41  Tex.  334;  Moore  v.  State, 
7  Tex.  (App.)  14 ;  Ucwilt  v.  State,  10  Tex. 
(\pp.)  601;  Cookr.  Slatc.llTex.  (App.)  19; 
(ieorgo  V.  State,  Id.  Kt ;  Itostwlck  v.  State, 
hi.  120;  Grosso  v.  State,  /rf.  364;  Donahoe  i>. 
State,  18  Tex.  (App.)  297. 

3  Defences.  76 


2  Nolen  V.  State,  8  Tex.  (App.)  585. 

»  Code  Cr.  Pr.,  art.  750. 

Ml  Tex.  (App.)  563. 

'  27  Tex.  329. 

•7  Tex.  (App.)  446. 

'  8  Tex.  (App.)  80. 


.    *nAINST   THE   PEKSONS   OF   INDIVIDUALS. 
1186  CRIMES    AGAINST    int. 

A  ti.at  sho  could  show  the  dead 

body  of  the  child,  which  at  that  t'"»'  ;■  '  .„^„  ^  „„ie  of  water,  saying  that 

up  a  ravine  which  was  close  hy,  and  ^^^^^^'t^^^  „„„,  „f  tue  child.    It  was 
^"ehiid  was  in  ti-e.  a.ul  V.o.ga  o        h.^^^^^ 

held,  over  the  ol.jections  of  ^^edcfu    a"  ,  .^^.^.^ectness  of  that  rul.u«.    \^  ^ 

:„ove  stated  facts.    We  ''-;« -'''^.^^  °  „t  of  the  exceptions  of  tl-  statute 
think  such  testi.no«y  was  ^^'-''^^^^  ^Xf^^.daut's  acts,  that  the  dead  body  of 

r ;;:;iXhu"n;:^ " ^-  u  was  .on  t^s  .0..  ..t  the .«. 

preme  Court  held  it  to  be  '^'l'^'^^^'"''';.  „„„i,„„i  consideration  of  the  Elizaheih^^ 
%pon   a  careful  exanunation jd  «.o  >g^^^^^^^^^^  ,„.  oourt 

Case  we  are  of  the  opinion  that  it  <J«/-™      f '  Serial  distinction  in  the 

Tthe  Bkoaes  Case,    'r'-yr /Tl  e  a  t     '^ 

two  cases.    In  the  EluaUeth  Ca-,     "^  ^^J   /^      ^,,^  j,,,,,,  ca.e,  the  acts  per- 
the  discovery  of  the  dead  body  o     ^e  U    d  ^^^^,  ^,,  ,,,!«„  money, 

formed  by  the  defendant,  did  not  ^^     .J?  '^^.^^..^uent  portion  of  this  opln.on 
weevil,  refer  to  this  distinction  more  ^«'     ''^^^'^f/d^^eision.  is,  we  think,  essen- 
Wnlker  v.  State,  cited  as  supporting  ^^'''^2Z  «tiPPort  it.    While  under 

tiaU      iierent  fronx  the  Bko.l.s  ^'-;;;;;f/,n,;:;„inL  trial  upon  the  charge 
arre.t  upon  a  charge  of  murder,  and  d"    "^  ^"      j^^^  was  caused  by  the  magis 
before  a  justice  of  the  peace  the  '^f-    ^"^  jH^^.^^re  was  applied  to  tlu-se 
trate  to  make  tracks  in  the  ashes  ^^^\^^':^^^X^^  ^^  tracks  found  at  the  place 
tracks  which  fitted  exactly,  and  t'^'^^^^^.^robjectlons  of  defendant  upon 
'    t  murder.    These  ^aets  were  prov      ^-^^,  „p,„  ,p,eat,  this  co.rt 
his  trial  after  indictment;  to  ^^'"''^l^"  J  j^n^th  from  the  opinion  in  State  y. 
hold  the  evidence  was  admlssiole,  quotmg  ^^  \«"-;''      ^^  ^„,i  determined,  and  a 
t;;.l,^vhere  the  ^^^^-^:^X^^!i:^^Plt  all  evidence  is  to  elicit 
portion  of  which  opinion  we  here  q"«te   ,    i  ^^^^^  ^^^^^^  under  the 

L«.r«  us.    NO  tear-  or  w.»  o<  tl,e  P-»"  ,„  .„  a.  ju,^,  ..d  at  <ot 

his  track.    This  resemblance  was  a  xai-u 

their  consideration."  ,  that  the  admissibility  of  the 

down t  the  Bkoaes  Case,  that  ^^^ -^^^^fj^.'^/re  afe-  ^-'  '^^'  '''''' 


1  74  N.  O.  646. 
i  tupra. 


3  Whart.  Cr.  Ev.,  sec.  683. 
«  Id.,  sec.  fi""*. 


^^1 


LS. 

show  the  dead 
ic  thru  walked 
jr,  saying  that 
chlUl.  It  was 
light  prove  the 
atruliii«-  We 
oJ  the  statute, 
10  dead  body  of 
lud  that  the  Su- 

Ethe  ElU(i'>eth'K 
on  of  thU  i-ourt, 
istlnction  in  the 
Icfcndant,  led  to 
/,se,  the  acts  per- 
e  stolen  money. 
)ii  of  this  opinion 
we  thinlt,  essen- 
it.    Wiiile  under 
[  upon  the  ehariie 
sed  by  tlie  magis' 
s  applied  to  tiu-se 
Eound  at  the  place 
at  deteudaut  upon 
appeal,  this  court 
opinion  in  State  v. 
determined,  and  a 
vidence  is  to  elicit 
le  eitner  under  the 
ping  punishment  if 
urience  shows  that 
not  be  relied  on  as 
:vidence  of  the  sort 
I  the  resemblance  of 
the  iuiy,  and  fit  for 

admissibility  of  the 
lat  no  hopes  or  fears 
s,  while  confessions 
le'influenced  by  such 

e  broad  aoctrine  laid 
e  never  to  be  treated 
dence,  tout  that  such 
exclude  confessions, 
tiolds  the  doctrine  of 

well  as  words," » and 
,,  sec.  683. 


MURDER   IN   SECOND    DEGREE  —  INSUFFICIENT   PROOF.     1187 

even  silence  under  certain  circumstances  is  taken  as  a  confession.^    Suppose  a 
prisoner  chained  with  murder  is  u.^lied  the  (,uestion,  "Are  you  guilty  of  nuir- 
der?"  and  instead  of  saying  "  I  am,"  he  maizes  an  atllrn.alive  movumeni  of    us 
head     Would  this  movement  of  the  head  be  a.lmissible  evidence,  while   his 
confession  by  words  would   be  inadmissible?    Suppose  he  were  told,  "\..u 
,„urdei-ed  the  deceasc.l;  you  crushed  in  his  head  with  an  axe;  you  dragged  him 
into  yon.ler  tlilcket  and  left  him,  after  having  robbed  him,"  and  in  response  t 
this  charge,  the  prisoner  had  not  uttered  a  word,  but  had  nodded  his  head  in 
assent  to  the  truth  of  the  same;  will  it  be  contended  that  the  act  of  nodding  his 
head  because  it  is  an  act  and  not  a  statement  or  declaration,  is  competent  evl- 
dence  a-ainst  him  when  if  he  ha.l  confessed  the  charge  l)y  wor.ls,  such  confosion 
would  have  bien  excluded?     We  are  unable  to  perceive  the  reason  of  tlie  rule 
whicli  admits  the  acts  while  it  excludes  the  words.    Acts,  it   is  said,  speak 
louder  tlian  words,  and  thus  being  generally  true,  they  should  be  regarded  as 
confessions,  as  much  .so  as  words,  and  the  law  does  so  regard  them.    Acts  are 
but  a  kind  of  lamiuage,  expressing  the  emotions  and  thoughts  of  the  person 
perforiniuij  them,  more  forcibly  and  convincing  sometimes  than  words,  but  still 
like  words,  only  a  mudium  through  which  tlie  Inward  feelings,  thoughts  or  in- 
tents of  the  person  are  outwardly  indicated. 

In  the  case  before  us,  the  prisoner  pointed  in  the  direction  of  where  the 
Ijody  of  the  deceased  had  been  found,  when  asked  what  they  had  done  with  de- 
ceased     Instead  of  ibis  response  to  the  question,  suppose  he  had  said:  "  We 
left  the  dead  body  of  deceased  on  yonder  hillside."     Would  this  answer  have 
been  "■'    >sible?     We  think  not  umler  the  long  line  of  decisions  in  this  State. 
How,  then,  can  it  be  said  tl.at  his  gi-stnre  is  competent  evidence?    Upon  wliat 
principle  is  this  ili.stinction  founded?    Can  a  confession  be  indirectly  admi8sil)le 
which  would  not  be  directly  so?    Would  not  such  a  construction  of  tlie  law  de- 
feat its  purposes?    Would  it  not  probably  lead  to  great  evils?    Under  such  a 
rule,  extorted  confessions  of  guilt,  made  by  nods,  winks,  gestures,  and  otlier 
acts  would  be  frequently  paraded  in  cases  to  siu.ply  the  absence  of  siilllcient 
evidence  to  establish  tiie  guilt  ..f  the  accused.    Such  evidence  would  be  easily 
attainable  in  most  cases,  purt  would  be  as  unreliable  and  objectionable  in  every 
respect  as  confession  by  words.    As  said  by  Roscoe  and  Greenleaf :  "  The  ii'-lu" 
ence  which  miglit  produce  a  groundless  confession  might  also  produce  ground- 
less  conduct  "  i    In  this  case,  for  illustration,  the  same  influences  which  might 
have  prompted  the  defendant  to  confess  by  words  that  he  had  committed  the 
murder  might  also  have  prompted  him  to  point  In  the  direction  of  where  the 
dead  body  of  the  murdered  man  had  been  found.    Both  the  above  quoted  stand- 
ard authors  lay  down  the  rule  that  the  acts  of  the  prisoner  are  in  such  cafos 
placed  upon  the  same  plaue  with  his  words,  and  where  the  one  Is  inadmissible, 
•so  also  is  the  other.  -  .     ,      ^       ,    .    „„„ 

We  are  of  the  opinion  that  the  rule  announced  In  the  Rhodes  Case  Is  in  con- 
flict with  the  authorities  and  with  the  reasons  which  support  the  law  governing 
tiie  admissibility  of  confessions,  and  we  must  therefore  overrule  that  case  upon 

this  subject.  j„«„„^ 

3  Another  serious  question  here  presents  Itself.  It  appears  that  the  defend- 
ant  pointed  In  the  direction  of  wliere  tlie  body  of  the  deceased  had  been  found. 
It  was  not  In  consequence  of  anything  said  or  done  by  the  defendant  that  the 


1  RoBO.  Cr.  Ev.,  sec.  51;  1  Qreonl. 
sec.  232. 


Er., 


U88         CR.MKS  AOAIMT  THE  rE,««N»    Or   ,ND,V,m.*L8. 

discovered.  A  confession  Is  '^'»'"^*"''%;''""  „  fo„„d  t..  be  tiu.',  which  con- 
stat...,nents  of  facts  o.  ''.'.^'-^-trilro^  Secreted  o.  stolen  pvope-.y. 
duceloeslahlWh  ^^' f^'^Y"":^^^,  oa.^.^  >vas  con.mlUe.U  Does  th>s 
or  insirnmentwllh  wh>ch  ^'^  ^^^  prior  to  an.l  ImU-pendent  of  tl..  con- 
mean  facts  or  clrcnmstances  ^vh'*-"  l^^'^'^nnea  to  snch  fact,  or  circnn.stances 
rr -l^::^:::-  -  r  ^;^:l  o^ho  .for.naaon  a«oraed  ..  t..  co. 

^C:sr- -  «nd  the  a;^- -i::^ -rsrs 

the  rule  in  the  ^-^-^}--''^^'^:^^,  or  the  Instrnment  of  the  crl.ne, 
obtained  from  the  prisoner,  the  P'^P^J^jy '^^^^^  [^^,  ^^^^r  material  fact  Is  d.s- 
or  the  bloody  clothes  of  the  person  '""^  *  ;;;\';^^  ,,,,  „,ade  conformably  to 
covered,  it  is  competent  to  show  tha  such  ^'l^,^,^,  states  the  rnle  in  sub- 
the  information  plven  hy  f «  P";"";!^^  ,  »  ^vithou^h  a  confession  obtained 

stantlally  the  same  words.'    Mr.  Koscoe  ^  ;„„eived,  yet,  If  in  consequence  of  that 
by  means  of  Promises  or  threats  can  not  be   ece^^^^^^^  ^^^^    ^^^^^^^^  ,^^„  „,,, 

confession  certain  facts  '^^ff'^l^'f^^^l^^^^^^    Mr.  Bishop  announces  the 
known,  evidence  of  those  facts  may  ^^  re«^^v  ^^^,,  ^y  threats  or 

same  doctrine.^  ^':7'^'^'-*°"  1^;  yt^f^tded  by  extraneous  facts  which 
promises  are  not  evidence,  yet  if    ^^^f J*^^^  ^.^^  ^e  thus  developed,  and 

show  that  they  are  true  any  such  ^^^^^^'^  ^,,^,  ,,,  ^.tendant  ^as  sus- 
which  go  to  prove  the  ''f '^*^"!  ;^^  "  itr^vhere  the  party  thus  confessing 
pected,  will  be  received  as  *«  """"Vope'ty  Is  or  where  he  states  where  the 
points  out  or  tells  where  the  ^^^^ J"  P/^^t"';  ^^  P'"-'«  "^^ '"''''■ 

lieceased  was  buried,  -^ ^'^^^^l^^^^ZTtL  prisoner  thus  Improperly  drawn 

of  this  state  have  ""'form^^^J"  %^'^Z  found  no  case  In  which  a  contrary 
mentary  authors  we  have  cited.    Wc  ha  ^^^^  ^^^^^_  ..  confessions 

doctrine  has  been  addopted.    ^''^^''^'-'^l^^  Earning,  may  be  used  to  the  ex- 

„adc  under  arrest,  -;f-;7'"';2f  ^^ts  Ind  IcumJ^^^^^^   found  to  be  true, 
tentthatthepartymadesatemen  of  fa      and        ^^^  ^^  ,,,y  ,„rnlsh  informa- 

and  no  further.    B'^>'""f,''V  „  ^f's'ir  would  not  be  admissible."     In  Davis  v. 
r;^r  lo^r  we  r:;r.Srm°  tl.  te.  boo.  .  fu..  and  plamiy  ap. 

x^d  ttt  setued,  -.  -  - -rti^i^trr-i 

ances  which  arc  already  '^-J^^^/j.t'gTolnnect  the  defendant  with  the 
to  any  information  -"^^'/fj;,"  against  the  defendant,  if  made  wlule 

ts:::^::::^:^^^^--^  --  ---  ^^^  "^""" " " 

statute.  ^         .,  „„„„„^  t„  the  evidence  of  defendant's  act  in 


1  Code  Cr.Pr.,  art.  750. 
t  1  UrecnK.  Ev.  sec.  231. 
(  1  Phil.  Ev.  S54. 
*  Rose.  Cr.  Ev.  60. 


t  I  Bish.  Cr.  Pr.,  sec.  1242. 

•  Whart.  Cr.  Ev.,  boo.  678. 
T  10  Tex.  (App.)  ««• 

•  8  Tex.  (App.)  BIO. 


"  '- 


LS. 

homicide  was 
icn  ho  makes 
ic,  which  con- 
olun  piopuity, 
\.i  Does  this 
lit  of  tl.vJ  cuii- 
circiunstiuices 
led  by  tliu  cou- 

reeuleaf  states 
the  informallou 
lit  of  the  crime, 
arial  fact  Is  dis- 
coiiformably  to 
;he  rule  in  siib- 
fessiouol)t:>iued 
sequence  of  tliat 
isoner  arc  made 
p  announces  the 
ule  by  threats  or 
eous  facts  which 

developed,  and 
[cndaut  was  sus- 

tbus  confessing 

states  where  the 

proves  the  case. 

mpropcrly  drawn 

js  ineffectual,  no 

ions  of  the  courts 
stated  by  the  ele- 
which  a  contrary 
Id:  "  Confessions 
be  used  to  the  ex- 
i  found  to  be  true, 
y  furnish  iuforma- 
ble."  In  Davis  v. 
illy  and  plainly  ap- 

;  tacts  or  circum- 
Bnt  does  not  lead 
defendant  with  the 
lant.  If  made  while 
it  exception  in  the 

!  defendant's  act  in 
lad  been  previously 

so.  1242. 
eo.  678. 


PROVOCATION — IIKAT   OK   PASSION. 


1189 


foun.l.we  arc  of  the  oi>liiioii  that  It  was  not  competent  evidence,  becuuse  it  was 
a  confession  l.v  act  of  a  knowleds;e  of  facts,  which  knowledu'c  tcmled  to  con- 
nect  defendant  with  the  murder,  and  was  made  while  he  was  under  arrest  with- 
out  his  bein-  tlrst  caullomd  that  it  might  be  used  against  him,  u.ul  without 
being  accompanied  by  a  statement  of  any  fact  or  circumstance  found  to  be  true 
which  conduced  to  establish  his  guilt.  While  the  learned  judge  who  tried  the 
ca-^e  was  fullv  auMiorized  by  the  opinion  of  this  court  in  the  Jlliodes  Ca^e  In 
admitting  this  evidence,  we  must  now  hold  this  court  was  mistaken  in  the  rule 
laid  down  in  that  case,  and  that  the  admission  of  the  testimony  was  error,  for 
which  the  judgment  must  be  reversed. 

4    But,  even  if  this  evidence  ha<l  been  competent,  we  do  not  think  we  could 
have  approved  the  verdict  and  judgment  upon  the  evidence  as  presented  in  the 
statement  of  facts.    While  the  circumstances  pointing  to  t:>e  defendant's  guilt 
are  cogent,  and  render  it  quit    pro.,  d)le  that  ho  participated  in  the  murder, 
they  do  not  impress  us  with  that  force  and  conclusiveness  which  should  pro- 
duce  upon  the  mind  a  moral  certainty  of  his  guilt,  to  the  exclusion  of  every 
other  reasonable  hypothesis.    These  same  chcumstances  point  to  the.  man 
Dan/er  even  more  directly  and  more  strongly  as  the  murderer,  than  they  do  to 
this  defendant.    But  It  is  not  necessary  or  perhaps  altogether  proper  that  we 
should  discuss  the  evidence.    Upon  another  trial  of  the  case,  the  prosecution 
may  be  able  to  adduce  testimony  more  satisfactory,  aud  amply  sufllcient  to  sup- 
port a  conviction.  ,    ,  ,     ,  ,     j 
Beeausi-  the  court  erred  in  admitting  the  evidence  complained  of  In  defend- 
ant's l)ill  of  exception  hereinbefore  quoted,  the  judgment  is  reversed  and  the 
cause  remaiuled.                                                                 Jievcrsed  and  remanded. 

§  70(i. Intent  to  Kill  Essential  In  Manslaughter.  -  Aud  to  constitute 

manslaughter  an  intent  to  kill  is  essential.' 

^707 Provocation  Reduces  Crlmo    to    Manslaughter.  —  A  voluntary 

homicide  Is  not  murder  if  It  consists  of  a  blow  or  as-ault  made  after  an  act 
committed  by  the  deceased  which  the  law  deems  ade.u.ate  to  excite  sudden  and 
angry  passion  in  the  slayer.  It  is  then  only  manslaughter.'  Provocation  by 
blows  and  words  may  reduce  a  killing  to  manslaughter.a 

§  7ns. Provocation -Heat  ol  Passion. -If  passion  has  not  had  time 

to  cool  after  a  provocation,  it  is  manslaughter.* 

In  Stale  v  Morris;-  a  person  who  was  violently  beaten  and  abused  made  his 
escape,  ran  to  his  house  eighty  yards  off,  got  a  knlf.,-,  ran  back,  and  upon  meet- 
ing the  deceased  stabbed  him.  This  was  held  not  murder,  but  only  man- 
slaughter, lu  charging  the  jury,  the  court,  said:  «Tl.e  great  distinction 
betweeu  murder  and  manslaughter  is  this:  manslaughter  is  committed  under 
the  operation  of  furious  anger,  that  suspen.ls  for  a  tltne  the  proper  exercise  of 
reason  and  reflection,  and  which  hath  been  stirred  up  by  some  great  provocation, 
for  there  are  some  provocations  that  are  not  Indulged  with  an  allowance  of 
exciting  the  passions  to  such  excess,  and  thus  a  distinction  is  formed  between 


I  People  r.  Freol.  4:?  Cal.  4W  (1S74). 
2Com.  V.  Webster,  n  Ciisli.  2'Xi  ;.Vi  Am.  Dec. 
711  (1850) ;  11.  f.  Kirkluim,  8  C.  &  I'.  115  (1837). 
»  11.  V.  Slierwooil,  1  C.  &  K.  S'lC  (1844). 
U.  t'.  Lynch.  5  C.  &  P.  325  (1834) ;  Mc- 


Cann  v.  Peoi>le,  fi  I'ark.  G29;  State  v.  Moore, 
0'.»  X.  C.  2«7  (1873) ;  U.  S.  V.  Rice,  1  Uughos, 
600  (1875). 

6  1  llayw.  429;  1  Am.  Doc.  5ftl  (1816). 


o    w,*iK«T   Tin:   VKKSONS   or    INOIVIinTALS. 
1100  CKIMKS   AdAlNSr    H"'    « '•"■ 

.1  Tf  It  I...  liv  words  or  ijesHiri-s  only,  It  will 

thc,llffer..nt.U.gn.esof  rrovocallo,.  '^^^  ^^.^^y  ,..,,  ^nt  If  it ....  aprovo- 

not  1.0  sudlcient  to  ...Itinatc  hon.lcule    "^;'     "  ^   ;"-.,i,„;  ,,  ,,y  ,p,„l„;:  in  his 
c,Uion  l.y  son,e  .rcat  in.li.nlty  offer.,   t'  ^lu     -u  ,y     I  In       ^,^,^,..',,,,  ,,  „.,, 

fac  or  tiu,  like,  ..r  l.y  «;'">''«  ""\';:,\f":;.tir,ussi<.nH  raise.l  to  su.l.  a 
reas.,nably  be  presumed  the  bl..o.l  is  '  ^  J     ;    "     \,, j  ,,,„,„nin^;  powers,  the 

Ue.rce  as  t..  suspend  the  proj-er  ^^Z^:^,^ ^^^  ^^^  -  ^^^^^^^"' ^^^''^ 
cxere.s.-  of  ju.l^nunt  an.l  ^'^'^'^'l^'^Z^  But  alll.o..u'h  a  su.lici..,.t  prov.,cati..n 
ext..nuatc  the  ..ffeusc  Into  ".ans  au,;hlc       B  t  all  ^^^^^^^.^^^  ^^^^ 

„e  given,  and  the  passl-.ns  p-eat  y  ^-;^>»  '  \'  >      '^     J^/'^.  ,,kc.l  killeth  the 

t,.;^.assi.>ns  to  subsi.le  and  -•j^;-  (  ^  '^  ,  Uineflo-tof  unuovernahle 
other,  the  law  will  deem  ,t  nu.nle,  ,  '^'^^^^'J^-^  '  ^     .,„,i,,u, .,!  revenfje 

passi..n.  an.l  fron,  the  frail.y  of  """-  ,^'  ^  '"^'X  '  ,,  „!n,..ient  tin.e  for  this 
after  reason  had  assun.e.l  its  proper  ^^  '"-J^^:  J  ,,,,,,,i„ed.  It  hath  been 
pnrpose.hath  never,  as   I  '^"'•;;;;  \  ,nU  ^e       t  s.ems  to  .lepend  greatly 

adju.lge.l  that  an  h..ur  is  more  than  ^ul  U  In  t  mc      i  ^^^^^^^^      ^^ 

uplmthe  uatun.of  the  '----^;':"' '^"\' "^^t  tin  c  .lu  nt.UcM,e,  they  shoul.l 
,„  the  case  bef..re  t''-"  ^'"■y;'';:^:;^^ /I'  ly  .  v..ke,l  befo^  If  other- 
nnd  the  pris..ner  guilty,  though  he  1 .  d  l^^^"  ^  .  '^"^'^  ^j  ...anslanght.r  o.dy. 
wise,  they  should  nn.l  him  n.3t  f">'^y  "J,  ""''  ;;.,;^  J,,  .„.„  was  a.'ltated  by 
Also,  although  the  >^'^y^l'^^;^^^Z^SZ^Z^:tt  had  a  sunieient  tin.e 
resentment  and  anger  In  the  highest  dc_r.x   ana  ,^rstobe  possessed 

,or  cooling  before  ^;;:^::^:Xr:^;^ ^i:!;::^^^       gives  the  morUl 
of  deliborati..n  and  relUtction,  wncu  or  j  .       j       ^.^  to  tluhl.  and  the 

blow,  it  will  be  munler.  As  ^'^'^^^^^Z^"'^^:,  ,Uey  woul.l  render 
one  observes  t..  the  other    emus      r>t^^a^  ;  ^^^^  ^^^^,  ^^^^^,,^^ 

him  less  expert  with  ^''«  '^'^f  ^''  "  '  ,' /_,.,,,.^rk  he  made  shows  deliberation 
Uills  the  other,  It  is  -^-^^^^'^^l^^^^J^  the  law  allows  the  offen>c 
andrellection.  ^'«'- '^'^^'^y'' '^^ '^ '^°  ,;;rtU  slaver  has  not  the  free  and 
:;:-;=r^rS.r  f=i:^^^^        theory  Of  resentment  m.t 

sary  to  be  now  taken  n"'"^"  «•,;;!; ^^''^'^rt     It  Is  n.ost  proper  to  state  only 
framed  by  the  evi.lence  now  be  ore    hcjurt  ^^^^^^^  ,„,„  ^  suffl- 

sach  parts  of  the  law  <=«"7'-'''"^;  J^  °'^^  ^;;';iew  of  the  distinction  between 
dent  compass,  may  serve  to  «''^''^''' ^^'j-f/J, '^  The  next  thing  to  be 

n,„rder  and  manslaughter  as  far  as  -J^  -^ Jhl    ^^^^^^^^^  ^^  the  rules  just 

done,  is  to  apply  such  parts  o  ''«  ^J'^^^^J^ J^  j^  jj„„is  going  Into  Ramsay's 
laid  down.  The  first  thing  that  P'*^!^"*^,; ''^'  *\^^^^  from  the  whole  of  the 
house.     He  does  not  appear  to  have  b  1  aved  ^  -V  ^^-r.  ^^  ^^^^ 

evidence  it  does  not  appear  ^^^  ^^''i"  ^'"^['^^  "'^..f ,  .f  They  hallooed  for 
retired  before  Daves  and  "-^^-J^^^^  ^nT^a  'aves  charged  Nowis 

him  and  Young  in  the  street,  ^^f  "^  ^'^^-^^^^^^^^'it  „^„i„  ^nd  again,  till  called 
when  met.  with  a  .leslgn  '-^;^^^^';^'-^^^^,  Daves  trlpp.d  up  hU 
a  damned  liar,  when  he  retorted  *>  "  j'*;,  ^^^f^^^he  had  risen,  and  upon 
heels,  kicked  at  him  on  the  ground,  struck  ™  ^  J"^  ^J''^^^,^,,  repeated  his 
Norrls  intimating  an  /"tent.on  tcj^res^rt  J,o  the  ^-^    ^  J   ^^^^^_.  ^  ^^^^^^^  ^^^^ 

bU.ws  three  or  four  times.  ^^^J^^^^^^,  ,,,^,  ,,,  p...sions  of  man  in 
this  a  great  provocation.     ^^  ouui  s  c  ^^^^^  ^^^^^^^  ^^^^^ 


IIUSHAM)  AND  WIIK—  VAKENT  AND  flllLU. 


1191 


AI.R. 

iiros  only,  It  will 
If  it  1)0  !i  provo- 
,y  splttlii;:iuliis 
licr  ciise  it  niuy 
ralsod  to  such  a 
\n\i  powers,  tlic 
isiitlk-lfiitoncto 
•lent  provocation 
nil!  intervene  for 
ivokcd  killeUi  tlie 
t  of  uuiiovernable 
n<-iple  of  revenjje 
;ient  lime  for  this 
B<1.     It  hiith  been 
to  (Upend  greatly 
ury  to  deeide.     If 
ivene,  tliey  shouhl 
I  before;  If  other- 
lanslaughter  only. 

I  was  a^'ltated  by 
id  a  sullleient  time 
arstobe  possessed 
e  gives  the  mortal 
oe  to  fight,  and  the 
they  would  render 
t  and  fight,  and  he 
shows  deliberation 
■  allows  the  offen>e 
s  not  the  free  and 
•  of  resentment  not 

daughter,  not  neces- 
any  such  ease  as  Is 
proper  to  state  only 
ressed  Into  a  sufll- 
distlnctlon  between 
le  next  thing  to  be 
rial  to  the  rules  just 
going  Into  Ramsay's 
"om  the  whole  of  the 

II  to  quarrel;   he  had 

They  hallooed  for 
aves  charged  Nou'is, 
land  again,  till  called 
Daves  tripped  up  his 
J  had  risen,  and  upon 
redress,  repeated  his 
e  question  arises,  was 
he  pisslons  of  man  in 
rrls  liad  killed  Daves 
r.    Norris  returned  in 


three  or  four  minutes,  and  gave  the  fatal   stab.    If  he  came  up,  and  no  dng 
mo      Pisse.1  before  the  stab,  as  the  witnesses,  Campbell  an.l  Dudley,  say  there 
did  n.  t,  then  it  Is  for  the  jury  to  consi.ler  whether  the  three  or  four  minute 
lUrvemng  between  the  blows  near  Mrs.  lUn.say's  and  the  stab  opp     He 
T  lompsonN,  was  su.Ileient  tin.e  for  the  passions  to  cool.     If  it  was.  t  e  killing 
was  murder.     If  it  was  not,  the  case  falls  under  the  san,e  cousl.lcrat.on  a 
llu-  fatal  stroke  had  been  given   when  Daves  llrst  struck   h.m.     If  the  ju  ) 
believe  what  was  sworn  by  Mrs.  Thou,pson,  and  which  the  other  witnesses  do 
o   mention,  that  Daves,  when  he  a.lvanced  towards  Norris  after  his  return 
"truck  him  two  or  three  blows   before  the  stab,  they  have   a  right  to  consider 
vhether  that  was  not  a  fr..sh  provocation,  su.Ileient  to  extenuate  the  hom.clde 
nto  n.anslaughter.     If.  however,  the  jury  believe  there  was  not  'Y!''" 
thue  for  the  passions  to  subside,   and    that   the   blows   mentioned  by  Mrs. 
Thon,pso„  did   not  pass,  yet  the  elrcun,stances  related  by  two  -tnesses  of 
Norris'  having  twice  denle.l  his  having  a  we.-oon  or  clul)  as  It  ten.ls  to  evince 
deliberation  an.l  reflection,  must  be  taken  into  their  consideration;  and,  if  they 
lielicve  from  tlie  circumstance  tliat  he  at  that  time  had  a  reflecting  capacity,  and 
meant  to  conceal  the   weapon  from  Daves  In  order  to  draw  hi.n  on,  that  he 
might  kill  him,  then  he  Is  guilty  of  mur.ler.    It  is  proi.er,  however,  to  observe 
tlmt  such  a  conclusion   is  in  some  sort  negatived   by   Mrs.  Thompsm,,  who 
declares  Norris  told  him  to  stand  off,  or  the  worst  would  be  his.    The  jury 
will  now  take  the  law,  the  facts  and  the  circumstances  of  the  ease   and  by  a 
careful  comparison  of  the  one  with  the  other,  they  will  draw  a  conclusion  and 
say  whether  the  prisoner  is  guilty  of  mur.ler  or  manslaughter.     I  trust  I  have 
stated  the  law  correctly." 

c  70.,    Provocation-HusbandandWlfe.-The  killing  of  an  adulterer 

m  the  act  by  the  husband  Is  considered  In  the  law  as  done  under  legal  provoca- 
tlon.' 

§710   Provocation  -  Parent  and  Child.  -  If  a  father  sec  a  person  In  the 

act  of  committing  an  unnatural  offense  with  his  sou  and  Instantly  kill  him  he  Is 
uuilty  only  of  n.anslaughter.     In  R.  v.  Fuiher.^  the  father,  learning  of  such  a  case, 
went  in    search  of    him,    and    killed  hlra.    Pauk,  J.,   in   charging    the   jury 
said-    "There   Is    no    doubt    upon    the    evidence    that    the    deceased    came 
bv    his    death    in    the    manner    stated    in    the    indictment.      There    would 
be  exceedingly    wli.l    work  taking  place  in    the    world   if    every    man  were 
to  be  allowe.1  to  judge  in  his  own  case.    The  law  of  England  has  lal.l  it  down 
posltlvelv  and  clearly,  that  every  killing  of  another  is  itself  mur.ler,  unless  the 
party  kiillng  can  show  by  evl.lence  that  it  is  a  less  offense;  or  unless  circum- 
stances arise  in  the  case  which  will  either  reduce  the  killing  to  manslaughter 
or  reduce  It  to  no  crime  at  all.    There  must  be  an  instant  provocation  to  justl  y 
a  verdict  of  manslaughter.    The  case  put  by  the  counsel  for  the  prosecution  Is 
well  known     The  case  put  in  our  law  books  Is  applicable  to  a  case  of  a.lultery, 
and  I  believe  such  a  case  vs  the  present  In  Its  circumstances  never  occurred 
before      '  When  a  man  finds  another  in  the  act  of  adultery  with  his  wife,  and 
kills  him  m  the  first  transport  of  passion,  he  Is  only  guilty  of  manslaughter  and 
that  in  the  lowest  degree;  for  the  provocation  Is   grievous,  such  as  the  law 


1  Price  V.  State,  18  Tex.  (App.)  474  (188.5) ; 
Slater.  Harmon, 78  N.C.518;  and  Bee  noto 
in  51  Ain.  Kcp.  at  p.  328. 


2  8  CAP.  183  (1837J. 


111>2 


.,^    »/iii\ST   THR   VKUSONS   OV 


INDIVIDUALS. 


1..  111..  l\rst  tninsportof  pafslo"'  " 
roasona....V  .-..nclu.l.H  can  n-.t  >-  .'.n';; ,  ,  ,  , ,,,,  „,,MUM,t  InmcU-l  ,hc  .u- 
this  nmu  lu.l   K-..  the  tluu«  "M- P     •  ^  "  ,  „,,,  „,...,  willUn   th. 

;„1.  in  tlut  C..IH.,  -.it  leust  1  H  >   '    '  r  ,,,„„.,  ,„^,,  tin..-  to  .'ool,  H  «ll 

Th..  co«ns..l  for  the  l-ri^  onor  aM  ,  ^^J  ,.,,„„„  „,rsons.  tluit  .t  iHn.jt 
L  n.ur.l.r.  »ut  1  suy ,  In  the  hea  .  >  V  ^^^  •  ^^  ,^^^^,  ^,„.. ,,  ,.„„  „r  no  ts 
exactly  a  quost^on  or  V-'  '  '  ;  j"j  ...^  ,„,y  ,in.l  the  Wn.th  «t  time  which 
rather  a  qnestiou  of  law.     HH  t,  l   J  '  •      J    ,  whal  a  state  shonUUvt 

Cs  .«■      -"I—  ^'-  ■  '""'^  '""\  ;i      ,    K-       lone  to  hlH  chil.l.  nhonhl  be 
„  in  if  t  man  on  hearu.«  tlmt  s<Mnoth.nu' lu-l  h   '  ^^^^    ^,,^  „,. 

a  ,  r  vTo  take  the  law  Into  h'.s  owu  "-;'  '  ^^  '  ,\  .,.raone  from  other., 
t:;:.:  ■  .»  thisea..  ,h.  father  o..^  '-^'  :::;':;  i.....  w...  are  wi.h  u,e.  that 
1  .ay,  therefore,  an.l  I  cU>  H  ;;',„'  ."^.e  fron^nura.r  to  n.inslan.im-r.  W^^^ 
tu.r  .  1^  ""t  ^•"""«"  ^"  '■^■''"'^''  ^  ,  r,  to  r-.lne.-  this  oflen...  .von  to  man. 

tack  on  the  .le.  ea^e.l"' 

P.  .v.  .l..'u..'^  th..  prisoner,  alon,  -  '  . '"^.f,  ^  \  ..,.„  a  pistol  at  hhn 
Tm  ler  of  Tinn.thy  Shea,  on  W^'I't^-"""'^  -'..',  „,  ,.ii.,n  the  .  rl^.n.-r,  wUh 
Th  evhUnco  w.-nt  to  hIu.w  that  on  -  "  ^^  ;.  ^^  ,.,  ,  f,.llc,  an.l  after  visit- 
U  ,  -e  of  his  eo,npani..ns.  -'»'-' ^.^'^  ';,.,, ar.l  Street,  ne.t  .lo..r  ,o  the 
;,lve  or  six  .lrinkin«  h.u.ses  ''"t'-'-^'<>;"  ^  '  '  ,  ,„o  .lo..r  of  the  bas.Muent 
:^      ;...  of  the  .l.-ease.l   ana  '-;-  ^^  rhons..  an..  In  which  the  .le- 

occnpixl  l.y  the  decease.l's  -^^^^^ U  there  en,:..e.l  sinuin^  an.  c.. 
c..ase.l.twoof  his  '>'•"'""'•'*•'"';;'"',,  or  one  of  the  Inmatos  ca  ne  ont  a,  rt 
ron.iu«.     AH  Anstm  was  P--'^  ^  ";,  ,  ^^^  ,,,,..„  l.c  r.-f  use.l  to  d...     Af -er  re- 

r  ir  The  ao.>r  was  then  ^';--" ^  .;:  J^.:;  U  J  other  .lefendant 
o,,,.'or  t.)  .irlnk,  but  rtfuscl.    One  ..i   >  „„.,„„„,,,a  i.,  fasten  the  door 

N:btt,  followed  him  into  the  '--'-f ' '^^  ,       j,,!sbitt  .led  fr..m  the  room 
o     u      A  row  th..n  be^an.  in  t  e  co.se  o  -h  ^^^^^^  ^^  ^^^^^^^^^  ^^ 

rri;;rr:;:;-r;:b.r^^ 

s  not  ascertained.  sou>e  one  ^i;;^'^^^^,,  the  deceased,  who  was  thou 


"  a  1  rark.C'.  C.  IStd'M.-' 


^^ 


PROVOCATION rr.OIM.E    V.  AVSTIN. 


11S)3 


passion.'  n 
ntUcU-il  the  In- 
i-i-ii  williln  tlu' 
..(  the  juilfSi'H. 

ti>  Moh  It-  will 
IS,  Unit  it  iHlltlt 
)C(>')1  or  not,  Is 
,  oi  tlmi-  whifli 
stiitf  slii>iil«l  wc 
chUil,  HlK.uld  be 
nco  on   the  of- 
m  from  oilitr!*. 
re  Willi  ine,  ilmt 
iisliiii'-'litiT.     W*' 
iiM-  (Vfii  lo  mail. 
,tfoH*  tleri'llclloii 
It,  from  till!  pris- 

ittoilUated  AM  at- 

»ro  vocation.  —  in 
4  lii(lU;ti'<l  for  the 
r  II  pistol  at  liiiii. 
tin- ,  rlsoiur,  with 
lie,  anil  after  visit- 
l,  next  il<)i>r  to  the 
,r  ol  the  liasi'iutnt 
i\  In  which  tlie  ile- 

eil  slnuiiif?  «i""'  *='^' 
lati's  ca  lie  otit  aid 
iHl  to  ilo.  Afier  re- 
,1  (Irauijeil  Into  the 
repeateiUy  uri^eil  to 
he  other  iKfeiiilant, 

l„  fasten  the  il«>or 

lUil  f loin  the  room, 
itcher  at  Austin,  anil 
T.    Austin  retreated 

siruck  a  1)  ow  with  a 
L.  1)U)W  with  the  chair 
iilfroniasi.'i-barrelcd 
ceased,  who  w;»s  then 

which  Austin  had  re- 

s  he  fell  and  expired : 

whether  hefore  or  after 

It  was  from  a  lamp 

s  standing  l>y  the  bar, 

us  previous  goo-l  clmrac- 
154  (1847.) 


could  easily  extln«ulsli   It  with   a  breath.     After  the  .l,lu«    ti>     ■'  «  ^^^^^ 
treated  towards  the  p,.llee  station  house,  distant  about  one.  hund  el  feet  f  o ... 
he  scene  of  the  ufTray.    Cn  the  way  wlileh  he  had  parsed,  a  pisto   w  s    f  ir- 
wanls  found.     A..stin  repaired  directly  to  the  statio.i  house,  where  he  >xa      i- 
l.vthc  cMptait.  of   the  police,  who,  „bservln«  him  to  be  ve,-y  '>"';"  >."^^^J^ 
him  to  be  take..  ea.-e  of  a..d  a  physlela.i  to  be  se..t  for.     «)u  exa.nin  ..«  him,  it 
'  "  found  that  he  had  received  a  very  severe  wound  on  ,he  forehead  wi  1.  so..,e 
sharp  ins.rume.i.,  which  had  cut  th.-ou«l.  the  rim  of  h.s  hat,  a..d  ^vhb  I  h. u  e- 
„.,.,  hi.n,  ,t  hole  was  cut  ihrou'.;!.  o.ie  chock,  as  If  a  stab  from  a.,  oyster  knife 
:       rii.us  bruises  on  ids  head  and  body,  showln,  that  he  had  received  a    leas 
„.,  i.iows.     lie  was  too  ill  from  these  wou.ids  to  be  .v.noved  fnnn  the  sla  Ion 
.o  se  for  several  days,  and  several  weeks  elapsed  before  •-  arose  from  h.s  bed. 
There  was  ...u.h  contradictory  evidence  In  the  case.    The  father  of  the  He- 
ceased  swore   positively  to  his  having  seen  the  prisoner  tiring  the  pistol  f.om 
the    I   ewalk,  ,  f.er  the  aff.-ay  was  over,  while  the  wi...esses  tes.ltled  tl,at  he  wa 
a^ilulltual  drunkard,  that  he  had  gone  to  bed  very  dru.ik  that  .vf  ternoon,  a.  id 
wl    asleep  in  another  room  whe.i  the  affray  began,  and  was  just  rising  f.o,..  1.18 
'   all    Hon  expired.     It  was  also  proved  that  the  family  o    tl.e  She.is  was 
vcM-v  debased,  the  daughter  being  a  stru.npet,  the  mother  sharing  with  her  the 
;ges\^;  he    prostltutlo..,  the  deceased  had  been  a  convict  In  the  State  prison 
11  d  1  Orother.  one  of  the  witnesses,  was  then  in  con.lnen.ent  o.. ';'""  |^^-J 
^"ealliig,  and  that  the  house  they  kept  had  freque.itly  attracted  the  notice  of  the 
nolice  for  its  riotous  and  disorderly  character.  .      ,      .,        ,    .,.. 

F  .WAU..S  J  ,  in  charging  the  jury  said  that  the  llrst  question  for  the...  to  .le- 
teri      e     as,  w'hether  t'he'prlsoner  had  tired  the  pistol.    This  was  swo...  to 
no    t  vely  by  two  wlt..e8ses:  Shea,  the  father,  and  Clara  King  a  girl  of  the 
owi  \Vl  o  was  passing  at  the  moment.    The  testi...«..y  of  the  father  was  not 
o      '.^   d  upon.    Ifl^  character,  his  iutoxicatio..,  his  ntro.ig  feelings  tind  the 
al  eh  o  is  wLlch  had  been  proved  against  him,  fo.-bid  the  idea  <.f  g  ving  much 
Ir     1    U.    1....    The  testi.no..y  of  the  girl,  however,  had   not  been    "'l-vehed. 
b      h^ii  been  corrobo.-ated  by  several  independent  circun.sta.iees  «"'- --^ 
a,  dpartleula.lv  by  the  facts  that  all  the  wit..esses  unite  in  say l.ig,    he  fl    tig 
w      f     m  the  v-e.-y  spot,  where  all  agree  that  the  prisoner  was  at  the  tln.e ;  that 
le  pis   ,1  when  found  was  bloody,  and  that  he  alone  of  all  the  party  was  bleed- 
g    that  he  had  an  Inducement  to  do  It,  whether  from  motives  of  revenge  or  In 
s  tf:defence ,  that  the  direction  of  both  shots  was  from  where  A  ...  V.  was,  back 
npon  those  who  had  beat  him;  that  the  pistol  was  found  at  a  spot  wh.    ■  he  had 
wp  s.d,  that  he  who  llred  the  pistol  wore  a  white  hat,  and  that  the  pr.s. 
o.ie.-  alone  had  such  a  hat  that  evening.     From  these  considerations,  the  jury 
m     t   leterinine  whether  it  was  not  the  prisoner  who  tired  the  pistol,  and  in 
deer,  lining  It.  thoy  must  bear  in  mind  that  the  evidence  tolsatlsfy  them  must 
exd.i  e  to  a  moral  certainty,  every  hypothesis  but  that  of  guilt,  that  the  con- 
•iction^f  guilt  must  flow  naturally  from  the  facts  proved,  and  no   by  a  forced 
or     nha-d  construction,  and  be  consistent  with  all  the  facts,  for  if  any  one  is 
u  terly   ..co..sistent  with  that  conclusion  it  can  not  follow;  and  that  in  case  oi 
do«bt!it  is  safest  to  aciiuit.  for  the  protection  of  l.inocenee  has  an  equal  claim 
upon  the  administration  of  justice  with  the  punishment  of  guilt 

If  upon  thU  question  the  conclusion  of  the  ju.-y  should  be  adverse  to  the  prls- 
oner  he  next  nqulry  would  be  Into  the  nature  and  quality  of  the  act  wh  ch 
Zuld  be  thus  estabflshed  against  him,  and  whether  the  homicide  was  3 ustlfl- 
able  or  excusable,  or  was  murder  or  manslaughter. 


11!I4  ClUMKH   AOAINST   TIIK    I'KUSONS   OF   INDIVIDIALM. 

Tl..-  hcmUl.lo   would   lu.  .justlfliiMlc  under  our  law,  only  In  cane  It  was  com- 
n.ltt,-,l  l.v  th.<   i..l».<.ufr   ^vh.n  tluTe  wa«  n'aHonul.lr  (jn.un.ls  to  ai.iMvli..n.l  a 
,k.sl„M.  to  do  l.nn  >oM.,.  «rcMt  iwrson.l  injury,  un.l  tlicro  wuh  Imn.lnent  dunK.r  o 
HUfl.  d.'HltJn  l).ln«  a(c<..npllshi(l.     Hut  o(  this  tlio  jury  w.ro  to  l.o  judjiiH,  not 
thr  prisoner,  and  It  was   (or  thru,  to  sav  fron.  all  tho  circun.stanc.s   provod 
|„.for»!  tin .n.  wl.etlur  tlwrc  was  a   rcasonaldo  Kn.und  for  such  up,,roh.Mislon 
und   wlu-lhL.r  Mi.r.r  was,  at  tlio   moment  llie  faial    shot  was   llred,  In.mineut 
dun.'.r  that  sunn-  irreat  persc.ual  Injury  w..uld  IniNe  been  done  to  the  prisoner. 
This  would  .leiMU.l  mainly  upon  tho  (ads   when  an.l  from  what  position    he 
nWlol  was  llredV     If  llre.l  after  the  prisoner  ha.l  .seai-eil  from  the  party  lu  the 
lu.use  and  after  he  hud  reache.l  the  sl.lewalk,  It  n.ay  have  llowed  from  a  Bplrit 
of  reven;;e  (or  the  Injuries  under  which  ho  was  smartiuK. 

Bnt  If  he  tired  before  he  had  extricated  himself  from  the  party,  who  had  thus 
forclldv  drawn  hhn  Into  the  l.uil.lln«,  and  had  the^  displayed  t..wards  him  such 
„„institla'-le  vlolen.v,  he  mi;:ht  at  the  moment  have  very  reasonably  apprc- 
hende.1  (urther  personal  injury  and  mi'.'ht  be  justillablo  In  usiug  the  means  at 
hand  to  protect  himself  from  it.  ,  u,  u 

There  was,  however,  anoilur  view  ..f  the  case  In  which  the  prisoner  might  be 
iuslltled  even  If  he  ha.l  llred  the  pistol  after  he  ha.l  left  the  pave.nent.  One  of 
the  witnesses  ha.l  testille.l  that  the  i.rls..ner  ha.l  been  followed  fr.nn  the  base- 
ment bv  one  .,(  the  party  Insl.le,  ami  ha.l  been  struck  with  a  chain  while  as- 
cendin-V  the  steps  on  his  retreat.  If  this  were  s...  then  the  apprehension  o 
personal  it.jury  woul.l  nut  cease  with  the  prisoner's  leaving  the  basement,  and 
the'  hnmlnent  danger  in  which  he  ha.l  been  place.l  might  have  continued  up  to 
the  moment  of  tlrini,'  the  pistol',  and  thus  he  bo  justllled  in  flrln;,'  it. 

If  the  inry  were  not  satlstle.l  thatjt  was  justifiable,  they  were  next  to  Inquire 
whether  It  svas  excusable.     It  is  so  under  our  law  when  commltte.l  by  accident 
or  misf  ..rtuue,  lu  the  h  at  ..f  a  passion  upon  a  sudden  and  suttlcient  provocation 
or  upon  a  su.l.len  -ombat  without  any  dan-erous  weapon  being  used.    The 
nattreof  the  weap..n  use.l,  and  the  man.>er  in  which  it  was  used,  mus    be 
mainlv  Instruu.ental    In  .ktermlnh.g  this  question.    Thus  If.  in  the  heat  o 
Dassl.'.n,  upon  sulllcient  provocation  or  upon  a  sud.len  combat,  a  man  had  used 
his  walkin-  stick,  or  a  butelior  it.  his  stall  had  used  his  knife  that  lay  near  h.m, 
era  c.K.per  use.l  the  a.l/e  with  widch  he  was  then  at  work,  and  '"^d  gl^^n  a 
blow  which  was  fatal,  but  without  any  intention  to  take  life,  the  homicide  might 
he  excnHal)le.    But  that  could  hardly  bo  where  tho  weapon  use.l  was  of  a  dan- 
gerous  character,  eousiructed  solely  for  the  purpose  of  taking  life,  and  which 
coul.l  scarcely  be  llre.l  off  without  hazarding  it.    If  In  the  melee  the  pmoner 
h..  1  use.l  tlu/pistol  as  he  might  any  other  hard  substance  found  at  the  Instant 
iu  Vs  ,.oclet,  bv  striking  a  blow  with  It  calculated  rather  to  wound  than  to 
W'd    but  had  killed,  it  might  be  attributed  to  acclden.;  or  misfortune.    But 
.hat could  not  with  propriety  be  predicated  of  the  act  of  intentionally  firing  the 
pistol,  an.l  unless  such  firing  was  justifiable.  It  was  either  murder  or  man- 

^' Whether  the  act  was  murder  or  manslaughter  under  our  statute,  depended 
entirely  upon  tho  existence  of  an  intention  to  kill  either  some  particular  person, 
or  generally  some  one  of  a  nuubor  of  persons,  against  whom  In  a  mass  the  fata 
act  is  perpetrated  by  one  then  enga-ie.l  In  c  .mmitting  a  felcn.y.  Except  in  that 
one  case,  no  homicido  is  m.-.rder  without  an  intention  to  kill,  ami  with  su'h  an 
intention,  everv  homicide,  with  the  sindo  exception  already  mentioned,  unless 
It  be  just  flable,  is  murder,  whether  the  intentionis  formed  m  the  instant  or  has 


Arfi 


PUOVOCATION  —  PKOn.K    V.  Al'STIN. 


lli)5 


U.S. 

IMC  It  was  com- 

Lo  iipi'i"'!"''"'  'I 
Incut  (lanntr  of 
\n;  jiulHiH,  not 
■*tiiiic>'.s  (irovi'tl 
I  u|)|ir«'hcMisl«)n, 
llnd,  liiimliu'Ut 
,o  tliu  prisoner, 
hat  p(i;4itlon  the 
tliu  party  lii  the 
liil  from  a  spirit 

y,  who  had  tliiis 
iwanis  hlin  Hiich 
awoiiahly  appro- 
ug  th<.)  means  at 

rlsom-r  might  be 
kremoiit.  One  of 
I  from  the  base- 
.  I'tiain  while  as- 

apprtlieuslou  of 
le  basement,  and 

continued  up  to 

•e  next  to  Inquire 
Itted  by  accident 
lent  provocation 
»ulng  used.    The 
vs  used,  must  be 
[,  In  the  heat  of 
;,  a  miiu  had  used 
hat  lay  near  him, 
and  had  given  a 
tie  homicide  might 
ised  was  of  a  dan- 
ng  life,  and  which 
nelee  the  prisoner 
and  at  the  Instant 

0  wound  than  to 
misfortune.    But 

itlonally  firing  the 
murder  or  man- 
statute,  depended 

1  particular  person, 
In  a  mass  the  fatal 
ly.  Except  in  that 
,  anil  with  su'li  an 

mentioned,  unless 
a  the  Instant  or  has 


long  been  entertained.    Such  Intention  may  be  inferre.l  from  the  act  1.  .  f.  for 
it  may  be  one  which  of  Itself  plainly  Indicates  a  heart  regarcless  ..   so,  ty 

an.l  fLuy  bent..n  mischief,  and  never  are  to  be  presumed  to  Intend  tl..  »  .  n  al 
and  Inevitable  consc.uences  of  the  acts  which  they  will  fnlly  perforn.  bU  un- 
less th..ro  be  sneh  an  Intention,  the  act  can  not  be  more  than  .uan^'.ug  Uer 
It  would  readllv  be  perceived  that  tliis  view  of  the  statute  had  entirely  miikt- 
s  Zl  many  of  the  r'ules  of  the  law  of  hon.lcl.le  as  It  exN*.-!  in  H"^"-  •  ;;"^ 
which  had  been  .p.otcd  on  this  occasion,  and  an.ong  them  the  whole  d.e  Ino 
of  l.-Pl.ed  malice  and  the  power  of  recent  provocation  to  reduce  the  act  from 
murder  to  manslaughter.  nr.,„a 

The  Kngllsh  law  provl.led  very  sll-ht  punishment  for  manshiughter,  sometimts 
as  low  as  the  tine  of  a  shilling,  and  never  beyond  a  year's  imprisonment        o 
remove  from  the  operation  of  so  Inadeqnute  a  penalty  acts  of  peculiar  bar  bar  tj 
such  as  tiiat  of  a  sclioolumster  who  whipped  a  scholar  until  It  die.l,  an.l  that  ol 
the  nmster  chimney  sweeper  whoso  boy  stuck  fast  In  tho  chimney   and   was 
killed  l.v  the  violent  manner  in  which  he  was  pulled  from  the  place,  the  Kngllsh 
courts  adopted  the  principle  of  l.nplyh.g  malice,  when  there  was  In  fact  no  pre- 
meditated  design  to  take  life.    On  the  other  hand,  lest  such  a  principle  should 
"xtend  too  far.  they  adopted  another  principle  which  gave  .o  recent  Pr-ocath^^ 
and  tho  fact  that  the  passions  had  not  time  to  cool,  the  power  of  modltjing  the 
acts  from  murder  to  manslaughter. 

Ill  this  had  been  done  away  by  our  statute.  If  the  homicide  had  been  per- 
petrated without  an  Intention  to  kill,  it  would  be  ma.islaughter  and  •">'""'•«' 
except  .n  the  single  cas.  of  Its  perpetration  by  one  engagod  In  ^<'>"""""S  ^ 
felonv  But  If  perpetrated  with  an  Intention  to  kill,  no  nuitter  how  recent  the 
provocation  or  how  high  the  passions,  it  was  murder.  An  act  of  l'"'"'^''  J;^!-^' ' 
petrated  with  a  premeditated  design  to  effect  death,  though  In  the  very  highest 
night  of  passion,  and  springing  from  even  an  existing  provoca  Ion,  can  hul  no 
ret  in"  pLe  In  m.r  statute  except  under  the  detlnitlon  of  murder  or  justinaWe 
homh-hle,  and  the  Intention  to  kill  being  established,  there  Is  no  degree  or  de- 
scription of  manslaughter  In  this  statute  which  can  embrace  It. 

That  this  is  the  Intention  of  the  statute  Is  manifest  not  only  from  a  careful 
perusal  of  all  Its  enactments  relative  to  homicide,  but  also  from  the  recommen- 
Ta   onl  of  the  revisers.    They  pi.posed  that  murder  should  '-'"f^^-,f;;;;f^^^ 
when  perpetrated  from  a  premeditated  design  to  do  some  g'-^'^',*'"^"^  'f '.y' 
Ilthourh  without  a  design  to  effect  death,  thus  recognizing  and  adopting    he 
principle  of  l.nplled  malice  and  defending  It  on  the  ground  tjat  t  e    m.^actlon 
would  be  such  as  would  ordinarily  lead  to  the  result  of  taking  "^e^    Bu*  the 
legislature  refused  to  adopt  the  suggestion,  and  enacted  a  «f ''«"  7^>'^"'j"  ^'^^^ 
rangunge  of  the  revisers,  was  '<  founded  on  the  great  principle  that  to  constitute 
Ser  there  should  be  an  express  design  to  take  life,  or  such  circumstances  as 
to  Induce  a  very  strong  presumption  of  such  a  design." 

ThiTview  of  the  law  illl  commend  Itself  to  our  favorable  regard  not  merely 
because  it  confines  the  crime  of  murder  within  its  l^g'^'^*^/"""^'';/';  Pre- 
meditated design  to  take  life,  but  U  effectually  destroys  the  doctrine  of  allow- 
wudden  provocation  and  heat  of  passion  to  mitigate  the  offense,  a  doctrine 
most  dangerous  in  its  operation,  because  it  tolerates  the  practice  «  -rry-^ 
Tm  and  takes  from  the  sudden  use  of  them  the  consequences  that  oU!,ht 
S  to  follow.  No  man  can,  under  our  laws,  go  habitually  armed  and  in  an 
iff  ay  use  these  arms  with  an  Intent  to  kill,  without  Incurrln..  the  hazard  of  a 
cScUon  lor  murder,  and  no  violence  ol  provocation,  no  height  of  passion,  can 


1196  CRIMES   AOATNST  THE   PERSONS   OP   INDIVIDUALS. 

mlti-ate  or  extenuate  the  oifense.  U  ^vill  bo  murder  if  there  Is  an  intention  to 
S  u.  ess  self-defence  demands  the  sacrillce.  The  practice  out  of  which  this 
caiC/sprung  is  too  pernicious  to  be  tolerated.  No  life  >vo,.ld  have  been 
tak.n  tleperfonwho  ired  the  pistol,  ^vhoever  he  mi«ht  have  been,  had  no 
lone  into  the  affray  .vith  so  deadly  a  weapon.  The  same  remark  is  app hcable 
fo  he  ast  case  tried  in  this  court,  and  the  sooner  this  law  l'-^"-^;^^"  ^-^^^J 
and  understood,  and  rigidly  enforced,  the  better;  for  far  better  the  and  though 
;  r  ckei  n"^^^^^^^^^^^  the  unseen  majesty  of  the  l.w  affords  its  sure  pro- 

ctlontoalLand^in  the  atmosphere  of  its  supremacy  pervades  every  tene- 
me  t,  howev  r  humble,  than  that  where  gold  may  be  gathered  at  every  footstep 
but  where  every  man  is  armed  to  the  death  against  his  fellow ;  where  every  breath 
's  dra^ramid  the  rattling  of  ,rmor.  and  every  pulsation  beats  with  the  appre- 
heu'^ion  of  instant  conflict.  -j    ..  ,     .u»    -c^- 1# 

Tl.e  inquiry,  therefore,  would  be,  was  there  a  design  to  effect  death  For  if 
there  Vr^  hosvever  recent  in  birth,  the  offense  was  mur.ler;  but  >f  time  was 
an  [ntrntim.  to  wound  only-a  design  to  do  some  great  bodily  harm  and  not  to 
kill,  it  was  manslaughter  and  no  more. 

8  -12   -Adeqviate  cause." -Under  the  Texas   statute  '  any  condition 

or  circumstance  which  is  capable  of  creating  sudden  passion  such  as  anger, 
rage,  sudden  resentment  or  terror,  rendering  the  mind  u,capable  of  coo  leflec- 
tton  whether  accomplished  by  bodily  pain  or  not,  is  •<  adequate  cause."  The 
te'of  lilting  language  towards  a  female  relative  need  not  be  in  her  presence 
to  constitute  ••  adequate  cause  "  within  the  statute.^ 

8  713    "  Adequate  Cause  "  -  Causes  not  Mentioned  In  Statute.  -  In  Gnffee 
V   Stated  it  was  hold  that  to  excite  the  sudden  passion  wh.cli  mitigates  culpable 
horn  c  de  from  murder  to  manslaugl.ter,  there  may  be  other  "adequate  cause 
Sic    those  instanced  in  the  Texas  Penal  Code.    If  in  one's  presence  h.s 
bttr  be  killed,  this  may  constitute  -^h  adequate  cause  pn,vide    they  ^ 
not  iolntly  engaged  in  some  unlawful  act.    The  court  saul:      It  is  true  our  stat- 
Zl  nfnishrng  illustrations  of  causes  deemed  adequate  in  law  to  produce  sud- 
den passion  sulflcient  to  reduce  a  homicide  to  this  grade  (n.anslaughter)  fails 
to   ,    smbe  that  the  slaving  of  one's  brother  in  his  immediate  presence  ,s  an 
!  d  nu'trcau^e.    But  it  i>as  long  since  been  determined  that  the  statuto.-y  illus 
;;  In    are  not  restrictive  and  exclusive,  but  are  merely  Inserted  as  mstances 
l':;x  mplesby  which  tl>ose  charged  with  the  administration  of  tl.e  laws   nmy 
be  ™ned.    Certainly,  to  one  at  all  familiar  with  the  promptings  of  the  hu- 
n,an  le^  "t  and  the  n.ot  ves  by  which  men  are  governed  in  their  resentments  and 
X   onsi    cannot  be  a  maUer  e  f.  serious  question  that  the  death  of  a  brother 
bftl     viol  nee  ^  immediate  presence  of  one,  .s  better  calcu- 

Ited  to  produce,  in  a  person  of  ordinary  temper,  a  greater  .legree  of  anger 
rage  or  rr.entment.  than  any  ol  the  causes  particularly  designated  in  the  stat- 
utf 'and  lit  such  an  occurrence  is  amply  sufflcient  to  render  the  m  nd  inca- 
pable cool  reflection.  Down  deep  in  the  human  heart  there  is  an  abaUng  love 
?or  our  kith  and  kin.  which  intensilles  as  we  approach  a  common  parentage.  A 
b?o  iT'Jv  n^^^^^^^  magnitledand  his  faults  overlooked,  and  upon  summons 
we  t^vtohis  relief  without  pausing  to  contemplate  the  consequences  to  our 
Te IvS,  or  taking  much  time  to  consider  whether,  in  the  particular  instance,  he 


1  Williams  V.  State.  15  Tex.  (App.)   8M 
(1I1S4). 


2  HaJson  r.  State,  6  Tex.  (Ap|).>  S85  (197"). 

3  8  Tex.  (Apii.)  1ST   asSO). 


^^m 


3. 


PROVOCATION "  ADKQUATE  CAUSE. 


Ill 


intention  to 
if  which  tills 
Id  liave  been 
)oen,  had  not 

is  appliciilile 
s  Avell  V  ,iown 
i  laud  thoug,h 
1  its  sure  pro- 
.'8  every  teue- 
lery  footstep, 
I!  every  l)reath 
ith  tlie  appre- 

leath?  For  if 
t  if  there  was 
,rm  and  not  to 

'  any  condition 
iuch  aH  anger, 
of  cool  reflec- 
cause."!  The 
n  her  presence 

te.  —  In  Onffee 
igates  culpable 
iquiite  causes  " 
s  presence  his 
•ided  tliey  were 
s  true  our  stat- 
to  produce  sud- 
islaughler)  fails 
>  presence  is  an 
!  statutoi-y  illus 
led  as  instances 
.f  tlie  laws   may 
tings  of  tlie  hu- 
resentnieuts  and 
;ath  of  a  broi  her 
is  belter  calcu- 
legreo  of  anger, 
iiated  iu  the  stat- 
r  tlie  nilud  inca- 
s  an  abiding  love 
:)n  parentage.    A 
d  upon  summons 
icquences  to  our 
nilar  instance,  he 

©X.  (Ap|).)885(197"). 

.880). 


is  In  the  right  or  the  wrong.  It  suffices  usually  for  us  to  know  that  he  is  in 
danger  and  needs  our  assistance,  and  we  blindly  follow  that  Impulse  born  iu 
us,  and  which  impels  us  to  rush  to  the  rescue  and  save  us  from  harm,  and  leaves 
us  to  contemplate  our  actions  after  the  danger  has  passed  and  reason  has  re- 
giiined  its  sway.  This  Infirmity  (or  virtue)  in  human  nature  can  not  be  ignored 
i.i  the  practical  administration  of  justice,  and  Is  well  established  In  the  law  aa 
pertaining  to  the  relations  even  of  master  and  servant,  not  to  menlion  the  other 
more  Important  civil  relations.*  Of  course  the  principle  can  not  be  taken  into 
consideration,  and  can  have  no  effect,  when  a  brother,  or  parent,  or  master, 
etc.,  rushes  to  the  aid  of  another  engaged  in  the  perpetration  of  an  unlawful 
act,  and  knowingly  joins  in  the  execution  of  the  original  unlawful  purpose;  for 
then  he  becaines  a  principal  in  law,  and  shares  the  culpability  of  the  entire  trans- 
action from  its  inception  to  Its  determination.  A  master,  maliciously  intending 
to  kill  another,  takes  his  servants  with  him,  and  engages  his  adver.'«aiy  on  meet- 
ing him.  His  servants,  seeing  their  master  engaged,  ru-^^h  to  the  rescue  and  kill 
his  antagonist.  At  common  law  this  may  be  murder  in  the  master,  but  only 
manslaughter  in  the  servants.*  The  same  principle  applies  to  various  other  re- 
lations. Including  sometimes  strangers;  ^  but  in  law  hot  blood  is  more  natur- 
ally expected  in  a  case  of  interference  by  a  near  relation  or  friend  than  In  others 
more  distantly  removed.*  If,  therefore,  the  defendant  in  this  case,  not  intend- 
ing to  unite  with  his  brother  in  making  an  unlawful  attack  upon  the  deceased, 
and  not  knowing  the  unlawful  purpose  of  his  brother,  but  awaiting  an  antici- 
pated necessity  for  his  interference  in  order  to  protect  his  brother  from  serious 
bodily  harm  or  death,  threw  up  his  gun  and  flred  simultaneously  with  the  dis- 
charge of  the  pistol  by  deceased  at  his  brother,  or,  seeing  the  intention  of  the 
deceased  to  fire  upon  his  brother,  and  endeavoring  to  anticipate  him,  but  fail- 
ing, the  deceased  being  too  quick  for  hlra  and  discharging  his  pistol  first,  the 
defendant  is  not  guilty  of  any  higher  grade  of  felonious  homicide  than  man- 
Blaughtep,  notwithstanding  the  defendant's  brother  may  have  brought  on  the 
conflict  with  malicious  intent.  Or  if  the  defendant,  with  no  purpose  of  Injuring 
the  deceased,  but  desiring  and  attempting  to  stop  the  progress  of  the  difflculty 
between  his  brother  and  the  deceased,  and  with  no  purpose  or  Intention  to  aid 
bis  brother  in  an  unlawful  and  violent  attack  upon  the  deceased,  saw  his  brother 
shot  down  in  his  presence,  and  in  a  fit  of  sudden  passion,  engendered  by  this 
adequate  cause,  he  voluntari'y  slew  the  deceased  upon  the  Instant,  then  he  is 
guilty  of  manslaughter  and  he  should  not  be  punished  for  any  higher  offense." 

§  714.  ReBlBtiner  Arrest  — Provocation.  — And  thus  the  provocation  of 

being  illegally  arrested  is  a  suflicieut  legal  provocation  to  reduce  the  killing 
from  murder  to  manslaughter.* 

§715.  incltlnertoOommlt  Suicide. —Inciting  another  to  commit  sui- 
cide is  not  an  offense  at  common  law.' 

§  71G.  Sparrlntr  Match — Death  Restdtingr  from,  not  Manslaugrhter. — 

In  R.  V.  Young,^  John  Young,  Williain  Shaw,  Daniel  Morris,  Edward  Donnelly, 


'  Hor.  A  Thomp.  on  Selt-Def.  750,  and 
authorities  cited.  Defences  to  Crime,  Vol. 
I,  of  tliis  series. 

a  1  Hawk.  P.  0.,  ch.  31,  see.  66. 

3  /(/.,  sec.  819. 

4 /(i.,8eo.  ue. 


»  Com.  V.  Carey,  12  Cash.  246  (1853) ;  V.  8. 
V.  Bloe,  1  Hughes,  SCO  (1875) ;  RatTerty  v. 
People,  69  IU.  111.  See  ante.  Defenses  to 
Crime,  Vol.  I.  of  tills  series. 

•  K.  ».  Leddin(?ton,9C.  AP.  79  (1839). 

'  10  Cox,  371  (1666). 


L 


.    »nvTN-;T   THE   PEUSONS    OF   ISDlVIDUALS. 
1198  CHIMES   AGAINST   1 H^    •  r" 

'-:^:::\^^^~^ 

him  to  ,o  ^vith  him  to  the  P""^;"    ,^  .'^^/^^^^^^  upstairs  into  a  room  ^vhcre 

look  after  him.  When  they  «'™^;'^;;,;;  ,^„e.  lu  the  room  there  in  a  ang. 
sparring  often  takes  pUvce.  /^a^^  ^^  ^^^^  ,„,  ,oom  and  the  other  by  ropes, 
one  side  of  which  is  formed  by  «"«  «  ^^^  ^  ^.i,^  Donnelly  acted  as  his  sec 
Evans  took  Wilmot  into  the  rln«,  and  together  ^v.  ^^^^  ^^^^^^  ^^^,  ^^^^^ 

ond.    Yonng  ^vaB  Wllnot's  opponent,  and  hU.Bec^  ^,^^y 

Flynn  and  Good  were  also  ^j);-"^  J^^'^^'^  s^-^'^      "'  '''""'''  ''T'^' 
were  naked  to  the  wa.st.    They  ^^^^^  J''"^ "  j^^    i^.-es  for  upwards  of  an  hour. 

S:  dressed  him  and  sent  him  off  to  tj-  hosp't^l  ^  ^^^^^^  ^^^. 

Kvans  further  said  that  what  -^^  ^^^^^^l  ^J  [fiends;  that  he  was  a 
ducted;  that  aU  the  part.es  ^^ ^^^JJ^'J^^  J^^  with  his  pupHs-    He 

teacher  of  sparring  '"/"'^'^"' ''"^^J^^^'^X  but  never  a  death.  If  a  man's  nose 
had  known  acchlents  happen  "^^^-rTw  1  make  it  bleed,  but  It  requires  a  very 
gets  knocked  with  the  gl«^««' ^^^yj;!",;  either  witness  both  men  were 
Lrd  pair  to  give  a  black  eye.  A^*=°'^""f^f„J"J,\„^  came  up  to  the  last 
getting  rather  tired ,  that  after  having  a  S'*;^  ^^J^^^'^ ,4.  They  were  then 
?o«nd  .<  ail  in  a  stumble  together  ''a°d  had  a  hug  i„g       ^^^^^  ^^^^^^  ^^  ^^^^^^ 

too  exhausted  to  ^J^f^^-^^T.Jrdteased  slipped  away,  or  was  thrown 

-rtr:rr:-5^i^ 

ture  of  an  artery  on  the  brain  "'^"f  ^  "^  ^  „     ^  answer  to  questions 

might  have  been  caused  either  ^^^  .^^°J  "^,„"  J  .^t  sparring  with  gloves  In 
from  the  court,  this  witness  expresse^  his  o^^^^^^^  ,^  ,„„,„ 

•      the  manner  described  by  the  other  witnesses  jn^  ^^^^^  ^^  ^  ^^^^ 

life;   but  that  death  would  not  »>«/  "^^^^^^Z"  i^.  \  nian  might  die  from 

-^r^^j^crsTof^a.^ 
zn::::^:^^^^^^^^^^  ---  --^^  -^^'-^  ^°""" 

"Ca«cl.  for  the  prosecution,  referred  to  Be^ina  v.  Har.raW  -here  the 
point  had  been  decided  tb«  other  way.  ^^^^  ^  ^m  whether  the  wit- 

BRAMWEI.L,  B.,  said  thatlt  had  certal"^^^^^^^^^  ground,  that  In  so  doing, 

nesses  mightnot  have  objected  '<^ ^^^^'^^"^'^'1  the  presenthe  thought  It 
they  might  criminate  themselves,  but  in  such  a  c«8«  w 
could  not  be  carried  to  that  extent. 

1  6  C.  *  ?•  W* 


LAWFUL    SPORT  —  RAlLKOAl)   I'ASSENGER. 


1199 


feloniously 

I,  who  asked 
market,  and 
room  where 
ere  is  a  lUig, 
ler  by  ropcB. 

.(I  fvS  Ills  SIC- 

ris  ami  Daw. 
cs  on.  They 
ids,  sparring, 
Is  of  an  hour. 
Young,  on  his 
«  center  of  the 
nd  gave  in  for 

ag,  fairly  con- 
that  lie  was  a 
is  pupils.    He 
I  a  man's  nose 
requires  a  very 
both  men  were 
e  up  to  the  last 
rhey  were  then 
Tying  to  throw 
,  or  was  thrown 

Cross  Hospital, 
lion  from  a  rup- 
right  ear,  which 
rer  to  questions 
ig  with  gloves  in 
erous  to  human 
rould  be  a  very 
n  might  die  from 
of  a  glove.    The 
jIow,  but  that  the 
J  they  then  would 

lere  was  no  case 
b  an  unlawful  con- 
d  require  corrob- 

;ra»e,*  whore  the 

i  whether  the  wit- 
>d,  that  In  so  doing, 
esenthethongbtlt 


M.  Williams  tlien  further  submitted  tliat  there  was  no  evidence  to  support 
a  charge  of  manslaughter  against  any  of  the  prisoners,  as  the  death  happened 
in  the  exercise  of  a  mere  lawful  sport,  citing  East's  Pleas  of  tiie  Crown:  '  "  If 
death  ensue  from  such  sports  as  are  Innocent  and  allowal)lc,  the  case  will  fall 
within  the  rule  of  excusable  homicide;  l)iit  if  the  sport  be  unlawful  in  itself,  or 
productive  of  danger,  riot,  or  disorder  from  the  occasion,  so  as  to  endanger  tiie 
peace,  and  death  ensue,  the  party  killing  is  guilty  of  nmniluughter.  Manly 
sports  and  exercises  wliich  tend  to  give  strength,  activity,  and  skill  in  the  use 
of  arms,  and  are  entered  into  merely  as  private  recreations  among  friends,  are 
not  unlawful;  and,  therefore,  persons  playing  by  consent  at  cnilgels,  or  foils, 
or  wrestling,  are  excnsable  if  death  ensue.  For  though  doubtless  it  can  not  be 
said  tliat  such  exercises  are  altogether  free  from  danger,  yet  they  are  very 
rarely  attended  with  fatal  consequences,  and  each  party  has  friendly  warning  to 
bo  on  his  guard.  And  if  ttie  possibility  of  danger  were  the  criterion  by  which 
the  lawfulness  of  sports  and  recreations  was  to  be  decided,  many  exercises  must 
be  proscribed  which  are  In  common  use,  and  were  never  lieretofore  deemed  un- 
lawful." 

Poland,in  reply,  referred  to  section  42  of  the  same  chapter,  where  it  is  said: 
"The  latitude  given  to  manly  exercises  of  tlie  nature  ai)ove  described,  when 
conducted  merely  as  diversions  among  friends,  must  not  be  extended  to  legal- 
ize prize  lighting,  public  boxing  matches,  and  the  like,  which  are  exhibited  for 
the  sake  of  lucre,  and  are  calculated  to  draw  togetlier  a  numl)er  of  idle,  disor- 
derly people,  for  in  such  cases  the  intention  of  the  parties  is  not  innocent  in 
itself,  each  being  careless  of  what  iiurt  may  be  given,  provided  the  promised 
reward  or  applause  be  obtained.  And  again,  such  meetings  have  a  strong  ten- 
dency in  their  nature  to  a  breach  of  the  peace." 

Bramwell,  B.,  aald  the  difficulty  was  to  see  what  was  unlawful  in  this  mat- 
ter. It  took  place  in  a  private  room;  there  was  no  breach  of  tlie  peace.  No 
doubt,  if  death  ensued  from  a  fight,  independently  of  its  taking  place  for 
money,  It  would  be  manslaughter,  because  a  fight  was  a  dangerous  thing  and 
likely  to  kill;  but  the  medical  witness  here  stated  that  this  sparring  with  the 
gloves  was  not  dangerous,  and  not  a  thing  likely  to  kill. 

After  consulting  Bylks,  J.,  Bramwbll,  B.,  said  that  he  retained  the  opinion 
he  had  previously  expressed.  It  had,  however,  occurred  to  him  that  supposing 
there  was  no  danger  in  tlie  original  encounter,  tlie  men  fought  on  until  they 
were  in  such  a  state  of  exhaustion  that  It  was  probable  they  would  fall  and  fall 
dangerously,  and  If  death  ensued  from  that.  It  might  amount  to  manslaughter, 
and\o  proposed,  therefore,  so  to  leave  the  case  to  the  jury  and  reserve  the 
point  If  necessary.  Kutyuilty. 

§  717.  Railroad— Klllln*  of  Passentrar  — Dsoeasad  Must  be  a  "Passen- 
ger" at  the  time.  — Under  the  Massachusetts  statute  of  1874,2  the  deceased 
must  be  a  "passenger."  Thus  an  Indictment  will  not  lie  for  killing  one  who 
at  the  time  has  ceased  to  be  a  passenger,  as  by  leaving  the  train  when  in 
motion.^ 


1  ch.  v.,p.  il. 
*  ch.  372,  sec.  163. 


s  Com.  V.  Bjston  &  Maine  R.  Co..  ISB 
Mmi.  SOO  (1880). 


AB 


"  ■^ 


INDEX. 


ABDUCTION. 

See,  also,  Seduction. 

Abduction  for  the  purpose  of  sexual  intercourse  is  not  abduction  for  tlie 
"  purpose  of  prostitution."     State  v.  Stoijell,  p.  723. 

Tlie  defendant,  by  false  representations,  persuaded  a  girl  to  go  with  him  to 
a  neighboring  town,  where  he  took  )ier  to  a  hotel  and  made  her  partly 
drunk,  when  he  had  intercourse  with  her  several  days.  Held,  that  he 
was  not  guilty  of  abducting  her  "for  the  purpose  of  prostitution'* 
within  the  statute,  p.  T2Z. 

Prostitution  means  common,  indiscriminate,  Illicit  intercourse,  and  not 
illicit  intercourse  with  one  man  only.  Therefore  under  a  statute  against 
abduction  for  the  purpo<ie  of  prostitution  one  can  not  be  convicted  of 
abduction  for  the  purpose  of  sexual  intercourse  only.  Osbom  v.  State, 
p.  726. 

A  statute  against  the  abduction  of  females  of  "  previous  chaste  character  " 
means,  of  actual  personal  virtue  in  distinction  from  a  good  reputation. 
On  tlie  trial  of  an  indictment  founded  on  that  statute,  it  is  admissible 
to  prove  previous  particular  acts  of  illicit  Intercourse  on  the  part  of  the 
female  abducted.    Lyons  v.  State,  p.  729. 

An  indictment  for  enticing  an  unmarried  female  to  a  house  of  ill-fame  for 
purpose  of  prostitution  must  allege  and  the  prosecution  must  prove, 
on  the  trial,  that  such  female  was  of  previous  chaste  character.  People 
v.  Rodtrigas,  p.  729. 

"Previous  chaste  character  "  in  the  statute  against  abduction  means  actual 
personal  virtue  and  the  female,  to  sustain  an  indictment  for  seducing 
her,  must  have  been  chaste  and  pure  in  conduct  and  principle,  up  to  the 
time  of  the  commission  of  the  offense.     Carpenter  y.  People,  p.  733. 

«'  For  the  purpose  of  prostitution  "  means  for  the  purpose  of  her  indis- 
criminate meretricirma  commerce  with  men;  and,  therefore,  where  the 
female  left  her  home  voluntarily  and  went  to  cohabit  with  the  defend- 
ant alone,  the  case  is  not  within  the  statute.    Id. 

Abduction  not  a  crime  at  common  law,  p.  769. 

Oirl  must  be  in  charge  of  parents,  p.  7G9. 

Person  not  bound  to  return  girl,  who  comes  to  him,  769. 

Taking  out  of  possession  of  father,  pp.  770,  771. 

Intent  to  marry,  p.  771 . 

Taking  for  "  purpose  of  prostitution,"  pp.  771, 772. 

"  Previous  chaste  character,"  p.  775. 
3  Defences.  76  (1201) 


INDEX. 

1202 

•<  ABUSE." 

Construed,  p.  886. 

..ACCOUNTABLE  RECEIPT." 

Construed,  pp.  26,  96. 
..ACQUITTANCE." 

Conutrued,  p.  '■'«>. 
«'  ADEQUATE  CAUSE." 
Construed,  p.  U9C. 

«•  ADULT." 

Construed,  p.  877. 

AiVlBASSADOR. 

See  Law  OF  Nations. 

^"Cnot  t.e  subject  o.  .rcen.  at  co^^on  law.  pp.  .5.  .0,  67. 

Nor  are  they  "  chattels  "  within  statute   p.  454.  ^  ^^^^^^ 

Kabhits  were  netted  and  ^yJ^lC^l:^  the'rahblts'  were  caught. 

:rr^^=3epo.h.^^^ 

amount  to  larceny.    B.  v.  ^»'""'^;' P'  ^^  ;^  ^^^  ^^  was  his  duty  to  take 
The  prisoner  was  employed  to  trap  wudra^^^^^^^^^  ^^  ^^^  ^^^^  ,^ 

them,  when  trapped,  to  t^^^J^^/jfti'^  them  to  another  part  of  the 
trapped  from  time  to  «me  -f^^^J.Vi^t'ntionof  appropriating  them 
land,  and  placed  them  in  a  oa»  wiin  j       ^^^t  and  took  some 

to  his  own  use,  which  ^*"f  "^ .  ^,  ^^^^e  pdsler^s  absence  and  nicked 
of  the  rabbits  out  of  '"'^^^^l^f^f'JZ  for  nicking  them  was  that 
them  and  put  them  into  the  »>»g-    "'^^'/^^^^^^^^^  took  away  the 

he  might  know  them  again.  J^^  P^'*      „j  ^^^  deeper  in  nicking  the 
bag  and  the  rabbits:    Held,  JJat  *heja      ^^^^^^^^  ^^  ^^^  ^_^^^^^^  ^^ 

rabbits  was  no  '«f  «'="°°  °    *^^™,\lung  them.    B.  v.  PeUh,  p.  463. 
as  to  make  the  prisoner  guilty  of  stealing 
Animal  not  subjects  of  larceny,  p.  671. 

As  doves,  p.  671. 
Or  oysters,  p.  672. 
Or  other  fish,  p.  672. 

^""Csely  putting  artist's  name  on  picture  not  perjury,  p.  12. 

ASSAULT  AND  BATTERY.  maK8I^x;ghteb;    Law  of  Na- 

Rape. 


INDEX. 


1203 


loG,  672. 

oslt,  viz.,  a  ditch, 
iblts  were  caught, 
>  take  them  awa}-, 
I  previously  found 
,  that  this  did  not 

as  his  duty  to  take 
try  to  his  duty  he 
another  part  of  the 
appropriating  them 
rent  and  took  some 
absence  and  nicked 
:klng  them  was  that 
ards  took  away  the 
eper  in  nicking  the 
)n  of  the  master,  so 
{.  V.  Fetch,  p.  463. 


.12. 

jhteb;    Law  of  Na- 
rdek;  Spring  Guns; 


ASSAULT  AND  BATTERY  —  Continued. 

An  assault  is  an  Inchoate  violence  to  the  person  of  another,  with  the  pres- 
ent means  of  carrying  the  intent  Into  effect.    Threats  are  not  sufficient ; 
there  must  be  proof  of  violence  actually  offered,  and  this  within  such  a 
distance  as  that  harm  might  ensue  if  the  party  was  not  prevented. 
People  V.  Lilley,  p.  783. 
An  assault  is  an  offer  or  an  attempt  to  do  a  corporal  injury  to  another,  as 
by  striking  him  with  the  hand  or  with  a  stick,  or  shaking  the  list  at  him 
or  presenting  a  weapon  within  such  distance  as  that  a  hit  might  be 
given  or  brandishing  it  in  a  menacing  manner,  with  Intent  to  do  some 
corporal  hurt  to  another.     U.  S.  v.  Hand,  p.  788. 
Firing  a  pistol  at  a  person's  window  not  an  assault  on  him,  p.  789. 
In  a  prosecution  for  assault  and  battery,  the  court  Instructed  the  jury  that 
if  under  circumstances  mentioned  in  the  charge,  "  the  defendant  struck 
or  beat  the  prosecuting  witness  while  he  was  gathering  corn  In  the 
field;  or,  while  he  was  driving  his  team  In  the  field,  in  the  act  of  gath- 
ering com,  the  defendant  struck  and  beat  the  horses  of  the  prosecuting 
witness  In  a  rude  and  angry  manner  with  a  stick,  the  defendant  Is  guilty 
of  an  assault  and  battery."    Held,  that  as  there  was  evidence  tending  to 
prove  that  the  defendant  did  strike  the  horses  when  being  driven,  the 
Instruction  was  calculated  to  mislead  the  jury  to  the  conviction  t'lat 
such  striking  the  horses  was  an  assault  and  battery  upon  the  driver, 
which  It  was  not  In  any  legal  or  logical  sense,  the  driver  himself  not  hav- 
ing been  touched  directly  or  indirectly,  and  hence  such  instruction  was. 
erroneous.    Kirland  v.  State,  p.  792. 
If  a  man  raise  his  hand  against  another,  within  striking  distance,  and  at  th& 
same  time  say,  «« If  it  were  not  for  your  gray  hairs,"  etc.,  it  is  no 
assault;  because  the  words  explain  the  action,  and  take  away  the  idea 
of  an  intention  to  strike.     Com.  v.  Eyre,  p.  800. 
The  taking  hold  of  a  person's  arm  in  the  confidence  of  existing  friendship, 
trusting  to  a  license  acquired  by  a  supposed  mutual  kind  feeling,  doing 
no  injury,  and  with  no  wrongful  intent  is  not  a  criminal  act.    People 
V.  Hale,  p.  804. 
One  who  negligently  drives  over  another  is  not  guilty  of  a  criminal  assault 
and  battery,  although  he  does  it  while  violating  a  city  ordinance  against 
fast  driving.    Com,  v.  Adams,  p.  808. 
A  conductor  on  a  railroad  is  justified  in  ejecting  a  passenger  from  a  car 
who  uses  grossly  profane  and  indecent  language  on  the  car.    People  v. 
Caryl,  p.  813. 
So  also  the  refusal  of  the  passenger  to  obey  the  reasonable  regulations  of 

the  company.  Id. 
The  superintendent  of  a  County  Poor-House  has  a  right  to  use  gentle  and 
moderate  physical  coercion  towards  the  Inmates  so  far  as  may  be  neces- 
sary for  the  purpose  of  preserving  quiet  and  subordination  among  the 
Inmates,  and  is  not  guilty  of  assault  and  battery  in  so  doing.  State  v. 
Neff,  p.  816. 
The  court  charged  the  jury  as  follows:  1.  When  an  injury  is  caused  by  vio- 
lence to  the  person,  the  intent  to  Injure  is  presumed,  and  it  rests  upon 
the  person  inflicting  the  injury  to  show  accident  or  innocent  indention. 


1204 


INDEX. 


ASSAULT  AND  BATTERY  -  C  »  '»-'^-  ^„„,,,,j„,.  ,  se„«e  of  «hame 

The  injury  Intended  be  «'"'«' ^'^ffjS.d.    2.  When  violence  is  per- 
or  other  disagreeable  emotion  ol  the  ml.m.  ^^  ^^^^^^  ^^^^  j,, 

„,Uedtoeflecta  lawful  P^'P^^^'^^^'h   'purpose.    Held,  erroneous 

used  which  is  necessary  to   ««-;  ^JJ,^  ;.  ^..o. 

applied  to  the  present  case     ^»"  «"  ^^       ^^^l^^  ,,,„,y»,,  correctly 

a  teacher  for  chastising  his  P»P»-  J^;  ^^    ^,„  ^^^  be  held  guilty 

in  any  unlawful  act  he  might  d°.  P J   ^  ..  ^^^^j^  „  ,„  aggravated 

-Tss^trworiThii?^^^^^^^^^^ 

..  r^aC^arged  an  adult  with  ..--  ^Z:^:^ 
alleged  no  other  ^^^'^-^^^^'^X'^^Ttl^^  assault  was  made  under 
the  jury  to  convict  In  ^^^^^^l^^Zn  the  one  alleged.    W- 
other  circumstances  of  -^f '^'^^''"2;^^^^  ^„^^^,„  i«  disabled.  Incapable 
Adecreplt  person  within theTexasBt^^^^^^^^  ^  ^  r 

iriseTirn^rls^-^^^  helplessagamstone  of 

ordinary  health.    Ball  v.  State,  p.  8  6.  ^^^     ^^^^  ^^j. 

H  was  indicted  for  an  assault  ""J^  »";»^\\7jrtl «  house  of  the  defend- 
''•    dence  disclosed  that  the  -^^^J^^t  was  a  member,  and  of  which 
ant's  father,  of  whose  faml  y  "^j^^'^^JJ  ,^,  ^^idence  was  Insufficient, 
house  he  was  an  occupant.    HeW,  thai 

■'<*•  ,-        .nf«nt  to  miure  coupled  with  an  act  which 

in  every  assault  there  must  be  an  l°*«°'  *°  \°1^''  ,„  i^„re  at  once,  and  not 

'"Tu'st  at  least  be  the  ^^^^:^:^J^:ZZ^^^'^i-ry  that  may  after- 

a  mere  act  of  preparation  tor  «o™e  *:°  i^^ufflclentln  this  case  to  support 

.vardsbelnfllcted.   Evidence MdU,b^  insufficient  to  prove  an 

a  conviction  for  agg^^^'^*^'*  *! J""' 

assault.    Fondren  v.  State,  p.  »o  •  „  ^^h   mjury  danger- 

A  ^oman  was  indicted  under  VTunll"  T^PP^a^ed  she  had  abandoned 

^''ous  to  lite"  >vlth  intent  to  "J'^;'^ JJ ^^estion  of  the  lungs  had 

^^'  S;rr  wlTt  wUm  the  statute.    .  v.  Oray, 

present  llntlon  to  strike  necess.uy.  p.  866. 

Intent  to  injure  essential,  p.  86G. 

Threatening  gesture  not,  p.  86C. 

Words  not  an  assault,  p.  867. 

Words  explaining  hostile  action,  p.  867. 

Assault  must  be  on  person,  p.  868. 

Beating  horse,  p.  868. 


INDEX. 


1205 


ense  of  sbame 
ioleuce  l8  per- 
[orce  must  be 
bW,  erroneous 

lylii?  correctly 
m  the  trial  ol 

t  be  held  guilty 
nee  tending  to 
,hatact,  orsome 
to  aid  and  assist 

"  an  aggravated 
)r.    McGregor  \. 

;  on  a  child,  and 
error  to  Instruct 
was  made  under 
ed.    Id. 

sabled,  Incapable 
■oduced  by  age  or 
iss  against  one  of 

i  house.  The  evl- 
use  of  the  defend- 
mber,  and  ol  which 
•e  was  Insufficient. 

1  with  an  act  which 
re  at  once,  and  not 
ury  that  may  aftcr- 
thls  case  to  support 
fflclent  to  prove  an 

odlly  injury  danger- 
she  had  abandoned 
)n  of  the  lungs  had 
statute,    r..  V.  Gray, 


ASS.\ULT  AND  BATTEKY  — Con«»»«e(l. 
Opi-ulng  rallroiul  switch,  p.  808. 
Stopping  carriage,  j).  868. 
Shooting  at  house  window,  p.  870. 
Force  must  be  external,  p.  809. 
And  must  do  Injury,  p.  869. 
Accident  or  play,  p.  869. 
Use  of  lawful  force,  p.  869. 
Ne<!llgent  driving,  p.  871. 
Recaption,  p.  871. 
Ajigravatod  assault,  Intent  and  act  essential,  p.  877. 

"  What  is  beatlnsi,"  p.  877. 

"Bodily  Injury  dangerous  to  life,"  p  877.     . 

"  Grievous  bodily  harm,"  p.  877. 

"  Wounding,"  p.  877. 

"  Dangerous  weapon,"  p.  877. 

"  Deadly  weapon,"  p.  877. 

"  Offensive  weapon,"  p.  878. 

"Sharp  dangerous  weapon,"  p.  878. 

Snatching  bill  from  hand  not  assault  with  violence,  p.  878. 

Deterring  person  from  giving  evidence,  p.  878. 

Beating  person  to  force  confession,  p.  878. 

ASSAULT  WITH  INTENT  TO  COMMIT  MANSLAUGHTER. 

There  is  no  such  offense  as  an  assault  with  Intent  to  commit  manslaughter. 
Such  an  offense  requires  a  specific  Intent:  a  sptciflc  Intent  reciulrcs 
deliberation,  and  In  manslaughter  there  can  be  no  deliberation.  People 
V.  Lilley,  p.  783. 

AS&AULT  WITH  INTENT  TO  KILL. 
Elements  of  the  crime,  p.  871. 

ASSAULT  WITH  INTENT  TO  MURDER. 

See  Spring  Guns. 

One  who  points  a  pistol  at  another,  who  Is  attempting  unlawfully  to  stop 
his  team,  and  threatens  to  shoot  him  unl<;8s  he  desists  from  his 
attempt,  may  properly  be  convicted  of  an  assault,  but  such  evidence 
will  not  sustain  a  conviction  for  assault  with  Intent  to  commit  murder. 
To  constitute  the  latter  offense  there  must  exist  an  actual  and  absolute 
intent  to  kill,  which  the  conditional  threat  does  not  tend  to  prove,  but 
which,  on  the  contrary.  It  negatives.   Ilairston  v.  State,  p.  828. 

K.  was  indicted  for  an  assault  with  Intent  to  murder  E.  The  court  charged 
the  jury  that  If  "a  loaded  gun  was  presented  within  shooting  range  at 
W.  or  E.  or  at  the  dog,  under  circumstances  not  justified  by  law,  and 
under  circumstances  showing  an  abandoned  and  malignant  heart,  and 
the  gun  was  fired  off  and  inflicted  a  dangerous  wound  upon  E.,  then  the 
crime  of  an  assault  with  a  deadly  weapon  with  intent  to  inflict  a  oodlly 
Injury  upon  E.  has  been  proved;  and  it  would  only  remain  for  them  to 


120fi 


INDEX. 


ASSAULT  WITH  INTENT  TO  MURDEK-Coutinwed. 

innulre  whether  defendant  was  guilty  of  the  crime."    There  wa.evi- 
d"  nee  tending  to  show  that  K.  flred  a  gun  In  th.  llrectlon  of  W  and  E.. 
and  of  a  dog  near  them,  there  being  some  dispute  as  to  whether  the 
UUent  was  to  kill  or  wound  the  dog  or  these  men.  or  one  of  them: 
Held,  that  the  charge  was  wrong.    People  v.  Kei^er,  p.  831. 
Elements  of  the  crime,  p.  873. 
Assault  with  intent  to  kill  not.  p.  874. 
Intent  must  be  to  kill  person  assaulted,  p.  876. 
ASSAULT  WITH  INTENT  TO  RAPE. 

See  Rape. 
ASSAULT  WITH  INTENT  TO  ROB. 

A«fsttull  must  be  connecteil  with  robbery,  p.  «7B. 

ATTEMPT. 

To  commit  statutory  fraud  not  Indictable,  p.  1 :». 

BAILEE. 

See  Larceny. 

BANK  BILLS. 

Construed,  p.  96. 

BANK-NOTES. 

Not  subjects  of  larceny,  p.  665. 

"  BEATING." 

Construed,  p-  877. 

«i  BEING  THE  ACT  OF  ANOTHER." 

Construed,  p.  50. 
BILLS  OF  EXCHANGE. 

See,  also.  Forgery. 

Not  subjects  of  larceny,  p.  667. 

Construed,  pp.  96,  566. 
»  BODILY  INJURY  DANGEROUS  TO  LIFE." 

Construed,  pp.  877,  868. 

CERTIFICATE  OF  CHARACTER. 

Not  subject  of  forgery,  p.  78. 
"CERTIFICATE  FOR  THE  PAYMENT  OF  MONEY." 

Construed,  p.  568. 
CHARITABLE  DONATION. 

Fraudulently  obtaining,  not  false  pretenses,  p.  276. 

CHASTE  CHARACTER. 
Construed,  pp.  776,  776. 


■teiia 


) 


INDEX. 


1207 


"CHATTELS." 

Construed,  p.  454. 

"CHILD." 

Construed,  p.  844. 

COFFIN. 

Larceny  to  steal,  474. 

COMMON  CARRIKU. 

See  Assault  and  Battery. 

CORPSE. 

Sb-  Dbad  Body. 

COUNTERFEIT  MONEY. 

rtiHHlng  counterfeit  money  not  forgery,  p.  92. 

"COW,  SHEEP,  HOG  OR  OTHER  ANIMAL." 
Construed,  p.  671. 

•'  CREDITORS." 

Construed,  p.  858. 

"DANGEROUS  WEAPON." 
Construed,  p.  877. 

DATES. 

Dates  should  not  be  speclfled  by  figures  In  an  Indictment,  p.  118. 

DEAD  BODY. 

Not  larceny  at  common  law  to  steal,  p.  474. 

"DEADLY  WEAPON." 
Construed,  p.  877. 

"DECREPIT." 

Construed,  p.  846. 

"DEED." 

Construed,  p.  96. 

DEGREES  OF  MURDER. 
See,  also,  Poisoning. 

A  statute  declares  that  "all  murder  which  shall  be  perpetrated  by  means 
of  poison,  lying  in  wait  or  any  other  kind  of  willful,  deliberate,  malicious 
and  premeditated  killing,  or  which  shall  \.^.  committed  In  the  perpetra- 
tion of  or  attempt  to  perpetrate  any  rar  i,  uron,  burglary,  or  larceny, 
*.haU  be  deemed  murder  In  the  first  degree,"  held,  that  to  constitute  mur- 
der  In  the  first  degree,  there  must  exist.  In  the  mind  of  the  person  who 
slays  another,  a  specific  Intention  to  take  the  life  of  the  person  slain,  and 
that  If  he,  with  premeditated  Intent  to  slay  one  person,  against  his 
intention  slay  another,  It  will  not  be  murder  In  the  first  degree.  Brat- 
ton  V.  State,  p.  1012 


i 


1208 


INUEX. 


DKCiREES  OF  MURDKR-  f""""^'  .,,„,,  ,„,,pen.ab.e  In o^ 

A  Prea.e.ntatea  inte..  on  o  W^^^^^^^^^^  ,,. ,,,,. 

,nur(lerliitl.e  first  degree.    -^  Act  ol  17-M,  i.ccesHttHly  munlcr 

means  of  i.olMon,  or  by  lylnK       ^^^  J   ^         comn.lttt.l  iu  the 

deUberttto,anc.pr.n,cmtatc.lkining,o.  ..a.  U^^^^^^^^^^ 

perpetration  or  attempt  to  ^'^^^^^J'^^^^^^^  „u  other  kinds 

larv,  shall  bo  deemed  n.urd.  r  In  ^''°;  '^  "J„_,,',,,„ree,''  the  jury,  lu 
ol  murder  shall  bcdeen.edmn.-deron^,es    ond      g^    .^^    ^^^^^^^^^^^^^ 

case  ol  conviction,  to  ascortain  the  "^g^""      *  ^  „,  ^is  malice 

^harpln,  that  the  ''^'-;'-V't  ll    'd   .^o  1^^^^^^^^^ 
alorethou^ht,  cast  a  certain  T..  f-  ^^^l«  *  ^^J  ^  „„     ,„„annerand 

„„a  „,H,er  the  ^vater  till  ^'•^irVrthlTe  defendant  was  not  con- 

r;;;^;r  in^-  a^;:::.r^.urderlnthe  second  de. 

^ri ::dy  evidence  against  the  .^on^Ut..^^ 

habitually  treate.l  the  ''-;';;^;';;;;J;;arou  his  hearth ;  ft^ZcJ.  that  • 
brntality.  and  that  the  <=hl'd  ^««f«"°™  ^^  not  pnlty ;  that  it 

,„  the  second  degree.     States:  Ma  "  ;°-';^^^^^^    ,    ,    ,    ^^Ich 

Under  the  statute  which  provides-  tl  •-  y  perpetrate  any 

Hhall  be  committed  iu  the  P^P^*';;; /X;*  3be  deemed  murder 
arson,  rape,  robbery,  burglary  °\^'^"J'^^^j':\i  the  jury  believes, 
I  the  first  degree,"  it  is  error  «  f  "f„^,^^^^^^^^  the  defendant  to  kill 
from  the  evidence,  that  It  was  °°*_^*^J  *f ^^^^  \",°'did  intend  to  do  blm 

the  child  Scott,  by  ^»»'PP*"^f''"'!"\m  death  ensued,  he  is  guilty  of 
great  bodily  harm,  ancUu  so  whli>plng  Wm  ^^^^^^^^^^^^^  ^,^^,,^  ,,, 

murder  in  the  first  degree  "     JJ^  JJ^      and  not  to  those  acts  of 

rri^^ir^trthXe^^^^^^^^^ 

Tts  of  the  homicide  itself.    ^'«'-;,  ^^  '  J  that  a  rnother  and  her 
on  a  trial  for  murder  t^^-^^^l;^^^^^^^^^  by 

three  children  were  ''">f  ^  ,^  "'f  ^';;7'blunt  weapon,  and  that  their 
having  their  skulls  crushed  -"'^  ^^^^^^Jrcumstantial.  The  verdict 
house  was  then  burnt.  T"«  ^j'J^d  de'-ree,  on  the  theory  that  the 
^a,  guilty  ol  -"',^:V",n  enJelvortufto  commit  rape  upon,  or 
crime   was   co'""""*^'?^^"   TSfwsconsln  statute  makes '' the  killing 

adultery  -'t^^' *»»«  "^^  J^o^t  Idelgn  to  effect  death,  by  a  person  en- 
ol  a  human  ^^""S' '^^^^^'"''^^  ^^^'fl^y  ^^  murder  in  the  third  degree, 
gaged  in  the  commission  ol  ^"y  *;  ""^    ^^^^  ,,pe  or  adultery  and 

V.  state,  p.  1037. 


^m^M 


INDbX. 


l->09 


to  couatltute 

urily  muriler 
life  cuumcr- 

Brpetrated  by 
mil  o(  willful, 
inilttt«l  ill  till' 
iH.ry.orburj;- 
othcr  kinds 
"  the  jury,  In 
n    IniUetinent 
of  his  nmllce 
ml  held  hor  in 
In  manner  and 
t  was  not  con- 
,ho  second  de- 
known  to  have 
with   shoclilng 
irth ;  held,  that  • 
i  fiuilty ;  that  It 
uUty  of  murder 

»    *    ♦    which 
» perpetrate  any 
deemed  murder 
le  jury  believes, 
defendant  to  kill 
itend  to  do  him 
d,  he  Is  guilty  of 
ony'  used  in  the 
to  those  acts  of 
r  and  constituent 

a  mother  and  her 
separate  beds,  by 
n,  and  that  their 
tial.    The  verdict 
theory  that  the 
rape    upon,    or 
lakes  "  the  killing 
,  by  a  person  en- 
i  the  third  degree, 
e  or  adultery  and 
e  of  either  of  the 
w  that  the  killing 
wrong.    Pliemling 


PECiRKKS  OV  MUKDKU— <  oHfi/iH.J. 

Ill  order  to  conntituto  murder  In  the  llrst  decree  there  must  be  «om«tlmig 
more  thun  malicious  or  Intentional  killing.    There  miiMtbo  Killing  by 
means  of  polsoa,  lying  In  wait,  or  torture,  or  some  other  kind  of  liili- 
lu!t  different  from  that  of  poison,  lying  In  wiiU,  or  torture,  which  is 
willful,  deliberate,  or  premeditated,  or  a  killing  which  is  committed  in 
the  perpetration  or  the  attempt  to  perpetrate  any  arson,  rape,  robbery, 
or  burglary.    F.very  otiier  kind  of  n\urder,  which  Is  murder  at  common 
law.  Is  murder  in  the  second  degree.    People  v.  Sanchet,  p.  1043. 
Murder  In  the  first  degree,  unless  committed  In  perpetrating  or  attempting 
to  perpetrate  arson,  rape,  robln-ry  or  l)urj{lary,  is  tlie  unlawful  killing, 
with  malice,  and  with  a  deliberate,  premeditated,  preconceived  design 
to  take  life,  though  such  design  may  have  been  forme<l  in  tlie  mind  im- 
medlat    ^  i  pforetlie  mortal  wound  was  given.    People  v.  Long,  p.  1046. 
Murder  u  tlic  ^"cond  degree  Is  the  unlawful  killing  wltii  malice,  but  with- 
out a  deliberate,  premeditated  or  preconceived  design  to  kill.    J<1. 
The  facts  in  this  case  reviewed  by  tlie  court,  and  held  Insufficient  to  es- 

tal)li8h  premeditation.    People  v.  Morgan,  p.  1049. 
Upon  the  trial  of  an  Indictment  framed  under  the  first  subdivision  of  section 
183,  of  the  Penal  Code,  where  tlie  evidence  sliows  a  killing  with  a  de- 
Miun  to  effect  death,  but  not  deliberation  and  premeditation,  the  verdict 
ea'i  not  be  anything  more  than  murder  in  the  second  degree.    People 
V.  Conroy,  p.  1052. 
The  crime  of  murder  in  th.  ilrst  degree  under  such  an  indictment  can  only 
be  shown  by  proof  of  some  amount  or  kind  of  deliberation  and  premed- 
nation  antecedent  to  the  act  which  Intentionally  effects  the  death,  and 
of  which  the  Intent  alone  is  not  sufficient  evidence.    Jd. 
Voluntary    Intoxication  mny  be    considered    upon  the  question  of    pre- 
meditation.    Id. 
To  constitute  the  offense  of  murder  In  the  flrst  degree,  the  killing  must  bo 
premeditated,  and  not  under  momentary  Impulse  of  pas^lon;  though 
the  determination  need  not  have  existed  any  particular  length  of  lime. 
Prima  facie,  all  homicide  is  murder  In  the  second  degree.     Onus  is  on 
prosecution  to    raise    the  offense    to    the  flrst    degree.    JUcDaniel 
V.  Com.,  p.  10G5. 
To  sustain  a  verdict  of  murder  in  the  flrst  degree,  the  record  must  show 
proof,  direct  or  inferential,  sufficient  to  justify  the  jury  In  coming  to 
the  conclusion  that  the  death  of  the  deceased  was  the  untlmate  result 
which  the  concurring  will,  deliberation  and  premeditation  of  the  pris- 
oner sought.    Id. 
A  ((uarrel  had  taken  place  between  the  prisoner  and  the  deceased,  in  which 
both  used  violent  language,  and  the  former  had  given  the  latter  the  lie ; 
they  then  separated,  and  flfteea  or  twenty  minutes  later,  the  deceased 
carrying  a  light  cane  approached  the  prisoner,  declaring  that  ho  would 
not  stand  what  the  prisoner  had  said;  the  prisoner  picked  up  a  largo 
stick,  and  upon  beinsj  asked  by  the  deceesed  why  he  stood  holding  that 
stick,  said,  "  If  you  come  here  I  will  show  you;"  the  deceased  then 
raised  his  cane  to  parry  a  blow  from  the  prisoner,  and  struck  at  or 


i 


1210 


INDEX. 


DEGREES  OF  «''«f^''-^°""2^„,„,.,,  „        ,.  „„  Mow.  wltU  h,. 

ffuUtv  of  murder  in  the  first  degree.    Id. 
There   Ibe  uo  murder  In  the  second  degree  without  premedltatlou. 

Hon.    «laleT.  C«rli.,P-!0J2.  „„„.„rt  ..„,.. 

Th.  words  ■■n»U«.«<»'.tt»»S"""«''>"'"'r\'rr.t  bLTd  ••  J- 

^':ed.«.ion."  "»r.ro°r?>:d:~'rr\:tL''i::.dj:e. 

coustitutes  manslaughter.    W.  ^        ^     „ 

rourt     A'{a«e  v.  (Sftarp,  p.  1077. 
the  secoad  degree,    /d. 

iir::.!':;:.^-  ro^SA-rUu  o,  .«.de, . ...  »».d 

degree.    i>a?y  v.  Peopie,  p.  1038. 
To  murder  In  first  degree,  Intent  to  take  Ufe  essential,  p.  1165. 
And  deliberation  and  premeditation,  p.  1156.    

Murder  In  first  degree  not  presumed  from  act  of  killing,  U5G, 

Implied  malice,  erroneous  charges,  pp.  1156-llGC. 

Evidence  Insufficient  to  convict  of  murder  In  the  first  degree,  pp.  HGG- 

Evidence  Insufllclent  to  convict  of  murder  m  second  degree,  pp.  1180-1189. 


INDEX. 


1211 


3W8  with  his 
.    Held,  not 

emedltatlon. 

at  ;iii  killing 
nurder  in  the 
je,  it  1=1  error 
structlons  on 

of  the  blood, 
ee  is  a  willful 
iout  dellbera- 

6  "  and  •'  pre- 
blood;"  pi  fi- 
le first  degree, 
aforethought, 

lave  been  done 

aforett        '  "i 

■uctions  ot  thii 

tt  intentionally, 
'»»  meaus  In  a 
Bg  is  murder  in 

11  more  or  less 
rew  him  down, 
Daly  had  been 
was  not  shown, 
led  to  kill  him. 
by  the  physician 
le  died  the  next 
1  death  resulted 
een  produced  by 
fall.  Held,  that 
ler  in  the  second 

.165. 


166. 

iegree,  pp.  1166- 

ee,  pp.  1180-1189. 


DEMURRER. 

A  demurrer  to  an  indictment  may  be  withdrawn  by  the  defendant,  by  per- 
mission of  the  court,  after  the  court  has  Intimated  an  opinion  that  it 
ought  to  be  overruled,  but  before  judgment,  p.  169. 

DIPLOMA. 

College  diploma  not  a  "  document "  and  not  subject  of  forgery,  p.  7. 

«« DIRECTIONS  IN  WRITING." 
Construed,  p.  5G8. 

DIVORCE. 

Making  fictitious  decree  of  divorce  not  forgery,  p.  31. 

«'  DOCUMENT." 
Construed,  p.  17. 

DOGS. 

See.  Animals. 

DOVES. 
See  Animals. 

DWELLING  HOUSE. 
Construed,  p.  680. 

ERROR  AND  APPEAL. 

For  errors  on  mere  questions  of  fact,  the  remedy  of  the  Injured  party  is  by 
a  motion  for  a  new  trial.  No  writ  of  error  lies  to  an  Inferior  court  to 
review  its  decision  upon  matters  of  fact,  p.  258. 

«« FALSE." 

Construed,  p.  52. 

FALSE  IMPRISONMENT. 

False  Imprisonment  is  the  illegal  restraint  of  one  person  against  his  will. 

State  V.  Lunsford,  p.  861,  879. 
When  on  trial  of  an  indictment  for  such  an  offense  It  appeared  that  the 
defendants  went  to  the  prosecutor's  house  at  night,  called  him  up  out 
of  bed,  represented  to  him  in  changed  voices  that  they  were  in  search 
of  a  stolen  horse,  and  offered  to  pay  him  to  accompany  them;  and 
thereupon  he  mounted  behind  one  of  Ihe  defendants  on  his  horse,  and 
went  voluntarily,  without  threat  or  violence  from  defendants,  and  after 
riding  a  quarter  of  a  mile  in  a  gallop  he  complained  of  the  uncomfort- 
able mode  of  transportation,  dismounted  and  discovered  he  was  the 
victim  of  a  aoax  and  was  left  in  the  road  by  defendants :  Held,.th&\.  the 
fraud  practiced  did  not  impress  the  transaction  with  the  character  of  a 
criminal  act.    Id. 
The  ordinance  of  a  city  authorized  the  arrest  by  an  officer  of  a  drunken  man 
without  warrant.    A.  being  arrested  by  B,  for  drunkenness  immedi- 
ately offered  to  give  bond,  which  B.  refused  and  he  was  confined  in  the 


1212 


INDEX. 


FALSE  ,MPSIB0i™iOT-C0«««..«i.  ^__^|^^__ 

authority.    Held,  enor.  Id. 
..FALSE  OR  BOGUS  CHECKS." 

Construed,  p.  318. 
FALSE  PRETENSES.  ,  located,"  are 

18  insufficient.  The  Indictment  should  show  that  tj  P  t"  J  ^^  ^„ 
of  sufficient  value  amply  to  ^^'^^/f^.^lV^^^JfTrnortgaRe.  If  the  real 
a  pro.  .uMoa  for  false  P-^-;^;;;^:!;^;'^^^^^^  to  secure 

rrro^th^Zr^^s^^^^^^^^^     ^^^^  "^  '^^^^^""  '^^ 


INDEX. 


1213 


;o  conviction 

■rest  a  party 
charged  that, 
B  «•  express" 


located,"  are 
tiin  the  statute 

ely  puffing  and 

rere  of  the  very 

and  the  pawn- 

Held,  that  B. 

t  of  the  person 
ind  parts  with 
te.    Be  Snyder, 

last  event  or  to 

0  happen  In  the 

pretenses  where 
s  genuine  a  note 
,at  the  defendant 
jonsent  is  admls- 
State  \.  Lurch, 

rhich  alleges  that 

1  real  estate  cov- 
situated  in  I.,  hut 
irlbe  the  property 

unknown,  Is  bad 
jflnlte.    Keller  v. 

mortgage,  where 
he  mortgage  was 
not  worth  *3,500, 
e  property  was  not 
It  seems  that.  In 
jrtgage,  If  the  real 
)le  amply  to  secure 
he  respondent  rep- 


FALSE'  PRETENSES  —  Continued. 

resented  the  real  estate  to  be  very  much  more  valuable  than  it  actually 
was.  Id. 
In  an  indictment  for  false  pretenses  In  the  sale  of  a  mortgage,  where  the 
pretnnse  is  that  the  property  covered  by  the  mortgage  is  not  subject  to 
any  prior  Hens,  an  allegation  that  the  property  was  subject  to  prior 
liens,  but  which  does  not  set  them  out  or  describe  them,  is  Insufficient. 
Id. 
Representations  of  future  events  are  not  false  pretenses,  which  must  be  as 

to  existing  facts.    Id. 
An  indictment  for  obtaining  money  by  false  pretenses  must  show  what  the 
pretense  was,  that  It  was  false,  and  In  what  particular  It  was  false. 
United  States  v.  Watkina,  p.  168. 
An  indictment  for  obtaining  the  signature  of  a  purchaser  to  promissory  note 
given  for  the  purchase  price  of  property  sold  to  him  by  the  false  pre- 
tenses and  representations  as  to  the  price  asked  for  the  property  by  a 
third  person,  who  was  the  owner,  cannot  be  sustained,  where  the  proof 
shows  that  no  representations  were  made  by  the  defendant  in  regard  to 
the  price,  except  that  he  told  the  purchaser.  In  the  course  of  the  nego- 
tiations, that  he  did  not  think  that  the  seller  would  take  less  than  a  sum 
named;  and  that  the  only  representation  as  to  price,  at  the  time  of  the 
sale  and  purchase,  were  made  by  the  seller.    Scott  v.  People,  p.  241. 
Although  the  price  asked,  and  finally  agreed  to  be  paid  by  the  purchaser,  be 
fixed  by  collusion  between  the  owner  of  the  property  and  the  defendant, 
for  the  purpose  of  defrauding  the  purchaser,  such  collusion,  though  it 
may  be  an  IndicUble  offense,  Is  not  the  offense  charged.    Id. 
If,  In  fact,  the  price  agreed  to  be  paid  by  the  purchaser  was  the  price  de- 
manded by  the  seller,  at  the  time  of  the  sale,  the  motive  in  asking  that 
price  Is  of  no  consequence,  so  far  as  the  offense  charged  Is  concerned. 
Id. 
On  an  indictment  for  fraudulently  obtaining  goods  In  a  market  by  falsely 
pretending  that  a  room  had  been  taken  at  which  to  pay  the  market  peo- 
ple for  their  goods,  the  jury  found  that  the  well-known  practice  was 
for  buyers  to  engage  a  room  at  a  public-house,  and  that  the  prisoner 
pretending  to  be  a  buyer,  conveyed  to  the  minds  of  the  market  people 
that  she  had  engaged  such  aroom,  and  that  they  parted  with  their  goods 
on  such  belief.    Beld,  there  being  no  evidence  that  the  prisoner  knew 
of  such  a  practice,  and  the  case  being  consistent  with  a  promise  only 
on  her  part  to  engage  such  a  room  and  pay  for  the  goods  there,  a  cc  -i- 
vlctlon  could  not  be  sustained.    B.  v,  Burroxcs,  p.  245. 
F  expecting  to  buy  a  certain  lot,  sold  It  to  R.  telling  him  that  he  ownet  -, 
and  received  the  money  for  It.    After  selling  to  R.,  F.  made  a  written 
contract  for  the  lot  and  paid  a  portion  of  the  price,  but  he  never  paid 
the  full  price  for  the  lot  nor  ever  acquired  title  to  it.    F.  was  prose- 
cuted for  obtaining  R.'s  money  by  false  pretenses,  the  false  pretense 
being  the  statement  that  he  owned  the  lot.    Held,  that  If  F.  at  the  time 
he  made  the  sale  to  R.  and  obtained  his  money,  honestly  Intended  and 
expected  to  make  title  to  the  lot  to  R.  he  did  not  have  the  intent  to 


1214 


INDEX. 


Fay  V- 


FALSE  PRETENSES— CoJUJnued. 

defraud  required  by  the  statute  and  should  not  be  convicted. 
Cow.,  p.  248. 
The  party  alleged  to  have  been  defrauded  must  be  Induced  to  part  with  his 
money  by  means  of  the  false  pretense  i.e.,  he  would  not  have  parted 
with  It  If  the  pretense  had  not  been  made.    Held,  that  the  evidence  In 
this  case  does  not  establish  this  fact.    Id. 
Where  by  the  agreement  between  the  prosecutor  and  the  defendant,  the 
defendant  gets  no  title  to  the  property  which  is  delivered  to  him  on  the 
faith  of  the  alleged  false  pretenses,  the  crime  of  obtaining  property  by 
false  pretenses  Is  not  committed.    SUxte  v.  Anderson,  p.  264. 
An  indictment  under  a  statute  which  provides  that  "  whoever  designedly, 
by  a  false  pretense,  or  by  a  privy  or  false  token,  and  with  intent  to  de- 
fraud,  obtains  from  another  person  any  property    •    •    •    shall  be 
punished,"  etc.,  will  not  lie  against  one  who  by  false  pretenses  obtains 
the  consent  of  a  city  to  the  entry  of  judgment  against  It  In  an  action 
then  pending  in  his  favor,  and  receives  a  sum  of  money  In  satisfaction 
of  such  judgment.     Com.  v.  Harkins,  p.  267. 
H    bought  certain  merchandise  of  A.  which  was  put  In  a  box  marked  with 
'    H  '8  name  and  address,  and  delivered  on  board  a  boat  named  by  him  to  oe 
carried  to  his  home.    After  this,  but  before  A.  who  had  received  the  ship- 
per's receipt  and  invoice  had  given  them  to  H.,  A.  hearing  that  H.  was 
In  embarrassed  circumstances  Inquired  of  him.    Id  answer  thereto,  H. 
inade  false  representations  as  to  his  solvency.    Held,  that  the  goods 
having  been  obtained  by  H.  and  In  his  possession  before  these  repre- 
sentations were  made  he  was  not  guilty  of  false  pretenses.    People  v. 
Haynea,  p.  258. 
Whether  on  an  indictment  for  obtaining  goods  by  false  pretenses,  an  indict- 
ment setting  forth  several  pretenses  Inducing  the  sale  of  the  goods  will 
be  sustained  by  proof  of  some  of  the  false  pretenses,  qiKzre.    Id. 
An  untrue  answer  to  an  inquiry  as  to  one's  financial  ability  is  not  a  false 

pretense.    Id. 
Obtaining  a  charitable  donation  by  false  representations  is  not  Indictable  as 
a  false  pretense;  e.g.,  one  who  falsely  represents  himself  to  be  deaf 
and  dumb  and  obtains  money  thereby.    People  v.  Clough,  p.  276. 
In  an  indictment  for  false  pretenses  it  must  clearly  appear  that  there  was  a 

false  pretense  of  an  existing  fact.    B.  v  Hemhaw,  p.  279. 
An  indictment  alleged  that  C.  pretended  to  A  's  agent  that  she  (A.'s  agent) 
was  to  give  him  20s  for  B.  and  that  A.  was  going  to  allow  him  lOs  a 
week.    Held,  that  it  did  not  sufficiently  appear  that  there  was  any  false 
pretense  of  an  existing  fact.    Id. 
A  procured  B.  to  Indorse  his  note  under  the  pretense  that  he  woald  use  tne 
'    note  to  take  up  another  on  which  B.  was  Indorser;  instead  of  which 
A.  had  it  discounted  and  used  the  proceeds.    Held,  that  A.  was  not 
guilty  of  false  pretenses.     Com.  v.  Moore,  p.  283. 
A  false  pretense  must  be  the  assertion  of  an  existing  fact,  not  a  promise  to 
perform  in  future.    Id. 


^^m 


INDEX. 


1215 


ted.    Fav  V 

}art  with  bis 

have  parted 

i  evidence  in 

efendant,  the 
to  him  on  the 
I  property  by 
54. 

ir  designedly, 
intent  to  de- 
•  shall  be 
enses  ol)tains 
it  in  an  action 
1  satisfaction 

:  marked  ^ith 
id  by  him  to  oe 
eived  the  ship- 
ig  that  H.  was 
er  thereto,  H. 
that  the  goods 
re  these  repre- 
ses.    People  v. 

ises,  an  indict- 
the  goods  will 
ere.    Id. 
y  is  not  a  false 

at  indictable  as 

jelf  to  be  deaf 

,  p.  276. 

bat  there  was  a 

9. 

ibe  (A.'s  agent) 

allow  him  10s  a 

re  was  any  false 

e  woald  use  tne 
istead  of  which 
that  A.  was  not 

lot  a  promise  to 


FALSE  PRETENSES— CoMtidUfd.  ,  ^,„»„„nt  for 

A  conviction  for  constructive  larceny  can  not  be  had  on  an  indictment  lor 

false  pretenses.    Jd. 
To  constitute  the  offense  of  swindling  some  false  ropre8entatu,n  a^  to  exist- 
mg  facta  or  pa.t  events  muHt  be  made  by  the  accused.    Mere  false 
promUe'.  or  false  professions  of  intention,  though  acted  upon,  are  no 
Slrnt!    The  inJormation  in  this  case  c«»»7«^^^  «"\»^^^^^^^^^^^^^ 
defendant  promised  to  pay  one  B.  fifty  cents  for  four  certain  flsh.  If  said 
B    would  deliver  the  same  at  his,  defendant's,  house ;  that  B.  did  so 
deliver  he  fish,  and  that  the  said  representations  of  the  Oe^endant  were 
?h  n  and  there'false,  etc.    Held,  that  the  information  was  insufflclent  to 
charge  swindling  or  any  other  offense.    Allen  v.  State,  p.  286. 
The  orisoner  by  falsely  pretending  that  he  was  a  naval  offl«"- '"^'"^^f  *^" 
pr^secuIrU  to  enter  into  a  contract  with  him  to  lodge  and  board  blm  at 
rr«lnel  1  weel..  and  under  this  contract  he  was  lodged  and  suppl  ed 
tvS  various  articles  of  food.    ^^^Id,  it.t .  oony^cto.iov  o^i.M^^^     . 
articles  of  food  by  false  pretenses  could  not  be  sustained,  as  the  obtain- 
ing  the  iood  was  too  remotely  the  result  of  the  false  pretense.    B.  v. 
Gardner,  p.  287. 
Theoblect  of  a  felonious  false  pretense  must  be  to  obtain  property,  and  the 
priperty  must  be  given  in  consequence  of  the  false  pretense.    Morgan 
v.  State,  p.  291. 
The  prosecutor  went  to  Hot  Springs,  Ark.,  for  the  purpose  of  boarding  at 
the  same  house  with  Dr.  W.,  an  acquaintonce  of  his  who  was  visiting 
tSer       He  went  to  defendant's  hotel  and  defendant  told  W-  ^e  ''"«; 
D     W.,  ancl  that  he  had  been  boarding  at  bis  hotel  for  some  tim     but 
had  left  town,  all  of  which  was  willfully  false.    By  means  of  sa  d  rep- 
Jesentationrthe  prosecutor  was  Induced  to  take  board  with  the  clefend- 
ant  Jor  a  month  and  pay  him  in  advance.    Held,  not  a  case  of  false 

»     !!!n  whi  bv  false  and  fraudulent  representations  obtains  from  another 
Tsum  of  monrwhich  is  no  more  than  Is  rightfully  due  him  from  the 
la  teTcan  no    be'eonvlcted  of  obtaining  n.oney  by  false  pretenses, 
m  ier  th^  General  Statutes,  and,  at  the  tria]  of  an  Indictment  against 
M^on l^^at  stlt ,  evldenc;  of  the  amount  of  the  debt  to  him  Ls  admis- 
slble.    Com.  v.  JfcDu/i/,  p.  296. 
A  false  statement  that  a  house  and  lot  whre  unincumbered,  when,  In  fact 
^     they  we^^^^^^^  to  a  recorded  mortgage,  is  not  a  false  Pretense  wUbln 

!k  JItnto  because  the  party  defrauded  had  the  means  of  detecting  It 
irblntlnd'^^rh-  protected  himself  by  the  exercise  of  common 
prudence.     Com.  v.  Grady,  p.  300.  ,    ,    ,   .       .  „„,tv 

TO  constitute  a  crime  of  false  pretenses  the  money  of  the  injured  party 
must  be  parted  with.    B.  v.  Watson,  p.  802.  ,,    ,    ,     „ 

W  bv  false  and  fraudulent  representations  made  to  B.  as  to  his  business, 
^-  cu    Imers  and  profits  induced  B.  to  enter  into  a  P^tnership  with  bto 

and  ^advance  JsOO  as  part  of  the  capital  of  the  concern  -d  b.  af^ 
wards  recognized  and  acted  upon  such  partnership.    -^^^^J  t^^*  ";;^ 
Tas  not  obtaining  money  by  false  pretenses,  as  the  money  was  stiU 
under  the  control  of  B.    Id. 


1216 


INDEX. 


FALSE  PRETENSES  -  Continued.  ^^^^  ^^ 

A  chctor  fraud  tobe  '^^^^;;^^::fZlt:7r:.^:^o.  prudence  can 

would  affect  the  P"'f  J/"\^;"  tue  w^^gl^^^  '^^'^  "'^'^^"''•"^  °'  ""''" 

Z^  Sri?!:  : tnCacy  to  cleat.    Peo..  v.  Ba.coC.  p. 

Ko  ^dict^ent  wiU  Ue  ..ere  one  o.t-ed  a  release  of  a  ,«dg.en.  falsely 
pretending  Ue  had  a^HUy  to  dischar  e  U.    ,.  ^^^^  ^^^^  ^^  ^^^ 

-'tr  r  arcis^rr  :^^^^^^^^^^^^^^       -  --  — ^- 

lianney  v.  Teop/^,  306  ,^_,,„tatlon.  essentially  promissory  in 

.srumner,  p.  309.  ^.^nature  to  an  obligation  by  false  pre- 

B.  and  C.  for  carrying  out  and  7°, '°?^  'e„  he  was  to  travel 

By  a  subsequent  verbal  agreement  with  his  ^"P^^^^^^^^^^  ^^  „,ders 
Ibout  to  obtain  orders  for  the  lamP^^^";^  'STa^llng  and  personal 
received  by  him  such  commission  (beMdes  ^  «  tra  ^J^^^^  J^^^^  ^,^ 
expenses)  was  to  be  paid  to  him  as  soon  a,  he  re.e  ve  ^ 

to  be  payableoutof  the ^aplUl  unds  o,  the^artn^^^^^^^^^^      ^^^^^  ^^  ^^^ 

any  profits.    By   ^^^^-^^  ^^  f  cll^^  be  £12  10s.  he 

obtained  orders  upon  which  bis   ^^^  ^^^g  subject-matter  of 

obtained  from  the™  that  J^^^^^^^^^  ^^  Consideration  In  the  partner- 
l„<llctm.«tI.t»..l8.prol«i»e..ag»l.»«A.     «■  "■  f  ""• '  „  a„„ 


INDEX. 


1217 


t  be  such  as 

udence  can 

res  or  false 

Babcock,  p. 

nent,  falsely 

such  as  are 
ick  auctions. 

romlssory  In 
ot  indictable 

declarations 
ble.    State  v. 

1  by  false  pre- 

rtlng  with  the 

of  the  false 

I  action  of  the 

;  Z.  to  the  dls- 
id  as  a  witness 
nduced  to  sign 
isked  the  court 
itenses  and  the 
consider  these 
I.    Hfild,  error. 

t  are  necessary 
utrlx  was  influ- 

irshlp  deed  with 
if  the  Invention, 
he  was  to  travel 
1.    On  all  orders 
ngand  personal 
1  the  orders,  and 
J  before  dividing 
ers  that  he  had 
be  £12  10s,  be 
subject-matter  of 
n  In  the  partner- 
lent  to  sustain  an 
18,  p.  314. 
1  by  himself  does 
or  bogus  check," 
ince    game,  as  U 


FALSE  PRETENSES  —  Continued. 

Is  genuine.    Any  one  taking  clthpr,    docs  so  upon  the  faith  of  the 
defendant's  signature  alone.    If  they  contain  forged  or  nctitlous  sig- 
natures or    indorsements,  a   different  question  would   be  presented. 
Pierce  v.  People,  p.  318. 
Where  a  party  after  having  obtained  money  and  credit  gives  his  note  for 
the  sura  due,  and  afterwards  an  order  for  the  sum  he  owed,  it  can  not 
be  said  he  obtained  money  or  property  by  the  use  ot  the  note  or  order. 
Id. 
The  exhibition  of  letter  heads  of  a  firm  with  which  defendant  is  con- 
nected, business  cards,  a  draft,  or  copy  of  one,  and  the  making  of  a 
note,  payable  at  a  particular  bank,  and  the  drawing  of  an  order  for 
money,  are  means  to  inspire  confidence  In  the  party's  ability  to  pay,  pre- 
cisely as  declarations  of  his  credit  and  standing,  and  are,  at  most,  but 
false  representations  of  his  solvency,  but  do  not  make  out  a  case  of 
confidence  game.    Id. 
The  language  of  the  statute  does  not  expressly  extend  to  cases  of  property 
or  money  obtained  on  the  belief  of  the  ability  and  disposition  of  the 
defendant  to  pay,  but  it  contemplates  a  transaction   In  which  the 
"  means  or  device,"  instead  of  being  the  cause  of  the  cause,  is  the 
direct  and  proximate  cause  of  obtaining  the  money  or  property.    Id. 
To  bring  a  case  within  the  statute  punishing  the  obtaining  of  the  signature 
of  a  person  to  a  written  instrument  by  false  pretenses,  the  instrument 
must  be  of  such  a  character  as  that  it  may  work  a  prejudice  to  the 
property  of  the  person  affixing  the  signature,  or  of  some  other  person. 
People  V.  Gallovoay,  p.  322. 
A  deed  of  lands  by  a  wife,  conveying  real  estate  belonging  to  her  in  her 
own  right,  executed  by  her  with  her  husband,  at  the  solicitation  of  the 
husband,  under  the  pretense  that  It  was  a  deed  of  lands  belonging  to 
him,  but  not  acknowledged  by  the  wife    in  the  mode  prescribed  by 
law  for  passing  the  estate  of  a  feme  covert,  is  not  such  an  instrument 
as  is  contemplated  in  the  statute.    Id. 
An  indictment  alleged  that  the  defendant  to  induce  M.  to  sign  a  lease  to  C, 
falsely  represented  that  C.  was  a  liquor-dealer  doing  business  as  such 
in  B.;  that  C.  was  a  man  worth  ten  thousand  dollars;  and  that  a  cer- 
tain person  whom  the  defendant  pointed  out  to  M.  was  C.    Held  that 
the  first  allegation  was  of  a  representation  of  a  material  fact;  that  the 
second  was  not;  and  aemble  c'.at  the  third  was  not.    Com.  v.  Stevenson, 
p.  324. 
An  Indictment  charging  that  the  defendant  falsely  represented  to  A.  that  he 
had  then  and  there  in  his  possession  a  check  for  the  payment  of  money 
drawn  by  him  In  favor  of  A.  from  the  proceeds  of  which  he  intended 
to  pay  certain  bills  due  from  A.  to  other  persons  does  not  set  out  a 
false  pretense  within  the  statute.    Id. 
The  prisoner  was  convicted  upon  an  indictment  founded  upon  section  68  of 
7  and  8  George  IV.  for  obtaining  a  valuable  security  by  false  pretenses. 
The  facts  were,   that  the  prisoner  falsely  represented  to  the  prose- 
cutor that  a  third  person  was  baling  up  for  him  a  quantity  of  leather 
which  was  to  come  to  his  warehouse  that  afternoon,  and  the  proae- 

8  Defencks.  77 


121« 


INDEX. 


FAL8E  rUKTENSES- Co«tm«ed.  ^.  .ue  request  of  the  prisoner, 

cutor,  relylngon  such  false  «^'^^«"V«"*' "^^  .Jj/^b  Ji  ,or  the  amount  of 
n^reed  to  purchase  t»»e '«f -^  ^^^^  IT/lfterianU  produced  and 
the  purchase-money.  5^«P'^,^""["  stamped,  signed  by  himself  as 
handed  to  the  prosecutor  a  ^"^'r  and  mule  payable  to  the  prisoner's 
drawer,  addressed  to  the  P^X;^;^!  the  b  ,1  and  returned  It  to  the 

own  order;  and  the  P'^^^'^f "  ^^^ ' .  ?  „e«o^  H,  and  approprl- 

prlsoner.  who  subsequently  Indorsed  and  nci,o   a  ^^^^^^  ^^^ 

Ld  the  proceeds  to  his  own  n^^^^  the  prosecutor,  was 

be  supported,  as  the  ''»».;''»"  '  ,     „„i,.,g  to  the  prisoner;  and 

all  the  false  representations  aiitoe" 

cliard,  p.  839.  Ji„„„„nt  are  oroved.  the  sense 

tenses,  it  appeared  tlmt  «  «J^°^°'^^  *      ,„,  .^e  purchase  price,  npon 
Buffalo  and  received  his  check  P°»^7^*^^^'i  wanted  the  cattle  for  G.. 
his  represenution  that  h«wa8  buying  -^^^  ^f  ^^^^  ,,„,j,  ,,«  price 
who  lived  at  Utlca;  *f '^  ^^Yhr^rner^J  been  In  the  habit  of  pur- 
in  time  to  meet  the  check;  '^^^"^^^^^^^  „!  celling  them  to  him 
chasing  cattle  to  supply  0.  as  »  '^^^^^^^^^^^  ^«ie  ^ere  low;  two 
and  had  general  '^»'»!°'^' V  had  wr' tl  to  IS  prisoner,  stating  that 
days  before  the  purchase  G.  had  "^^'^^^^^^     \^^  to  send  on  a  car 
he  wanted  a  choice  lot  of  '^'^"'^  ;"fjf  "f  Si„g  the  cattle  to  G. 

load.    The   Pri««"«''  »»°^'^:;'';' 1"!'^^^^^^^^ 

shipped  them  to  Albany,  sold  them  at  a  rec^ucedP^^  ^^^^  ^  ^^^^^^ 

the  check.    Held,  that  a  conviction  was  «""'^  ^  ^^„^„,  ^„ 

have  been  a  fraud  there  were  ^^l^''^  ^''^^^^^^^^rtotth^  menace ^ 
cheated  not  by  any  false  «*;;-;«;;;^jr  -<»  *  *»»- 

but  by  reliance  upon  a  promise  not  meani  w 

BUt^ment  as  to  intention.    Id.  ^j^^.^^anor  in  attempting  to 

The  defendant  --;°''^«^»«^f.f  Cftl"  pretnse"  The  defendant  had  a 
obtain  moneys  from  L.  &  Co^.  ''y J^^  PJ"^  ^  8.  &  Co.,  of  New  York, 
circular  letter  of  credit  marked  »<>•  "' *'^™  o  in  London,  in  lavor  of 
for  £210,  with  authority  to  draw  on  L-  &  Co^^n  l^        ,  ^^  ^^^ 

any  of  the  lists  of  correspondents  ««  f^^*"^;"  J^^  ^210.  The  clrcu- 
world,  for  all  or  such  sums  as  he  m^h  r^^^^^^^^f^  ^,,,  ,,,«„ctive 
lar  letters  of  credit  of  D.  S.  &  Co^  ^J^  corespondent  on  whom  the 
numbers,  and  it  was  the  Practlc;  of  ^^^^^^^^  j„^„„,  ^he  amount 
rtrrrir:rw\:nrwltes.mwasadvanced.  the  last 


i^i^ 


INDEX. 


1219 


lie  prisoner, 
10  amount  of 
irocluced  and 
y  hlmsflf  as 
he  prisoner's 
inert  It  to  the 
nd  approprl- 
lon  could  not 
secutor,  was 
prisoner;  and 
,y,  or  even  In 

leans  of  false 
,  shouM  prove 
People  V.  Blan- 

)ved,  the  sense 
nd  was  under- 

an  assertion  of 
there  must  be 

tie  by  false  pre- 
the  prisoner  at 
use  price,  upon 
le  cattle  for  G., 
\  remit  the  price 
the  habit  of  pur- 
ling them  to  him 
e  were  low,  two 
)ner,  stating  that 
,  to  send  on  a  car 
the  cattle  to  G. 
5  and  did  not  pay 
fhlle  there  might 
I  the  vendor  was 
lart  of  the  vendee, 
iflUed,  and  a  false 

,r  in  attempting  to 
le  defendant  had  a 
Co.,  of  New  York, 
ondon, In  favor  of 
Serent  parts  of  the 
B  £210.    The  clrcu- 
•ed  with  distinctive 
dent  on  whom  the 
Indorse  the  amount 
advanced,  the  last 


FALSE  PUETENSKS- Co«(«n«e<L 

person  making  such  advance  retained  the  circular  letter  of  credit.     The 
SanthaMng  procured  from  D.S.&Co..  of  New  York,  a  clrcula 
IcUer  of  credit  lor  £210,  No.  41,  came  to  England,  and  drew  draf  s  n 
i'o,  o   the  named  correspondents  there  In  different  sums  In  the  whole 
ess  than  £210,  retaining  the  circular  letter,  the  sums  so  advanced  being 
ndorsed  on  the  letter.    He  then  went   to  St.  Petersburg,  au.i  there  ex- 
hSr  hTl  It-r  of  credit  to  W.  &  Co.  of  that  place,  a  firm  mentioned 
n  the  1  St  of  correspondents,  the  letter  having  «"» ''•'^"/"-f.,^':^ 
h".n  by  the  addition  of  the  figure  6  to  210,  soconvertlng  it  into  a  lette 
„  crecflt  for  £5,210.    He  obtained  from  that  house  several  sums,  and 
flmllv  asum  of  £1,200,  and  another  of  £2.500,  on  drafts  for  those 
amounts  on  L.  i  Co     W.  &  Co.  forwarded  these  drafts  to  their  house 

"L^mlon,  Who  presented  the  draft  for  £1,200  on  L.&Cc.^a^^^^^^ 
navmeut  of  It.    L.  &  Co.  having  been  advised  of  the  draft.  No.  41,  by 
D  T&  Co  ,  as  a  draft  for  £210  only,  discovered  the  fraud  and  refused 
onay  It     The  defendant  belngafterwards  found  In  England  was  taken 
to  cus  ody  and   Indicted,  as   before   stated.    The  jury  found  the 
pr i^n"    gly,  and  in  reply  to  a  question  put  by  the  learned  baron  as 
?;  Th  ther.  i^hough  the  defendant's  Immediate  object  was  to  cheat 
W  1.  Co.  at  St.  Petersburg,  by  means  of  the  forged  letter  of  cred  »  h. 
did  not  also  mean  that  they  or  their  correspondents,  or  the  nd.rsees 
J  :  m  them  should  present  the  draft  and  obUjln  P»y -ent  of       f rom  L- 
&  Co.,  and  the  jury  further  found  that  he  dhl.    Held,  that  If  L.  &  Co. 
Ld  paid  one  of  the  drafts  the  defendant  could  not  in  Inw  have  been 
found  Kullty  of  the  statutory  misdemeanor,  and.  consequently,  tha  he 
couhl  not  be  found  guilty  of  attempting  to  commit  the  common-law 
misdemeanor.    B.  v.  Garrett,  p.  347. 
Breach  ot  contract  not  Indictable,  p.  35!). 
PuflSng  goods;  opinions,  p.  359. 
Value  of  business,  p.  303. 
False  warranty,  not  Indictable,  p.  364. 
Pretense  must  be  false  p.  366. 

False  pretense  turning  out  true,  p.  305. 
Prisoner  must  know  that  pretense  false,  p.  3C6. 
False  representation  must  be  relied  on,  pp.  300-371 . 
Intent  must  be  to  deprive  owner  of  property,  p.  371. 
Money  or  property  must  be  obtained,  p.  878. 
Obtaining  satisfaction  of  debt,  p.  373. 
Representation  made  subsequently,  p.  374. 
Property  must  be  obtained  by  means  of  the  pretense,  p.  374. 
Must  be  made  with  design  of  obtaining  property,  p.  374. 
Owner  must  intend  to  part  with  property,  p.  375. 
Prisoner  must  have  received  property,  p.  875. 
Object  of  pretense  must  be  as  charged,  p.  376. 
Pretense  must  be  of  existing  fact,  not  future  event,  p.  375. 
Assertion  <.i  t-xl.-  :lng  intention  insufficient,  p.  877. 


1220 


INDKX. 


FALSE  PRETENSES -Co«««i«'rf. 

Pretense  must  not  be  remote,  p.  378. 
Direct  promise  must  be  proved,  p.  380. 

Inference  of  pretense  from  conih.ct,  p.  381. 
Protection  ttflorJed  only  to  l.ouesty,  p.  382. 

Property  given  to  Induce  compromise  of  crime,  p.  38.. 
Obtaining  one's  own  by  fraud  not  false  P-t-^^rp     85 
Person  deceived  must  have  used  ordinary  prudence,  p  386. 
Passing  counterfeit  money  not,  p.  380. 


Passing  bank-note  of  bankrupt  bank,  p. 


380. 


Passing  uttuik-u«v»  ". .  .         „  QQR 

What  not  false  pretenses,  other  Illustrations,  p.  3  6. 
Statute  not  applicable  to  partnership  affairs,  p.  387. 
«« False  token  or  writing,"  p.  887. 
"False  writing,"  p.  387.  „  „  oar 

..  Fraudulent,  swindling  or  deceitful  practice,    p.  387. 

«<  Money,"  p.  388. 

•'  Money,  goods  or  other  property,"  p.  388. 

«<  Valuable  security,"  P-  388. 

.« Written  Instrument,"  p.  388. 

swindling  and  theft  under  Texas  code,  pp.  388,  389. 

..FALSE  TOKEN  OR  WRITING." 
Construed,  p.  387. 

..FALSE  WRITING." 
Construed,  p.  387. 

ceny.    B.  v.  Thurbom,  424.  ^tending  to  appropriate 

T.  found  a  banknote  on  the  h'ghw^y  and  ^^^^"^^^^  J^,,^^  ^he  owner. 
U  to  his  own  use.  ^Ije  note  ^^d  -  ^^^^^^^^  ,,,,„  ,«  had  discovered 
:hrtrorrTa:.range^.  -  no..  ..d  appropriated  the  money. 
Heia,  that  T.  was  not  guilty  of  l^^^^'   f ^         ^,  ^  ,„,,  .^tlcle  two 

'r  :ri:sr.  '•-  »bi'r  rrr  :'X':i:: 


< ..- 


INDUX. 


1221 


onably  supposed 
own  use,  bellev- 
ttot  guilty  ol  lar- 

,g  to  appropriate 
entlly  the  owucr, 
le  had  discovered 
lated  the  money. 

I  lost  article  two 
Ing,  the  finder  had 
yn  use,  (2)  that  at 
believing  that  the 
2. 

appropriates  It  to 
ited  to  consider  at 
jsslon,  resolved  to 
me  he  took  posses- 
;ho  the  owner  v/as, 


FINDER— Ct>nti«i(ed. 

and  took  possession  of  It  with  Intent  to  steal  It;  for  If  hU  original  pos- 
session of  It  was  an  Innoc.-nt  one,  no  8ul>8equent  change  of  his  mind, 
or  resolution  to  approprlite  It  to  his  own  use,  would  amount  to  lar. 
ceuy.    iJ.  T.  Pr«»ton,  p.  486. 
Prisoner  recelvel  from  his  wife  a  £10  Bank  of  England  note,  which  she  had 
found,  and  passed  It  away.    The  note  was  Indorsed  "  K.  May      only, 
nnd  the  prisoner,  when  asked  to  put  his  name  an.l  address  on  It,  <>  the 
person  to  whom  ho  passed  It,  wrote  on  It  a  false  name  and  address. 
When  charged  at  the  police  station,  the  prisoner  said  he  knew  nothing 
about  the  note.    The  jury  were  directed  that,  If  they  were  satisfied  that 
the  prisoner  could,  within  a  reasonable  time,  have  found  the  owner, 
and  If.  instead  of  waiting,  the  prisoner  immediately  converted  the  note 
to  his  own  use,  Intending  to  deprive  the  owner  of  It,  It  would  be  Jar- 
cenv     The  prisoner  was  convicted.    Held,  that  the  Jury  ought  to  have 
been  asked  whether  the  prisoner,  at  the  time  he  received  the  note, 
believed  the  owner  could  be  found;  and  that  the  conviction  was  wrong. 
R.  V.  Knight,  p.  441. 
The  bona  fide  finder  of  a  lost  article,  as  a  trunk  lost  from  a  stage  coach  and 
found  on  the  highway.  Is  not  guilty  of  tarceny  by  any  ^"''^•q"^";  "«^  '^ 
secreting  or  appropriating  to  his  own  use  the  article  found.    People  v. 
Anderson,  p.  446.  .  u. 

One  who  finds  lost  goods  which  have  no  marks  or  Indications  ««  o^^'hlp, 
and  who  does  not  know  the  owner,  is  not  bound  to  exercise  diligence  to 
ascertain  the  owner  and  is  not  guilty  of  larceny  In  retaining  the  goods. 
State  V.  Dean,  p.  448. 
Flndvr  of  lost  goods  not  guilty  of  larceny,  pp.  569,  6C6. 

FISH. 

See  Animals. 

•'  FORGED." 
Construed,  p.  82. 

FORGERY 

H  foriied  his  father's  Indorsement  to  a  promissory  note  and  negotiated 
ItloR  Before  the  note  came  due  the  father  learned  of  the  forgery. 
R  when  the  note  came  due,  knowing  of  the  forgery,  and  knowing  that 
h' slather  knew  of  the  forgery,  left  the  note  at  the  bank  where  t  was 
payab"  with  instructions  to  make  demand  and  protest  It  if  no  paid 
S  thai  R.  was  not  guilty  of  uttering  forged  paper  with  intent  to 
defraud.  Statev.  Bedatrake,  V'^- 
An  intent  to  defraud  some  oerson  Is  essential  to  the  crime  of  forgery.  B.  v. 
Hodgson,  p.  7.  ,.,.**„ 

A  forged  a  diploma  of  the  College  of  Surgeons  with  the  general  Intent  to 
S  the  public  believe  that  he  was  a  member  of  the  college,  and  he 
Showed  It  to  a  number  of  persons  to  Induce  such  belief,  but  he  had  no 
LS  to  defraud  any  particular  Individual.  Held,  that  A.  was  not 
guilty  of  forgery.  Id. 
A  diploma  I  s  not  a  public  document,  semble .    Id. 


1222 

rOUGKUY  -  Continned.  ^^  j^.  and  see 

A  forgerv  mu.t  be  of  «omo  document  or  writing.  «• 

..;:Un«.nart...na™e.nt.ec^oU^^^^  to  ..  . 

V.  Smith,  p.  17.  ^     o,  celebrity  for  the 

Therefore  to  '-"f  ;^°;;:'';ri; L  ar U^^^^^^^  '-8-^    ^''■ 

purpose  of  palming  ofl  a  spurious  a  ^^^^^       ^^ 

The  prisoner  .a.  Indicted  ;iJ^^:^\:^:^:::J:tZ  on  a  paper  writ- 
indorsement  on  a  bill  of  ^^ha^SJ.  1«^  »  exchange,  and  In  the 

i„«  ,n  the  form  ol  ^fj^^ZZl^^^^c  facts  were  these:  The 
third  count  on  a  ««^t^»"Pj,;7bm  of  exchange,  but  without  signing 
prosecutor  wrote  the  body  «  'J«  »"'  "^  ;,,  ^^o  was  to  accept  It 

the  drawer's  name,  and  ««"»;'/;^  ^J^^^^" ',,«„  and  return  It  to  the 
and  procure  an  Indorsement  "Y  ^  ««»^J"^  P^'      '^^  ,i,e  Indorsement  of 

property."  vl/-. :  an  «f ''tj^^f  ^  /^^   ^^^  counterfeit  a  certain  false 
ant  ..did  falsely  make.  ^^S;'  ^*""';^*;„„table  receipt  for  personal 
forged,  altered,  and  -°""  «J^^^^^^^^^^^ 

property,  viz. -.  "^rnTnt^wriecelpt  for  personal  property,  vU.:  an 
and  counterfeited  accountable  '^^^'P;;°„iJ„^i„g,  that  Is  to  say:  '  St. 
elevator  ticket  for  wheat,  is  of  the  tenor  f 01  ow^g.     ^    j^^,^^!,,^  of  J. 

Paul  and  Sioux  City  f'^^'l'f^^nTotV^.  B.  N.  or  bearer.  No.  I 
8.,  load  No.  20,  tlcke    No- 2*02.  account  ^^^^^^  ^^^^^^^  ^^^^ 

Wheat.  84  5-r.O  bushels     M.  Goo«l.   °^^^^^^^^^^  ^^^^  ^^  ^^^^  ^^^^^,,,„ 

and  there  to  Injure  ''"^  defraud  contrary  ^^^^^  ^^^^  ^^^^^^^^ 

etc..  etc.  Held,^l^f^t^n^muc^^^2Tcom^^r.y  appaared  on  the  face 
of  the  instrument  ^^'^'^^jXtZZZort  otL  Indictment,  that 
thereof,  as  it  c<^«"°\,^:if;„':trt  «"  the  company,  the  Indictment 
..  M.  Good  Inspector,"  was  «;°  a„ent  «  ^^Ing  to  be  signed 

presents  the  caseol  '^-'^'^'^^'^'^J^^^T^anA  not  on  its  face  of  any 
by  any  authorized  agent  of  th.  ^         _,,ern»ent  In  the  Indictment 

apparent  legal  effect,  a.  ,„bscrib.-r  and  said  company,  which 

ol  uny  connection  b.  mdlctment  w  ^  insufficient.    Id. 

would  give  It  such  e  .uvery  of  goods,  made  by 

An  alteration  of  the  dat  an  order  ^^  ^^^^^  ^^^  ^^^  ^^^^^^^^ 

the  drawer  with   r'uuuu  ut  Int.  ^^^^  ^  ^^^^^^  p.  39. 


INDEX. 


1223 


12,  and  see 
to  pass  It 

10  one.    B. 

rity  for  the 
i. 

uttering  an 
,  papur  wrlt- 
B,  and  in  tlie 
these:  The 
tiout  signing 
J  to  accept  It 
irn  It  to  the 
dorsement  of 
rlsoner  could 
was  only  an 
d  the  instru- 

nstrument  on 

,  for  personal 
It  the  defend- 
t  certain  false, 
t  for  personal 
[orged,  iUtered, 
iperty,  vU. :  an 
is  to  say:  'St. 
Received  of  J 
r  bearer,  No.  I 
:nt  thereby  then 
){  the  statute," 
Q  the  subscriber 
ed  on  the  face 
Indictment,  that 
,  the  Indictment 
ting  to  be  signed 
its  face  of  any 

11  the  Indictment 
company,  which 
ent.    Id. 

goods,  made  by 
ad  been  satisfied 
,  p.  29. 

vlth  the  intent  to 
ole,  n.  31. 
n  its  face,  would 


FOUOERY-  Continued. 

have  been  void,  if  genuine,  Is  not  an  Indictable  ofleuse.    Fadner  v, 

People,  p.  34.  ,,        , 

The  ..lalntlff  In  error  on  a  trial  for  bigamy,  put  In  evidence  an  alleged  copy 
if  a   lua^^^^^^  granting  him  a  divorce  from  hi.  first  wife,  uml  he  was 
ire  w  acouLd.    On  the  back  of  the  paper  was  an  Impression  pur. 
lortl  Sto  be  the  s.al  of  New  York  County,  a.,d  also  the    ollowlu« 
writ    «     ''rilcl  August  14,  1879.    A  Copy.    Hubert  O.  Thompson 
Irk""  He  Is  indicted  for  forgery  In  having  ""er.d  a  false  and 
trged  impression  of  the  seal  of  the  Supreme  Court  with  Intent  to 
defnvud  and  It  appeared  on  the  trial  that  no  such  judgment  had  eve 
Seen  grafted,  and  that  the  alleged  copy  was  a  forgery,    //del.  that 
aZnlng  the  act  of  the  prisoner  in  uttering  the  false  Impression  of  t  lo 
SJaSs  within  the  condemnation  of  2  Revised  Statutes,  and  const!- 
t^rgrrv    f  the  same  is  published  in  connection  with,  and  as  any 
nart  of  a  certificate  which  the  county  clerk,  as  keeper  of  the  seal.  Is 
authorized  to  make,  in  hi.  ofllclal  capacity,  yet.  as  the  pretended  cer. 
McTL  not  l«  the  form  prescribed  by  the  Code  of  Civil  Procedure, 
was  void  on  Us  face,  and  the  alleged  d.cree  was  Inadmlss  ble  in  evi- 
deJce,  ^ul  the  acts  specified  did  not  furnish  the  basis  for  an  indictment 
for  forgery.    Id. 
Signing  a  promissory  note  in  the  name  of  a  fictitious  firm,  with  Intent  to 
'''   ,e?rauTand  fal'sely  representing  that  the  «-»  con.,.ts  o    the  writer 

and  another  person,  is  not  forgery.  Com.  v.  Baldwin,  p.  40. 
It  Is  not  forgery  at  common  law  or  under  the  New  Hampshire  statute  for 
one  to  make  a  false  charge  in  his  own  book  accounts.  Ordinarily  the 
writing  or  instrument  which  may  be  the  subject  of  forgery,  must  be,  or 
pu  port  to  be,  the  act  of  another,  or  It  must  be  at  the  time  the  property 
of  anothe,,o;  it  must  be  some  writing  or  Instrument  under  which 
others  have  acquired  some  rights,  or  have  In  some  way  become  liable, 
aid  where  tUe  rights  or  liabilities  are  sought  to  be  affected  are 
cilanged  by  the  alteration  without  their  consent.    State  v.  loung,  p.  43. 

A  for-ed  writing  or  Instrument  must.  In  itself,  be  *''l-.  ^h^* '« '^f 'f"";; 
A  ^""^'^Y;      f     counterfeit,  and  not  the  true  instrument  which  It  pur- 

^inftot:  wlthTt  reUd  to  the  truth  or  falsehood  of  the  statement 

which  the  writing  contains.    Id. 

porting  to  be  the  act  of  another,"  within  the  statute.    People  v.  Mann, 

The  Lms"  false  "and  "forged"  and«aitered"  as  used  in  General  Stat- 
i  1878,  are  used  in  the  same  sense  in  which  these  terms  are  used  in 
sec  ion  1  of  that  chapter,  and  refer  to  the  same  kind,  or  classes,  of  in- 
s  riments  Therefore,  the  instrument,  the  uttering  and  publishing  o 
whkTwouldbe  an  offense  under  section  2,  must  be  one,  the  making  of 
whlcSwouldbean  offense  under  section  1.  The  statute  enumerate 
The  insTruments  which  may  be  the  subjects  of  forgery,  but  does  not 


1224 


I^DEX. 


false  or  forged  instrument.    State  v.  Willson,  p.  62. 

forgery,  the  Instrun^ent  ^^^'I'^l^'^^^Zl  of  the  instrument,  but  a 

of  the  statute.    Id.  ^^^^  ^^^^  ,.„,  ,,^, 

Writing  a  note  for  a  person,  and  l°«f™  a  '    -  j^j^  ^,  ^^^ 

no  presumption  of  law  that  he  committed  the  lorgery 

arc  circumstances  to  be  weignea  uy  uuo 

evidence  iu  the  '•ase.    Id. 
Intent  to  defraud  essential  in  forgery,  p.  04. 
Forgery  of  incomplete  instrument  nota  crime,  p.  67. 

As  bank-note  without  name  of  cashier,  p.  67. 
Or  a  paper  without  signature,  p.  08. 

Or  a  check  payable  to  order  of ,  p.  68. 

Instrument  must  be  valid  on  its  face.  p.  68. 
Defective  certificate,  p.  68. 
Bond  given  by  husband  to  wife,  p  68. 
Void  bill  of  exchange,  p .  08 . 
Guarantee  not  binding,  p.  08. 
Satisfied  order  of  delivery,  p.  08. 
Public  warrants  without  seals,  p.  68. 
Deed  of  married  woman  without  acknowledgment,  p.  09. 
Proraise  to  pay  but  no  consideration,  p .  71 . 
wiffhtsof  some  one  must  be  injured,  p.  75. 
'  lltering  deedto  make  it  express  intention  of  parties  not  forgery,  p.  75. 
Alteration  not  affecting  legal  obligation,  p.  75. 
Adding  witness'  name  when  witness  not  required,  p.  75. 
Oth>  r  cases,  p.  75. 


INDEX. 


1225 


institutes  a 

executed  by 
IS  in  fact  no 
lOt  guilty  of 
in  che  mean- 
ment,  but  a 
1  Instrument 
sumption  of 
the  meaning 

han  the  real 
to  him  as  for 
8  not  forgery. 

;  to  authentic 
ot  an  offense 

risoner  raises 
miler  V.  (State, 

;ed  Instrument 
Ion  with  other 


59. 


VOB.GE'RY— Continued. 

Letter  of  introduction,  p.  78. 
False  certificate  of  character,  p.  78. 
False  "raalcing"  necessary,  p.  80. 

False  assumption  of  authority  not  forgery,  p.  81. 
"Uttering "necessary,  p.  85. 
Fictitious  name,  p.  85. 

Inducing  one  to  sign  note  for  larger  sum,  p.  90, 
Inducing  signer  to  assent  to  alteration,  p.  91. 
Drawing  check  in  one's  own  name,  p.  92. 
Passing  counterfeit  money,  p.  92. 
Fjlsely  attesting  voting  papers,  p.  92. 
Cutting  pieces  out  of  bank-note,  p.  93. 
What  not  forgery,  other  illustrations,  p.  93. 
Partners  not  indictable  for  attempt  to  defraud  firm,  p.  96. 
Injury  must  not  be  too  remote,  95. 
"Accountable  receipt,"  p.  95. 
"Acquittance,"?.  96. 
"  Bank-bill,"  p.  96. 
"Bill  of  exchange,"  p.  96. 
"Deei,"  p.  96. 

"Order  for  the  delivery  of  goods,"  p.  96. 
"  Order  for  the  payment  of  money,"  p.  96. 
The  order  must  appear  to  be  valid,  p.  96. 
"  Promissory  note,"  p.  98. 
"  Receipt  for  money,"  p.  98. 
"Receipt,"  p.  98. 
"Record,"  p.  98. 
"  Shares,"  p.  98. 
"Undertaking,"  p.  99. 
"Warrant,"  p.  99. 

Evidence  held  insufficient  to  convict  of  forgery,  p.  99. 
An  indictment  charged  that  the  defendant  ostensibly  for  the  public  service, 
but  'alsely  and  without  authority  caused  and  procured  to  be  issued 
froff  the  navy-yard  of  the  United  States,  a  certain  requistion.    Held, 
that  this  did  not  sustain  a  charge  of  forgery.     U.  S.  v.  Watkina,  p.  168. 
An  indictment  which  charges  the  obtaining  money  by  false  pretenses  by 
erasure  of  certain  public  securities  does  not  support  a  charge  of  for- 
gery.   Id. 
An  Indictment  for  forgery  is  not  good  at  common  law,  unless  it  use  the 
terms  "  forge  or  counterfeit."    Id. 


FRAUD 


^UD. 

An  offense  to  be  indictable,  must  be  one  that  tends  to  injure  the  public. 
Defrauding  one  person  only,  without  the  use  of  false  weights,  measures. 


1226 


INDEX. 


t;<i  that  a  srowiag  crop  Is  immovable  property.    Id. 
fteJdtUatagrowiug  ^.    v  around  can,  under  no  clrcum- 

S'i'rdSS  rig's..    ^*  ,n,umcl.«  »  ob„.e  .., 
The  smut,  maklug  It  a  p.Ml  0».»»  W  ^'°  "°°"^"  ntt..  lien,  (2)  to 

st.«  o.  .0. »«"- «*™i;-,*i:.  1... ..  .^.  st.« 

v,.„otb.r  is  not  ««»«'»'=  ™^""^,r»\iTor  sale,  but  doe. 

;::;r::;r.rrL'r.s-  f  :e",be,o.d  tbe  „.b  o.  .b. 

holderof  the  lien,  with  such  Intent,    /d.  .         .,       „.,„  „ 

.i„p.-...ndlc»dnnd..«.b.n5™,«^^^^^^^^^ 

SrrirtT^rrKter:^rrer.T:: 

Ingham,  p.  lU-  Bankrupt  Act,  for  obtaining  goods 

tfZltlJ  court  b.di«rt.dl«.l«n.    If- «"'^"~«' "•"';„„„    ,., 

™-rrirrnr:.:Stot.rroro^iTebinKUJ: 

r:<  wb™'p«,  .udL  -.ludiciou  o.  th,  -«»''™^';7^  jf .., 

-%s?a"U^:r'?:Sb-:L'2^r:rbr^^^^^^ 

in  a  declaration  in  trover.    Id. 


INDEX. 


1227 


nly  a  civil 

Code,  the 
ersonal  ir 
tie  sale  or 
ixeouted  a 
Jardman  v. 

herever  he 
)  rule  It  Is 

no  clrcum- 
the  charac- 

valid  mort- 

n  aud  there 

Id  the  same 

charge  any 

e  State  any 

nllen;  (2)  to 

I  property  — 

an  essential 

f  in  the  State 
le  expression 
ale,  but  does 
e  reach  ol  the 

false  entry  la 
he  jury  tound 
18  to  the  state 
defraud  any  of 
lid  not  be  con- 
>ffense.    B.  v. 


consisted  and  by  what  meatis  it  was  e&ccted.     U.8.^.  i^oggi  ,  p 

.8ul»e<iuel.tpr08e»»Uo«lor«.«»am«olIo»s«.    li. 

bad  for  want  of  certainty.     T.  A',  v.  Bem7am,  p.  124. 
An  atlptto  commlta  statutoryfraudisnot  Indictable.     V.  S.  v.  H.uu..,, 

P^wL' f rauds  are  not  indictable  at  common  law,  but  t-J-«ectlng  the 

public  at  large  or  the  public  revenue  are.     U.  S.^.  ^^^l''"'''^-'^.  ., 

In  the  case  of  private  frauds,  the  act  to  be  Indictable  must  be  committed  by 

In  tne  case  ui  iJii> »■''»- »  ,..„„     rrhi4  rule  however,  does  not 

false  tokens  or  for-ery  or  conspiracy.    Thi*  luie,  uowev    , 

apply  to  direct  frauds  upou  the  public.    H. 
An  iudictment  must  be  certain  to  a  certain  intent  in  general,  p.  1C8. 
InlitL  Charging  fraud  must  aver  the  means  by  which  the  fraud  wa- 

An  i:d:re;!*rrging  fraud  must  aver  the  facts  that  constitute  th.  fraud, 

BeceU  iTan  essential  elementof  fraud;  and  the  deceitful  practices  charged 

must  man  indictment  for  fraud  be  set  out,  p.  1G8. 
Fraud  to  be  indictable  at  common  law  must  injure  public,  p.  3oo 
Sli  to  .urrender  goods  not  a  "removal"  with  intent  to  d.fraud,  p. 

358. 
Intent  must  be  fraudulent,  p.  368. 
Persons  with  debts  not  due  not  »  creditors,"  p.  358^ 
Removing  property  with  intent  to  defeat  levy,  p.  358. 
Removing  nuisance,  p.  359. 


(btalning  goods 
1  the  bankrupt 
Ity  as  to  show 
de  upon  a  case 
).  118. 

16  petition,  the 
lebt,  the  alleged 
t  court.    Id. 
ity  of  boots  and 
auld  be  required 


Nuggt-s  of,  not  subject  of  larceny,  p.  6K>. 
«  GOODS  AND  CHATTELS." 
Construed,  pp.  608,  677. 

«« GRANARY." 

Construed,  p.  580. 

"  GRIEVOUS  BODILY  HARM" 
Construed,  p.  877. 


1228 


INDEX. 


..GROUND  ADJOINING  A  DWELLING-HOUSE." 
Construed,  p.  5W. 

••GUAUDIAN." 

Construed,  p.  780. 

HIRER. 

Sec  Larceny. 

ground".    Bice  v.  Com.,  p.  769. 

INTENT. 

See  Labckny. 


oner  to  appropriate  the  property  to  his  own  use.    u.  v.  r-oo   ,  h 

were  not  guilty  of  the  larceny  of  the  gloves.    W. 

fclo..lo«.  inunt  to  co-vert  «.«m  to  "' »"»  ""' J'T^^^^^^  ,„  ,b«  .ct 

of  the  oroperty.    B.  v.  Halloway,  p.  396. 

B.  to  C.  the  foreman  of  B.  .it  *"™  P";       ^    "^^^  ^^  be  paid.    A. 

h°rpit.»<i.d.orkoathem.    H,W.  oot !«..«,.    » 
TO  clutut.  ..™.nr  .H.  POS-.0"  o,  .H.  .M„,  .^^^^^^^^ 

Th.,elo«,  wh.r.  E.  with  »™  «»'''»'^f/.;7r^",.'^,  .^y  .-.l  U" 

-»"4ro:.iSf.^^^ 

was  only  an  oW  cnecK,  lua"  cettinB  the  reward  which 

the  check  on  different  excuses,  in  the  hopes  ol  getting  lu 


INDEX. 


1229 


LNU. 


Itlon  of  law 
^,  it  will  be 
Jgment  with 
rsed  ou  tliia 


rv;    LARCTtNY 

t  of  the  prls- 
oole,  p.  393. 
a  store  room, 
to  obtain  pay- 
^eld,  that  they 

other  with  the 
the  consent  of 
ght  for  the  act 
It  permanently 

le  warehouse  of 
Ises  pretending 
,o  be  paid.  A. 
A  been  paid  for 

from  the  owner, 
yards,  and  then 
in  away  and  left 

V.  State,  p.  398. 

who  told  him  It 
friend.  G.  kept 
;he  reward  which 


""'™:rhtrrr!d.for  ..    m., ....  ^^  constituted  no  ..U.ln...  .om 
A  fuch  as  would  amount  to  larceny.    E.  v.  Oavainer,  p.  401 
A.  sucn  as  fraudulent  taking  of  property  from  the 

A  necessary  element  of  theft  Is  »'»«  "''"""  possession  for  him.    A 

charge,  m  '^''''^'^\l''''J^^^^^^^^ ^      alleged   stolen   property  from 

K.t.T»  no  .vUo»c.  on  wUch  toeonvlct,    n.  v.  iraibr,  p.  40  . 

W..ttne  owner  —  «  ^  ,"'^'1TS.S  ;" W  :,  .1 
Tl,u.rt.p..oontmctlo,-  lU.  '^'^'^Slf  "p;;,"i„cool  th. 
,.,so  „r.te.»s  o.  «'■« ''"^^J'i";  .^^^^^^^^  th«.  th, 

r^Ltm":  r;:.a  tpZ:..  *  -»„« ,.  no.  ,.m  o. 

be,,  <or  hlm.eU  and  '-''""^^ J'^^'J^'j^iTeai  te.erved  .U.t  the 

rSn"ir;::roS\nrnrrSdS„.e.,yM^ 

T^'"r:r:c;:d^.r.r;nr««co,,,,.,«n. 

one  18  not  f "»  °' "'•'"°*  »„,   „  leave  .nd  did  leave  »lll.  the  olUcer 

.0  rz:  tin. .-  -  -  --rv  'r  p".r"  "• 

owner  permanently  of  his  property.    Johmon  v .  Atate,  P-  *i»- 

„,.r:ir:he  mdjto .--- i-^-r^^LrarrrthS: 

agreement.  ^»'»=;,";firnrgTl"o  1^^^^^^    ««  v.  *»«,  P.  .50. 
^ZZ:  t^atr:. -en/»o,L  th.eh.t.e.  ».th.n  statnte. 

«■  '■'"""t  ":.":;  rVoer:  pee  o,  h..n.  paper  properl, 
^'%£;Tri::;:Cn':l'.C  hal".  .ed.hepro,«=ntor.he,le.. 


1230 


INDEX. 


ie  prosecutor' never  havin«  had  «uch   a  possession  o|  the  paper  as 
would  have  enabled  him  to  maintain  trespass.    E.  v.  Smith,  p.  4(.b. 
(in  a  trial  for  theft  the  court  charged  as  follows:  "  Possession  of  the  per- 
son  inLfully  deprived  of  property  is  constituted  in  aU  cases  .vhee 
;Se  person  so  deprived  of  possession  Is,  at  the  time  of  taking,  lawfully 
entiS  to  the  possession  thereof  as  against  the  true  owner.    Held, 
error.    McNair  v.  State,  p.  4(19. 
upon  the  question  of    invent,    the   court   charged   '^ ^^  '"^''^^''J^, 
follows    "The  IntPui  la  all  criminal  cases  is  judged  of  from  the Jict 
Ce'ror.  inn  much  as  it  confines  the  question  of  Intent  to  the  act 
wSeas  intent  is  to  be  deduced  from  all  the  circumstances  remotely  or 
immediately  attending  th((  taking.    Id. 
ITnon  the  question  of  ownership  the  court  charged :  "If  you  believe  from 
""'  the  evidence  that  the  property  a«  charged  was  not  the  property  of  the 
person  as  charged,  beyond  a  reasonable   doubt,  you  will  acquit  the 
defendant."    Held,  error.    Id. 
It  IS  not  larceny,  at  common  law,  to  steal  a  dead  body;  aliter  as  to  a  coffin 

m  which  a  body  Is  interred.    State  v.  Doepke,  474. 
TO  constitute  a  larceny,  an  Intention  of  benefit  or  gain  by  the  Uking  is  essen- 

tial.    People  v.  Woodicard,  p.  478. 
A   .,nn  B  belna  on  bad  terms  on  account  of  lawsuits  between  them,  A.  took 
"•t'fho'tTom'thestable,killedandburledl.    ^he -Unju.d  B^bu 
was  not  intended  to  and  could  not  benefit  A.    Beld,  that  A.  was  not 
iiuilty  of  the  larceny  of  the  horsj.    Id. 

mm  to  appeUant.    Before  the  crop  was  gathered  or  divided,  the  appel- 
fa",  in  th7absence  of  T.,  pulled  and  sold  a  bushel  of  the  corn.    Held, 
that  the  taking  was  not  theft.    Id. 
Oneln  lawful  possession  of  goods  can  not  be  convicted  of  their  arceny 
une  lu  ion»"   F  „nn,ia  hv  deed  to  trustees  for  the  bencut  oi 

TcSS  "r^anu^posseslntas  tak^  nnder  the  assignment, 
but  the  Xnef  remained  In  possession  of  the  goods  himself,  and  while 
in  s  c^  poBess[on  he  removed  the  goods,  intending  to  deprive  the  cred- 


INDEX. 


1231 


ohlm  from 
the  money ; 
prosec'toi" 
Ith  intent,  to 
lol  larceny, 
the  paper  as 
\,  p.  400. 

I  of  the  per- 
cases  where 
Ing,  lawfully 
wner.    Held, 

heft  case  as 
■ora  the  act." 
nt  to  the  act, 
3  remotely  or 

believe  from 
roperty  of  the 

II  acquit  the 

r  as  to  a  coffin 

aking  is  essen- 

1  them,  A.  took 
injured  B.  but 
bat  A.  was  not 

B  part  owner  of 
nition  of  theft, 
entitled  to  the 
or  cropper  on 
tie  the  latter  to 
t  the  landlord's 
Bell  V.  State,  p. 

me  a  cropper  on 
half  of  the  crop 
Ivances  made  by 
vided,  the  appel- 
the  corn.    Held, 

of  their  larceny, 
or  the  benefit  of 
r  the  assignment, 
limself,  and  while 
deprive  the  cred- 


LARCENY  —  Continuid. 

itors  of  thuin.    The  jury  found  the  prisoner  puilty  of  larceny,  and 
fount!  that  the  goods  were  not  in  the  custody  of  the  tuisouer  as  the 
agent  of  the  trustees.    Held,  that  the  conviction  was  wrong.    R.  v. 
rratt,  p.  482. 
A  constable  having  an  execution  placed  in  his  hands,  levied  upon  and  took 
possession  of  certain  goods  belonging  to  the  judgment  debtor,  and  put 
them  in  possession  of  the  judgment  creditor.    A  short  time  after,  the 
constable  took  the  goods  away,  with  the  consent  of  the  judgment  crefl- 
itor,  and  sold  them  at  private  s.ale,  receiving  therefor  the  sum  of  §55, 
which  he  converted  to  his  own  use.    In  a  prosecution  against  the  con- 
stable, under  an  indictment  charging  him  with  having  stolen  divers 
United  States  notes  and  current  bank-bills,  for  the  payment  of  «55,  and 
of  that  value,  of  divers  Issues  and  denominations  to  the  grand  jury 
unknown,  the  personal  goods  and  property  of  the  judgment  creditor,  It 
was  held,  that  the  prosecution  could  not  be  maintained  under  section  71 
of  the  Criminal  Code,  declaring  the  felonious  conversion  of  money, 
goods,  etc.,  by  a  bailee,  to  be  larceny.    Zschocke  v.  Feople,  p.  486. 
Tiie  owner  of  horses  delivered  them  to  defendant  under  an  agreement  that 
the  defendant  was  to  buy  them,  the  horses  to  remain  the  property  of 
the  owner  till  paid  for  and  be  returnable  at  a  specified  period  If  not 
paid  for.    The  defendant  refused  to  pay  for  them,  or  return  them. 
Held,  not  larceny,  nor  larceny  by  a  bailee.    Krause  v.  Com.,  p.  488. 
It  was  the  custom  of  the  employer's  cashier  to  enclose  in  r- per,  in  lump    . 
sum,  the  wages  of  all  the  men  working  together  in  one  room,  inside 
which  was  written  the  names  of  the  men  to  whom  the  money  was  to  be 
paid,  and  the  sum  due  to  each.    By  arrangement  among  the  men  in  each 
room,  one  of  them  went  to  the  cashier  on  the  pay-day  for  the  wages  of 
all  the  men  in  the  room,  and  paid  over  the  amount  due  to  each.    The 
prisoner,  one  of  the  workmen  who  had  been  sent  in  the  usual  way  by 
his  fellow-workmen,  and  received  in  a  wrapper  the  wages  of  the  men 
working  in    his  room,  instead  of  paying  over  the  wages    to  each 
absconded  and  appropriated  the  money  to  his  own  use.    Held,  that  he 
could  not  be  convicted  on  an  indictment  charging  him  with  stealing  the 
moneys  of  his  employers,  for  the  prisoner  was  the  agent  of  his  fellow- 
workmen,  and  the  handing  of  the  money  over  to  him  by  the  cashier  was 
a  payment  by  the  employers.    E.  v.  Barnes,  p.  492. 
It  was  the  duty  of  G.  as  C.'s  servant  to  receive  and  pay  moneys  for  him  and 
enter  them  in  a  book  which  was  examined  by  C.  from  time  to  time.    On 
one  examination  G.  showed  a  balance  in  his  favor  of  £2  by  making 
entries  of  false  payments,  and  thereupon  C.  paid  him  this  £2,    Held, 
that  G.  was  not  guilty  of  the  larceny  of  the  £2.    R.  v.  Green,  p.  494. 
It  was  the  duty  of  T.,  who  was  E.'s  clerk,  to  ascertain  daily  the  amount  of 
dues  payable  by  E.  on  the  exporUtion  of  E.'s  goods,  and  having  ob- 
tained the  money  from  the  cashier  to  pay  it  over.    T.  falsely  repre- 
sented that  a  larger  sum  was  due  on  a  certain  day,  and  approprlateu 
the  difference.    Held,  that  he  was  not  guilty  of  larceny.    R.  v.  Tliomp- 
son,  p.  497. 
Larceny  is  the  felonious  stealing,  taking  and  carrying  away  of  the  personal 
goods  of  another.    When  property,  lawfu!  ,  in  the  custody  of  an  em- 


1232 


INDEX. 


'^'''^^:;eT;r:  .  .....Uy  appropriated  to  tje  use  o.  such  e.pioye 

or  See.  the  offense  Is  not  larceny.    State  v.  Wmgo,  p.  4J9. 
...  :;rr  Lt «..  .«  ,..  hand,  to  haul  a  lo^  of  corn  to  .....  with 

-srurto^w^rp:^        -  --  «^  -- 

Hcia,  that  B.  was  not  guUty  of  J--;-  J'^^^^,  ^^  ,,,i,„  ,„  o„e 

-%TrB^rSCf^rnr^^^^^^  -■  - 

Onernorhrco^ledof  larceny  In  Ohio.  forhrln«ln«  Into  Ohio  property 
stolen  by  him  m  Canada.     Stanley  v.  State,  v- ^OS. 

.  e:rtion  for  .rand  larceny  can  not  he  ^^^^Z^^^^^';^ 
that  the  defendant  had  access  tc  the  h°J»«  »"J  '  ^^^^  ^^,  n^^.le 

missing  property  was  »^«Pt. -^^""^J^  ^     ^-'Hay  connected  with  the 
a  false  statement  in  regard  to  a  ™^"" /l^'^J^  y„„,  p.  522. 
crime  for  which  he  was  accused.    People  \ .  wong  ^«  ^     .  f 

and  restitution.    -4JZ«n  v.  State,  p.  534. 

,„.d.«nd.r  tl.el,,a«™ce  "^"^r  nZ^ol  rep  °nLc.  lor  the  crime 
B,  however,  It  b.  made  under  the  1°«««°««  °'  ['P™  „  „„,  be 

..Id  «lth  the  de,lre  u,  mat.  7""'°°  ^.f 'jT "e.tll  piul.hment. 
voluntury,  although  It  m.y  U»  I" '"""'°",J,t "heft! .»d before 
a.  It  muet  be  made  within  a  rea».nabl.  time  "Iter  the^  • 
p,„.»,u.lon  (orthethettbas  been  ^""""^^  '-.l^rpoeB.^lon  ol 
not  m.r.1,  Y7"««;:;;r.uir  ZrS'tl,°e"deu/e..  property. 
rcZ^e'dadlSoriM^' -»•«'•-  Bira,.  Su.y.^^ 
m  Z  eal  the  de.eud.nt  dro..   ''«  t;r.t"°'Sd.r  ^^uC 

owner  tol<;  the  f  f  f  ^^^^^^^^  would  not  prosecute 

it  he  would  drive  it  back  «»o™'      •         owner  found  the  animal  on 
him,  the  defendant.    %°  f  "/„*„V,f 3XiUmstance   the  court 

roTsirrwars^rsw^^^^^^^^^^ 

aullleleul.    Id-  ,„  .  ^i 

"%r.Ll:rr.;::; Uh:C'br:iLe..o.''tb. o«eu.e,  aud e.. no. 


INDEX. 


1233 


I  employe 

rket,  with 
■pose.  B. 
e  of  tbeua. 

lien  In  one 
Com.  V. 

o  property 

mere  proof 
which  the 
it  he  made 
ed  with  the 
p.  522. 
meaning  of 
rinduced  by 
[  repentance 

on  of  article 
the  grade  of 
ing  clrcum- 
y  made ;  not 
t  or  threats. 
;or  the  crime 
er,  It  will  be 
punishment, 
t,  and  before 
be  an  actual, 
possession  of 
cal  property, 
.  636. 

ut  ten   miles 
negotiations 
hen  the  party 
lant  to  turn  It 
few  days  the 
Imal,  and  that 
not  prosecute 
the  animal  on 
inces  the  court 
y  return  of  the 
turn  of  actual 
and  therefore 

must,  in  a  trial 
,se,  and  can  not 


LARCENY—  CoKinic'd. 

be  presunifd  or  Inferred.    It  may,  however,  be  proved  by  circumstan- 
tial oTldencc.     WiUun  v.  State,  p.  639. 
Where  one  owns  the  property  and  another  has  the  possession,  management, 
control  or  care  of  It,  the  want  of  the  consent  of  both  to  the  taking  must 
be  proved.    And  this  proof  should  be  made  by  the  persons  themselves 
If  attainable,  and  if  tluy  are  not,  their  absence  should  be  accounted 
for  before  the  State  can  be  allowed  to  resort  to  circumstantial  evl- 
dence.    Id. 
Taking  necessary  In  larceny;  property  must  be  removed,  iip.  541,  5i'2. 
Goods  must  be  taken  from  owner,  i>.  644. 
Purchasing  property  from  tliief  with  notice  not  larceny,  p.  54'). 
Property  must  be  converted  by  prisoner,  p.  645. 
Must  be  taken  against  owner's  will,  pp.  645,  547. 
Property  parted  with  through  fraud,  p.  64:. 
Intent  to  steal  essential,  p.  548. 
Goods  must  be  taken  with  fraudulent  Intent,  p.  649. 
Opentaklng,  p.  650. 

Intent  to  use  and  return  property,  p.  650. 
Other  motives,  p.  553. 
Aiding  to  escape,  p.  553. 
Taking  In  joke,  p.  553. 
Intent  to  Induce  criminal  connection,  p.  654. 
Taking  part  of  seized  goods,  p.  554. 
Servant  giving  away  goods  In  charity,  p.  554. 
Intent  must  be  to  deprive  owner  of  property  permanently,  p.  555. 
Intent  must  exist  at  time  of  taking,  p.  556. 
Choses  In  action  not  subjects  of  larceny,  p.  565. 
Nor  bank-notes,  p.  665. 
Nor  railroad  tickets,  p.  665. 
Nor  bills  of  exchange,  p.  665. 

Things  attached  to  realty  not  subject  of  larceny,  p  669. 
As  nuggets  of  gold,  p.  669. 
Or  sea  weed,  p.  570. 

Severance  and  asportation  must  oe  different  acts,  p.  670. 
Animals  not  subjects  of  larceny,  p.  671.      " 
As  doves,  p.  671. 
Or  dogs,  p.  672. 
Or  oysters,  p.  672. 
Or  other  flsh,  p.  572. 
Prosecutor  must  have  property  In  things  stolen,  p.  672. 
Lucri  causa  essential,  p.  674. 
8  Defences  78 


.«! 


1234  '"^^^' 

LAKCENY—  Continttetl. 

No  larceny  ol  one's  own  property,  p.  674. 
Tenant  m  common  or  joint  owner,  p.  674. 
Person  having  lawful  posseBslon  ol  property,  p.  576. 
Larceny  by  bailee,  pp.  675-678. 
By  common  carrier,  p.  678. 
By  servant,  p.  578. 
ateallns  "In  abulldlng,"p.  579. 
rice  beld  msnfflclent  -/onvlct  oMarceny  In^^^^^^^^^^^^ 

Cook  V.  State,  p.  686;  Crockett  v.  '®'«'!'  P' f  .^7t^^„„,;„e»  v.  State, 
590-,  BrescK  v.  State,  p  694,  Gr^  ^^^^^^^^^.^at^^  e04;  Jo.««o« 
p.  GOO;  Bariemanv  State  v.^^^  fmsKautsonl  State,  p.  612; 
V.  State,  p.  606;  Johnson  y.  f  «'«'/•  '""  ^ai ;  Petrtj/rew  v.  State, 
Maaison  v.  ««te,  p.  616;  f-  -y^„f  f  ;P-;/„  ,  p.  6^7;  ^/.e«o«  v. 
p.  626;  Saltilloy.  State,  p.  625  f^^^'^^'  ^^J  ^32,  TKomacfc 
State,  p.  628;  Taj/Ior  v.  StaU,  p.  Od-,  woy 
v.  State,  p.  638. 

LARCENY  FROM  HOUSE.  j^,^^, 

Steallns  property  hanging  at  and  outside  ol  a  st"'*/'*'^' '! J* 
11  J^^t  larcenv  Iroin  a  house.    Martinez  v.  State,  p.  67 , . 

nifi  larcenv.    JlfddJeton  v.  State,  p.  679. 

warehouse;"  fteW,  error.    W. 
Stealing  "  in  a  building,"  p.  679. 
<«  From  ft  dwelling-house,"  p.  58ft 
<•  In  a  dwelling-house,"  p.  580. 

from  the  person.    King  v  6'tote,  p.  620. 

Stealing  Irom  the  person,  p.  580 

"  Privately  Irom  the  person,"  p.  681. 

..  LAWFUL  MONEY  OF  THE  UNITED  STATES." 
Construed,  p.  568. 

LAW  OF  NATIONS.  „r„nertv  ol  a  foreign   minister 

By  .be  U,  o.  «.i«us  ..  '^'j^j'' J  ^^J'^^'jl  «.e  pS»«y  "  b. 
is  an  assault  on  him.    But  ine  iioiw 
his.     U.  S.  v.  Hand,  p.  789. 

LETTER  OF  INTRODUCTION. 
Not  subject  ol  lorgery,  p.  78. 


IXDKX. 


1235 


LIMITATIONS. 

The  defendant  has  the  right  upon  iJeniurrer  to  avail  himself  of  the  statute 

of  limitations,  p.  108. 


hate,  p.  683; 
V.  State,  p. 
lell  V.  State, 
04;  Johnson 
tate,  p.  612; 
'ew  V.  State, 
I;  Shelton  v. 
;32i   Womack 


mple  larceny, 

arehouse  and 
'  only  of  sim- 

t  of  the  ware. 
t  is  the  same 
e  walls  of  the 


Usbesa  larceny 


)relgn   minister 
3  property  to  be 


MANSLAUGHTER. 

In  case  of  mntnal  combat  where  a  homicide  Is  conimlttcd.  In  order  to  reduce 
the  offense  from  murder  to  mansl.iughter.  It  must  appear  thut  the  con- 
test was  waged  on  equal  terms,  and  no  undue  advantage  was  mwnht  or 
taken  by  the  defendant,  for  if  such  was  the  case,  malice  may  be  inferred, 
and  the  killing  amount  to  murder.    People  v.  Sanchez,  p.  1042. 
When  two  persons  have  a  sudden  quarrel,  and  after  a  sufficient  time  has 
elapsed  for  the  blood  to  cool  and  passion  to  subside,  go  out  to  fl>;hi, 
and  one  of  them  kills  the  other,  the  killing  will  be  murder  and  not 
manslaughter.    Id. 
Whether  a  homicide  amounts  to  murder  or  to  manslaughter  merely,  does 
not  depend  upon  the  presence  or  absence  of  the  intent  to  kill.    People 
V.  Freel,  p.  1082. 
In  either  murder  or  manslaughter,  there  may  bo  a  present  intention  to  kill 

at  the  moment  of  the  commission  of  the  act.    Id. 
An  instruction  that  if  one  slay  another  In  the  heat  of  passion  and  without 
malice,  the  crime  can  not  be  manslaughter.  If  a  dangerous  weapon  Is 
used,  is  error.    People  v.  Urowey,  p.  1110. 
An  indictment  for  manslaughter  In  the  first  degree,  brought  under  the 
Revised  Statutes  of  Missouri,  which  does  not  charge  that  the  killing 
was  done  without  a  design  to  effect  death,  nor  while  the  doer  of  the  act 
was  engaged  in  the  perpetration  or  attempt  to  perpetrate  any  crime  or 
misdemeanor  not  amounting  to  a  felony,  Is  insufficient.     State  v. 
Emmerich,  p.  1113. 
An  indictment  brought  under  section  1241,  for  the  crime  of  manslaughter  In 
the  first  degree,  perpetrated  in  the  attempt  to  commit  an  abortion,  is 
bad,  where  the  descriptive  words  "  pregnant  with  a  quick  child  "  are  not 
employed;  nor  is  it  good  under  section  1208,  which  defines  the  crime  of 
abortion;  since  that  section,  at  the  time  of  the  criminal  act,  did  not 
apply  to  a  case  where  death  ensued  in  consequence  of  a  criminal  act. 
Id. 
The  degree  of  negligence  on  the  part  of  the  servants  of  a  railroad  corpo- 
ration required  to  be  proved  on  an  indictment  under  the  General  Statutes, 
is  not  changed  by  the  statute  of  1871,  and,  on  an  Indictment  under  the 
latter  statute,  11  negligence  of  the  servants  of  the  corporation  is  relied 
on,  gross  negligence  must  be  averred  and  proved.    Com.  v.  Fitch- 
berg,  etc.,  B.  Co.,  p.  1117. 
If  an  indictment  against  a  railroad  corporation  under  the  General  Statutes, 
and  the  statute  of  1871 ,  does  not  allege  that  the  neglect  on  the  part  of  the 
corporation  to  give  the  signals  required  by  law  contributed  to  the  death 
of  the  person  kiUed,  evidence  of  such  neglect  is  inadmissible.    Id. 
Under  an  indictment  against  a  railroad  corporation  under  the  Massachusetts 
statutes  which  aUeges  as  the  only  act  of  negligence  that  the  servants  of 
the  corporation  ran  a  locomotive  engine  "rashly  and  without  watch, 


I 


WM\ 


INDEX. 


MANSLAUGIITKU— C()»i«««ea. 

care  or  foreslBlit,  ami  with  great,  unusual,  unreasonable  and  Improper 
Bpeed,  cvlt1cn<:e  is  Inadmissible  to  show  tl.at  the  servants  ni-gloctcd  to 
ring  the  bell  on  tlio  engine  or  to  sound  the  whistle.     Com.  y.FUchburg, 
elc.,Jt.  Co.,  p.  lli!ti. 
An   Indictment  against  a  railroad  corporation,  on  the  General  Slatutei, 
charging  the  killing  of  a  person  by  reason  of  the  gro^s  negllRfUco  and 
carelessness  of  its  servants  while  engaged  in  its  business,  by  runulii« 
a  locomotive  engine  with  great,  unusual,  unreasonable  and  Improper 
8pced,  Is  not  sustained  by  proof,  that  at  the  time  of  the  killing,  the 
engine  wan  run  at  a  high  rale  of  speed,  in  the  absence  of  evidence 
that  the  servants  In  so  doing  were  acting  in  vlolaM  jn  of  their  duty.    Id. 
An  Indictment  against  a  railroad  corporation  under  the  Massachusetts  stat- 
ute  of  1874,  for  killing  a  passenger  which  alleges  that  the  death  was 
caused  by  the  failure  of  the  corporation  to  reduce  the  rote  of  speed  of 
one  of  Its  engines  and  to  give  certain  signals.  Is  not  supported  by  proof 
that  the  servants  of  the  corporation  neglected  to  do  so.     Com.  v.  Bon- 
ton,  etc.,  B.  Co.,  p.  1129. 
The  prisoner,  a  conductor  of  a  freight  train,  was  Indicted  for  manslaughter. 
The    indictment  charged  that  the  prisoner  negligently  omitted  while 
crossing  with  his  train  from  the  outward  track  of  the  road  across  the 
inward  track  to  a  side  track,  and  again  across  the  Inward  to  the  out- 
ward track,  to  send  forward  any  signal  to  warn  the  driver  of  a  passen- 
ger train  which  the  prisoner  well  knew  was  due  and  about  to  arrive  at 
that  part  of  aald  railroad,  whereby  said  passenger  train  collided  with 
the  prisoner's  train,  causing  the  death  of  a  passenger.    There  was  uo 
proof  given  on  the  trial  that  the  prisoner  knew  of  the  approach  of  the 
passenger  train.    Held,  that  the  conviction  could  not  be  sustained. 
Com.  v.  Hartmll,  p.  1133. 
Provocation  reduces  crime  to  manslaughter,  pp.  1189,  1192. 
Heat  of  passion,  p.  1189. 
Husband  and  wife,  p.  1191. 
Parent  and  child,  p.  1191. 
«'  Adequate  cause,"  p.  1196. 
Resisting  arrest,  p.  11' 
Death  resulting  from  sparring  match,  not,  p.  1197. 

MAYHEM. 

Where  defendant  had  destroyed  the  eye  of  a  person  by  throwing  a  stone  at 
him,  the  Information  for  mayhem  charged  the  malicious  intent  In  the 
words  of  the  statute.    Verdict  that  defendant  was  "  guilty  as  charged 
in  the  information,  with  the  malicious  Intent  as  applied  by  law."    Held, 
that  this  does  not  find  the  malicious  Intent  as  a  fact  with  sufficient  cer- 
tainty to  sustain  a  judgment  for  mayhem.    State  v.  Bloeduui,  p.  827. 
A  oremedltated  design  to  do  the  act  Is  essential  to  mayhem,  and  therefore 
where  the  act  is  done  in  the  heatof  a  sudden  affray,  without  any  evidence 
of  premeditation,  the  crime  Is  not  committed.    Go^rey  v .  People,  p.  856. 
Essentials  of  the  crime,  p.  871. 


IXUKX. 


1237 


«<  MENACES." 

Coustrut'il,  p.  703. 

"MONEY." 

Coustnieil,  pp.  888,  508. 

"MONEY,  GOODS,  OK  OTIIEll  PUOPERTY.  ' 

Construfil,  p.  388. 
"MONEY,  GOODS,  WARES  Oli  MEUCllAXDISE  " 

Coimtrwt'il,  p.  508 

"MONEY  OK  PKOPERTY." 

Cousirued,  p.  373. 

"MOVABLE  PKOPEKTY." 
Coustrucil,  p.  105. 

MURDEK. 

Aulufant,  though  fully  delivered,  can  not  be  considered  In  law  a  human 
being  and  the  subject  of  homicide  until  life.  Independent  of  the  mother, 
exists;  and  the  life  of  the  Infant  la  not  Independent,  In  the  eye  of  the 
law,  until  an  independent  circulation  has  become  established.    State  v. 
Winthrop,  Oil. 
If  a  woman  with  a  sedate  and  deliberate  mind,  before  or  after  the  birth  of 
her  child,  formed  the  design  to  take  Its  life,  and  after  the  parturition 
was  complete  and  the  child  born  alive  and  in  existence,  she  executed 
her  design  and  took  Its  life,  it  was  murder  with  express  malice  and  In 
the  first  degree.    But  if  the  deslijn  to  take  the  life  of  her  child  was 
formed  and  executed  when  her  mind,  by  physical  or  mental  nuiiulsh, 
was  Incapable  of  cool  reflection,  and  when  she  had  not  the  ability  to 
consider  and  contemplate  the  consequences  of  the  fatal  deed,  and  she 
conceived  and  perpetrated  it  under  a  sudden,  rash  Impulse  after  the 
child  had  been  wholly  produced  fro.u  her  body  and  while  It  had  exist- 
ence,  the  crime  was  murder  in  the  second  degree.     Wallace  v.  State,  914. 
H  in  a  case  of  this  character  the  jury  might  have  concluded  from  the  evi- 
dence that  the  defendant  took  h.-r  infant's  life  before  Its  birth  was 
complete,  or  that  she  caused  It^  death  by  means  which  she  used  merely 
to  assist  her  delivery,  it  was  incumbent  on  the  court  to  Instruct  for 
acquittal  in  the  event  the  jury  should  so  find.    Id. 

To  constitute  murder,  the  death  must  be  the  result  of  the  prisoner's  act, 
and  must  take  place  within  the  time  provided  by  law.  Peoplev.  Aro, 
917, 1139. 

An  indictment  for  murder,  charging  that  the  accused,  on  or  about  a  certain 
day  did  willfully,  feloniously  and  with  malice  aforethought,  kill,  mur- 
der and  put  to  death  a  certain  person,  with  a  pistol  and  knife,  without 
specifying  further  the  facts  and  the  manner  Is  bad.    Jd. 

The  crime  of  murder  is  committed  not  on  the  day  when  the  victim  dle.^  but 
on  the  day  on  which  Ms  injury  was  received.    People  v.  Gill,  p.  920. 

Where  an  act  is  pas«ed  between  the  time  of  the  commission  of  the  act  and 
the  death  of  the  victim,  defining  the  oftense,  and  providing  for  Us 


1238  ^^^^^^• 

MURDER- Continued.  ,^^.g  committed 

punishment,  and  P'"^^^'"^*^"'^,^"^';!  tried  by  the  law8  in  force 
previous  to  its  enactment,   he  P^'^f/^  ^^^"^^^^^^^^  must  be  tried 

rnrrJU^^rr^rrrrr-rarn'o.  th^..  was  commuted. 

«  alnd  .  ln.cted  no.  ^^^^^^^ ^^^^^^ 
was  evidently  occasioned  by  the  grossly  ^^^^^  ^^^^  ^^^.^j 

original  ^^^^^^^^'^Tsl^Z^^^^^^^^  ^^^''^^  '^^"^^^^  '^°'" 
or  dangerous,  the  person  wno  i  ^^2. 

the  plea  of  erroneous  treatment.    ^«^;;;';^;  J,'^.^^,  to  his  death 
The  evidence  was  conflicting.  -  *°  " J^^^;*"^^^^^^^^^^  or  from  the  Im- 

from  the  effects  of  a  wound  l°f»^^^ j^J  "^^^^^^^  i„  «e^i„g  it  up.  The 
proper  treatment  of  It  by  he  ^"^^if^^^^^^^,^^,  „  the  wound  was 
prisoner's  counsel  requested  ^J^^^,^;"/*^^^^^^^  came  to  his  death 

not  mortal,  and  It  clearly  ^PP^^^^Xt  from  the  wound,  they  must 

the  qualification  was  erroneous.    Id.         ^^„„  ,„fl.„t8  ^  mortal  wound 

Where  a  judge  charged  the  J-^J^-^rhrpe^^^^^^^^  »>y  ->  ^- 

rpe=  X  rrerrgurrmurde^r.  It  was  ..  to  be  error. 

State  V.  Seatea,  p.  92i.  »♦„„„*  must  produce  the  death 

,,, common law..he  neglect  oMmpr^^^^^^^^ 

in  orJer  to  «''°»«'**;,*^''  J'";"  Jary  that  the  neglect  or  Improper 
Under  the  statute  it  Is  not  "^^f'^^^,  ^^  the  death,  but  If  there  be 
treatment  shall  contribute  ^jV^J^f/;,;^^^^^^^^^  either  in  preventing 
gross  neglect  or  ^^^^^^^/^  ^f.Xury.  the  delth  of  the  injured  per- 

Morgan  v.  State,  p.  926.  „  ^^t  only  such  as  pro- 

..  Gross  neglect  •^"'^^Jmproper  t«^  ^but  »  ^^^^  ^^  ^^^^^^  ^^g,,  ,, 

duce  the  destruction  of  human  1»^.  »"* 

permit  the  destruction  of  human  life.    ^^    .  ,,    ..j^piied 

on  a  trial  for  murder,  the  jury  were    -^-*;^J^^^^^^^^    ,,,ts  found  by 

malice  is  an  Inference  or  ^«"«  ,";'°° .°  J^^.^^  the  unlawful  killing  of  a 
the  jury.    Thus  the  law  implied  malce  from  i^  ^  ^^^^ 

bumin  being,  unless  the  c^-^^^J^^f/^^^^^^^  so  mitigated,  as  to 

.owlant  a  conviction  Of  mu^^^^^^^^^^^^^ 

to  account  for  the  ^'-P^^^^^J  ^X-u^^.iath      the  result  and 
The  corpus  deUcti,  In  ^'^''^''^^I'l'^l^Zems.    It  is  only  where  there  Is 
criminal  agency  of  another  as  the  mean 


INDEX. 


1239 


jmmltted 
s  In  force 
t  be  tried 
immlttecl. 

ch  ensues 
ot  it,  the 
ras  mortal 
self  under 

>  his  death 
Dm  the  Im- 
t  up.  The 
nround  was 
0  his  death 
they  must 
s  quallflca- 
g  up  of  the 
ty."    Held, 

irtal  wound 
Im  by  an  in. 
to  be  error. 

ce  the  death 
Inal  injury, 
or  Improper 
It  if  there  be 
a  preventing 
!  injured  per- 
glnal  injury. 

r  such  as  pro- 
low,  suffer  or 

rs:  «« Implied 
lacts  found  by 
ul  killing  of  a 
,  that  the  klU- 
iltlguted.  as  to 
'  'Held,  error. 

)f  either  of  the 
,  or  of  criminal 
:h  a  manner  as 

People,  p.  989- 
J  the  result  and 

where  there  is 


MURDER— Con  «n«efZ. 

direct  proof  of  one,  that  the  other  can  be  established  l)y  circumstantial 

evidence.    Id. 
The  rule  of  Lord  Hale  forbidding  a  conviction  of  murder  or  manslaughter, 
unless  Che  fact  proved  to  be  done,  or  at  least  the  body  found  dead, 
commented  upon  and  affirmed.    Id. 
A  conviction  of  murder  is  not  warrant dd  when  there  is  no  proof  of  the 
corpus  delicti,  but  the  uncorrohorated  extra-judlclai  confosslon  of  the 
accused.    State  v.  German,  p.  964. 
Ill  a  prosecution  for  homicide,  where  It  appears  that  no  weapon  was  used, 
but  that  death  resulted  from  a  blow  or  a  kick  not  likely  to  cause  death 
the  offense  is  manslaughter  and  not  murder,  althongh  the  assault  b^ 
unlawful  and  malicious,  unless  the  respondent  did  the  act  with  intent 
to  cause  death  or  grievous  bodily  harm,  or  to  perpetrate  a  felony,  or 
some  ac.,  involving  all  the  wickedness  of  a  felony.     Wellar  v.  People, 
p.  958. 
Where  an  act  Is  done  with  Intent  to  commit  a  misdemeanor  and  death 

ensues  it  Is  not  murder.    Smith  v.  State,  p.  981. 
An  Indictment  alleged  that  the  prisoner  caused  the  death  of  a  pregnant 
woman  by  an  operation  performed  by  him  with  Intent  to  procure  a  mis- 
carriage.   The  prisoner  was  convicted  of  murder.    Held,  error  as  the 
intent  was  not  to  commit  a  felony.    Id. 
Where  there  are  sufficient  facts  Deforc  the  jury  to  enable  them  to  infer 
malice,  or  the  want  of  It,  as  a  fact,  directly  from  the  evidence,  recourse 
should  not  be  had  to  any  legal  presumption  of  malice  which  may  arise 
in  the  absence  of  direct  proof,  from  the  fact  of  homicide.    State  v. 
Coleman,  p.  987. 
Where  there  is  full  evidence  as  to  the  surrounding  circumstance",  this  pre- 
sumption can  not  be  allowed  to  deprive  the  prisoner  of  the  benefit  of 
any  reasonable  doubt,  but  the  jury  should  find  the  malice  as  an  Infer- 
ence from  the  lacts,  if  at  all.    It  was  erroneous,  therefore,  to  charge 
" that  allhomlclde  is  presumed  to  be  malicious,  and  amounting  to 
murder  until  the  contrary  appears  from  circumstance.*  of  alleviation, 
excuse  or  justification,  and  that  it  is  incumbent  upon  the  prisoner  to 
make  out  such  circumstanr-es  to  the  satisfaction  of  the  court  and  jury, 
unless  they  arUe  out  of  the  evidence  produced  against  him."    Id. 
Under  a  statute  defining  thg  crime  of  murder  and  enacting  (among  others) 
that  killing  should  be  .surder  "  when  perpetrated  by  any  act  immi- 
nently dangerous  to  ott  rs  and  evincing  a  depraved  mind,  regardless 
to  human  life,  although  without  any  premeditated  design  to  effect  the 
death  of  any  particular  individual,"  a  killing  wltliout  premeditated 
design  to  take  life,  though  perpetrated  by  such  acts  as  are  eminently 
dangerous  to  the  person  killed,  ami  evince  a  depraved  mind,  regardless 
of  the  life  of  the  deceased,  is  not  murder.    Darry  v.  People,  p.  990. 
There  are  many  other  adequate  causes,  trhich  will  reduce  a  homicide  from 
murder  to  mawlaughter,  besides  the  four  provoking  causes  enumerated 
in  article  225+,  Pasclial's  Dige«.    Brown  v.  State,  p.  108G. 
On  a  trial  for  latinier,  whfw  there  is  e\-i.lence  of  malpractice  on  the  part  of 
the  surge©!  who  attainted  the  deceased,  the  jury  should  be  instructed 


1240 


INDEX. 


SIm  iromtho  »o„n<l,  .=d  .ot  <rom  the  m.lp™cU«.  of  the  .utgeo.. 
.-.*«^  «f  mnrdov     The  eviclcnce  showed  the  homicide 

V.  People,  1089.  .  ,..„ . 

«„  „„e  "•" '»,"°  "*  °',  ", ,,  ,„a  parties .« taken  In  ..ch  elroum- 

reer."".rr;srci .«  L^h„ei»«  ■;— -- 
:rr,,.rc'rrr  hSia.fr :  tte.i...  ^.. 

.heir-<i"™--ri:n:ss'/^^^^^^^^^^^^ 

?.tSeX  X  he  dCratoM  the  jar,  that  .u...  laagu  .... ,  -...«.• 

H%r=rrt£"s^^»^---"^-^^^^^ 

Coolirtime  «sTqu.8tlon  of  law  for  the  court  and  not  .  .ae.t^.n  for  the 
iury.    State  V.Moore,  p.  n07. 

time  sufficient  tor  the  passions  excited  by  the  ^8°^*  ^°  °^^  ^^ 

and  reason  have  resumed  Its  sway.    Hence,  where  "^^J**""' '/^^^^^he 
Jhat  the  pr^soner  was  ••  absent  no  time,"  and  «;°°^^«'' ^^^^^^  *f^^ 
first  fight  he  started  to  go  home,  and  looking  back  the  P™^^^^ 
again  Shtmg.    Held,  that  there  was  not  such  sufficient  cooling  time 
to  justify  a  verdict  of  murder.    Id. 
Violence  essential  in  murder,  p.  1188. 

False  swearing  away  life  of  another,  p.  1138. 
Death  must  take  place  In  a  year  and  a  day,  p.  1139. 
Must  be  m  consequence  of  prisoner's  act,  p.  iiw. 
Death  partly  by  predisposing  cause,  p.  1 139. 
Death  occasioned  by  one  of  two  causes,  p.  lUO- 
Death  from  subsequent  medical  operation,  p.  1 140. 
Corpus  deHcti  must  be  proved,  p.  1141. 


Com.,  p.  810. 


INDEX. 


1241 


leath  re- 
Burgeon. 

tiomicide 
umediate 

piisoner 
I  design, 

McCann 

ommittef'. 
tio  parties 
h  clrcum- 
ted  or  are 
violation 
Price  V. 

ing  "  ide- 
to wards  a 
igt,  ^iilesK 
"  adequate 
Hudson  V. 

ion  for  the 

eventually 
list  be  for  a 
le  subsided 
:ss  testified 
It  after  the 
arties  were 
ooling  time 


int,  he  is  noj 
e  party  to  be 
le  the  arrest, 
,    Shovlin  V. 


OFFICEHS  — Continued. 

Where  the  offender  In  question  Is  openly  and  notoriously  engaged  in  break- 
,g  the  law.  as  for  example,  where  he  is  maintaining  a  g'^mbUng  table 
in  a  pu-ic  place.  It  is  sufficient  for  the  officer  to  announce  his  offlcla 
posifl  and  demand  a  surrender.    If  this  is  refused  the  officer  is  no 
Sable  to  indictment  for  assault  by  reason  of  the  fact  that  he  used  force 
to  secure  his  prisoner,  p.  810. 
A  policeman  may  arrest  without  a  warrant  one  whom  he  has  reasonable 
causTto  suspect  of  a  felony,  and  may  justify  an  assault  on  one  en- 
deavoring to  assist  such  person  to  escape.    State  v.  Doering,  p.  818. 

OPINION. 

See  False  Pretenses. 

•«  ORDER  FOR  DELIVERY  OF  GOODS." 

Construed,  p.  96. 
"  ORDER  FOR  PAYMENT  OF  MONEY." 

Construed,  pp.  90,  666,  5C8. 
«« OTHERWISE  DISPOSED  OF." 

Construed,  p.  109. 

OYSTERS. 

See  Animals. 

PARTNERSHIP. 

Partnernot  guilty  of  forgery  of  firm  obligation,  p.  96. 

••PERSONAL  GOODS." 

Construed,  p.  668. 
••  PERSONAL  PROPERTY." 

Construed,  p.  570. 

PICTURE. 

Falsely  putting  artist's  name  on  picture,  not  forgery,  p.  M. 

POISONING.  ,.        ,  .,      K^^o. 

To  convict  of  murd-^r  by  poisoning,  there  must  be  f  °7,,^'^°;"',;%*',f„tT. 
fendant  of  the  poisonous  character  which  produced  the  death.  Knowl- 
edge of  defendant  that  the  article  was  rot  entirely  harmless,  is  not 
sufficient.  Peor>le  v.  Stokes,  p.  962. 
To  iustify  a  conviction  upon  circumstantial  evidence,  not  only  must  the 
fac  8  proved  be  consistent  with  and  point  .o  the  defendant's  guilt  be- 
yond a  reasonable  doubt,  but  they  must  be  inconsistent  with  his  .nno- 

cence.    Id. 
Wh*.r«  a  case  depends  on  circumstantial  evideuce,  which  points  to  a  par- 
ticvUrpeJson  astbecrUninal.amotlv^  on  the  part  of  that  person  to 
commit  the  c".;e,  much  fortifies  the  probabilities  created  by  the  other 
evidence.    Id. 


1242 


INDEX. 


ensues  though  against  the  int.ation  of  the  party,  It  will  ^e  murder 
"  the  act  beione  heedlessly  and  incautiously  without  such  Intent,  it 
will  be  manslaughter  only.    Ann  v.  State,  p.  S)G8. 
The  adnunistration  of  laudanum  was  ^'^^ J  "^I ^"a^ts    ^^^ 

excluded  from  the  jury  the  '^^^f^^'^^'Z  S^J^  ortX  ^^^  ^heil^ev 
defendant  intended  serious  rclschief  to  the  infant  or  noi,  a 
the  offense  amounted  to  murder  or  manslaughter.    Id. 

:  ^cteTo"  murYrlntheflrst  ^'^^^^  ^^^'^^S^^  :::;Ci. 
vour  verdict  is  guilty  of  murder,  you  must  state  of  the  first  'legree.  J 
rorgulltyyous'ysoandnomore."    Wtobe  error.    Lane..  Com., 

p.  1017. 

POSSESSION  OF  STOLEN  PROPERTY. 

gellerhiul  .loto  It.    JfeJ/fee  v.  SIM,  p.  403. 
People,  p.  681 ;  Slate  v.  HaJe,  p.  631,  and  see   pp.  681,  582. 


INDEX. 


1243 


of  laud- 
without 
produce 
d  death, 
inlawful 
id  death 
murder ; 
atent,  It 

le  charge 

sther  the 

whether 

jr  admin- 

ia  such 

s  of  the 

3  or  death 
3  must  be 
thing.  If 
egree.  H 
e  V.  Com., 


=1  State  to 
m  may  be 
And  a  pur- 
irosecutlon 
to  a  prose- 
ige  that  the 

jnt  to  sus- 
s:  "If  the 
lie  property 
ol,  care  and 
■ou  win  find 
en  the  ev5- 
of  the  prop- 
I,  unless  the 
re  anil  man- 
8tate,  pp. 

r  conviction. 
g  V.  State,  p. 
);  Oa'oUeh  t. 


PRESUMPTION. 

See,  also,  Possession  of  Stolkn  Pkopkrtv. 

Uttering  forged  instrument  does  not  raise  presumption  of  forgery,  p.  G2. 

"PROMISSORY  NOTES." 
Se-,  also,  Forgery. 
Cunstrued,  pp.  98,  5C8. 

PROSTITUTION. 

Construed,  pp.  7?(5,  771,  772. 

"PUBLIC  HIGHWAY." 
Construed,  p.  722. 

••PUBLIC  SECURITY." 
Construed,  p.  508. 

PUFFING. 

See  False  Pretenses. 
"  PURPORTING  TO  BE  ACT  OF  ANOTHER." 

Construed,  p.  50. 

RABBiIS. 

See  Animals. 

RAILROAD  COMPANY. 
See  Manslaughter. 

RAILROAD  TICKETS. 

Not  sabject  jf  larceny,  p.  565. 


RAPE 


Force  Is  an  essential  Ingredient  In  the  crime  of  rape,  and  If  a  charge  that  II 
the  defendant  Intended  "  to  gratify  his  passion  upon  the  P^r^o"  °«  *?^« 
female,  either  by  force  or  by  surprise,  and  against  her  co°««»t.  tt';'^  ^' 
is  guilty  as  charged,"  is  erroneous.    McNair  v.  State,  pp.  880,  897. 
Force  is  essential  to  the  crime  of  rape,  and  acts  and  devices  without  vio- 
lence  by  which  the  moral  nature  of  the  woman  is  ^^-^P^^f'/^Jf « 
can  not  resist,  will  not  take  Its  place.    People  v.  Eoyal,  pp.  882,  8.)7. 
In  a  statute  punishing  carnal  knowledge  or  ''abuse  "  la  an  f  ««"?*  t;^;*;* 
carnal  knowledge,  of  a  female  child  under  ten  years  of  age,  the  word 
"abuse  "  applies  only  to  Injuries  co  the  genital  organs  In  an  unsuccess- 
ful  attempt  at  rape,  and  does  not  Include  mere  forcible  or  wrongful 
ill-usage.    Dawkins  v.  State,  p.  885. 
On  the  trial  of  an  indictment  cliarging  the  defendant  with  an  assault  on  his 
daughter  with  intent  to  commit  a  rape,  it  appeared  that,  he  uncovered 
her  person  as  she  was  lying  asleep  in  bed.  and  *««»' l^^^^^^^^"*}'^.^;- 
ties  with  her  person,  and  after  she  awoke  endeavored  to  PO"^ad«  h«^ 
to  let  him  have  connection  with  her,  and  offered  her  money  to  induce 


1244 


INDEX. 


?;rhr:«.,  ...f  UH  no,.    «,>.   .h..  .U»e  ».,  ..  ev.d»c  «. 
tlieMoiiloilsllltont.lleg«0.    C«»..  v.  M«f"l'.  P- «"■ 

"oln  ^vith  the  Intent  of  having  Improper  ---^'-^^^^^'^^j;^^" 
out  the  use  of  force,   nor  without  her  consent.     Thomas  v.  State,  p. 

390 

Jthol    of  vou"    The  prosecutrix  ran.  trundling  the  carriage    and 

commit  rape.     Stale  v.  Massey,  p.  896. 
Penetration  must  be  proved,  p.  897. 
And  emission,  p.  898. 

Not  rape  if  woman  consent,  p.  899.  ^ 

Intent  must  be  to  succeed  at  all  hazards,  p.  899. 

Convlctlonsreversed  for  insufficient  evidence.    People  v   j^^^!'/ Col . 
Christian  v.  Com.,  p.  900;  People  v.  Hamilton,  p.  901,  Boxley  v.  Lom., 

P-  902.  ,  .    „ 

Assault  With  intent  to  commit  rape-,  intent  to  rape  must  be  proved,  p. 

904. 
Evidence  held  insufficient,  pp.  905-910. 
Penetration  proved,  p.  910. 
Intoxication  of  prisoner,  p.  910. 

REASONABLE  DOUBT, 

SeeLARCKNY. 

"RECEIPT." 

Construed,  p.  98. 

«•  RECEIPT  FOB  MONEY." 
Construed,  p.  98. 

RECEIVING  STOLEN  PROPERTY. 

Before  a  defendant  can  be  convicted  of  receiving  stolen  property,  it  must 
satisfac  oSy  appear  beyond  a  doubt:  (1)  That  the  property  was 
acquired  by  then,  and  (2)  that,  knowing  It  to  have  been  so  acquired, 
he  concealed  the  same.  Wilson  v  State,  p.  C39. 
A.  and  B.  tw  0  thieves,  were  seen  to  come  at  midnight  out  of  a  ^^--J;^"/; 
mgto  C.'s  father,  under  the  following  circumstances:    A.  carried  a 


,,_^  ..»«»1— 


INDEX. 


1245 


iiest,  and 
1,  desUU'd 
ridence  of 

imit  rape, 
tie  apeciflc 
icllon  lor 
ssaulted  a 
her,  with- 
r.  State,  p. 

)eared  that 
■riage  with 
ed,  "Halt, 
i^ou  when  I 
rria^e,  and 
up  with  an- 
i  intent  to 


zga,  p.  899; 
ley  V.  Com., 

!  proved,  p. 


»pei-ty,  it  must 

property  was 

1  so  acquired, 

house  belong- 
:    A.  carried  a 


T?vmVING  STOLEN  PROPERTY— Continwed. 

11  containing  tltc  stolen  goods,  B.  accompanied  him,  C  preceded 
them  carriiag!  lighted  candle.    All  three  go  into  an  adjoining  stable 
berntrlng  oC.,and  then  shut  the  door.    Policemen  enter  the  stable 
^^^flJd  the  sack  lyinson  the  floor  tied  at  the  mouth,  and  the  three 
Lis  andtg":un?it"as  if  they  were  ^^f^^^^;^::::^ 
words  were  heard.    Held,  by  eight  udges  to  four,  that  on  this  ev  Idence 
C    couu'  ^o    be  convicted   of  receiving  stolen  good.,  Inasmuch  a. 
althi  "here  was  evidence  of  a crlmlnalintent  to  receive  and  of  a 
kuS-e  that  the  goods  were  stolen,  yet  the  exclusive  possession  of 
Hsmi  remained  i'n  the  thieves,  and  therefore  C.  had  no  possession, 
either  actual  or  constructive.    R.  v.  Wiley,  p.  C13. 
A  n^«seneer's  baggage  in  charge  of  a  railway  company  was  stolen  from  the 
^'raTwirsSu."  Afterwards  the  thieves  seat  a  l-rtlon  of  it  lu^  a 
wm?  and  delivered  it  to  the  same  railway  company  to  be  forwaided 
^  H    .:,  to  B    at  Brighton.    When  It  arrived  at  Brighton,  the  police 
Tcrat  ache^to   thf  r  "n^^^  company    examined  the  bundle,  and 
Cln.^^  to  contain  part  of  the  stolen  property,  directed  a  porter  not 
Jotrt  wltrit  until  further  orders.    The  thieves  were  then  arrested 
and  on  thTlollowlng  day  the  bundle  was  sent  by  the  railway  company  to 
B    who  havh  g  received  it.  was  charged  with  feloniously  receiving  it. 
fl^  J  that  the  charge  could  not  be  sustained,  the  property  having  been 
fSalned  by  the  owners  from  whom  it  had  been  stolen  before  the  receiv- 
ina  by  prisoner.    B.  v.  Schmidt,  p.  6o3. 
T*    ♦  i!n  toods  are  restored  to  the  possession  of  the  owner,  and  he  returns 
Imtotte  tLf  for  the  purpose  of  enabling  him  to  sell  them  to  a 
tS  per  o„    heyare  no'longer  stolen  goods,  and  that  third  person 
third  person,  I    J  feloniously  receiving  stolen  goods,  although  he 

can  ;^°' ^''.^"""'^'^^^^^^^^^  to  be  stolen.    Where,  therefore,  stolen 

'''tire  foind  in  tL  pocket  of  the  thief  by  the  owner,  who  sent 
goods  were  *«"°**JJ  J"'  ^     ^^^^  ^^^^  ^fter  the  policeman  had  taken 
r  l!:TZV^^ert^^^lrio..r^  the  prisoner's  shop  where 
tfeEfildprevo^^^^^^^^^  stolen  goods,  that  when  near  that 

T  lh«  noUceman  gave  the  goods  to  the  thief  who  was  sent  by  the 
shop.  *^«  P°f '^^;,f  ^,ell  them,  and  that  the  thief  accordingly  sold 
r^to  Se  X  rVanrtln  rTt^rn^^  theproceeds  to  the  owner. 

S,!?thlf  tie  prisoner  was  not  guilty  of  feloniously  receiving  stolen 
Held,  that  the  PJl^°°";;'^      delivered  to  him  under  the  authority  of 

Durpose.    B.  v.  DoJan.  P- GSB. 
one  can  not  be  convicted  of  receiving  stolen  P-P^/^/^C  P^BOr 

that  he  received  it  from  another  person.     U.  S.  v.  De  Ban,  p. 
On  an  Indictment  lor  receiving  stolen  property,  when  it  is  shown  that 

the  owner  or  Ws  agents,  the  charge  faUs     Id. 


124fi 


INDEX. 


K.CEIVING  STOLEN  l'««^^«^\- ^^ ;:,    ^,  eonce.Uecl.  was  in  fact 
property  alleged  to   have  be«n  recc^v  ,«,  knowing  them 

Stolen;  secondly,  ^^at  the  accused  received  t     ^B    ^^^^^  ,^  ^^^,,„t  ,, 
to  have  been  stolen,  guilty  ""O^l^^^KO  being  an  ^^  ^^    ^^^^^^ 

rhecrlme,  and  lastly,  that  the  accused  i^^^^^  o'r  aided  In  ecu- 

the  o^vner  from  recovering  the  same,  bou      , 

ceaimg  the  stolen  goods,  f  f^'^J^' f  ^Jj  ,^^,  ,,„ien  goods  from  the 
Where  adefendant.  on  behalf  o  the  --  J -;^%«;  ,,,  «,,„er.  without 
thief,  for  the  honest  purpose  °*  f  *;°"°- _e^u„iary  compensation,  and 
fee  or  reward,  or  the  ^^^'^'''^^^'^Ze^'X'^Zxon  restores  all  he 
in  fact,  immediately  after  ^^'^f^ltloncert  or  coun.cmn  with 
receives  to  the  owner,  and  is  not  acting  ^  ,j„„^  ^e  will  not 

the  party  stealing,  to  make  a  profit  out  oi 

Bank-notes  are  not  "  goods  and  chattels     and  t  ^^  ^  misdemeanor 

rrve-ricr  :xz^'"'  - «-  -  -•  ^"- 

Goods  must  be  stolen,  p.  C77. 

Must  be  actually  In  prisoner's  possession,  p.  (.77. 

Stoppage  lntran8«H  before  receipt,  p.  677 

Knowledge  that  goods  were  stolen  essential,  p.  G77. 

Stealer  not  receiver,  p.  678. 

Principal  and  accessory,  p.  678. 

Receiving  property  stolen  from  mail,  p.  678. 

Is  not  larceny,  p.  581. 


«« RECORD." 
Construction, 


98. 


RES  GESTAE.  prisoner  C  and  S.  was  stabbed  at 

Deceased,  whowas  in  company  wih  the  prisoner  C.^^^^^^^^  ^^^  ^^^^ 

night  in  the  dark  and  after  walking  one  hundrdy^^^^^^^^^^       ^ 

ROBBERY.  ,,„„^  nr  nerson  of  another  Without  any 

The  mere  snatching  a  thing  ^^^ »*>«  ^„*°^ °^  ^^To^e  or  violence  on  the 
struggle  or  resistance  by  the  owner,  or  any  for  ^^^   ^^^^ 

part  of  the  thief,  will  not  constitute  jf^^'^f^^  vlo- 

?nstracted  the  jury  that  feloniously  ^^^^^^^^^  %^Z  make  out  the 

Lee  sufficient  to  constitute  an  -«-«  ^^^^^^^^^  prisoner  having 

crime  of  robbery,  it  was  held  '^^^^''^^^X^^,  was  reversed.    Mc 

been  convicted  under  such  a  charge,  the  judgmen 

Closkey  V.  People,  p.  684.  ^^  ^^  j^^^^j. 


INDEX. 


1247 


I  in  fact 
Ing  them 
edleut  of 
0  prevent 
)d  In  ecu- 

from  the 
•,  without 
itlon,  and 
res  all  be 
;tlon  Avlth 
le  will  not 

1. 

olen  bank- 

sdemianor 

174,  678. 


iS  stabbed  at 
11,  and  soon 
morning.  C 
iciousnesB,  S. 
S.  as  the  man 
.  1072. 


sr  without  any 
slence  on  the 
re  the  court 
lerty  with  vlo- 
l  make  out  the 
rlsoner  having 
reversed.    Mc- 

ear  of  immedl- 
ike  the  offense 


ROBBERY— Continwed. 

amount  to  robbery  must  bo  sufficient  to  force  the  pernon  to  part  w  th 
his  property,  not  only  agaln.t  his  own  will,  but  in  splto  of  his  resist- 

ance.    Id. 
Robbery  U  committed  by  force,  larceny  by  stealth,  and  where  there  Is  °° 
violence  or  circumstance  of  terror  resorted  to  for  the  purpose  of  Indue- 
lug  the  owner  to  part  with  his  property,  for  the  sake  of  his  person,  the 
crime  committed  Is  not  robbery,  but  larceny.     State  v.  John,  p.  687. 
To  constitute  robbery,  the  force  used  must  be  either  before  or  at  the  time 
of  the  taking,  and  of  such  nature  as  to  show  that  it  was  intended  to 
overpower  the  party  robbed,  or  to  prevent  resistance  on  his  part,  and 
not  merely  to  get  possession  of  the  property.    Id. 
Money  was  snatched  from  A.'s  hand  by  B.  but  without  violence  to  his  per- 
son.  the  only  violence  used  being  in  preventing  its  recovery  and  strug- 
allng  to  retain  it  after  it  was  taken.    Held,  that  such  snatching  or 
takin"  was  not  such  violence  as  to  constitute  robbery,  and  that  subse- 
quenrvlolencc,  or  putting  In  fear,  will  not  make  a  previous  clandestine 
taking  robbery.     Shinn  v.  State,  p.  693. 
An  Indictment,  which  alleges  that  the  defendant  assaulted  and  robbed  A., 
and  being  armed  with  a  dangerous  weapon,  did  suiile  and  wound  hlra, 
is  not  proved,  as  to  the  wounding,  by  evidence  that  the  defendant  made 
a  slight  scratch  on  A.'s  face,  by  rupturing  the  cuticle  only,  without 
separating  the  whole  skin;  nor  as  to  the  striking,  by  evidence  that  the 
defendactput  his  arms  about  A.'s  neck,  and  t'.r  =w  him  on  the  ground, 
and  held  him  jammed  down  to  the  ground.     Com.  v.  Gallagher,  p.  696. 
To  constitute  the  oflnnse  made  punishable  by  the  Revised  Statutes,  the 
articles  stolen  mu.t  be  carried  away  by  the  robb.r,  and  must  bo  the 
nroperty  of  the  person  robbed,  or  of  some  third  person,  and  these  facts 
mus:  be  alleged  in  an  indictment  on  that  section,  in  the  same  manner 
as  anindlctment  for  robbery  at  common  law.    Com.  v.  Clifford,  p.  698. 
Robbery  is  defined  by  the  penal  code,  and  to  constitute  the  offense  the 
propertv  must  be  taken  either  by  assault,  or  by  violence,  and  putting 
In  fear  of  life  or  bodily  injury.    If  it  be  by  assault,  violence  and  put- 
ting  in  fear  may  be  omitted  in  the  indictment,  and  if  by  violence  and 
putting  m  fear,  assault  may  be  omitted.    Kimble  v.  State,  p.  701 . 
But  where  the  indictment  charges  by  "  assault  and  putting  in  fear  of  bodily 
injury"  though  the  indictment   would  be  good  on  the  ground  of 
assault(treatlng  "putting  m  fear"  as  surplusage),  still  if,  as  in  this 
case,  the  ground  of  assault  be  abandoned,  the  conviction  can  not  be 
sustained  on  the  other  ground,  because  of  the  omission  of  the  necee- 
sary  descriptive  term  "  violence  "  in  the  indictment.    Id. 
Evidence  held  insufficient  to  sustain  a  conviction  for  robbery  by  means  of 

an  assault.  Id. 
In  order  to  constitute  the  statutory  offenss  of  demanding  P™P«Jy;^«; 
menaces,  the  "  menaces  "  must  cause  such  alarm  as  to  unsettle  the  mind 
of  the  person  on  whom  it  operates,  and  take  away  from  his  acts  that 
element  of  free  voluntary  action  which  alone  constitutes  consent.  B. 
V.  Walton,  703. 


/ 


1248  »'^'^^''- 

ROBBERY  -  Continued.  _„,,„!,„  „,  Huch  character,  the  question  Is 

Intlmidatiou.    i<'-  „.,.„o  Hiatross  warrant,  wlilch 

■lipped  his  l.»»d  Uto  the  pocket  ol  •  W  •°^»  ^,„  „„o„eeniedly 
tue^l.,  »d  .Ue  lelt  'I"" ''";'•  "•'^"'tfcS"  ^hich  »«.  left  with 
looklug  .t  the  ho««..,  •»'',«*"«"  "l''Jrtm.  1.  .rce»y  Irom  the  per- 

^:Lrdi7iw  Krsr;.%« — — »» 

hl9  hand.    ranni«ir  v.  State,  p.  709. 
Force  must  be  used,  p.  710. 
Or  putting  In  fear,  p.  710. 

Force  must  be  used  to  overcome  resistance,  p.  710. 
Fear  must  be  of  personal  violence,  p.  712. 

Threat  to  prosecute  on  false  charge,  p.  71^ 
Threat  of  legal  Imprisonment,  p.  718 
Demand  necessary,  p.  714. 
Putting  In  fear ;  bodily  injury,  p.  714. 
Intent  to  steal  at  time  necessary,  p.  717. 
Subsequent  use  ol  violence,  p.  717. 
Taking  must  be  in  prosecutor's  presence,  p.  717. 
Property  must  be  in  possession  of  party  robbed,  p.  717. 

Receiver  not  guilty  of  robbery,  p.  718. 
Article  must  be  property  of  another,  p.  718. 

Lucri  causa  essential,  p.  719. 
Getting  one's  own  by  violence,  p.  722. 
•<  Public  highway,"  P-  722. 
Time  of  war,  p.  722. 

SEA  WEED. 

Not  subject  of  larceny,  p.  569. 

SEDUCTION. 

See,  also,  Abduction.  meaning  of  the  two  hundred 

To  seduce  a  female  Is  not  an  ^^l^'':'^'ll^"Zohm^\.es  it  a  crime  to 

^     and  sixty-sixth  section  of  tfj^^f^^  connection  with  any  man. 

^rart  isnrne:hrp:orsrgrat..tionof  the  passion  of 

Tewdness  iu  another.    People  v  Boi^gas,  p.  729. 


IXDKX. 


1249 


tloa  Is 
CbS  ol 

wlilch 
11  mat 
:  held, 

\,  there 
i  tbiel 
caught 
lernedly 
eft  with 
the  per- 
tructlug 


;wo  hundred 
it  a  crime  to 
th  any  man. 
le  passion  of 


°Ua.m,  I.,  tuo  n.l8l.borl,ooa  U.  wbkh  .1..  ...»  ll.ca  i»  Bood.    «'.."  v. 

mctaste  »h.rac.ct  ol  uniMrttol  '«»*  f™'™'   „„„„„, ,„  „,  „rc- 
.„„«c.W,  U  ,.  not  «.0.>,.r,  .o  P-«  «»'^''  ^^^     »  ^  h..  bc.» 

;x  oToter=;;a.::re::f '.  »„...«, ... .....  ..»>.. 

..previous  chastity"  In  the  «**^""7"  ^ut  "previously  chaste 

Innocence  of  heart,    id.  , 

in  no  way  connected  with  the  action.    Id.  ,  ^^^^aee 

I.  oraer  to  warrant  a  conviction  for  seduction  -^-^XTsl    bXS 

m  accordnnce  with  the  provisions  o|  t^";^*;'^*  ^  o   the 

must  be  evidence  to  corroborate  the  prosecutrix,  In  regaru 

promise  of  marriage.    Bice  v.  Com.,  p.  759. 
The  at  that  a  defendant  charged  with  seduction  is  -;-"-;^^^^^^^^^^^ 

in  his  own  behalf,  does  not  alter  the  law,  in  regard  to  the  necessity 

3  Defences.  .  '^^ 


1250  \SDE\. 

HETtVCTlOii— Continued.  '  * 

evidence  corroborative  of  tlmt  of  the  prosecutrix,  as  to  the  promise  of 
uiurrlage.    I'l. 
What  circumstances  do  and  what  do  not  constitute  sufflclont  corroborative 

evidence  to  warrant  a  conviction  in  such  case  consldurt-a.    Id. 
Wherein  Buch  case  there  is  some  proof  that  the  defendant  admitted  the 
promise  to  marry,  It  Is  not  error  for  the  court  to  refuse  to  withdraw  the 
question  of  seduction  from  the  jury.    Id. 
On  a  trial  for  seduction  under  promise  of  marriafje  mere  loclal  attentions 
on  the  part  of  the  defendant  to  the  prosecutrix  are  not  sufficient  to  cor- 
roborate her  testimony  of  a  promise  of  marriage.    Bice  v.  Com.,  p.  7t4. 
Evidence  that  the  defendant  confessed  to  the  seduction  and  declared  an 
intention  to  make  amends  by  marrying  the  prosecutrix  does  not  raise 
an  Inference  of  a  previous  promise  of  marriage;  nor  does  proof  that  he 
wished  to  settle  the  case  by  payment  of  money.    Id. 
Where  the  woman  does  not  consent  to  the  Intercourse  the  crime  is  not  se- 

ductlon.     Croghan  v.  State,  pp.  767,  780. 
The  court  charged  the  jury  that  "  if  the  woman  ultimately  consented  to  the 
illicit  intercourse  the  crime    was  seduction,   though  H.e  consente.1 
partly  through  fear,  and  partly  because  the  defendant  hurt  her.      Held, 
error.    Id. 
««  Previous  chaste  character,"  pp.  775,  776. 
«'  Purpose  of  prostitution,"  p.  776. 
Promise  of  marriage  necessary,  p.  776. 

Married  man  not  guilty  of,  p.  777. 
Marriage  of  parties,  780. 
Seduction  of  ward  by  guardian,  p.  780. 
Evidence  held  insufficient  to  convict,  p.  781 

"SHARES." 

Construed,  p.  98.  ■  . 

"SHARP  DANGEROUS  WEAPON." 
Construed,  p.  878. 

"SHOP." 

Construed,  p.  580. 

SPRING  GUNS. 

It  is  unla^yfulfor  the  occupant  of  lauds  to  sot  spring-guus  or  other  mis- 
chievous weapons  on  his  preml.es  and  if  the  same  cause  ^leath  o  any 
trespasser  it  Is  a  criminal  homicide.  But  to  ''"^^^f  7,*=''»^;f  ,°;°  °' 
assault  with  intent  to  conimlt  a  murder,  a  speciflc  '«lo°  °»«  ^°»«°* 
must  be  proved;  and  so  when  one  plants  such  weapons  with  the  gen- 
Trarintent  to  l^ommit  murder.  The  Intent  *- '^'"/''\r  n'^l 
r  rsou  alone  must  be  shown  and  can  not  be  implied  from  the  general 
duct.    Simpson  v.  State,  p.  833. 


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SWINDLING. 

See  Falsb  Pretbnsbs. 


1251 

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"UNDERTAKING." 
OoDStrued,  p.  99. 

"UTTERING."  /' 

Construed,  p.  85. 

"  VALUABLE  SECURITY." 
Construed,  pp.  328,  888. 

VALUE. 

Where  the  value  of  the  article  stolen  is  material  in  a  prosecution  for  lar> 
ceny,  its  value  is  to  be  fixed  by  its  market  price,  and  not  by  what  it  is 
worth  to  Its  owner,  or  for  the  particular  purpose  for  which  it  is  used. 
It  is  to  be  regarded  as  worth  just  what  it  would  fetch  in  the  open 
market.    State  v.  Doepke^  p.  474. 

To  be  larceny  property  stolen  must  have  some  value,  p.  672. 
Opening  letter  addressed  to  another,  p.  572. 
Value  of  list  of  subscribers,  p.  67S. 

"VOLUNTARY." 

Construed,  pp.  634,  636. 

"  WAREHOUSE." 
Construed,  p.  680. 

«« WARRANT."  * 

Construed,  p.  99. 

WORDS  AND  PHRASES. 
(5ee  the  different  titles.) 

"WOUNDING.'? 
tJonstrned,  p.  877. 

WRAPPERS. 

Ot  baking  powders  not  subject  of  forgery,  p.  17. 

"WRITING  CONTAINING  EVIDENCE  OF  ANY  EXISTING  DEBT." 
Construed,  p.  57S. 

"WRTTTEN  INSTRUMENT." 
Construed,  p.  388. 


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